An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-61



Filed: 02 December 2003


v .                         Guilford County
                            No. 01 CRS 80751

    Appeal by defendant from judgment entered 27 February 2002 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 29 October 2003.

    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.
    Judges MARTIN and LEVINSON concur.
    Report per Rule 30(e).

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