An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-312


Filed: 18 November 2003


    v.                            Wake County
                                No. 00 CRS 067638

    On writ of certiorari from judgment dated 17 January 2001 by Judge Narley L. Cashwell, Jr. in Wake County Superior Court. Heard in the Court of Appeals 29 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Frank G. Swindell, for the State.

    Michael J. Reece for defendant-appellant.

    BRYANT, Judge.

    Abdoulie Faye (defendant), by writ of certiorari, appeals a judgment dated 17 January 2001 entered consistent with a jury verdict finding him guilty of trafficking in marijuana by possession.
    At trial, the State presented evidence tending to show that, on 1 August 2000, Officer Gary Toller of the Wake County Sheriff's Department contacted Detective John Szymeczek of the Cary Police Department to arrange for the controlled delivery of an intercepted Federal Express package containing 10.9 pounds of marijuana. Detective Szymeczek drove to the address listed on the delivery label, an apartment in Cary, and observed two men in the parking lot getting in and out of their respective vehicles. The detectiveleft to contact another detective of the Cary Police Department. When the two officers returned to the location, they again saw the two men, later identified as Malick Touray and defendant, in the parking lot. Based on his observations and investigation, Detective Szymeczek obtained an anticipatory search warrant.
    Special Agent Mark Parker with the North Carolina State Bureau of Investigation, posing as a Federal Express delivery driver, delivered the package to the designated address. Upon arrival, Agent Parker saw the two men standing at two vehicles parked in front of the delivery apartment. As Agent Parker walked toward the apartment with the package in his hands, the two men got into one vehicle, a white Mitsubishi Galant, which was visible from the door of the apartment. Agent Parker found inserted in the door of the apartment a note to the Federal Express delivery person directing the person to leave the package at the door. Agent Parker filled out a Federal Express notification slip and left it at the door. As he proceeded back to the delivery van, he observed one of the men, Touray, exit the white vehicle. Touray approached Agent Parker and asked whether the package was addressed to “Julia McMann.” When Agent Parker responded in the affirmative, Touray offered to sign for the package. While Agent Parker and Touray walked back to the apartment, Agent Parker observed the white vehicle exit the parking space and move very slowly. Touray signed for the package, opened the door of the apartment, and placed the package inside. Agent Parker glimpsed inside the apartment and saw that it was almost empty, as if someone were moving out.    Other officers conducting surveillance observed the white vehicle back out of the parking space and move across the parking lot very slowly, stopping at one point as if the occupant were observing Agent Parker. Defendant parked the vehicle in front of another apartment and exited the vehicle holding a cell phone in his hand. The surveillance officers approached defendant. With defendant's consent, the officers searched the white Mitsubishi Galant and found a black duffle bag in the trunk which contained two or three boxes of Ziploc bags, a towel with green vegetable material on it, a set of scales, a spray bottle of fabric softener, and used fabric softener sheets. After waiving his Miranda rights, defendant gave a statement in which he indicated Touray had asked defendant to accompany Touray to the apartment and to act as a lookout for the police. Touray told defendant that the package would contain marijuana and that Touray would give defendant “a cut” if defendant helped him. Touray also told defendant to write the note that was left on the apartment door.
    The forensic chemist who later opened the package and analyzed the material inside determined it to be 10.9 pounds of marijuana. Defendant did not present any evidence at trial.


    The sole issue on appeal is whether the trial court erred by denying defendant's motion to dismiss the charge of trafficking in marijuana by possession.
    In deciding a motion to dismiss, the court must determine whether there is substantial evidence of each essential element ofthe offense charged and of the defendant as perpetrator of the offense. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The court must consider all of the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference that may be drawn. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
    To sustain a conviction for trafficking in marijuana by possession, the State must prove that a defendant knowingly possessed more than ten pounds of marijuana. See N.C.G.S. § 90- 95(h)(1)a. (2001). While defendant concedes the evidence was sufficient on the element of Touray's possession of the marijuana, he argues the evidence was insufficient to establish he aided and abetted Touray in the commission of the offense. See State v. Ham, 238 N.C. 94, 97, 76 S.E.2d 346, 348 (1953); State v. Clark, --- N.C. App. ---, ---, 583 S.E.2d 680, 684 (2003) (“[a] person who aids or abets another person in the commission of [a crime] is equally guilty as a principal”). An accused is guilty of an offense by aiding and abetting if (1) the offense was committed by some other person; (2) the accused knowingly advised, instigated, encouraged, procured, or aided the other person to commit that offense; and (3) the accused's actions or statements caused or contributed to the commission of the offense by that other person. State v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175 (1996).
    In this case, the evidence, considered in the light most favorable to the State, shows that Touray asked defendant to accompany him to the apartment and to act as a lookout for thepolice. Touray told defendant that the package would contain marijuana and that he would give defendant “a cut” if defendant helped him. Touray asked defendant to bring “tools . . . to assist him with the marijuana.” Touray also asked defendant to write a note and leave it on the door of the apartment. Consistent with his own statement to the police: defendant was present with Touray when the package was delivered to the apartment; a duffle bag containing items used for the packaging of marijuana was found in defendant's vehicle; and a note was found on the door of the apartment. As a jury could reasonably find based on this evidence that defendant aided and abetted Touray in the commission of the offense, the trial court properly denied defendant's motion to dismiss.
    No error.
    Chief Judge EAGLES and Judge LEVINSON concur.
    Report per Rule 30(e).

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