State v Torres, (02-1553) 08/19/2003

Appeal by defendant from judgments entered 26 March 2002 by Judge L. Todd Burke in Superior Court, Guilford County. Heard in the Court of Appeals 4 August 2003.

Attorney General Roy Cooper, by Assistant Attorney General Richard A. Graham, for the State.

Jon W. Myers for defendant-appellant.

McGEE, Judge.

    Defendant appeals his convictions for trafficking in more than 400 grams of cocaine by possession and conspiracy to traffic in more than 400 grams of cocaine by possession.
    The State's evidence at trial tended to show that Greensboro police apprehended Walterlee Rajai Muhammad on 13 August 1999, after observing him deliver 1,131.5 grams of crack cocaine to Jeffrey Robinson for sale to an informant near the intersection of Logan Street and Law Street in southeast Greensboro. Muhammad told police that he had obtained the cocaine from defendant on 12 August 1999, pursuant to an ongoing arrangement in which defendant "fronted" or advanced Muhammad large quantities of cocaine for saleto others.
    In a telephone call recorded by police, Muhammad arranged to pick up two additional kilograms of cocaine from defendant at his restaurant in High Point. Defendant further instructed Muhammad to bring $27,000, which Muhammad owed defendant for previous transactions. Accompanied by an undercover officer, Muhammad went to meet defendant. On a prearranged signal, uniformed police entered the restaurant and took defendant into custody. Defendant acknowledged having firearms on the restaurant premises and told police that they "should have waited until he had a lot of cocaine." He claimed knowledge of "larger groups" of people moving substantial quantities of drugs and money into and out of the Greensboro/High Point area. However, no cocaine was found in the restaurant.
    Muhammad testified that defendant fronted him drugs on six to eight occasions during the month or two prior to his arrest. Muhammad described a typical transaction as follows: "Somebody would call me and want [drugs], and I would charge them maybe $1,000.00 more or $500.00 more than what [defendant] was charging me." When picking up a quantity of drugs from defendant, Muhammad would pay for the amount previously advanced to him.
    Muhammad testified that Robinson contacted him four or five days before 13 August 1999, looking for a half-kilogram of cocaine. Muhammad called defendant, who fronted Muhammad the cocaine for $12,000. Muhammad sold the drugs to Robinson for $12,500. Robinson telephoned Muhammad a few days later and asked for akilogram of crack cocaine. Muhammad quoted Robinson a price of $25,000 and telephoned defendant between 10:00 and 11:00 p.m. on 12 August 1999. Defendant told Muhammad to come directly to the restaurant. When he arrived, Muhammad paid defendant $9,000 of the $12,000 due for the half-kilogram. Defendant fronted Muhammad an additional kilogram of cocaine and told him, "Just bring me the money tomorrow for everything." Muhammad "cooked" the cocaine into crack and delivered it to Robinson on 13 August 1999, immediately before his arrest.
    Defendant argues the trial court erred in denying his motion to dismiss the conspiracy charge, since he was already in possession of the kilogram of cocaine on 12 August 1999 when Muhammad called him to request it. "In the case of a criminal conspiracy, the State must show, by competent evidence, only that the defendant entered into an agreement with one or more other persons to do an unlawful act or to do a lawful act by unlawful means or in an unlawful manner." State v. Cinema Blue of Charlotte, 98 N.C. App. 628, 634, 392 S.E.2d 136, 139-40 (1990) (citing State v. Massey, 76 N.C. App. 660, 334 S.E.2d 71 (1985)). "In order to prove conspiracy, the State need not prove an express agreement; evidence tending to show a mutual, implied understanding will suffice." State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991) (citing State v. Bell, 311 N.C. 131, 141, 316 S.E.2d 611, 617 (1984)). In this case, the State presented substantial evidence that defendant entered into an agreement wherein Muhammad would traffic in more than 400 grams of cocaine by possession. Muhammad telephoned defendant on 12 August 1999, seeking a kilogram of cocaine pursuant to an ongoing arrangement in which defendant fronted him cocaine for sale to others. Defendant "expressly agreed to obtain one [kilogram] of cocaine for [Mohammad], and it was the intention of both that [Mohammad] possess that amount." See Morgan, 329 N.C. at 658, 406 S.E.2d at 835. The State's evidence showed that defendant subsequently put Muhammad in possession of the cocaine delivered to Johnson on 13 August 1999, further demonstrating "a mutual, implied understanding." Id.
    Defendant next argues the trial court erred in admitting his statements to police regarding his prior drug-related activity pursuant to N.C. Gen. Stat. § 1A-1, Rule 404(b). Greensboro Police Corporal Allen S. Wallace testified, over objection, that defendant made the following statement after he was taken into custody at the restaurant:
        [H]e had been in the business of drug sales since the age 11, since he was out of his home. He also said that he could come up with 150 kilos of cocaine, and he could tell us about a shipment of marijuana, methamphetamine, and cocaine. . . . He continually stated that we should have [come] when he had more cocaine; he didn't have any there on the premise[s]. . . .

As quoted above, the bulk of defendant's statement referred not to unrelated bad acts but to his ongoing involvement in a large-scale drug enterprise. Accordingly, the evidence was admissible to prove defendant's plan and intent to traffick in cocaine, his intent and motive to conspire with Muhammad, and his ready ability to supply Muhammad with more than 400 grams of cocaine as detailed inMuhammad's testimony. See State v. Montford, 137 N.C. App. 495, 500, 529 S.E.2d 247, 251 (citing State v. Richardson, 36 N.C. App. 373, 375, 243 S.E.2d 918, 919 (1978)), cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000); see also State v. Love, 131 N.C. App. 350, 356-57, 507 S.E.2d 577, 582 (1998), aff'd, 350 N.C. 586, 516 S.E.2d 382, cert. denied, 528 U.S. 944, 145 L. Ed. 2d 280 (1999). To the extent defendant's remark about dealing drugs as an eleven-year-old child addressed conduct temporally removed from the present conspiracy, we find no reasonable possibility that this portion of his statement adversely affected the outcome of his trial. See N.C. Gen. Stat. § 15A-1443(a) (2001).
    The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court and they are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).
    No error.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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