1. Drugs_conspiracy to sell_sufficiency of evidence
There was sufficient evidence that defendant had conspired
to sell cocaine where defendant took an undercover officer to a
motel room where two men talked exclusively with the officer and
sold him cocaine. The facts support a reasonable inference that
defendant knew the men and that she agreed to facilitate drug
transactions by bringing them customers.
2. Drugs_sale of cocaine_acting in concert_sufficiency of
evidence
The trial court did not err in submitting the charge of
selling cocaine to the jury where defendant took an undercover
officer to a motel room where two men talked exclusively with the
officer and sold him cocaine. The evidence reasonably supported
the conclusion that defendant acted in concert with others to
sell the cocaine.
3. Drugs_conspiracy to sell_instructions_identity of person to
whom cocaine sold
There was no plain error in a prosecution for selling and
conspiring to sell cocaine where defendant contended that the
court erred by not instructing the jury that it had to find that
the cocaine sale was to a particular person. The indictment
properly alleged that defendant sold a controlled substance to a
named officer, all of the evidence dealt with one sale, and there
was no dispute over the identity of the buyer. Defendant did not
demonstrate how the inclusion of the buyer's name in the jury
instructions would have resulted in a different verdict.
4. Drugs_mere presence_instruction not necessary
There was no plain error in a prosecution for selling and
conspiring to sell cocaine where defendant contended that the
court failed to instruct the jury on mere presence. Defendant
took an undercover officer to a motel room, the motel room was
opened when the man inside saw defendant, and the undercover
officer was immediately recognized as the potential customer.
The sale would never have occurred without defendant's
assistance.
TIMMONS-GOODSON, Judge.
On 16 March 2000, a jury found Teresa Ann Sams ("defendant")
guilty of selling and conspiring to sell cocaine during an
undercover operation coordinated by the Asheville Police
Department. At trial, Asheville police officer Danny Holden
("Officer Holden") testified that he was working undercover on the
evening of 2 July 1999 with Officer Joe Palmer ("Officer Palmer").
Wearing "plain clothes" and driving an unmarked vehicle, Officer
Holden drove "up and down the streets [of Asheville] looking for
people" from whom he could purchase cocaine. Officer Palmer was
concealed at the rear of the vehicle.
The officers first encountered defendant "on Church Street
[where] she was flagging cars down, waving at people as they drove
by." Officer Holden stopped the vehicle for defendant, who
immediately climbed into the passenger-side seat. Officer Holden
then asked defendant whether she could assist him in purchasing
cocaine. In response, defendant directed Officer Holden to a local
motel, assuring him that "there's someone in Room 114 that's [sic]
always got some [cocaine for sale]."
Arriving at the motel, defendant offered to obtain the
cocaine, but Officer Holden informed her that he preferred to make
the purchase. Officer Holden then accompanied defendant to Room114, where defendant knocked on the door. A man later identified
as Leonard Leverette, Jr. ("Leverette"), drew back the window
curtains of the room, and upon seeing defendant, opened the door
and allowed them to enter. Leverette immediately turned to Officer
Holden and asked him how much cocaine he wished to purchase.
Officer Holden replied that he "wanted 30, referring to a $30 rock
of crack cocaine." After making a telephone call, Leverette
informed Officer Holden that "all they had was a 15," which Officer
Holden agreed to purchase.
While waiting for a third party to deliver the cocaine,
defendant reached into the front of her pants and retrieved a small
plastic bottle. She then placed an item into the top of the bottle
and, using the bottle as a pipe, lit and began smoking it. Officer
Holden identified the odorous fumes arising from the bottle as
crack cocaine smoke.
Shortly thereafter, a man later identified as Julius Wiley
("Wiley") arrived and immediately approached Officer Holden, who
stated again that he wanted to purchase thirty dollars' worth of
cocaine. Wiley then sold Officer Holden two rocks of crack cocaine
for thirty dollars. Defendant stood approximately three or four
feet away from Officer Holden during the transaction but did not
interact with Wiley.
After acquiring the cocaine, Officer Holden left the room and
returned to his vehicle. Defendant followed shortly thereafter and
asked if Officer Holden would drive her back to Church Street.
Defendant also requested to smoke some of the recently-purchased
cocaine and inquired whether Officer Holden would like a "date." When Officer Holden informed defendant that he was not interested
in either a date or in sharing the cocaine, defendant became "very
angry" and accused him of "wasting [her] time" while she "could
have been making a lot of money." Defendant left the vehicle after
Officer Holden threatened to call law enforcement. Defendant
presented no evidence at trial.
Following the jury's guilty verdict, defendant entered into a
plea bargain whereby she agreed to plead guilty to cocaine
possession and habitual felon status. On 24 March 2000, the trial
court consolidated defendant's cases for judgment and sentenced her
to one hundred fifty-five (155) months' maximum imprisonment.
Defendant now appeals.
_____________________________________________________
Defendant presents the following issues for review: whether
the trial court erred in denying defendant's motions to dismiss and
by inadequately instructing the jury. For the reasons stated
herein, we find no error by the trial court.
[1]Defendant contends there was insufficient evidence that
she conspired to sell or assisted in the sale of cocaine, and that
the trial court therefore erred in denying her motion to dismiss
the charges against her. We disagree.
Upon a defendant's motion to dismiss, the trial court must
consider the evidence in the light most favorable to the State,
allowing every reasonable inference to be drawn therefrom. See
State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). A
motion to dismiss is proper when the State fails to present
substantial evidence of each element of the crime charged. SeeState v. McDowell, 329 N.C. 363, 389, 407 S.E.2d 200, 214 (1991).
"Substantial evidence is evidence from which any rational trier of
fact could find the fact to be proved beyond a reasonable doubt."
State v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d 396, 399 (1986).
"A criminal conspiracy is an agreement between two or more
people to do an unlawful act or to do a lawful act in an unlawful
manner." State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835
(1991). In order to prove conspiracy, the State need not prove an
express agreement; evidence tending to show a mutual, implied
understanding will suffice. See State v. Bell, 311 N.C. 131, 141,
316 S.E.2d 611, 617 (1984). The existence of a conspiracy may be
supported by circumstantial evidence. See id. Sale of cocaine, a
controlled substance, is prohibited under the North Carolina
Controlled Substances Act. See N.C. Gen. Stat. § 90-95(a)(1)
(1999).
Giving the State the benefit of every reasonable inference in
the instant case, as we must, we hold there was sufficient evidence
from which a reasonable jury could find that defendant conspired
with Wiley and Leverette to bring them customers for cocaine sales.
The evidence showed that defendant "flagged down" Officer Holden
and directed him to Room 114 at the motel, where, according to
defendant, "someone . . . always [had] some [cocaine]." Defendant
then offered to purchase the cocaine for Officer Holden. When
Officer Holden and defendant reached Room 114, Leverette opened the
door after seeing defendant. When defendant and Officer Holden
entered the room, Leverette immediately directed his questionstowards Officer Holden, rather than defendant. When Wiley arrived
at the room, he also communicated solely with Officer Holden.
Neither Leverette nor Wiley attempted to sell cocaine to defendant,
even though she was obviously a consumer and thus, a potential
client. As Officer Holden was a stranger to Leverette and Wiley,
the jury could reasonably infer from their actions that they were
acquainted with defendant, and that she had brought them drug
customers in the past. Thus, Leverette and Wiley did not need to
ask defendant's identity or Officer Holden's purpose in coming to
Room 114. A reasonable jury could find that Leverette and Wiley
understood that Officer Holden was the customer and acted
accordingly. These facts support a reasonable inference that
defendant knew Wiley and Leverette, and that she agreed to
facilitate drug transactions by bringing them customers. We
therefore overrule defendant's first assignment of error.
[2]Defendant further argues that there was insufficient
evidence that she sold cocaine or that she acted in concert with
others to sell cocaine. Thus, defendant contends that the trial
court erred in submitting the sale of cocaine case to the jury. We
disagree.
To act in concert means to act in conjunction with another
according to a common plan or purpose. See State v. Joyner, 297
N.C. 349, 357, 255 S.E.2d 390, 395 (1979). It is unnecessary to
show that defendant committed "any particular act constituting at
least part of a crime in order to be convicted of that crime under
the concerted action principle so long as he is present at the
scene of the crime and the evidence is sufficient to show he isacting together with another who does the acts necessary to
constitute the crime pursuant to a common plan or purpose to commit
the crime." Id.
As stated supra, the evidence before the trial court, taken in
the light most favorable to the State, reasonably supports the
conclusion that defendant conspired with Wiley and Leverette to
facilitate the sale of cocaine to Officer Holden. The evidence
similarly supports the inference that defendant was acting in
conjunction with Wiley and Leverette according to a common plan.
We hold there was sufficient evidence from which a reasonable jury
could conclude that defendant acted in concert with others to
commit the crime of sale of cocaine. The trial court therefore did
not err in submitting the charge of sale of cocaine to the jury,
and we overrule defendant's second assignment of error.
[3]By her third assignment of error, defendant argues the
trial court committed plain error by failing to instruct the jury
on an essential element of the crimes charged against her.
Specifically, defendant contends the trial court erred by failing
to instruct the jury that they had to find, beyond a reasonable
doubt, that the cocaine sale was to another person, namely Officer
Holden.
Defendant acknowledges that she did not object to the trial
court's instructions at trial and that therefore, appellate review
on this issue is limited to plain error. See N.C.R. App. P. 10
(c)(4) (2001). Plain error occurs where the court's instructional
error is so fundamental that it has "a probable impact on thejury's finding of guilt." State v. Odom, 307 N.C. 655, 661,
300
S.E.2d 375, 379 (1983). Thus, in order to prevail on her claim,
defendant must show that, absent the error, the jury probably would
have reached a different result. Id. Defendant has failed to make
such a showing. Moreover, the indictment properly alleged that
defendant "unlawfully, willfully and feloniously did sell to
Officer W.D. Holden a controlled substance." All of the evidence
presented at trial dealt with only one sale of cocaine. Further,
there was never a dispute at trial over the identity of the buyer.
The evidence presented showed that Officer Holden was the only
possible buyer of the cocaine. Defendant has failed to demonstrate
how, under these particular facts, the inclusion of the buyer's
name in the jury instructions would have resulted in a different
verdict. We therefore overrule defendant's third assignment of
error.
[4]Defendant also argues the trial court committed plain
error in failing to instruct the jury on the doctrine of "mere
presence." Defendant contends that the evidence at trial showed
that she was a mere bystander at the scene of the crime, and that
the trial court should have instructed the jury accordingly.
When a party requests a jury instruction, the trial court is
obligated to so instruct if the instruction is a correct statement
of the law and the evidence supports it. See State v. Rogers, 121
N.C. App. 273, 281, 465 S.E.2d 77, 82 (1996), cert. denied, 347
N.C. 583, 502 S.E.2d 612 (1998). Defendant did not request an
instruction on mere presence, however, nor was there evidence tosupport such an instruction. The evidence showed that defendant
was much more than "merely present" at the scene of the crime, in
that without defendant's assistance, the sale of cocaine to Officer
Holden would have never taken place. Figuratively speaking,
defendant was the key that opened Room 114 where the cocaine sale
occurred. Defendant directed Officer Holden to the motel, then
accompanied him to the room. Leverette opened the door to admit
Officer Holden after seeing defendant, without requiring Officer
Holden to provide identification or otherwise state the reason for
his presence. Likewise, although Wiley did not know Officer
Holden, he immediately recognized Officer Holden as the potential
customer. Thus, defendant was not merely a passive bystander, but
an active participant in the crime. We overrule defendant's final
assignment of error.
In conclusion, we hold defendant received a fair trial, free
from prejudicial error.
No error.
Judges HUDSON and TYSON concur.
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