Appeal by defendant from judgment entered 13 March 2002 by
Judge Jack W. Jenkins in Beaufort County Superior Court. Heard in
the Court of Appeals 3 December 2003.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General John P. Scherer II, for the State.
Mary Exum Schaefer for defendant-appellant.
HUNTER, Judge.
James E. Lewis (“defendant”) appeals a judgment based upon
jury verdicts convicting him of possession with the intent to sell
or deliver cocaine and the sale or delivery of cocaine, as well asbeing an habitual felon. For the reasons stated herein, we
conclude the trial court did not err.
The State presented the following evidence at trial: On 26
September 2002, the Beaufort County Sheriff's Department conducted
an undercover drug campaign. Investigator Russell Davenport
(“Investigator Davenport”) participated in the campaign as a
surveillance officer. In that role, he was to operate a van, watch
drug transactions, maintain a video camera to tape the
transactions, and monitor audio transmitters in an undercover
police car. Detective Matthew Heckman (“Detective Heckman”) of the
New Bern Police Department also participated in the campaign by
driving the wired undercover car in an attempt to make crack
cocaine purchases.
Detective Heckman and his partner initially went to the Mimosa
Trailer Park to purchase crack cocaine, but were unsuccessful.
Next, they drove to Washington Arms Apartments and parked in the
apartment lot. Once there, the officers noticed a red pick-up
truck flashing its lights at them. The driver of the truck,
Timothy Jennette (“Jennette”), pulled alongside the officers and
asked, “what [are you] looking for[?]” Detective Heckman responded
that they were looking for about sixty dollars worth of crack
cocaine, to which Jennette responded, “follow me.” During that
conversation, defendant sat silently in the passenger's side of
Jennette's truck. As the officers followed Jennette, they radioed
the Beaufort County investigators about the potential drug
purchase. The officers followed Jennette and defendant back to the
Mimosa Trailer Park. Jennette got of out his truck and, upon
approaching the undercover car, asked the officers for the money so
that he could obtain the drugs from another location. When
Detective Heckman refused, Jennette signaled for defendant.
Defendant exited the truck, grabbed a circular saw out of the
truckbed, walked over to Jennette, and sat the saw on the ground.
Jennette said that the saw, used as collateral, and defendant would
stay with the officers while Jennette went to get the drugs.
Detective Heckman handed the money to Jennette, and Jennette left.
Thereafter, defendant introduced himself to the officers as
“James.” Defendant told the officers he had not been out of prison
long and showed them his Department of Correction identification
card. Defendant also told the officers that he and Jennette had
seen that no one was willing to sell the officers drugs when they
first arrived at the trailer park so he and Jennette had followed
the officers when they left. When asked where Jennette had gone to
obtain the crack cocaine, defendant responded from “the trailer
where you were just at.” Defendant further stated, “I tried to
stay out of this drug game . . . but I don't give a f--k about it.
I just got out of prison.”
The officers and defendant conversed for approximately ten
minutes before Jennette returned with three tin foil wraps.
Detective Heckman opened them and, based on his training and
experience, determined the substance contained therein was crack
cocaine. Jennette then provided his phone number to Detective
Heckman and offered to sell the officers more drugs in the future. Both vehicles left the parking lot, and the officers met up with
Investigator Davenport at a predetermined location. The
investigator ran a field test on the substance and discovered it
tested positive for cocaine. A subsequent test of the substance
revealed it contained 0.3 grams of crack cocaine.
Jennette's testimony on behalf of the State generally
corroborated the evidence already offered by the State as to the
events that occurred in the officers' presence. Jennette also
testified that prior to seeing the officers, he had asked defendant
to ride somewhere with him. Jennette saw the officers' car when he
stopped to visit some friends in Mimosa Trailer Park. Curious to
find out what the car occupants wanted, Jennette followed them, and
defendant accompanied him. After learning of the officers' desire
to purchase drugs, Jennette testified that he told defendant, “I'm
going to get something out of this deal.” By that statement,
Jennette was referring to some crack cocaine that he and defendant
could smoke together, something they had done on several prior
occasions. Jennette further testified that while he and defendant
did subsequently smoke crack cocaine that he kept from the
officers, defendant (1) got no money from the deal, (2) did not
have physical possession over the crack cocaine, and (3) was not
present when Jennette initially asked the officers for the money.
However, Jennette testified that defendant was present when the
officers first asked to buy crack cocaine and that Jennette was
receiving no deal for his testimony. Defendant presented no
evidence. Additional facts pertinent to this appeal are included
as necessary in analyzing defendant's arguments.
I.
[1] Defendant initially argues that he is entitled to a new
trial because the trial court erred in permitting Investigator
Davenport to testify that he knew defendant from the county jail.
Defendant takes issue with the following portion of the State's
direct examination of Investigator Davenport:
Q. During [Detective Heckman's conversation
with Jennette], were you able to see in the
truck?
. . . .
A. I was able to see Timothy Jennette --
and, of course, I only know [defendant] as
Scooby and I knew him prior to that when I was
a jailer in '93. I used to work in the jail.
MR. RADER: Objection.
THE COURT: On what grounds?
MR. RADER: Your Honor, I think it's --
prejudicial here -- a prejudicial nature would
outweigh anything probative.
THE COURT: Sustained.
Q. Have you had much contact with the
Defendant?
A. I know the Defendant from working in the
county jail.
Defendant contends the admission of this irrelevant and highly
prejudicial evidence should have been stricken from the record and
the jury instructed to disregard it. We disagree.
The transcript clearly indicates that defendant did not renew
his objection when Investigator Davenport testified a second time
that he knew defendant from the county jail. Further, testimony
regarding defendant's criminal history was also admitted intoevidence, without objection, when Detective Heckman later testified
that defendant showed the officers his Department of Corrections
identification card and said that he had just gotten out of prison.
Thus, defendant's failure to renew his objection or object to the
admissibility of the later offered evidence by Detective Heckman
resulted in him waiving the right to raise this argument on appeal.
State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989).
II.
[2] Defendant argues his convictions should be vacated because
the trial court erred in denying his motion to dismiss all the
charges against him due to insufficiency of the evidence. We
disagree.
In order to survive a motion to dismiss in a criminal action,
the trial court must view the evidence in the light most favorable
to the State, drawing every reasonable inference in favor of the
State.
State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761
(1992). The evidence considered must be “substantial evidence (a)
of each essential element of the offense charged, or of a lesser
offense included therein, and (b) of defendant's being the
perpetrator of the offense.”
State v. Earnhardt, 307 N.C. 62, 65-
66, 296 S.E.2d 649, 651 (1982). Whether the evidence presented is
substantial is a question of law for the court.
State v. Stephens,
244 N.C. 380, 384, 93 S.E.2d 431, 433 (1956). “[T]he rule for
determining the sufficiency of evidence is the same whether the
evidence is completely circumstantial, completely direct, or both.”
State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981)
(citations omitted). In the instant case, defendant was charged with (1) possession
with the intent to sell or deliver cocaine, and (2) the sale or
delivery of cocaine. To survive a motion to dismiss these charges,
“the State must present substantial evidence of (1) defendant's
possession of the controlled substance, and (2) his intent to sell
or distribute it[,]” as well as the actual sale or distribution of
the controlled substance.
State v. Carr, 122 N.C. App. 369, 372,
470 S.E.2d 70, 72-73 (1996); N.C. Gen. Stat. § 90-95(a) (2003). At
trial, the State's theory was that defendant acted in concert with
Jennette to commit the crimes for which he was charged.
To act in concert means to act in
conjunction with another according to a common
plan or purpose. It is unnecessary to show
that defendant committed “any particular act
constituting at least part of a crime in order
to be convicted of that crime under the
concerted action principle so long as he is
present at the scene of the crime and the
evidence is sufficient to show he is acting
together with another who does the acts
necessary to constitute the crime pursuant to
a common plan or purpose to commit the crime.”
State v. Sams, 148 N.C. App. 141, 145, 557 S.E.2d 638, 641 (2001)
(citation omitted) (quoting
State v. Joyner, 297 N.C. 349, 357, 255
S.E.2d 390, 395 (1979)),
appeal dismissed and disc. review denied,
355 N.C. 352, 562 S.E.2d 429 (2002).
When taken in the light most favorable to the State, the
evidence reasonably supports the conclusion that defendant acted in
conjunction with Jennette to possess and sell crack cocaine.
Defendant was sitting in the truck beside Jennette when Jennette
spoke with the officers about their desire to purchase crack
cocaine. Defendant brought over collateral, i.e. the saw, and
waited with the officers while Jennette took the officers' money topurchase the drugs. Defendant told the officers that he and
Jennette had watched the officers' unsuccessful attempts to buy
drugs and had decided to follow them. Defendant also knew where
Jennette was getting the crack cocaine and smoked some of it with
Jennette following the sale. At no time while defendant was
engaged in these acts did he appear confused about what was going
on or why he was present. In fact, defendant even told the
officers that he had “tried to stay out of this drug game” but no
longer gave “a f--k about it.”
Nevertheless, defendant contends that, as this Court held in
State v. Yancey, 155 N.C. App. 609, 612, 573 S.E.2d 243, 245
(2002),
disc. review denied, 356 N.C. 694, 579 S.E.2d 99 (2003), we
should conclude that “[a]lthough the evidence against defendant
tends to show that defendant was a drug
user, none of the evidence
conclusively establishes that defendant . . . conspired to [possess
and subsequently sell] the drugs” to the officers. In
Yancey, this
Court vacated judgment and awarded a new trial to the defendant
after determining that the only definitive evidence linking him to
drug trafficking was a drug dealer's inadmissible testimony that
the defendant (a customer of the drug dealer's) was an “asset” to
the dealer's drug trade.
Id. at 611-13, 573 S.E.2d at 245-46.
However, unlike
Yancey, this case does not involve whether
inadmissible character evidence was prejudicial, but whether a
first-hand account of defendant's participation in the sale of
crack cocaine by Detective Hackman and Jennette sufficiently
supported the denial of defendant's motion to dismiss. We conclude
that there was sufficient evidence offered to allow a jury toreasonably infer that defendant acted in concert with Jennette.
Thus, the trial court did not err in denying the motion to dismiss
all the charges.
III.
[3] Next, defendant argues the trial court erred in failing to
intervene during the prosecutor's jury argument. Specifically,
during the State's direct examination of Jennette, the prosecutor
asked:
Q. Okay. You had -- did you have any
conversation [with defendant] in the truck on
your way [leading the officers back] to Mimosa
Trailer Park?
A. No more than I said,
I'm going to get
something out of this deal.
(Emphasis added.) Thereafter, the prosecutor stated during closing
argument:
MR. SCHMIDLIN: . . . Jennette told them --
told the Defendant,
we're going to get
something out of this. He had a conversation
right before that with the undercover officer
--
MR. RADER: Objection, Your Honor.
THE COURT: It's duly noted. Please be
careful, Mr. Schmidlin. You may proceed.
(Emphasis added.) Defendant contends that since the evidence
failed to establish his participation in the possession and sale of
crack cocaine, the prosecutor's misstatement in the closing
argument may have resulted in the jury finding defendant guilty as
charged. However, defendant does not include any argument or
citation of authority in his brief supporting this argument.
Failure to do so has been deemed as a defendant abandoning that
particular argument.
See State v. Bonney, 329 N.C. 61, 82, 405S.E.2d 145, 157 (1991). Nevertheless, a consideration of the
merits of defendant's argument establishes the trial court did not
err.
It is well settled that arguments of
counsel rest within the control and discretion
of the presiding trial judge. In the argument
of hotly contested cases, counsel is granted
wide latitude. While it is not proper for
counsel to “travel outside the record” and
inject his or her personal beliefs or other
facts not contained within the record into
jury arguments, or place before the jury
incompetent or prejudicial matters, counsel
may properly argue all the facts in evidence
as well as any reasonable inferences drawn
therefrom.
State v. Worthy, 341 N.C. 707, 709, 462 S.E.2d 482, 483 (1995)
(citations omitted). Inappropriate arguments of counsel will
justify a new trial if those arguments so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.
State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467
(1998).
Based on his interpretation of the evidence, the prosecutor in
the case
sub judice argued that defendant actively participated and
benefitted in the drug sale. The evidence previously discussed
supports that interpretation, especially in light of evidence that
Jennette and defendant both smoked the drugs that Jennette had not
given to the officers following the sale. Therefore, the
prosecutor's misstatement did not result in a denial of defendant's
due process or an error by the trial court.
IV.
[4] Finally, defendant argues the trial court erred in denying
his motion to quash the habitual felon indictment and permittingthe State to amend that indictment. The relevant facts establish
that the State moved and was allowed to correct the second
conviction set forth in the habitual felon indictment, which
mistakenly noted the date and county of defendant's probation
revocation, instead of the date and county of defendant's previous
conviction for breaking and entering. Moreover, there was also a
mistake as to the county seat, which the trial court acknowledged.
N.C. Gen. Stat. § 14-7.3 (2003) provides in part:
An indictment which charges a person with
being an habitual felon must set forth the
date that prior felony offenses were
committed, the name of the state or other
sovereign against whom said felony offenses
were committed, the dates that pleas of guilty
were entered to or convictions returned in
said felony offenses, and the identity of the
court wherein said pleas or convictions took
place.
Additionally, “[a] bill of indictment may not be amended.” N.C.
Gen. Stat. § 15A-923(e) (2003). An “'“amendment” is “any change in
the indictment which would substantially alter the charge set forth
in the indictment.”'”
State v. Price, 310 N.C. 596, 598, 313
S.E.2d 556, 558 (1984).
Here, although the habitual felon indictment incorrectly
stated the date and county of defendant's conviction, it correctly
stated the type of offense for which defendant was convicted and
the date of that offense. “It is well established that an
indictment is sufficient under the Habitual Felons Act if it
provides notice to a defendant that he is being tried as a
recidivist.”
State v. Williams, 99 N.C. App. 333, 335, 393 S.E.2d
156, 157 (1990). The indictment at issue sufficiently notified
defendant of the particular conviction that was being used tosupport his status as an habitual felon. Defendant had previously
stipulated to that conviction and did not argue he lacked notice of
the hearing at trial. Accordingly, the State's requested
corrections to the indictment did not constitute an amendment and
thus, the trial court did not err in denying defendant's motion to
quash.
No error.
Judges McGEE and GEER concur.
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