The North Carolina Attorney General’s Office has filed its appeal brief in the case of Milton Morgan, the Durham man convicted of drug-dealing after being targeted by a police informant—even though he was not a bona fide drug dealer.

In April Morgan appealed his conviction from last year, arguing that the Durham police entrapped him into making a drug sale that he wouldn’t have otherwise made. He claimed that his trial judge erred by declining to instruct the jury to consider an entrapment defense.

In its appeal brief filed last week, however, the state argued that the case was clean, and that the informant never had to persuade Morgan to sell her the cocaine. The informant testified that the only thing she did to get Morgan to sell her drugs was to ask if he would do so, and that he readily acquiesced.

Morgan, a 63-year-old Navy veteran with no criminal record, was sentenced to probation for possession of cocaine, sale of cocaine and maintaining a dwelling for keeping or selling cocaine.

At the direction of DPD, informant Jennifer Burrage traveled to Duke Manor Apartments with a hidden recording device. Burrage couldn’t find the dealer DPD had targeted, but Morgan, an old acquaintance of Burrage’s, invited her into his home, where he had a small amount of drugs.

Burrage then returned to her DPD handlers, who were parked in an unmarked SUV nearby. She explained that she failed to obtain drugs from the targeted dealer, and that she had run into an old acquaintance—Morgan—who had a small amount of drugs in his apartment.

The DPD officers asked Burrage to attempt a drug buy from Morgan.

“He’s not a dealer,” she said.

The officers told her to try anyway.

At that, Burrage returned to Morgan’s apartment, bought $20 of cocaine, and quickly left.

Morgan’s appeal hinges on whether two elements occurred: whether law enforcement officers or their agents engaged in acts of persuasion, trickery or fraud to induce Morgan to commit a crime; and whether the criminal design originated in the minds of the police officers, or in the mind of Morgan.

In its brief the state contended that even if DPD did entrap Morgan into the sale of cocaine, Morgan cannot use that defense for possession the cocaine, or maintaining a dwelling for cocaine.