in the Court of Appeals 6 September 2018
by defendant from judgment entered 26 September 2016, by
Judge Eric L. Levinson in Lincoln County No. 15CRS051911
Attorney General Joshua H. Stein, by Assistant Attorney
General M. Elizabeth Guzman, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Emily H. Davis, for defendant-appellant.
August 23, 2016, a Lincoln County jury found David Alan
Keller ("Defendant") guilty of solicitation of a
minor by computer or electronic device and appearing at a
meeting location for the purpose of committing an unlawful
sex act. Defendant timely appeals, arguing that the trial
court erred when it did not submit the defense of entrapment
to the jury. We find no error.
and Procedural Background
11, 2015, Detective Brent Heavner ("Detective
Heavner") of the Lincolnton Police Department went
undercover online as a fifteen-year-old boy with the
fictitious name "Kelly." As part of a
year-and-a-half-long operation targeting online sexual
predators, "Kelly" posted a personal advertisement
titled "Boy Needs a Man" on Craigslist's
adults-only "Personal Encounters" section, which
Okay. I never, never did this so here it goes. I'm
wanting to experience a man. Never had tried I but want to. I
have been with a girl and I want to try a man. Am posting
here because I want a complete stranger so no one will find
out about this. I would like an older man that is not shy and
knows what to do because I will probably be a little nervous.
I would prefer a pic and a number so we can, so we cannot use
e-mail. I will be picky so be patient but would like to do
this soon. You would have to come to me. Would like to try
anything. And I am a white male open to anyone.
next day, at 6:07 a.m., Defendant responded to
"Kelly's" advertisement as follows:
Hey[.] I am a 44 white male looking for a young guy to take
care of and spoil[.] I am 175 pounds, 32/32 pants, 6.5 cut,
DD free. If you would like to be a daddy's boy and have
your every need provided for you let me know I am looking for
a boy to treat very special.
10:52 a.m., "Kelly" responded, "whats your
number and what do you like[?]" Defendant e-mailed his
phone number. When "Kelly" did not answer
immediately, Defendant sent the following three emails later
2:43 p.m.: I sent you my number. I look like a 44 year old
guy. Not fat and not ugly.
9:38 p.m.: Are u still needing a man. I am still looking for
9:51 p.m.: This man is still looking for his boy toy[.]
the next few days, "Kelly" and Defendant exchanged
a series of text messages all detailing Defendant's
desire for "Kelly" to live with him. After initial
introductions, Defendant stated, "I could offer you a
home. Car to drive[, ] phone[, ] clothes[, and] money to
spend. Pretty much what ever you need." "I have had
3 boys. They never had to work and got everything they ever
asked for[.]" When Defendant and "Kelly"
exchanged photos (Detective Heavner used a photo from Google
images), Defendant stated, "I would love to make you my
boy," "I would take really good care of you,"
"I think you're a little hottie," and "I
could have sex 5 times a day." "Kelly"
responded that he could move in that day, but he was afraid
that he may be too young for Defendant.
[Detective Heavner]: I may be too young but I am needing a
place to go, my aunt is about to put me back in foster care
and I will run away if she does[.]
[Defendant]: How old are u[?] If your 17 it's legal[.]
[Detective Heavner]: I am not quiet (sic) 16 and
actually 16 is the legal age[.]
[Defendant]: Send me a pic I can see your face please[.]
[Detective Heavner]: I am scared to show my face right now.
[Defendant]: Well. I could let you live here with me and take
care of you. But we could not have sex till you was old
enough[.] . . . I do not want to go to jail[.] I had one boy
I played with when he was 16 but turned 17 the next week[.]
. . . .
[Defendant]: You know my son got on line and thought he was
talking to a girl it turned out to be a cop and when he went
to meet her he got arrested and went to jail for 3 years[.]
[Detective Heavner]: For real?
[Defendant]: Yes for real he really went to jail for 3 years
and now has to register as a sex offender[.]
the consequences of talking online to a stranger and knowing
that "Kelly" was not yet sixteen-years-old,
Defendant continued the conversation, agreeing to have sexual
relations with "Kelly."
[Detective Heavner]: I am very curious[.]
[Defendant]: Curious about what[?]
[Detective Heavner]: I don't know how to say it[.]
[Defendant]: Just say it. I won't judge you[.]
[Detective Heavner]: How do I know if I am[.] And if I come
there and we can't be sexual it might be a mistake[.]
[Defendant]: I said we could[.]
[Detective Heavner]: You said we could when I am old enough
[Defendant]: Well like I said don't want to talk through
text. But will talk to you in person about it[.]
[Detective Heavner]: You said I said we could so does that
mean yes cuz if not I may have to find someone else first to
see what its like[.]
[Defendant]: Don't find anyone else. Please[.]
[Detective Heavner]: Only if we can have oral sex and anal
tomorrow so I will know, just give me a yes or no and I will
shut up about it[.]
. . . .
[Defendant]: I have been looking for a boy for a long time[.]
exchanging numerous texts, Defendant agreed to meet
"Kelly" and take him back to Defendant's home.
When Defendant arrived at the meeting location, officers were
on scene and placed Defendant under arrest.
August 18, 2016, Defendant was indicted for solicitation by
computer or electronic device of a person believed to be
fifteen or younger for the purpose of committing an unlawful
sex act and appearing at the meeting location where he was to
meet the person whom he believed was a child. At trial,
Defendant testified that he began using Craigslist's
personal advertisements in 2006. He stated that over the
course of eleven years, he had met multiple men on the
website and three even lived with him for extended periods of
time. Defendant testified that he responded to
"Kelly's" advertisement because he and his
live-in companion were having problems and Defendant wanted
to make him jealous. After repeatedly claiming that he just
wanted to "make sure Kelly was okay," Defendant
finally conceded that sex is a part of what he gets in return
for his generosity.
August 23, 2016, the jury found Defendant guilty as charged.
On September 26, 2016, the trial court sentenced Defendant to
ten to twenty months imprisonment and mandatory registration
as a sex offender for thirty years. Defendant filed a
petition for a writ of certiorari, which was granted by this
Court. Defendant argues on appeal that the trial court erred
when it failed to instruct the jury on entrapment.
the evidence, taken in the light most favorable to the
defendant, is sufficient to require the trial court to
instruct on a defense of entrapment is an issue of law that
is determined by an appellate court de novo."
State v. Ott, 236 N.C.App. 648, 651, 763 S.E.2d 530,
532 (2014) (citation omitted). "Under a de novo review,
the court considers the matter anew and freely substitutes
its own judgment, for ...