State v Herron, (03-249) 12/02/2003

Appeal by defendant from judgment dated 25 September 2002 by Judge A. Leon Stanback, Jr. in Durham County Superior Court. Heard in the Court of Appeals 19 November 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General Susan K. Nichols, for the State.

Mark A. Key and Penny K. Bell for defendant-appellant.

BRYANT, Judge.

    Dwight Lamont Herron (defendant) appeals from a judgment dated 25 September 2002 entered consistent with a jury verdict finding him guilty of possession with intent to sell and deliver heroin, sale of heroin, delivery of heroin, and sentencing him as a habitual felon.
    The evidence at trial tends to show the following: On 27 August 2001, Investigators Patrice Vickers and Kelly Green of the Durham Police Department were assigned to an undercover “buy-bust” operation with the Crime Area Target Team. Their assignment was to “attempt to purchase controlled substances of any type” and, once a purchase was made, relay “the location, as well as the clothingdescription and what was sold to the awaiting arrest team.”
    At approximately 4:40 p.m., when it was still bright outside, Vickers drove Green in an unmarked police vehicle to the front of Building 36 on Wabash Street in the McDougald Terrace community. The area was known by police to have “problems with controlled substances being sold.” A man approached the vehicle, bent down to look inside the driver's side window, and asked the investigators what they needed. Vickers responded that she needed “two bags,” and the man confirmed that she meant “dope.” The investigators then watched the man walk across the street and enter an unknown apartment building. During the approximately three minutes the man was away from the vehicle, both investigators provided descriptions of the suspect by radio to the arrest team. When the man returned from the apartment building, he handed Vickers “two glassine baggies that contained a powdery substance,” and Vickers gave the man two twenty-dollar bills. Forensic drug analysis later identified the drugs as heroin.
    Vickers testified she gave the arrest team a second description of the man as “a black male, dark-skinned, wearing a black do-rag, blue and green checkered shirt and dark blue jeans or dark-colored pants.” In her report written within twenty-four hours, she omitted the descriptions of “dark-skinned male” and the “dark” color of the blue jeans. Greene testified he gave the description as a man “wearing a multicolored checkered shirt, blue jeans, and had a black do-rag.” Greene did not write a report, and he admitted he relied on Vickers' report for his testimony attrial. Greene stated that he had gotten a good look of defendant's face and a “distinguishable scar” on defendant's forehead. At trial, defendant admitted being at McDougald Terrace and talking with Vickers and Green on the date and time in question.
    Officer Tammy Tuck, a member of the arrest team, testified that she received information from Vickers and Greene by radio that the suspect was a “black male in a checkered shirt and blue pants” and with a “do-rag.” Two to five minutes after being given the descriptions, Tuck and the arrest team spotted defendant in the area where the drug buy had occurred. Tuck could not recall whether defendant was wearing a “do-rag.” The team arrested defendant but did not find any money on defendant's person. As requested by the team, Vickers and Green returned to the scene where they both identified defendant as the man they had seen conducting the drug transaction.
    At trial, defendant twice moved to dismiss the charges based on insufficiency of the evidence. The motions were denied.

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    The sole issue on appeal is whether the evidence was sufficient to identify defendant as the suspect. Defendant argues the descriptions of the suspect's clothing provided by the two investigators were inconsistent, and the investigators did not mention to the arrest team the suspect's height, weight, or other physical description besides the suspect's race.
    To establish sufficient evidence and thus survive a motion to dismiss, the State must present substantial evidence of allessential elements of the offense and identify the defendant as the perpetrator. State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” State v. Cross, 345 N.C. 713, 717, 483 S.E.2d 432, 434 (1997) (citation omitted). In evaluating the sufficiency of the evidence, “[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994) (citation omitted).
    Here, the evidence was sufficient to indicate defendant was the perpetrator of the charged offenses. Vickers and Green had the opportunity to view defendant at close proximity, under natural lighting, and for some time. Together, the two investigators provided descriptions of the suspect to the arrest team that were not inconsistent. After the arrest of defendant and at trial, the two investigators identified defendant as the suspect. Furthermore, Tuck had relied on the descriptions of the suspect's sex, race, clothing, and location in arresting defendant. Lastly, defendant admitted at trial to being at McDougald Terrace and talking with Vickers and Green on the date and time in question. Based on the evidence, a reasonable mind could conclude that defendant was the perpetrator of the offenses. Accordingly, taking the evidence in the light most favorable to the State, defendant's motions to dismiss were properly denied.    No error.
    Chief Judge EAGLES and Judge LEVINSON concur.
    Report per Rule 30(e).

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