State v Nye, (03-35) 05/04/2004

Appeal by defendant from judgments entered 3 June 2002 by Judge D. Jack Hooks, Jr. in the Superior Court in Columbus County. Heard in the Court of Appeals 17 March 2004.

Attorney General Roy Cooper, by Assistant Attorney General Dahr Joseph Tanoury, for the State.

William H. Dowdy, for defendant-appellant.

    HUDSON, Judge.

    On 23 July 2001, the grand jury indicted defendant Benjamin Graham Nye (“defendant”) for felonious trafficking by possession of the drug known as Ecstacy, felonious trafficking by transportation of Ecstacy, and felonious possession with the intent to sell and deliver a Schedule I controlled substance, as well as felonious trafficking by manufacture and maintaining a place for the keeping and selling of a controlled substance. During defendant's jury trial, at the conclusion of the State's evidence, the State voluntarily dismissed the latter two charges. Defendant then moved to dismiss all remaining charges against him, which motion the court denied. The court also denied defendant's renewed motion to dismiss at the close of all evidence, and after the jury returneda guilty verdict on the remaining charges, denied his motion to set aside the verdict. Defendant appeals, contending that the court committed reversible error in allowing hearsay evidence in the form of audiotapes and transcripts thereof to be admitted. For the reasons explained below, we disagree.
    The State's evidence tended to show that Sgt. Kevin Norris (“Sgt. Norris”) and Sgt. Brent Lanier (“Sgt. Lanier”) of the Columbus County Sheriff's Department planned and set up a sting operation involving the sale of Ecstacy. Sgt. Norris knew a man named Tom Elliott (“Elliott”) who was willing to call one of his drug sources and arrange to have the source deliver Ecstacy to Columbus County. On 13 June 2001, Sgts. Lanier and Norris placed a micro-cassette recorder in line with a special dedicated telephone line at the sheriff's department. Elliott agreed to have his calls recorded, and then made twenty to twenty-five phone calls during the day, each of which was recorded.
    One of the phone numbers Elliott called belonged to Samuel Freeman's (“Freeman”) cell phone. Elliott called Freeman several times about buying Ecstacy pills, and Freeman, not knowing Elliott was a police informant, suggested Elliott call defendant. Freeman then called defendant and told him to expect a call from Elliott about getting some pills. Freeman testified that defendant had spoken to Elliott and to him confirming that Freeman and defendant would supply the Ecstacy. Freeman acquired the pills and then picked up defendant. Freeman testified that he gave 250 pills,contained in a bottle labeled “Mega Man,” to defendant and they discussed getting the pills from Wake County to Columbus County.
    According to Freeman, defendant's friend Stephanie Curry (“Curry”) rode with him and defendant to Columbus County. The drive took two and a half hours, and Freeman and defendant each contributed $5.00 for gas. Freeman testified that defendant received several phone calls during the drive, and at one point, asked Freeman to stop so he could use the restroom. Defendant took the bottle of pills with him when he went to the restroom, but returned without it. Freeman, Curry and defendant then continued to the pre-arranged meeting point, Dale's Seafood, and waited.
    The police, including Sgts. Norris and Lanier, arrived at Dale's Seafood and asked to search the car. Curry was taken from the scene by Sgt. Norris and another officer. She directed the officers to a certain bench on Lake Shore Drive, where they recovered a Mega Man bottle containing pills. Returning to Dale's Seafood, Sgt. Norris showed Freeman the bottle which he identified as the one defendant had been holding. Both Freeman and defendant were arrested. Freeman was later offered a plea deal in exchange for his cooperation in the case against defendant.
    The micro-cassette recording of the phone calls made by Elliott was copied onto standard cassettes. Sgt. Lanier testified that he recognized defendant's voice during the phone calls. Sgt. Norris testified that he had prepared a transcript of the tapes by listening to them with headphones and then dictating his interpretation of the calls to a typist. Sgt. Norris refused toreveal the identity of the typist, although he testified that it was not an employee of the sheriff's department or the district attorney's office, and was not a certified court reporter. Some portions of the tapes were inaudible, which was noted on the transcripts.
    Defendant repeatedly objected to the admission of both the tapes and the transcript on both hearsay and reliability grounds, but these objections were overruled. The State asserted that Elliott's statements on the tapes were not offered for the truth of the matter asserted, but did not explain what other purpose the taped statements might serve. Over defendant's objections, the jurors were given copies of the transcript to follow along as the tapes were played.
    Defendant first argues that the court committed reversible error by “granting the State's request, over the appellant's objection, to introduce prejudicial hearsay evidence of an alleged telephone conversation, such that appellant's rights to due process, effective assistance of counsel and a fair trial, were denied, in violation of appellant's fifth, sixth and fourteenth amendment rights.” Because we find that defendant's argument is waived, we decline to address it on the merits.
    Defendant's first argument purports to be based on defendant's assignment of error two, which states:
        The trial court's order, granting the State's motion, over appellant's objection, to introduce into evidence the tape of a recorded telephone conversation, and the purported written transcription of that recorded telephone conversation, on the grounds thatboth the taped conversation itself and the purported written transcription of same were unreliable hearsay, not within any recognized exception to the hearsay rule, and which, even if theoretically within any exception to the hearsay rule, were, both of them, i.e. the tape recording and the purported written transcription of same, unreliable, as a basis for the State's claim as to who was speaking during the said conversation, and as to what was being said during that conversation.
    In his brief, however, defendant makes no argument and cites no case law regarding the hearsay rule or its exceptions. Instead, defendant's argument centers on an alleged violation of his constitutional rights to confront witnesses against him. Arguments not based on an assignment of error are not properly before this Court, and assignments of error not argued are waived. N.C.R. App. P. 28(b)(5) (2003). The argument before us does not relate to the above error assigned, and no argument has been presented that does. Thus, defendant's assignment of error 2 is waived, and the argument overruled.
    Defendant next argues that the court committed reversible error in denying his motions for nonsuit and for dismissal of the State's case. We disagree.
    “When ruling on a motion to dismiss, the trial court must determine whether the prosecution has presented substantial evidence of each essential element of the crime. Substantial evidence is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. In making its decision, the trial court must view the evidence in the light most favorable to the State.” State v. Smith, 357 N.C. 604, 615-16, 588S.E.2d 453, 461 (2003) (internal quotation marks and citations omitted).
    Here, defendant was convicted of felonious trafficking by possession of Ecstacy and felonious trafficking by transportation of Ecstacy in violation of N.C.G.S. § 90-95 (h) (4b) (2001). In 2001, violations of this statute required proof that defendant wilfully trafficked by possession and transportation more than one hundred, but less than five hundred dosage units of Ecstacy. Freeman testified that defendant had possession of the Mega Man bottle containing 250 pills of Ecstacy during the drive from Raleigh to Columbus County. Defendant participated in the transportation of the pills by contributing $5.00 for gas. The uncontested evidence indicated that the bottle of pills recovered by police officers was the same one possessed by defendant, and a drug chemist from the State Bureau of Investigation testified that the bottle contained 249 Ecstacy pills.
    Defendant was also convicted of felonious possession with intent to sell and deliver a Schedule I controlled substance in violation of N.C.G.S. § 90-95 (a) (1), which requires proof that defendant wilfully possessed with intent to sell and deliver Ecstacy. Evidence tended to show that defendant and Freeman acquired 250 pills of Ecstacy and drove from Raleigh to Columbus County in order to sell the pills to Elliott. Freeman testified that he and defendant planned to split the proceeds of the sale to Elliott.    Taken in the light most favorable to the State, the prosecution presented substantial evidence of each essential element of each of the crimes for which defendant was convicted.
    No error.
    Judges MARTIN and GEER concur.
    Report per Rule 30(e).

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