STATE OF NORTH CAROLINA
v. Union County
Nos. 01 CRS 4041-43
SIDNEY EDDIE
Attorney General Roy Cooper, by Assistant Attorney General
Marvin R. Waters, for the State.
Kay S. Murray for defendant appellant.
McCULLOUGH, Judge.
Defendant was found guilty of possession with intent to sell
and deliver cocaine and of sale of cocaine. He was sentenced as an
admitted habitual felon to an active term of 116-149 months.
The State presented evidence tending to show that on 2
February 2001, an individual identified as Major Oxner approached
an undercover vehicle occupied by Detective David McCallister and
Officer Homero Andrade of the Monroe Police Department and asked
the officers “what's going on.” Detective McCallister asked Oxner
for “a twenty.” Oxner responded, “[H]old cool, I'll be back.”
Oxner walked away from the officers' vehicle and met a man
identified as defendant. The officers saw defendant hold open his
hand and Oxner retrieve an item from defendant's hand. Oxnerwalked back to the officers' vehicle and handed Officer Andrade a
piece of a substance subsequently identified as crack cocaine.
Officer Andrade gave Oxner a twenty-dollar bill. At trial Oxner
testified on defendant's behalf and denied obtaining any crack
cocaine from defendant or selling any crack cocaine to the
officers.
Defendant first contends that the trial court erred by
admitting Oxner's statements to the officers. He argues the
statements were not admissible under the hearsay exception for
statements of a coconspirator. We reject this contention.
Although defendant objected to Detective McCallister's testimony
regarding Oxner's statements, defendant did not object to Officer
Andrade's subsequent testimony regarding the statements. The
benefit of an objection is waived when the same or similar evidence
is later admitted without objection. State v. Wright, 302 N.C.
122, 125-26, 273 S.E.2d 699, 702 (1981). Moreover, hearsay is
defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule
801(c) (2001). If an out-of-court statement is offered for a
purpose other than to prove the truth of the matter asserted, then
it is not hearsay and it is admissible for the purpose offered.
State v. Call, 349 N.C. 382, 409, 508 S.E.2d 496, 513 (1998). One
such situation is when the statement explains the subsequent
conduct of the person to which the statement is directed. State v.
Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990). Here, theevidence explained the subsequent responsive conduct of the
officers, and was therefore admissible.
Defendant next contends that the trial court erred by denying
his motion to dismiss at the close of all the evidence. He argues
the evidence is insufficient to show that he sold cocaine to the
officers because the evidence fails to show that defendant knew, or
had reason to know, Oxner would deliver the cocaine to the
officers.
In ruling upon a motion to dismiss, the trial court must
determine whether the State has presented substantial evidence of
each element of the offense and of perpetration of the offense by
the accused. State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413,
415 (1991). Substantial evidence is that which is “existing and
real, not just seeming or imaginary.” State v. Powell, 299 N.C.
95, 99, 261 S.E.2d 114, 117 (1980). The trial court must examine
the evidence in the light most favorable to the State, giving it
the benefit of every reasonable inference that may be drawn from
the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756,
761 (1992). If the trial court determines that the evidence is
sufficient to allow the jury to draw a reasonable inference of the
defendant's guilt of the crime charged, then it must allow the case
to go to the jury. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d
649, 652 (1982).
We conclude the trial court correctly allowed the case to go
to the jury. The evidence, viewed in the light most favorable to
the State, shows that the two undercover officers drove into aneighborhood where numerous complaints had been received regarding
blatant drug sales activity. After the officers arranged with
Oxner to purchase cocaine, defendant came out of a house and met
Oxner approximately 50 feet away from the officers' vehicle.
Defendant opened his hand and Oxner retrieved an item from
defendant's palm. Oxner then walked directly to the officers'
vehicle and gave the Officer Andrade a piece of crack cocaine in
exchange for money. “[A] person who is present and aids and abets
another in the commission of a criminal offense is as guilty as the
principal perpetrator of the crime.” State v. Polk, 309 N.C. 559,
567, 308 S.E.2d 296, 300 (1983).
Defendant's final contention is that the trial court erred in
finding him to be an habitual felon and in increasing his sentence
on that basis. He contends the habitual felon statute, N.C. Gen.
Stat. § 14-7.1 (2001), et seq., is unconstitutional. Having
admitted to habitual felon status, and not having moved to withdraw
the plea in the court below, defendant does not have the right to
raise this issue on appeal. State v. Young, 120 N.C. App. 456,
459, 462 S.E.2d 683, 685 (1995).
No error.
Judges MARTIN and CALABRIA concur.
Report per Rule 30(e).
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