STATE OF NORTH CAROLINA
v
.
Cabarrus County
Nos. 00 CRS 6637, 6638
MONTREAL ONTARIO BARBER
Attorney General Roy Cooper, by Special Deputy Attorney
General Charles J. Murray, for the State.
Baucom & Robertson, by Scott C. Robertson, for defendant-
appellant.
WALKER, Judge.
At the end of 1999, the Concord Police Department conducted an
undercover drug investigation through the use of undercover agents
from other jurisdictions attempting to buy controlled substances.
The current Chief of Police of the Gibson Police Department, D.M.
Bates, while he was with the China Grove Police Department, was one
such undercover agent during this investigation.
On 30 November 1999, Bates was working undercover in his
vehicle and talking with two individuals regarding the possibility
of his purchasing cocaine from them. He testified that, while hewas talking with these two individuals, the defendant approached
his vehicle and “had dialogue with me about not purchasing the
cocaine from these other individuals, that it was in fact fake.”
Defendant then entered Bates' vehicle and directed him to drive
approximately two miles up the street. Defendant exited the
vehicle, went into a residence, and returned with a twenty dollar
piece of cocaine which he sold to Bates. After the sale, Bates
went through a police photograph book and picked out the photograph
of the defendant as the individual who approached him and sold him
the cocaine.
Bates further testified that, on 7 December 1999, he was
working undercover in the same area when defendant again approached
and offered to sell him cocaine. Defendant sold Bates twenty
dollars worth of cocaine which the defendant had on him at the
time. Although he could identify the defendant from the prior
cocaine transaction, he again went through the police photograph
book and picked out the photograph of the defendant as the
individual who sold him the cocaine.
The vehicles used in these undercover investigations contained
video cameras to attempt to record the cocaine transactions and the
individuals involved. Over defendant's objection, the trial court
allowed the State to show the jury a copy of the videotape
recording of the two transactions involved here.
Defendant called his wife, Lessie Barber, who testified that
the defendant was home babysitting their children on the two days
in question. Defendant did not testify. The jury found thedefendant guilty of two counts of possession with intent to sell
cocaine and two counts of sale of cocaine.
We first address the defendant's contention that the trial
court erred in admitting the videotape recording into evidence and
showing it to the jury. As to the admissibility of a videotape
recording, “'[r]elevant evidence' means evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence.” N.C. Gen. Stat. § 8C-1,
Rule 401 (1999). Here, the videotape recording was used to
corroborate the testimony of Bates as to the identity of the
perpetrator. Despite defendant's assertion that he is not depicted
on either videotape recording, this was a jury determination based
on Bates' testimony and the jury's own comparisons. As defendant
has failed to cite any authority to the contrary, we hold that the
trial court did not err in allowing the videotape recording to be
shown to the jury.
Defendant also contends that the trial court erred in denying
his motion to dismiss because there was insufficient evidence to
establish him as the perpetrator. A motion to dismiss should only
be granted when, after taking the evidence in a light most
favorable to the State, the State fails to present sufficient
evidence of every element of the crime. State 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). “If the evidence is
sufficient only to raise a suspicion or conjecture as to either the
commission of the offense or the identity of the defendant as the
perpetrator of it, the motion to dismiss should be allowed.” State
v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982)(citing
State v. Cutler, 271 N.C. 379-383, 156 S.E.2d 679, 682 (1967)).
Here, Bates testified that he was in close proximity to the
perpetrator of the crime for extended periods of time on two
separate occasions. After each occasion, he identified the
defendant as the perpetrator from a photographic array. At trial,
Bates also identified the defendant as the perpetrator based on his
observations at the time of the sale. Furthermore, the videotape
recording was shown to the jury to corroborate Bates' testimony as
to identity. After a careful review of the record, we find there
was sufficient evidence to establish the defendant as the
perpetrator.
Defendant also filed a motion for appropriate relief with this
Court contending he was denied effective assistance of counsel at
his trial. The record before this Court is insufficient to enable
us to address defendant's motion. Therefore, we remand this matter
to the trial court for a hearing on the defendant's motion for
appropriate relief.
In conclusion, there was no error in defendant's trial. The
defendant's motion for appropriate relief is remanded to the trial
court for hearing. No error in the trial; motion for appropriate relief is
remanded.
Judges McGEE and BIGGS concur.
Report per Rule 30(e).
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