STATE OF NORTH CAROLINA
v. Wake County
Nos. 02 CRS 49806-9
EUGENIO DUQUESNE,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
James M. Stanley, Jr., for the State.
Michael J. Reece, for defendant-appellant.
HUDSON, Judge.
Defendant Eugenio Dusquesne was charged with trafficking in
cocaine by transportation; trafficking in cocaine by possession;
conspiracy to traffic in cocaine by possession and transportation;
and felonious speeding to elude arrest. The State's evidence
tended to show that Officer Julian Patrick Cullifer with the Wake
County Sheriff's Department's Drugs and Vice Unit received
information from a police agent that defendant was involved in the
sale and distribution of narcotics. Officer Cullifer arranged a
“buy/bust” transaction through the police agent and enlisted other
law enforcement agencies to assist in the “buy/bust.”
At approximately 1:11 p.m. on 7 June 2002, the police agent,who was wired for safety purposes, drove to a Burger King near Wake
Forest and Falls of the Neuse Roads to purchase one and one-half
ounces of cocaine from defendant. The police agent had $1,500 in
recorded serial number bills to purchase the cocaine. Officer
Cullifer stationed himself in the lot behind the Burger King.
Defendant pulled into the parking lot and parked beside the police
agent. Inside the agent's car, defendant told the agent that he
needed $1,220 for the one and one-half ounces of cocaine. Officer
Cullifer heard the money being counted. Defendant then advised the
agent that he would be back in five or ten minutes.
Defendant drove one-quarter of a mile up Wake Forest Road to
the Falls apartments. Assistant Special Agent Shirley Lefeavers
Burch of the State Bureau of Investigation saw defendant arrive at
the apartments, get out of his car and turn into a breezeway.
Approximately twenty minutes later, she saw defendant come from
behind stairs on the first floor and get back in his car. Agent
Burch then walked down the breezeway, noted the number of the one
apartment and returned to her vehicle for surveillance of the
apartment. Officer Cullifer informed Deputy Lambert, who was in a
marked police car, that defendant was about to leave the apartment
complex and to conduct a vehicle stop of the suspect.
When Deputy Lambert turned on his emergency equipment for the
stop, defendant sped away. Police chased defendant for over five
miles into downtown Raleigh. Right after Assistant Chief Lewis
Nuckles of the Wake County ABC Law Enforcement saw defendant's
vehicle in a parking lot, he saw defendant running toward aconvenience store on Hillsborough Street. Chief Nuckles pulled
over his vehicle and gave chase on foot. During the chase, Chief
Nuckles saw defendant throw currency into some bushes. Chief
Nuckles apprehended defendant and frisked him for weapons. Less
than five minutes later, Chief Nuckles turned defendant over to
Officer Cullifer. Officer Cullifer patted down defendant for
weapons and drugs and found what he thought was crack cocaine in
defendant's pants pocket. The lab later determined that the
substance was 29.9 grams of crack cocaine.
In the meantime, Special Agent Burch was watching people leave
the apartment defendant had visited. Special Agent Burch and
another officer detained the people while they awaited a search
warrant. Officer Cullifer returned to the apartment with a search
warrant. Police recovered the entire $1,220 of the special funds
the special agent had given defendant to purchase the cocaine.
One of the three adults who had come out of the apartment was
Lujano Beltran Bernardo. At trial, Bernardo testified through an
interpreter that he lived in the apartment searched by police with
his wife and children and that his wife sold gold. Bernardo
testified that he was currently being held in the Wake County jail
because he was arrested for cocaine possession in June. He also
testified that he knew defendant and that he had sold defendant
cocaine on one occasion three days before his arrest. When asked
how much cocaine he had given defendant in the past, defense
counsel objected. After conducting a voir dire examination, the
trial court allowed Bernardo to testify before the jury that he hadsold defendant two ounces of cocaine three days before his arrest.
Bernardo then testified that on the day he was arrested, he gave
defendant one ounce of cocaine. Bernardo pled guilty to the
cocaine charges against him and hoped to receive a lighter sentence
through his testimony.
Defendant testified that the only reason he went to Bernardo's
apartment was to buy gold jewelry and not drugs. Defendant further
testified that he panicked when he saw the police because he had
been the victim of police brutality. Defendant testified that the
money he received from the man in the Burger King parking lot was
for jewelry. He also testified that he did not have any cocaine in
his pocket when the police stopped him.
A jury found defendant guilty as charged. The trial court
sentenced defendant to thirty-five to forty-two months imprisonment
for the two trafficking convictions; a consecutive sentence of
thirty-five to forty-two months imprisonment for the conspiracy to
traffic in cocaine conviction and a consecutive sentence of ten to
twelve months for the felonious speeding to elude arrest
conviction. Defendant appeals.
In the sole assignment of error defendant brings forward, he
contends the trial court erred by allowing Bernardo to testify that
he sold defendant two ounces of cocaine three days prior to the day
defendant was arrested. He argues that this evidence placed his
character at issue in violation of N.C. Gen. Stat. § 8C-1, Rule
404(b). We disagree.
N.C. Gen. Stat. § 8C-1, Rule 404(b) provides in part: 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). Rule 404(b) is a rule
of inclusion of relevant evidence of prior bad acts unless the only
reason the evidence is offered is to show the defendant's
propensity to commit a crime of the nature of the act charged.
State v. Barnett, 141 N.C. App. 378, 389, 540 S.E.2d 423, 430-31
(2000), affirmed 354 N.C. 350, 554 S.E.2d 644 (2001).
Here, the State's witness testified that he had previously
sold two ounces of cocaine to defendant. We do not find this
evidence was offered to show action in conformity with a
propensity. Rather, Bernardo's testimony was probative of
defendant's intent and knowledge. Thus, the trial court properly
concluded that Bernardo's testimony was admitted for a proper
purpose within Rule 404(b). This assignment of error is without
merit.
No error.
Judges MCGEE and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***