STATE OF NORTH CAROLINA
v. Guilford County
Nos. 00 CRS 80494, 80495
VIVIAN O. KING
Attorney General Roy Cooper, by Assistant Attorney General
Linda Kimbell, for the State.
Public Defender Wallace C. Harrelson, by Assistant Public
Defender Frederick G. Lind, for defendant-appellant.
EAGLES, Chief Judge.
Vivian O. King (“defendant”) was found guilty of possession
with intent to sell or deliver marijuana and maintaining a dwelling
for keeping a controlled substance. Defendant appeals from
judgment entered on the jury verdicts. After careful consideration
of the briefs and record, we find no error.
Police in California notified the Guilford County Sheriff's
Department that a drug-sniffing canine had “alerted positive to the
presence of narcotics” for a United Parcel Service (“UPS”) package
bound for High Point. Upon its arrival, Sheriff's Detective James
Anders (“Anders”) picked up the package and took it to Guilford
County Sheriff's Department. There, Detective Richard Melton's(“Melton”) canine also “alerted on” the package. Anders obtained
a search warrant to open the package and found a metal tin which
held 5.09 pounds of compressed marijuana wrapped in plastic.
Detective Charlotte Rogers (“Rogers”), posing as a UPS driver,
delivered the package to its addressee, Amanda Clark, at 306 Ward
Avenue, Apartment A in High Point. Defendant answered the door,
identified herself as Amanda Clark, and signed for the package as
“A. Clark.” After waiting approximately fifteen minutes, Anders,
accompanied by three or four officers, executed a search warrant
for defendant's residence. Anders verbally identified himself
before entering the residence and each officer wore a raid vest
with “Sheriff's Department” printed on the front and back. Anders
found the opened UPS box under a table in the living room. Inside
defendant's bedroom closet, he found the tin of marijuana and two
other similar tins. The search also yielded a set of postal
scales, butts of marijuana cigarettes, three plastic baggies with
marijuana residue, two metal cans containing marijuana residue, and
Western Union receipts for wire transfers from defendant to two
individuals in California.
At trial the jury returned verdicts finding defendant guilty
of possession with intent to sell or deliver marijuana and
maintaining a dwelling for keeping a controlled substance. The
trial court consolidated the convictions for sentencing and
sentenced defendant to a suspended term of six to eight months
imprisonment. The trial court also placed defendant on supervisedprobation for thirty-six months and imposed a $2,000.00 fine.
Defendant appeals.
Defendant contends that the trial court erred in: (1) denying
defendant's request for a jury instruction on undercover officers
and (2) imposing a $2,000.00 fine on defendant as a condition of
probation. After careful review, we find no error.
Defendant argues that the trial court erred in refusing to
instruct the jury that the sheriff's detectives who testified were
interested witnesses due to their status as undercover agents.
Defendant requested the pattern instruction on informants and
undercover agents, see N.C.P.I.--Crim. 104.30 (1998), based on
testimony that Rogers, Anders, and Melton had all worked undercover
in drug interdiction operations. The trial court gave the
instruction only for Rogers, who had posed as a UPS driver in
delivering the marijuana to defendant. The trial court stated:
You may find from the evidence that a State's
witness, Detective C. A. Rogers, is interested
in the outcome of this case because of her
activities as an undercover agent. If so, you
should examine such testimony with care and
caution in light of that interest. If, after
doing so, you believe her testimony in whole
or in part, you should treat what you believe
the same as any other believable evidence.
However, the trial court refused to give the instruction in regard
to Anders and Melton, stating, “I don't believe that the evidence
supports that.” Defendant contends that the instruction was
warranted for Anders and Melton because they “were involved in an
operation to interdict packages from UPS that [contained]
narcotics.” Defendant claims that she was prejudiced by the lackof such an instruction due to the conflicts between her testimony
and that of Anders.
Police officers are not deemed, as a matter of law, to be
interested witnesses. State v. Sowden, 48 N.C. App. 570, 574-75,
269 S.E.2d 274, 277 (1980). However, it is “error for a trial
judge not to give the special instruction for the testimony of an
undercover agent where the officer participated in an undercover
capacity in the offense for which the defendant was convicted.”
State v. Moose, 101 N.C. App. 59, 69, 398 S.E.2d 898, 904 (1990),
disc. review denied, 328 N.C. 575, 403 S.E.2d 519 (1991). Here,
neither Anders nor Melton participated in an undercover capacity in
the shipment of marijuana to defendant. When they executed the
search warrant for defendant's residence, they acted overtly in
their law enforcement capacity. “[T]hus, the defendant was not
entitled to the undercover agent instruction” as to these officers.
Id. at 70, 398 S.E.2d at 904.
Defendant next contends that the trial court erred by imposing
a $2,000.00 fine. Defendant argues that this was error since she
lived on a fixed income consisting of Social Security disability
benefits and food stamps. Defendant notes the court expressed its
desire to impose an active prison sentence but was prevented from
doing so by the Structured Sentencing statutes. Defendant further
notes that the trial court was aware of her financial circumstances
since it appointed counsel for her appeal. Defendant asserts that
the trial court was “punishing [her] with a tremendous fine shecould not really afford to pay because [she] exercised her right to
a jury trial.”
The trial court may impose a fine in conjunction with a
suspended prison sentence. See G.S. § 15A-1340.17(b) (1999).
“[T]he amount of the fine is in the discretion of the court.” Id.
However, “[i]n exercising its discretion, the trial court must take
into account the nature of the crime, the level of the offense, and
the aggravating and mitigating factors, just as it would in setting
the length of imprisonment for a defendant.” State v. Sanford
Video & News, Inc., __ N.C. App. __, __, 553 S.E.2d 217, 218
(2001). Our statutes further provide that “the court should
consider the burden that payment will impose in view of the
financial resources of the defendant.” G.S. § 15A-1362(a) (1999).
We find no abuse of discretion by the trial court. Defendant
was convicted of two Class I felony drug offenses. Police found
defendant in possession of a tin containing more than five pounds
of marijuana. According to Anders, the marijuana had an estimated
street value of approximately $25,000.00. Police also found two
additional tins containing marijuana residue, a set of scales, and
three plastic baggies with marijuana residue. Receipts discovered
in the residence reflected wire transfers of $2,595.00 and
$2,110.00 from defendant to recipients in California. Based on the
evidence presented at trial, we cannot say the imposition of a
$2,000.00 fine was disproportionate to her offenses or was
otherwise unreasonable due to her limited resources. Moreover, we
find nothing in the record to suggest that the trial court soughtto punish defendant for exercising her right to a trial by jury;
nor has defendant pointed to any evidence to support this claim.
Accordingly, we find no error.
No error.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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