State v Mensch and Habershaw, (02-1530) 11/04/2003

Appeal by defendants from judgments entered 14 September 2001 by Judge Jesse B. Caldwell, III, in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 September 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Joseph Ellis Herrin, for the State.

    Noell P. Tin and C. Melissa Owen, for Erik Mensch defendant appellant.

            Gary C. Rhodes, for Timothy Baron Habershaw defendant appellant.

    McCULLOUGH, Judge.

    Defendants Erik Mensch and Timothy Baron Habershaw were tried jointly before a jury during the 10 September 2001 Session of Mecklenburg County Superior Court after being charged with one count of trafficking MDA/MDMA by possession and one count of trafficking MDA/MDMA by transportation. The State's evidence showed the following: Don Carter testified that he was an Assistant Supervisor with the North Carolina Alcohol Law Enforcement Division. Agent Carter was contacted by a confidential informant, Greg Cook, who told him that a man was willing to sell Carter 150pills of MDMA, which is also known as Ecstasy. Cook arranged for the 150 pills to be sold to Carter that evening for $3,000.
    On 24 January 2001 at about 9:00 o'clock, Agent Carter arrived at a business called Priscilla's and observed a car belonging to Patrick Bass. Bass was driving the vehicle, and his passengers were Erik Mensch, who was sitting in the back, and Timothy Habershaw, who was sitting in the front. After Agent Carter approached the men, Habershaw got out of Bass's vehicle and got into Agent Carter's vehicle. Habershaw then pulled out a Ziplock bag filled with pills. Based on his experience, Agent Carter believed that the pills were Ecstasy.
    Agent Carter told Habershaw that he needed to call his partner to get the money. According to Carter, Habershaw responded that he was not going to wait. Habershaw also mentioned that Carter could call him whenever he had the money. Habershaw and Agent Carter exited the vehicle, and Habershaw took the pills back to Bass's car. Agent Carter then gave the arrest signal to surveillance officers across the street.
    Agent Charlie Patterson drove into the parking lot behind the Bass vehicle. When Bass began to drive away, Agent Patterson followed the car. During this pursuit, Agent Patterson testified that he saw both passengers, Mensch and Habershaw, throw pills from the moving vehicle. After Bass was pulled over, law enforcement officers searched the car and found three pills. Agents also combed the area where the car had traveled and found 105 otherpills. The pills were analyzed by the SBI laboratory and were determined to be Ecstasy.
    An accomplice being tried separately, Patrick Bass, testified for the State that he had driven Habershaw to Priscilla's to meet Mensch. After arriving, Habershaw and Mensch discussed a drug transaction. Bass saw Mensch meet up with a green Acura and accept a Ziplock bag containing pills. According to Bass, Mensch told Habershaw that after the sale they would take the money to the person who had provided the pills.
    Defendant Mensch testified in his own defense and denied any involvement. He claimed that Bass came to Priscilla's to pick him up from work and was accompanied by Habershaw. Mensch also stated that Habershaw engaged in the drug transaction without any aiding, abetting, or acting in concert by Mensch. Defendant Habershaw offered no evidence.
    The jury found defendants guilty of one count of trafficking MDA/MDMA by possession and one count of trafficking MDA/MDMA by transportation. Judge Jesse B. Caldwell, III, sentenced each defendant to a minimum term of 35 months to a maximum term of 42 months in prison. Defendants appealed.
    On appeal, defendants argue that the trial court erred by: (I) giving a jury instruction on flight; (II) failing to give a jury instruction on interested witnesses; (III) failing to give a jury instruction on the testimony of an informant or undercover agent; (IV) allowing the prosecution to offer prior out of court statements of State witnesses before the testimony of thosewitnesses had been impeached; (V) denying a motion to dismiss; (VI) refusing to give the jury an instruction on a lesser included offense; and (VII) denying Habershaw's motion to be permitted to make the last argument to the jury.

    Defendants first argue that the trial court erred in giving a jury instruction on flight. The instruction in dispute, N.C.P.I., Crim. 104.35, was substantially given by the trial judge:
            Now, members of the jury, let me charge you on the law of flight. Members of the jury, the State contends that the Defendant fled. Evidence of flight may be considered by you together with all other facts and circumstances in this case in determining whether the combined circumstances amounts to an admission or for showing consciousness of guilt. However, proof of this circumstance is not sufficient in itself to establish either the Defendants [sic] guilt.

    A trial court may instruct the jury on flight if there is some
evidence in the record reasonably supporting the theory that defendant fled after the commission of the crime charged. State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 433-34 (1990). However, evidence that defendant left the scene of the crime is not enough to support an instruction on flight. State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991), aff'd, 987 F.2d 1038 (1993). There must also be some evidence that defendant took steps to avoid apprehension. Id. at 490, 402 S.E.2d at 392.
    The evidence in the record supports the trial court's instruction on flight. Both defendants fled the scene of the crime in a vehicle driven by Patrick Bass. More importantly, they tookaffirmative steps to avoid being apprehended. While the police were chasing them, both defendants threw drugs out the window. Therefore, the trial court properly instructed the jury on flight, and defendants' first assignment of error is overruled.

    Defendant Habershaw claims that the trial court erred by refusing to give a jury instruction on the testimony of an informer or undercover agent. The pattern jury instruction in question is N.C.P.I., Crim. 104.30:
            You may find from the evidence that a State's witness is interested in the outcome of this case because of his activities as an [informer] [undercover agent]. If so, you should examine such testimony with care and caution in light of that interest. If, after doing so, you believe his testimony in whole or in part, you should treat what you believe the same as any other believable evidence.
    In State v. Black, 34 N.C. App. 606, 239 S.E.2d 276 (1977), disc. review denied, 294 N.C. 362, 242 S.E.2d 632 (1978), this Court held that it was improper for the trial judge not to give the instruction for the testimony of an undercover agent where the officer participated in an undercover capacity in the offense for which the defendant was convicted. However, we find no such error here. First, the man who worked as a confidential informant in this case, Greg Cook, never testified. The only other possible “informant,” Patrick Bass, did not assist law enforcement in this case. He was merely an alleged accomplice who was tried separately. Bass did acknowledge that he helped law enforcement in unrelated matters after his indictment. However, Bass was not interested in the outcome of this case “because of his activities as an undercover agent.” Instead, his interest arose from being a potential accomplice, and the trial judge correctly gave an instruction on accomplice testimony:
        [M]embers of the jury, there is evidence which tends to show that the witness Bass was an accomplice in the commission of the crime charged in this case. . . . An accomplice is considered by the law as having an interest in the outcome of the case. You should examine every part of the testimony of this witness with the greatest care and caution.”

(Emphasis added.)

We find that the trial court's decision to give N.C.P.I., Crim. 104.25, the instruction on accomplices, while not giving the instruction on undercover agents, was not prejudicial error in this case.

    Defendants argue that the trial court erred in denying their motion to dismiss. We do not agree.
    In ruling on a motion to dismiss, the trial judge must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The Court must find that there is substantial evidence of each element of the crime charged and of the defendant's perpetration of such crime. Id. at 564, 411 S.E.2d at 595. “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id.
    Under N.C. Gen. Stat. § 90-95(h) (4b) (2001), any person who “transports, or possesses 100 or more tablets” of Ecstasy is guilty of trafficking. To prove the offense of trafficking by possession, the State must show (1) knowing possession of the controlledsubstance, and (2) that the controlled substance was in excess of the statutory amounts. State v. White, 104 N.C. App. 165, 168, 408 S.E.2d 871, 873 (1991). One is guilty of trafficking by transportation if he or she carries contraband from one place to another, whether it be by automobile or otherwise. State v. Outlaw, 96 N.C. App. 192, 196, 385 S.E.2d 165, 168 (1989), disc. review denied, 326 N.C. 266, 389 S.E.2d 118, 118-19 (1990).
     We find that the possession requirements were met because defendants knowingly possessed over 100 Ecstasy pills. Habershaw offered Carter, an undercover agent, a Ziplock bag full of pills. Although defendants tried to get rid of the drugs by throwing them out of a moving vehicle, 108 Ecstasy pills were recovered. Thus, there was evidence of possession in excess of the statutory amount. We also conclude that the transportation requirements were met because defendants carried the drugs from one place to another when they were riding in Bass's car and being chased by police. Accordingly, defendants' motion to dismiss was properly denied.

    Defendants argue that the trial court erred by denying a request that the lesser included offense of possession with intent to sell or deliver be submitted for the jury's consideration. In particular, they suggest that there is a serious question about whether the amount of drugs exceeded 100 pills. We disagree.
     On the issue of lesser included offenses, our Supreme Court has stated:        A trial court must submit to the jury a lesser included offense when and only when there is evidence from which the jury could find that the defendant committed the lesser included offense. When the State's evidence is positive as to each element of the crime charged and there is no conflicting evidence relating to any element, submission of a lesser included offense is not required. Mere possibility of the jury's piecemeal acceptance of the State's evidence will not support the submission of a lesser included offense. Thus, mere denial of the charges by the defendant does not require submission of a lesser included offense.

State v. Maness, 321 N.C. 454, 461, 364 S.E.2d 349, 353 (1988) (citations omitted).
    In this case, the State's evidence was positive with respect to the number of pills. The confidential informant, Greg Cook, arranged for 150 pills to be sold to Carter for $3,000. On 24 January 2001, Habershaw offered Carter a Ziplock bag full of pills. More importantly, there is no question that the number of pills found exceeded the 100 tablet threshold, even though some pills were found in the car and others were found on the path which the car took. Finally, an SBI laboratory confirmed that the discovered pills were Ecstasy. Therefore, this assignment of error is rejected.

    Defendant Habershaw contends that the trial court erred in refusing to allow him to make the last argument to the jury. However, the law in North Carolina is well settled. Under the General Rules of Practice for the Superior and District Courts, Rule 10, when a defendant elects to offer evidence, the State hasthe final argument, not a co-defendant. State v. Reeb, 331 N.C. 159, 180, 415 S.E.2d 362, 374 (1992). Here, Mensch chose to present evidence. Therefore, Habershaw was not allowed to make the final argument to the jury.
    We have considered defendants' other arguments and find them to be unpersuasive. After a careful review of the record and transcript, we conclude that defendants received a fair trial, free from reversible error.
    No error.
    Chief Judge EAGLES and Judge STEELMAN concur.
    Report per Rule 30(e).

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