STATE OF NORTH CAROLINA
v. Washington County
No. 01 CRS 836
WILLIS RAY CLAGON,
Defendant.
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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