State v. Michael Blair

THIS
OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Michael A.
Blair, Appellant.

Appeal From Fairfield County

Kenneth G. Goode, Circuit Court Judge

Unpublished Opinion No.  2010-UP-194

Submitted March 1, 2010 – Filed March 8,
2010

REVERSED AND REMANDED

Deputy Chief Appellate Defender Wanda H.
Carter, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief
Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General
Salley W. Elliott, and Senior Assistant Attorney General Harold M. Coombs, Jr.,
all of Columbia; and Solicitor Douglas A. Barfield, Jr., of Lancaster, for
Respondent.

PER CURIAM:  Michael
A. Blair appeals his convictions for failure to stop for a blue light and
trafficking in crack cocaine, arguing the trial court erred in refusing to
charge the jury on the affirmative defense of entrapment.  We reverse and remand for a new trial
based on the trial court's refusal to charge entrapment.

This
case is substantially similar to State v. Brown,
362 S.C. 258, 265, 607 S.E.2d 93, 96-97 (Ct. App. 2004) (reversing and
remanding for a new trial when there was evidence to support an entrapment
charge yet the trial court refused to instruct the jury on the defense of
entrapment).  Specifically, the defendant
in Brown was entitled to an entrapment charge because there was
sufficient evidence of inducement and lack of predisposition.  Id. at
264, 607 S.E.2d at 96.

Like
the defendant in Brown, Blair delayed approximately two hours in
arriving at the agreed-upon location.  In the interim, Tina Peay, the
confidential informant, called Blair to find out what was taking him so long.  The
sheriff's office was not aware of Blair prior to Peay's phone call to a man
named "Tony."  In the tape recorded conversation with Peay, Blair stated,
"I ain't got nothing on me, so y'all might have to come back up here to
see the dude." 

Based
on these facts, Blair produced more than a scintilla of evidence of his lack of
predisposition.  See Brown, 362 S.C. at 263, 607 S.E.2d
at 95. Once established, the burden shifted to the prosecution to prove
predisposition beyond a reasonable doubt.  Id.  The trial court agreed
with the solicitor's assessment that there "may have been some
predisposition" on Blair's part and declined to charge entrapment on that
basis.  However, the prosecution did not
meet its burden of proof beyond a reasonable doubt.  Specifically, there was
not undisputed evidence of predisposition leading to only one reasonable
conclusion.  See State
v. Johnson, 295 S.C. 215,
217, 367 S.E.2d 700, 701 (1988) ("The issue of whether or not the defense
of entrapment has been established is ordinarily a question of fact for a jury
unless there is undisputed evidence and only one reasonable conclusion can be
reached."). 

Finally,
Blair suffered two-fold prejudice in this case: (1) entrapment was Blair's only
defense, and (2) the solicitor made comments regarding the absence of an
entrapment charge during closing arguments.  Accordingly, this matter is

REVERSED AND REMANDED.[1]   

HUFF, THOMAS, and
KONDUROS, JJ., concur. 

[1]  We decide this case without oral argument pursuant
to Rule 215, SCACR.