STATE OF NORTH CAROLINA
v
.
Guilford County
No. 01 CRS 80751
BRANDON BUFORD DAVIS,
Defendant
Roy Cooper, Attorney General, by Stacey A. Phipps, Assistant
Attorney General, for the State.
Mary March Exum for defendant-appellant.
STEELMAN, Judge.
Defendant, Brandon Buford Davis, appeals a conviction for
trafficking in cocaine by possession of twenty-eight to two hundred
grams of cocaine. For the reasons discussed herein, we find no
error.
The State's evidence tended to show that on 22 February 2001,
several law enforcement officers, including members of the Crime
Abatement Team (CAT), were involved in surveillance and
investigation of defendant's activities at the Extended Stay Hotel
on Big Tree Way in Greensboro. During the investigation, Detective
N.O. Rankin of the Greensboro Police Department saw the name
“Tiffany Wilkins” on the hotel registration list for Room 339. He
recognized the name as that of an ex-girlfriend of defendant. Ahotel employee identified defendant by a photograph and stated that
defendant was staying in Room 339.
Detective Rankin attempted to call Room 339, but no one
answered. He and the CAT members also knocked on the door of the
room but received no response. At that time, Detective Rankin went
to obtain a search warrant for Room 339.
Sergeant W.T. Fox of the Greensboro Police Department was the
leader of the CAT. Sgt. Fox testified that the CAT secured the
area around Room 339. He and other officers knocked and announced
their presence several times with no response from inside the room.
However, the officers believed the room was occupied because the
door lock was visibly in use. Sgt. Fox requested backup, which
arrived about forty-five minutes later.
Thereafter, defendant exited the hotel room and encountered
CAT officers J.W. Ryan and M.S. Allred. The officers found Teksha
Cummings, defendant's girlfriend, inside the room. Officer J.R.
Swaringen secured the room by making sure that no one else was in
the room. In the course of securing the room, he looked under the
bed and observed a small quantity of marijuana. Cash in the amount
of $900 was seized from Ms. Cummings' person.
Defendant and Ms. Cummings were arrested. At the time of the
arrest, defendant had no drugs or paraphernalia on his person.
When Ms. Cummings arrived at the police station, she signed a
written consent for the police to search the hotel room.
After Detective Rankin received consent from Ms. Cummings to
search the hotel room, a search was conducted by Officers Ryan andSwaringen. The officers found and seized a mixing bowl, a fork, a
set of electronic scales, a mixer, and a shoe box. Officer Ryan
testified that a white, powdery residue was on several of the items
they seized. Officers seized 135.5 grams of cocaine and 18.1 grams
of marijuana from the room.
Ms. Cummings testified for the State. On the day in question,
she and defendant argued about defendant's involvement with Tiffany
Wilkins, his ex-girlfriend. Later that day, defendant left the
hotel room and returned with a shoe box, which he took into the
kitchenette. The telephone rang, but defendant told Ms. Cummings
not to answer it. Thereafter, she heard the police repeatedly
knock on the door and identify themselves, but defendant would not
allow her to open the door. Thirty to forty minutes after the
police stopped knocking on the door, defendant gave Ms. Cummings
$900 and told her to give it to his mother. Defendant then walked
out the door and was apprehended by police.
Officer J. B. Wilde testified about a previous incident
involving defendant that occurred on 1 February 2001. Defendant
was arrested by Officer Wilde after defendant fled on foot from a
traffic stop. Incident to that arrest, Officer Wilde found cocaine
and marijuana on defendant's person. The drugs seized from
defendant on that date were introduced at trial as the State's
exhibits 13 and 14. Special Agent H.T. Raney, Jr., a forensic
chemist with the North Carolina State Bureau of Investigation,
testified that he had examined these exhibits. He determined thatexhibit 13 consisted of 18.6 grams of cocaine, and exhibit 14
consisted of 9.2 grams of marijuana.
Defendant was indicted 11 June 2001 for trafficking by
possession of cocaine weighing twenty-eight to two hundred grams
and possession with intent to sell or deliver cocaine. A jury was
empaneled, and the cases were tried on 11 January 2002 in Guilford
County Superior Court. Upon the State's motion, these charges were
joined for trial with another charge of manufacturing cocaine. The
State filed a voluntary dismissal of the charge of possession with
intent to sell and deliver cocaine, prior to the cases being
submitted to the jury. After four hours of deliberations, the jury
declared that it was “hopelessly deadlocked,” and the trial court
declared a mistrial.
Defendant was tried again before a jury on 22 January 2002 on
the charges of trafficking by possession of cocaine and
manufacturing cocaine. The trial court denied defendant's written
pre-trial motion to dismiss both charges. A jury found defendant
guilty of trafficking in cocaine by possession of twenty-eight to
two hundred grams but not guilty of manufacturing cocaine.
In his first assignment of error, defendant argues that he is
entitled to a new trial because the trial court erroneously denied
his motion to dismiss the charges based upon double jeopardy.
Defendant contends that he had already been tried for trafficking
by possession of cocaine, which ended in a mistrial. He also
argues that since the State voluntarily dismissed the charge of
possession with intent to sell and deliver cocaine after the jurywas empaneled, it was double jeopardy to subsequently try defendant
with trafficking by possession of cocaine. We disagree.
The double jeopardy clauses of both the United States
Constitution and the North Carolina Constitution protect against a
second prosecution for the same offense after acquittal. State v.
Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986). “[W]here
the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision
requires proof of an additional fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 309
(1932); accord State v. Perry, 305 N.C. 225, 231-32, 287 S.E.2d
810, 814 (1982). “Jeopardy attaches when a defendant in a criminal
prosecution is placed on trial: (1) on a valid indictment or
information, (2) before a court of competent jurisdiction, (3)
after arraignment, (4) after plea, and (5) when a competent jury
has been empaneled and sworn.” State v. Shuler, 293 N.C. 34, 42,
235 S.E.2d 226, 231 (1977).
When the jury has been discharged because the court has
declared a mistrial, there has been no trial. See State v. Tyson,
138 N.C. 627, 629, 50 S.E. 456, 456 (1905). “Thus, the prohibition
against double jeopardy does not prevent the second trial of an
accused when his previous trial ended in a hung jury.” State v.
Felton, 330 N.C. 619, 628, 412 S.E.2d 344, 350 (1992).
Furthermore, trying defendant for trafficking in cocaine by
possession after the State dismissed the charge of possession withintent to sell and deliver cocaine was not double jeopardy.
Possession with intent to sell or deliver a controlled substance
has three elements: (1) possession, (2) of a controlled substance,
(3) with intent to distribute or sell the controlled substance.
State v. Casey, 59 N.C. App. 99, 116, 296 S.E.2d 473, 483-84
(1982). Trafficking in cocaine by possession has two elements: (1)
knowing possession of cocaine, and (2) the cocaine weighed 28 grams
or more. State v. White, 104 N.C. App. 165, 168, 408 S.E.2d 871,
873 (1991). The quantity of drugs seized is not an element of
possession with intent to sell or deliver cocaine. See State v.
Thobourne, 59 N.C. App. 584, 590, 297 S.E.2d 774, 779 (1982).
Similarly, intent to sell or distribute is not an element of
trafficking by possession. Thus, possession with intent to sell
and deliver is not a lesser included offense of trafficking by
possession. Each crime has at least one essential element that is
not an element of the other. Blockburger, 284 U.S. at 304, 706 L.
Ed. at 309; Perry, 305 N.C. at 231-32, 287 S.E.2d at 814.
Defendant was not, therefore, subjected to double jeopardy. This
assignment of error is without merit.
In his second assignment of error, defendant argues that the
trial court erroneously allowed into evidence quantities of cocaine
and marijuana from a separate and unrelated case in which defendant
had been charged. Defendant contends that he was unfairly
prejudiced by this evidence and that he is entitled to a new trial.
We disagree.
Rule 404(b) of the North Carolina Rules of Evidence provides: Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001). In drug cases,
evidence of other drug violations is often admissible under 404(b).
State v. Williams, 156 N.C. App. 661, 663, 577 S.E.2d 143, 145
(2003). Rule 404(b) is a rule of inclusion, subject to the
exception that such evidence must be excluded if its only probative
value is to show that the defendant has the propensity or
disposition to commit an offense of the nature of the crime
charged. Id.
In this case, the challenged evidence was probative of
defendant's knowledge and intent in connection with the charge of
trafficking in cocaine by possession of twenty-eight to two hundred
grams. The trial court so found after conducting a voir dire
hearing outside the presence of the jury. The trial court limited
the jury's consideration of this evidence to these specific
purposes in its charge to the jury. This assignment of error is
without merit.
NO ERROR.
Judges MARTIN and LEVINSON concur.
Report per Rule 30(e).
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