An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-801


Filed: 18 March 2003


    v.                            Henderson County
                                Nos. 01 CRS 2972, 2973
RICHARD LEE PEAK                        3272, & 3273

    Appeal by defendant from judgments dated 12 December 2001 by Judge Zoro J. Guice, Jr. in Henderson County Superior Court. Heard in the Court of Appeals 4 March 2003.

    Attorney General Roy Cooper, by William M. Polk, Director Victims and Citizens Services, for the State.

    Reita P. Pendry for defendant appellant.

    BRYANT, Judge.

    Richard Lee Peak (defendant) appeals from a judgment dated 12 December 2001 entered consistent with a jury verdict finding him guilty of sale and delivery of cocaine, two counts of possession of cocaine, and maintaining a place to keep a controlled substance.
    The State's evidence at trial revealed that on 27 September 2000, Agent John Pace (Agent Pace), an alcohol law enforcement agent stationed in the Henderson County area, was working undercover with Officer Lyle Case (Officer Case) and Detective Todd Letterman of the Hendersonville Police Department. Based upon a drug complaint, Agent Pace traveled to defendant's apartment located at 745 Florida Avenue in Hendersonville, North Carolina tomake a drug purchase from defendant. When Agent Pace arrived at the apartment, he knocked on the door and defendant's girlfriend, Rhonda Gabriel (Gabriel) opened it. Gabriel inquired of the agent what he wanted, whereupon Agent Pace stated he had come to see “Richard.” Gabriel invited the agent inside to wait for defendant. Agent Pace entered the apartment, and he and Gabriel began to converse. When Gabriel again asked what he wanted, Agent Pace replied he wished to buy $40.00 worth of crack cocaine. Gabriel and the agent continued to talk for about fifteen to twenty minutes when Gabriel acknowledged that she knew why Agent Pace was there and stated that they could “do it here if [he] want[ed].”
    Defendant arrived about five minutes later and inquired of Agent Pace who he was and what he wanted. When Agent Pace told defendant he was interested in buying a $40.00 quantity of crack cocaine, defendant motioned him toward the back bedroom. Once in the bedroom, Agent Pace observed defendant place crack cocaine into a crack pipe and begin to smoke it. Defendant shared the pipe and its contents with Gabriel and then offered the pipe to the agent. Agent Pace refused and again asked defendant about the crack cocaine he wanted to purchase. Defendant said he would first have to get the crack cocaine. Defendant and Agent Pace continued to converse, during which time defendant offered Gabriel for various sex acts. The two men agreed the agent would pay $40.00 for the crack cocaine and $60.00 to have oral sex and intercourse with Gabriel. Agent Pace gave defendant the $40.00, and, under the guise of having to get more money from an ATM, Agent Pace left theapartment and met with Officer Case. The two officers picked up some beer and cigarettes as requested by defendant, and Officer Case gave Agent Pace more money. They then discussed that after Agent Pace had given defendant the money, the agent would signal officers to come in and make the arrest.
    When Agent Pace returned to the apartment, Gabriel, now naked, met him at the door. The agent accompanied Gabriel back to the bedroom. Defendant directed the agent's attention to a dish with several rocks. Agent Pace looked at the dish and asked, “Is it good?” Defendant replied, “It's good stuff.” Pace paid defendant $60.00 to complete the transaction for sex acts to be performed with Gabriel. Agent Pace then pretended to check the front door and gave the signal to the team of arresting officers. The officers subsequently entered the residence and placed defendant, Gabriel, and Agent Pace (to protect his identity) under arrest. A search of the residence yielded crack cocaine and drug paraphernalia, as well as the $60.00 Agent Pace had given defendant to pay for the proposed sex acts with Gabriel. While being booked, both defendant and Gabriel identified 745 Florida Avenue as their address.
    Defendant did not offer any evidence a trial. Gabriel took the stand in her own defense. She testified in conformity with the State's evidence, explaining she had witnessed the exchange of money between defendant and Agent Pace for crack cocaine and sex with her. She also stated she had observed defendant leave the apartment for about five minutes after Agent Pace had left for theATM and return with crack cocaine. Gabriel denied agreeing to have sex with Agent Pace. She maintained it was defendant who offered her for sex in exchange for money. Gabriel testified defendant threatened to harm her if she did not go along with his sex for money proposition. She explained defendant had been abusive in the past and she had reported those incidents to the police. She confirmed that both she and defendant resided at the 745 Florida Avenue residence.


    The sole issue on appeal is whether defendant received ineffective assistance of counsel. Specifically, defendant contends his counsel was ineffective in that he failed to object to: (I) the admission of certain hearsay evidence and (II) testimony about uncharged offenses allegedly committed by defendant.
    To prevail on a claim of ineffective assistance of counsel, the defendant must show the following: (1) “that counsel's performance fell below an objective standard of reasonableness,” and (2) “that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error.” State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000). In State v. Braswell, our Supreme Court explained that the defendant must show more than mere deficient performance by counsel, but that “'counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.'” State v. Braswell, 312 N.C.553, 562, 324 S.E.2d 241, 248 (1985) (citation omitted). Mere allegations surrounding matters of trial tactics, without more, are not sufficient to meet this test. State v. Piche, 102 N.C. App. 630, 638, 403 S.E.2d 559, 564 (1991).

    Defendant first contends his trial counsel was ineffective because he failed to object to testimony regarding an anonymous tip received by the Hendersonville Police Department indicating defendant and Gabriel were selling drugs at their 745 Florida Avenue residence. Defendant argues such testimony was inadmissible hearsay. We disagree.
    This Court has held that information from confidential informants about drug activity at a particular residence may be admissible into evidence so long as that testimony is not offered to prove drug activity was actually occurring at the residence. See State v. Saunders, 64 N.C. App. 350, 352, 307 S.E.2d 197, 199 (1983). The police officer in Saunders testified he began an investigation of the defendant's residence after being informed by confidential, reliable sources of drug activities at the residence. Similarly, in the present case, Agent Pace and Officer Case testified they had received a tip regarding drug activities at the residence of defendant and Gabriel and, as a consequence, the Hendersonville Police Department conducted an undercover investigation of activities at that residence. As this evidence was offered to explain why police officers decided to investigate the activities at the residence of defendant and Gabriel, and notto show that drugs were indeed being sold at the residence, the statements were not hearsay. See id.

    Defendant also argues his trial counsel was ineffective because he failed to object to the admission of testimony about how defendant abused Gabriel and offered her for sex in exchange for money.
    The admissibility of evidence regarding “other crimes, wrongs, or acts” is determined by application of N.C. Gen. Stat. § 8C-1, Rules 404(b), 402, 401, 403, 104(b) and 105. State v. Haskins, 104 N.C. App. 675, 679, 411 S.E.2d 376, 380 (1991). That is, “[t]he evidence must be offered for a proper purpose, must be relevant, must have probative value that is not substantially outweighed by the danger of unfair prejudice to the defendant, and, if requested, must be coupled with a limiting instruction.” Id. Rule 404(b) provides that relevant evidence of other crimes, wrongs or acts “may . . . be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C.G.S. § 8C-1, Rule 404(b) (2001). Rule 404(b) has been noted to be a rule of inclusion and not exclusion. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). Rule 404(b) evidence is “subject to the weighing of probative value versus unfair prejudice mandated by Rule 403.” State v. Agee, 326 N.C. 542, 549, 391 S.E.2d 171, 175 (1990). To that end, our Supreme Court noted in Coffey, that evidence which is probative of the State's case is necessarilyprejudicial to the defendant; “the question is one of degree.” Coffey, 326 N.C. at 281, 389 S.E.2d at 56. “Whether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court.” Id.
    In this case, defendant takes issue with his trial counsel's failure to object to: (a) the testimony of Agent Pace and Officer Case that defendant, in return for $60.00, offered Gabriel for sex and (b) Gabriel's testimony that defendant had previously committed various acts of violence on her, resulting in her fear of defendant. We conclude that the testimony regarding defendant's offer of Gabriel for sex in exchange for money was indeed relevant to show the existence of a plan or design to commit the offenses charged, or at least, to accomplish a goal of which the offense charged was a part. Moreover, Gabriel's testimony that defendant had previously abused her and that she was afraid of him was relevant to explain why she did not object openly to defendant's offer of sex with her for money. The testimony tends to show that it was defendant's common plan or scheme to offer Gabriel for sex during drug transactions. In fact, Gabriel testified defendant had previously offered her for sex in exchange for money and told her “things would happen” if she did not cooperate. Further, Gabriel's previous attempts to resist defendant had resulted in severe beatings. Gabriel testified that when Agent Pace went to the apartment on 27 September 2000, she knew why he was there and told him that they could “do it here if [he] want[ed].” While not a part of the crime charged, such evidence was admissible inasmuch asit “'pertain[ed] to the chain of events explaining the context, motive and set-up of the crime . . . necessary to complete the story of the crime for the jury.'” Agee, 326 N.C. at 548, 391 S.E.2d at 174-75 (citation omitted). While necessarily prejudicial, we believe that the probative value of this evidence far outweighs any prejudice to defendant. Accordingly, this evidence was properly admitted by the trial court.
    Since the subject evidence was properly admitted at trial and a counsel's performance can only be deficient if it falls “below an objective standard of reasonableness,” Blakeney, 352 N.C. at 307, 531 S.E.2d at 815, it follows that trial counsel's failure to object to the admission of admissible evidence cannot form the basis of an ineffective assistance of counsel claim. Defendant's argument in this regard therefore fails.
    No error.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).

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