An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1273


Filed: 20 May 2003


         v.                             Union County
                                     Nos. 01 CRS 4041-43

    Appeal by defendant from judgment entered 13 June 2002 by Judge Susan C. Taylor in Union County Superior Court. Heard in the Court of Appeals 5 May 2003.

    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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