An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-719


Filed: 06 May 2003


v .                         Union County
                            No. 01 CRS 4086, 4087, 4088

    Appeal by defendant from judgment entered 21 February 2002 by Judge Christopher M. Collier in Union County Superior Court. Heard in the Court of Appeals 15 April 2003.

    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.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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