An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1627


Filed: 18 November 2003


    v.                            Washington County
                                No. 01 CRS 836

    Appeal by defendant from judgment entered 27 August 2002 by Judge William C. Griffin, Jr., in Washington County Superior Court. Heard in the Court of Appeals 6 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Richard H. Bradford, for the State.

    Adrian M. Lapas, for defendant-appellant.

    GEER, Judge.

    On 27 August 2001, defendant Willis Ray Clagon was indicted for possession with intent to sell and deliver cocaine and sale and delivery of cocaine. Defendant contends that there was a fatal variance between the allegations in the indictment and the evidence offered at trial in that the evidence was insufficient to establish that he sold drugs to Detective Jerry Davis as alleged in the indictment rather than to a third party. Because we believe that the evidence, when viewed in the light most favorable to the State, was sufficient, we find no error.
    The State presented evidence at trial that tended to show the following. In April 2001, Detective Jerry Davis of the Washington Police Department was working with the Plymouth Police Departmentmaking undercover drug purchases. On 18 April 2001, Detective Davis met with two officers of the Plymouth Police Department who told him to go to Carol's Store. Detective Davis was supplied with a 1989 Ford Ranger pickup truck to drive. On the way to the store, Davis unsuccessfully attempted to purchase drugs from Joseph Barrow whom he saw standing on the street. Barrow climbed into the truck and the two men continued on to Carol's Store.
    Shortly before 6:00 p.m., Davis was making hand signals indicating his interest in purchasing drugs. Michael Barnes, who was riding a bicycle, approached Davis' window when he stopped at an intersection. Davis asked Barnes for a "twenty," which is a $20 rock of crack cocaine. Barnes told Davis to circle around the block and come back. Barnes then rode his bicycle towards Carol's Store. Due to traffic, Davis could not circle the block, so he too drove towards Carol's Store.
    Davis observed Barnes approach the defendant, Willis Ray Clagon, and he could see their lips moving in conversation. Davis positioned his truck 20 to 30 feet from the store where he could see Barnes and defendant talking. After a short conversation, defendant reached into his front right pocket and removed a clear plastic bag. Defendant then opened the bag and "reach[ed] inside the bag in a pinching type motion with his fingers." Davis watched as defendant removed a substance from the bag and handed it to Barnes.
    Barnes closed his hand around the substance and rode back towards Davis. Davis observed defendant turn "to position his bodydirectly looking at us, watching what we were doing." Barnes approached Davis' window, reached through the window with his right hand, and dropped a substance in Davis' hand. Davis testified that the substance appeared to be crack cocaine. Davis in return handed Barnes a $20 bill. Barnes returned directly to where defendant was standing and handed defendant the money.
    Defendant was convicted of possession with intent to sell or deliver cocaine and sale and delivery of cocaine. The offenses were consolidated for judgment and defendant was sentenced to one term of 15 to 18 months imprisonment. Defendant appealed.
    Defendant's sole argument on appeal is that the trial court erred by entering judgment on the charge of sale and delivery of cocaine because there was a fatal variance between the allegations in the indictment and the evidence presented at trial. Specifically, defendant contends that the indictment states that he sold a controlled substance to Davis, when the evidence presented by the State was that Davis obtained the drugs from Barnes. Defendant asserts that there was no evidence that defendant knew Barnes was acting on Davis' behalf prior to the transaction between defendant and Barnes.
    This Court has stated:
        The law is settled in this state that an indictment for the sale and/or delivery of a controlled substance must accurately name the person to whom the defendant allegedly sold or delivered, if that person is known.

            The State can overcome a motion to dismiss based on a variance claim by producing substantial evidence that defendant knew the cocaine was being sold to a third party, andthat the person named in the indictment was the third party. This guilty knowledge may be shown by circumstantial evidence.

State v. Cotton, 102 N.C. App. 93, 97, 401 S.E.2d 376, 379 (internal quotation marks and citations omitted), appeal dismissed and disc. review denied, 329 N.C. 501, 407 S.E.2d 543 (1991). In determining whether there was substantial evidence, the evidence must be viewed in the light most favorable to the State. State v. Black, 34 N.C. App. 606, 608, 239 S.E.2d 276, 277 (1977), disc. review denied, 294 N.C. 362, 242 S.E.2d 632 (1978).
    The issue before this Court is thus whether the State's evidence supports a reasonable inference that defendant knew Barnes was acting as a middleman for Davis. Based on the State's circumstantial evidence that Barnes and defendant had a conversation after Barnes left Davis, that defendant then viewed the entire transaction between Davis and Barnes (including the exchange of drugs and money), and that Barnes immediately brought defendant the money, we hold that a jury could have reasonably inferred that defendant knew that Barnes was acting merely as an intermediary for Davis. Defendant's argument on appeal that the evidence suggested that Barnes was acting as an intermediary for Barrow would require this Court to draw inferences in favor of defendant rather than the State, an approach inconsistent with our standard of review. Accordingly, we find no error.
    No error.    
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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