1. Drugs-_trafficking in cocaine--federal conviction of unlawful distribution--state
prosecution barred
N.C.G.S. § 90-97 barred the prosecution of defendant in state court for trafficking in
cocaine after defendant was convicted in federal court of unlawful distribution of cocaine under
federal law for the sam transactions that formed the basis for the trafficking charges. The “same
act” as used in N.C.G.S. § 90-97 focuses the relevant analysis on the underlying actions for
which defendant is prosecuted at the state and federal levels rather than on the elements of the
offenses.
2. Drugs--conspiracy to traffic in cocaine--federal conviction of unlawful distribution--
state prosecution not barred
N.C.G.S. § 90-97 does not bar the prosecution of defendant in state court for conspiracy
to traffic in cocaine by sale after defendant was convicted in federal court of unlawful
distribution of cocaine because the federal statute under which defendant was convicted only
criminalizes the acts of manufacturing, distributing, dispensing or possession with the intent to
engage in one of those acts; conspiracy is separately prohibited by another federal statute; and
defendant was not charged in federal court under the conspiracy statute.
3. Conspiracy--number of conspiracies--trafficking in cocaine_-sufficiency of evidence
The trial court erred by concluding that there was sufficient evidence to show three
separate conspiracies to traffic in cocaine, because: (1) the undercover officer's objective was at
all times to identify and apprehend a drug dealer's source; (2) each transaction was temporally
separated from the preceding transaction by no more than fourteen days and all transactions
transpired over a short period of time within a one month period; (3) the undercover officer's
statement to the drug dealer indicated the transaction was not a separate or discreet transaction
but was to be part of an ongoing agreement for the continued purchase and supply of cocaine;
and (4) the transactions were sufficiently similar based on the surrounding circumstances to hold
that the transactions were part of a single conspiracy entered into by the same parties for the same
purpose.
4. Drugs--motion for appropriate relief--habitual felon conviction--possession of
cocaine
Defendant's motion for appropriate relief seeking to overturn his habitual felon
conviction is denied because our Supreme Court has held that the offense of possession of
cocaine is classified as a felony for all purposes.
CALABRIA, Judge.
In March 2001, a detective from the Durham County Sheriff's
Department initiated an undercover drug operation. After numerous
purchases of prescription controlled substances from Nancy Ashley
(“Ashley”), the undercover officer negotiated to purchase one and
one-half ounces of cocaine from her. On 5 April 2001, the
undercover officer met Ashley and went to her sister's house to
arrange a deal.
Thereafter, Dalton Osborn Brunson (“defendant”) arrived and
greetings were exchanged. Defendant sold the undercover officer a
bag of white powder between the size of a golf ball and a tennis
ball. Later, the State Bureau of Investigation (“SBI”) confirmed
the bag of white powder contained 41.5 grams of cocaine
hydrochloride (“cocaine”). On 17 April and again on 1 May 2001,
two additional purchases for approximately one and one-half ounces
of cocaine occurred. Immediately following defendant's 1 May 2001
sale to the undercover officer, law enforcement officials
apprehended and arrested defendant after he attempted to flee.
On 6 August 2001, defendant was indicted by the Durham County
Grand Jury of, inter alia, three counts of conspiracy to traffic in
cocaine, nine counts of trafficking in cocaine, and four counts of
possession of cocaine with intent to sell or deliver. On 27 August
2001, after state prosecutors supplied the pertinent information to
federal prosecutors, defendant was also charged, inter alia, withthree counts of unlawful distribution of cocaine under federal law
for the same three drug transactions. Defendant pled guilty in the
United States District Court for the Middle District of North
Carolina on one count of unlawful distribution of cocaine and was
sentenced to 166 months' imprisonment for that charge.
(See footnote 1)
The State
subsequently proceeded on the charges upon which defendant had been
indicted by the Durham County Grand Jury. Defendant moved to
dismiss the drug-related charges, contending “that the North
Carolina Constitution, the law of the land provision, does not
permit the State to [exact] double punishment for the same
conduct.” The trial court denied defendant's motion. The jury
found defendant guilty of all drug-related offenses and of being a
habitual felon. The trial court arrested judgment on the four
counts of possession with intent to sell and deliver cocaine and
sentenced defendant on the remaining charges relating to the
transactions between the undercover officer and defendant.
Defendant appeals.
On appeal, we consider defendant's assertions that (I) the
trial court erred in failing to dismiss the State charges relating
to the transactions between defendant and the undercover officer
and (II) the evidence was insufficient to show three separate
conspiracies.
I. North Carolina General Statutes § 90-97
[1] Many of defendant's assignments of error turn on the issue
of whether the federal charges and the state charges constitute thesame offense. At trial, defendant argued only constitutional
double jeopardy grounds as a bar to his prosecution by the State.
Defendant, for the first time on appeal, argues N.C. Gen. Stat. §
90-97 (2001) barred prosecution by the State for the drug-related
offenses. Because the transcript reveals defendant failed to raise
this argument in the trial court, the question is not properly
before us. See N.C.R. App. P. 9(a) (appellate “review is solely
upon the record on appeal [and] the verbatim transcript of
proceedings. . .”); State v. Hall, 134 N.C. App. 417, 424, 517
S.E.2d 907, 912 (1999) (“where theory argued on appeal not raised
in trial court, 'the law does not permit parties to swap horses
between courts in order to get a better mount [on appeal]'”)
(citations omitted). Nonetheless, we choose to address this
argument in our discretion pursuant to Rule 2 of the North Carolina
Rules of Appellate Procedure.
North Carolina General Statutes § 90-97 provides, in pertinent
part, as follows: “[i]f a violation of [the North Carolina
Controlled Substances Act] is a violation of a federal law . . . ,
a conviction or acquittal under federal law . . . for the same act
is a bar to prosecution in this State.” (Emphasis added).
Defendant was prosecuted for violation of 21 U.S.C. § 841 (2003),
which criminalizes the acts of manufacturing, distributing, or
dispensing controlled substances or possession with intent to
engage in one of those acts. He was also prosecuted by the State
for, inter alia, trafficking offenses in violation of N.C. Gen.
Stat. § 90-95(h)(3) (2003). This Court has previously remarked
upon the effect of N.C. Gen. Stat. § 90-97 in this context. State
v. Woods, 146 N.C. App. 686, 544 S.E.2d 383 (2001). In Woods, weexamined the relevant language of the two substantive offenses
defined in N.C. Gen. Stat. § 90-95 and 21 U.S.C. § 841 and observed
“the elements of the state violation and the federal violation are
nearly identical.” Id. at 691, 544 S.E.2d at 386. Accordingly, we
noted that felonious trafficking in drugs, as proscribed by the
state statute, also violated 21 U.S.C. § 841 and “but for N.C. Gen.
Stat. § 90-97, [defendant] could have been prosecuted for both.”
Id. at 692, 544 S.E.2d at 387.
The State argues State v. Overton, 60 N.C. App. 1, 298 S.E.2d
695 (1982), defines “the same act” as it is used in N.C. Gen. Stat.
§ 90-97 to require an elemental analysis of the state and federal
statutory offenses charged and, based on that reading, urges this
Court to uphold the judgment below. This argument fails for two
reasons. First, and most directly, Woods makes clear that, even if
we did read Overton to require an elemental approach, the elements
of the offenses charged in this case were deemed “nearly
identical.” Moreover, we do not read Overton, in the first
instance, as requiring the elemental approach advocated by the
State. Overton merely recognized that the two conspiracy charges
in that case (conspiracy to import a controlled substance on the
federal level as opposed to conspiracy to manufacture, possess with
intent to sell or deliver, or to sell or deliver a controlled
substance on the state level) were different acts. Nothing in
Overton suggests the State's proposed elemental approach was used
or adopted by this Court.
Applied to the case sub judice, we hold that “the same act” as
used in N.C. Gen. Stat. § 90-97 focuses the relevant analysis on
the underlying actions for which defendant is prosecuted at thestate and federal levels and operates as a bar to the State's
prosecution of defendant's trafficking offenses under N.C. Gen.
Stat. § 90-95. We need not reach defendant's constitutional
argument.
[2] Defendant also asserts, on the basis of N.C. Gen. Stat. §
90-97, that the three counts of conspiracy to traffic in cocaine by
sale were barred. We disagree. Under 21 U.S.C. § 841, only the
acts of manufacturing, distributing, dispensing, or possession with
intent to engage in one of those acts are criminalized. Conspiracy
is separately prohibited in 21 U.S.C. § 846 (2001), with which
defendant was not charged.
(See footnote 2)
Accordingly, the prohibition against
subsequent prosecution by the State found in N.C. Gen. Stat. § 90-
97 is not applicable under these facts to the offense of conspiracy
to traffic in cocaine by sale, and defendant's argument is without
merit.
II. Number of Conspiracies
[3] Defendant asserts the evidence at trial showed defendant
was guilty of only one conspiracy to traffic in cocaine rather than
three separate conspiracies. Specifically, defendant contends
that, although there was a series of agreements and acts, they
constituted a single conspiracy.
“A criminal conspiracy is an agreement, express or implied,
between two or more persons to do an unlawful act or to do a lawfulact by unlawful means.” State v. Burmeister, 131 N.C. App. 190,
199, 506 S.E.2d 278, 283 (1998). A “conspiracy is complete upon
formation of the unlawful agreement [but] continues until the
conspiracy comes to fruition or is abandoned.” State v. Griffin,
112 N.C. App. 838, 841, 437 S.E.2d 390, 392 (1993). However, “[a]
single conspiracy is not transformed into multiple conspiracies
simply because its members vary occasionally and the same acts in
furtherance of it occur over a period of time.” Id. In
determining the propriety of multiple conspiracy charges, we look
to “the nature of the agreement or agreements” in light of the
following factors: “time intervals, participants, objectives, and
number of meetings . . . .” State v. Tabron, 147 N.C. App. 303,
306, 556 S.E.2d 584, 586 (2001).
In the instant case, these factors support the existence of a
single conspiracy. Initially, the three drug transactions involved
the same principal participants engaging in virtually identical
conduct for each transaction. In each transaction, the undercover
officer contacted Ashley by phone and asked her to arrange a
meeting in which he would purchase one and one-half ounces of
cocaine. Each time, Ashley then contacted defendant and arranged
for herself, the undercover officer, and defendant to meet and make
the exchange.
(See footnote 3)
After each transaction between defendant and theundercover officer, the undercover officer paid Ashley a
“commission” for arranging the transfer.
Regarding the objective sought to be accomplished, the
undercover officer testified his private motivation was to identify
Ashley's source in the first transaction, confirm the source in the
second, and close down the source in the third; however, it could
easily be stated that the undercover officer's objective was, at
all times, to identify and apprehend Ashley's source. Certainly
with respect to Ashley and defendant, the objective remained the
same. Ashley's objective was to arrange a drug transaction and
receive a “commission” for doing so, and defendant's objective was
the sale of drugs to a purchaser. Additionally, the indictments
all aver the same objective: trafficking by sale in a controlled
substance.
Looking at the time interval, we note that each transaction
was temporally separated from the preceding transaction by no more
than fourteen days and “all transactions transpired over a short
period of time, a one month period.” See Griffin, 112 N.C. App. at
841, 437 S.E.2d at 392 (rejecting the argument that multiple
conspiracies existed “because the offenses occurred one to two
weeks apart”).
Additionally, we note the undercover officer testified that he
continued to contact Ashley throughout the time the transactions
were being planned and “told her . . . that [he] did want to make
another purchase of cocaine, buy another one-and-a-half ounces.”
This statement indicates the transaction was not a separate or
discreet transaction but was to be part of an ongoing agreement for
the continued purchase and supply of cocaine. The State'sarguments, that there were some discrepancies in how Ashley was
paid her commission or that one of the transactions took place at
a different location, are unavailing. Admittedly, each transaction
was not a mirror image of the other transactions; however, we have
never required, and do not herein adopt, absolute precision in
examining the similarities of the surrounding circumstances in
order to determine the number of conspiracies. In short, we find
the transactions sufficiently similar in consideration of the
factors set forth in Tabron and the surrounding circumstances to
hold that the transactions were part of a single conspiracy entered
into by the same parties for the same purpose.
III. Motion for Appropriate Relief
[4] Defendant has submitted a motion for appropriate relief,
seeking to overturn his habitual felon conviction. The motion for
appropriate relief is properly before this Court because “appellate
courts may rule on such a motion under N.C. Gen. Stat. § 15A-1418
. . . when the defendant has . . . an appeal of right.” State v.
Jamerson, 161 N.C. App. 527, 530, 588 S.E.2d 545, 547 (2003).
Defendant's arguments are premised upon this Court's holdings in
State v. Jones, 161 N.C. App. 60, 588 S.E.2d 5, stay granted, 357
N.C. 660, 589 S.E.2d 882 (2003) and State v. Sneed, 161 N.C. App.
331, 588 S.E.2d 74, stay granted, 357 N.C. 661, 589 S.E.2d 883
(2003) (holding a habitual felon indictment cannot be predicated
upon misdemeanor cocaine possession convictions). In reviewing
Jones and Sneed, our Supreme Court held “the offense of possession
of cocaine is classified as a felony for all purposes.” State v.
Jones, 358 N.C. 473, 486, ___ S.E.2d ___, ___ (2004). We hold
accordingly and deny defendant's motion for appropriate relief. In summary, defendant's prosecution by the State for cocaine
trafficking convictions, but not for conspiracy to traffic in
cocaine convictions, were barred by operation of N.C. Gen. Stat. §
90-97. Furthermore, the trial court erred in denying defendant's
motion to dismiss two counts of conspiracy to traffic cocaine. We
remand for further proceedings consistent with this opinion.
Affirmed in part, reversed and vacated in part.
Judges BRYANT and ELMORE concur.
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