STATE OF NORTH CAROLINA
v
.
Union County
No. 01 CRS 4086, 4087, 4088
CHRISTOPHER MCDONALD
Attorney General Roy Cooper, by Assistant Attorney General
Kimberly Elizabeth Gunter, for the State.
Robert W. Ewing for defendant-appellant.
STEELMAN, Judge.
Defendant was found guilty of possession with intent to sell
and deliver cocaine and of sale of cocaine and pled guilty to being
an habitual felon. The trial court sentenced him to a minimum of
130 months and a maximum of 165 months imprisonment.
The State's evidence at trial tended to show that on 13
February 2001, Detective David McCallister and Officer Homero
Andrade, both of the Monroe Police Department, were working
undercover to purchase illegal narcotics. The officers' unmarked
vehicle contained audio and video surveillance equipment.
During their investigation, the officers drove to the
intersection of Charles and Tallyrand Streets where defendant
signaled to the officers by throwing his hand up in the air. Theofficers drove toward defendant, and Detective McCallister rolled
down his window. On direct examination, Detective McCallister
testified that defendant walked over to the vehicle and asked him
what he wanted. Detective McCallister replied that he wanted a
twenty dollar rock of crack cocaine. However, the surveillance
videotape showed that defendant asked for a ride, and Detective
McCallister then asked him “[d]o you know anybody holding [drugs]?”
According to Detective McCallister's testimony on direct, defendant
then responded “I know where some [crack cocaine] is at, I'm going
to get some now.”
After this initial exchange, defendant got into the front
passenger seat of the vehicle, as Officer Andrade moved to the rear
passenger seat. Defendant then instructed Detective McCallister to
drive to an area in Monroe known as Webb Town and directed him to
a residence at 400 Norman Street. At defendant's request, the
officers drove to the end of Norman Street to wait for him as he
went into the residence.
Defendant exited the residence after a couple of minutes
accompanied by Shawn Wilson (“Wilson”). Detective McCallister
drove up to where the men were standing outside the residence, and
they got into the vehicle, defendant in the front passenger seat
and Wilson in the rear passenger seat behind the driver. Defendant
told Detective McCallister to drive, and Detective McCallister
handed defendant thirty dollars. Defendant counted the money, and
Wilson reached over Detective McCallister's shoulder and handed him
two rocks of an off-white substance, which the North Carolina StateBureau of Investigation (“SBI”) tested and determined was cocaine.
After defendant counted the money, he gave it to Wilson.
Detective McCallister then drove back to the intersection of
Charles and Tallyrand Streets and, at the request of defendant and
Wilson, parked on the side of the road. Defendant and Wilson went
into a residence on Charles Street, where they remained for about
five minutes while the officers waited in the parked vehicle.
Defendant and Wilson returned and got into the vehicle. Wilson
gave defendant “four to five small grainy little particles, off-
white in color.” Defendant then exited the vehicle and entered the
Charles Street residence where he remained. Detective McCallister
and Officer Andrade drove away with Wilson still in the vehicle.
The substance defendant received from Wilson was never analyzed by
the SBI for the presence of an illegal substance.
At the close of the State's evidence, defendant made a motion
to dismiss for insufficient evidence on each element of the
offenses charged, and the trial court denied the motion. Defendant
did not present any evidence.
Defendant first contends the trial court erred in denying his
motion to dismiss his charges for possession with intent to sell
and deliver cocaine and for sale of cocaine for insufficient
evidence. He argues the State was unable to prove each element of
the charged offenses because he was not a participant in the crimes
alleged and his mere presence was insufficient evidence to allow
the case to go to the jury.
When ruling on a motion to dismiss for insufficient evidence,the trial court must determine whether substantial evidence of each
element of the crime charged has been presented by the State.
State v. Carr, 122 N.C. App. 369, 470 S.E.2d 70 (1996).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State v.
Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citation
omitted). The trial court must view all evidence in the light most
favorable to the State and draw all reasonable inferences in the
State's favor. State v. Patterson, 335 N.C. 437, 439 S.E.2d 578
(1994).
The State's theory in this case was that defendant acted in
concert with Wilson to sell cocaine to Detective McCallister.
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 is acting together with another who does
the acts necessary to constitute the crime
pursuant to a common plan or purpose to commit
the crime.” Id.
State v. Sams, 148 N.C. App. 141, 145, 557 S.E.2d 638, 641 (2001),
appeal dismissed and disc. review denied, 355 N.C. 352, 562 S.E.2d
429 (2002).
In Sams, defendant flagged down an undercover officer and got
into his vehicle. Id. at 142, 557 S.E.2d at 639. The officer
asked the defendant if she could assist him in purchasing cocaine.
Id. The defendant then directed the officer to a local motel,assuring him that someone there would have cocaine to sell. Id.
After arriving at the motel, the officer accompanied the defendant
to a room, and the defendant knocked on the door. Id. The man
occupying the room first looked out the window to determine who was
there, then opened the door and allowed the two to enter. Id. at
142, 557 S.E.2d at 639-40. He immediately asked the officer how
much cocaine he wished to purchase. Id. at 142, 557 S.E.2d at 640.
Later, when the exchange of money and drugs occurred, the defendant
was standing four feet away from the officer. Id. at 143, 557
S.E.2d at 640. The Sams Court held that “there was sufficient
evidence from which a reasonable jury could conclude that [the]
defendant acted in concert with the others to commit the crime of
sale of cocaine.” Id. at 145, 557 S.E.2d at 641.
Like Sams, the evidence here, taken in the light most
favorable to the State, reasonably supports the conclusion that
defendant acted in concert with Wilson to commit the crimes
charged. Defendant flagged down the officers and, after learning
that they were looking for drugs, directed them to drive to Norman
Street where Wilson was located. Defendant brought Wilson to the
officers' vehicle, where Wilson then gave Detective McCallister two
rocks of crack cocaine. While in the vehicle, defendant counted
the money from Detective McCallister then handed it to Wilson.
Based on this evidence, the jury reasonably could conclude
defendant and Wilson acted in concert according to a common plan to
sell cocaine. We hold the trial court did not err in denying
defendant's motion to dismiss and submitting the charges to thejury.
In his next assignment of error, defendant argues the trial
court erred in failing to give a mere presence instruction to the
jury.
The trial court must give a requested instruction that is a
correct statement of the law and supported by the evidence in the
case. State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38, appeal
dismissed and disc. review denied, 354 N.C. 72, 553 S.E.2d 206
(2001). It is well-settled law that a defendant's mere presence at
the scene of a crime, standing alone, does not support a finding of
guilt. State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001).
“There is no obligation, however, to give an instruction on mere
presence where the evidence is undisputed that the defendant
participated in the crime and was not just a bystander.” Id. at
591, 548 S.E.2d at 727-28 (citation omitted).
In the present case, the same evidence which supports the
conclusion that defendant acted in concert with Wilson to commit
the charged offenses, supra, also supports the finding that
defendant was more than just a bystander in the sale of cocaine.
From this evidence, it is apparent defendant facilitated the drug
transaction. Therefore, we hold the trial court did not err in
refusing to give the requested mere presence instruction.
Finally, defendant contends the trial court committed plain
error in its instruction to the jury on the sale of cocaine charge.
The trial court's instruction was as follows:
Now I charge that for you to find the
defendant guilty of this offense, the Statemust prove beyond a reasonable doubt that the
defendant knowingly sold cocaine to David
McCallister.
So I charge that if you find from the evidence
beyond a reasonable doubt that on or about the
alleged date, the defendant knowingly either
acting by himself or acting together with
another knowingly sold cocaine to David
McCallister, it would be your duty to return a
verdict of guilty.
If you do not so find or if you have a
reasonable doubt, it would be your duty to
return a verdict of guilty of sell [sic] of
cocaine, but it would be your duty to consider
whether the defendant is guilty of delivery of
cocaine.
(emphasis added). Defendant did not object to this instruction at
trial but now contends this instruction constitutes plain error.
Under the plain error standard, defendant must demonstrate “(i)
that a different result probably would have been reached but for
the error or (ii) that the error was so fundamental as to result in
a miscarriage of justice or denial of a fair trial.” State v.
Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997) (citations
omitted).
Our Supreme Court has held that in reviewing a jury
instruction,
“The charge of the court must be read as a
whole..., in the same connected way that the
judge is supposed to have intended it and the
jury to have considered it....” It will be
construed contextually, and isolated portions
will not be held prejudicial when the charge
as [a] whole is correct. If the charge
presents the law fairly and clearly to the
jury, the fact that some expressions, standing
alone, might be considered erroneous will
afford no ground for reversal.
State v. Rich, 351 N.C. 386, 393-94, 527 S.E.2d 299, 303 (2000)(citations omitted).
The trial court did err in instructing the jury that if it had
a reasonable doubt of defendant's knowing sale of cocaine, either
alone or in concert, it must find him guilty. However, the
instruction must be viewed in its entirety to determine whether the
trial court committed plain error. At the beginning of its charge
to the jury, the trial court instructed on the State's burden of
proof:
The defendant has entered a plea of not
guilty. The fact that he has been indicted is
no evidence of guilt. Under our system of
justice, when a defendant pleads not guilty,
he is not required to prove his innocence; he
is presumed to be innocent. The State must
prove to you that the defendant is guilty
beyond a reasonable doubt.
A reasonable doubt is a doubt based on reason
and common sense, arising out of some or all
of the evidence that has been presented, or
lack or insufficiency of the evidence, as the
case may be. Proof beyond a reasonable doubt
is proof that fully satisfies or entirely
convinces you of the defendant's guilt.
(emphasis added). This correct explanation of the State's burden
to prove defendant's guilt beyond a reasonable doubt coupled with
the emphasis on the reasonable doubt standard during the specific
instruction on the sale of cocaine charge amount to an instruction
which, taken as a whole, conveys the correct legal standard to the
jury.
Moreover, the trial court correctly instructed the jury on the
possession with the intent to sell and deliver cocaine charge.
Since the trial court consolidated the sale of cocaine and
possession with the intent to sell and deliver cocaine convictionsinto a single habitual felon offense, either conviction would have
supported the judgment.
Defendant cannot demonstrate that a different result would
have been reached absent the error in the instruction on the sale
of cocaine charge or that there was a fundamental miscarriage of
justice. Therefore, we hold the trial court did not commit plain
error in its instruction.
NO PREJUDICIAL ERROR.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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