State v Williams, (03-473) 05/04/2004

Appeal by defendant from judgment entered 26 September 2002 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 18 March 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Gayl M. Manthei, for the State.

Michael A. Grace, for defendant-appellant.

    CALABRIA, Judge.

    Anthony Williams (“defendant”) appeals convictions for trafficking in cocaine by manufacturing, transporting and possessing more than 400 grams of cocaine. The court sentenced defendant to an active term of 175 to 219 months in the Department of Correction as mandated by N.C. Gen. Stat. § 90-95(h)(3)(c). Defendant asserts the trial court erred in permitting certain testimony by a police officer, admitting the officer's investigative notes into evidence, giving instructions on flight and constructive possession, and denying defendant's motion to dismiss. We find no error.
    The State presented two witnesses, Officers Richard Darren Koonce (“Officer Koonce”) and L.T. Marshall (“Officer Marshall”),both from the narcotics division of the Greensboro Police Department. Officer Koonce testified that he was contacted by a confidential informant with whom he had previously worked. Officer Koonce directed the informant to arrange a transaction to purchase a kilo, or 1,000 grams, of cocaine.
    After arranging the transaction, the officers assembled. Officer Marshall searched the informant's car while Officer Koonce strip-searched the informant and equipped him with a body wire. Each officer testified that no narcotics were found. A team of officers went with the informant and waited for the suspects to arrive. When it appeared the suspects were late, Officer Koonce instructed the informant to contact his source. Officer Koonce explained that he overheard part of the conversation and the informant was instructed to change locations. They changed locations and after a further call, the transaction began.
    A blue Chevrolet Tahoe arrived first, followed by a green Plymouth Sundance. Defendant was driving the Tahoe, and his uncle, Roy Campbell, was a passenger. Defendant parked the Tahoe, and both he and Roy Campbell exited the vehicle. Defendant stood between the vehicles and talked with the informant, while Roy Campbell walked around the gas station in what Detective Koonce described as a counter-surveillance technique. Detective Koonce heard conversation, through the wire, indicating another vehicle was arriving. The suspects and the informant returned to their cars. The same green Plymouth Sundance Detective Koonce had seenearlier arrived and was driven by defendant's father, Stanley Campbell.
    Roy Campbell exited the Tahoe, approached the Sundance, and then placed a blue grocery bag, containing something of “a rounded shape” which Detective Koonce “could tell . . . was somewhat heavy,” onto the front passenger seat of the Tahoe through the open window. Defendant got out of the car and walked towards the informant's car, and the informant walked to the trunk of his car to retrieve the $27,000.00 the police had provided. The police moved in, and Officer Koonce testified he “saw both a brown bag and a blue bag discarded. I couldn't tell who discarded it. It come from the general direction of the informant and [defendant].” Defendant ran in front of Officer Koonce's car, approximately twenty feet from him, scaled the fence and then submitted to police instructions to lie down. Defendant was taken into custody.
    Officer Marshall's testimony corroborated Officer Koonce's testimony. Officer Marshall explained that on 15 December 2001, he searched, by canine unit as well as by hand, a vehicle belonging to the confidential informant and found no narcotics. Officer Marshall stated that as part of the arresting team, he chased defendant as he ran from the scene and that after scaling a small fence defendant followed the commands of the officers and lowered himself to the ground, putting his hands out to his side and surrendering.
    Defendant presented no evidence. The jury found defendant guilty of trafficking in cocaine by possession, transportation andmanufacturing, and defendant was sentenced to the statutorily mandated sentence for these charges. The sentences were consolidated into a single judgment. Defendant appeals. Defendant asserts the trial court erred in: (I) permitting Officer Koonce to testify regarding what the informant told him; (II) permitting Officer Koonce to testify regarding the modus operandi of drug traffickers; (III) admitting into evidence Officer Koonce's investigative notes; (IV) giving an instruction to the jury on flight; (V) giving an instruction to the jury on constructive possession; and (VI) denying defendant's motion to dismiss. We find no error.
I. Testimony regarding the informant
    Defendant argues the trial court erred in permitting Officer Koonce to testify regarding what the confidential informant told him because such testimony is hearsay. The State asserts the trial court did not err because this testimony was permissible to explain the conduct of the officer. We concur with the State.
    Officer Koonce testified that he heard the informant was instructed to change locations. He also testified that the blue Chevrolet Tahoe and the green Plymouth Sundance matched the descriptions he “had been told to look for,” and the court promptly gave a limiting instruction that such testimony should be considered only to explain the impetus for Officer Koonce's actions “and not for the truth of what this informant said.” Later, Officer Koonce explained that he was listening for a verbal sign to move in from the informant, but that the listening device was“terrible,” and he could not understand specific statements. He explained that although he understood “[t]he gist was, 'I wanted to see the money _ _ _ '” that he was watching for the visible sign of the informant going to get the money from the trunk before initiating the take-down procedure by the police. Lastly, Officer Koonce testified that “[t]he conversation was clear that the transaction was occurring - - -.”
    It is well established that hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003) (emphasis added). In the present case, the court properly instructed the jury that Officer Koonce's identification of the vehicles as matching a description from the informant was not offered to prove the description. While the court did not so instruct the jury with regard to the officer's other statements, his testimony plainly explained why they changed locations and why he initiated the take- down procedure when the informant went towards the trunk. Accordingly, the officer's testimony of the informant's statements was not admitted for its truth, but rather explained the officers' actions and therefore does not fall within the hearsay rule. We have previously held “'that the statements of one person to another are admissible [as non-hearsay] to explain the subsequent conduct of the person to whom the statement was made.'” State v. Reed, 153 N.C. App. 462, 465, 570 S.E.2d 116, 119, appeal dismissed by 356 N.C. 622, 575 S.E.2d 521 (2002) (quoting State v. Maynard, 311 N.C.1, 16, 316 S.E.2d 197, 205 (1984)). We find no material distinction in the case at bar.
II. Testimony regarding modus operandi
    Defendant asserts the court erred in permitting Officer Koonce “to testify concerning the general or normal actions employed by drug traffickers.” Defendant's “argument in this area is simply that the jury was as well-qualified as the officer to know about 'counter-surveillance'” and therefore the testimony was improperly admitted. The State, on the other hand, asserts the testimony was properly admitted not as an expert witness, but rather, as a non- expert witness under N.C. Gen. Stat. § 8C-1, Rule 701 and in accordance with our rationale in State v. Drewyore, 95 N.C. App. 283, 382 S.E.2d 825 (1989).
    Officer Koonce testified, over objection, that drug dealers will typically use counter-surveillance by “getting to a location in a timely manner. . . [and] going around the general area to see if they can locate us.” Then, again over objection, Officer Koonce mentioned the counter-surveillance technique of “walk[ing] the general area to see if anyone is in the immediate area that looks out of place.” Officer Koonce further testified, without objection, that “cars coming in tandem typically could be involved” and that because of “the increased robberies of drug dealers and whatnot, we['ve] start[ed] to see two or three cars come in.” Finally, Officer Koonce testified, without objection, that “[t]ypically, in narcotics transactions, especially when dealing with large sums of money, large sums of cocaine, weapons will beused, oftentimes just for protection, to keep from being robbed, and oftentimes they're used to rob the other participant.”
    Our Court has held that such testimony is admissible as a lay opinion under N.C. Gen. Stat. § 8C-1, Rule 701. See State v. Drewyore, 95 N.C. App. 283, 382 S.E.2d 825 (1989); State v. Diaz, 155 N.C. App. 307, 575 S.E.2d 523 (2002), cert. denied, 357 N.C. 464, 586 S.E.2d 271 (2003). The statute provides:
        If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

N.C. Gen. Stat. § 8C-1, Rule 701 (2003). Our Court has reasoned that testimony of police officers detailing indicators of drug- related activity is properly admissible and assists the jury in understanding the officers' actions. Drewyore, 95 N.C. App. at 287, 382 S.E.2d at 827 (“the opinions and inferences. . . were helpful to [provide] a clear understanding of Agent Whitton's testimony about the circumstances which were related to the investigation”); Diaz, 155 N.C. App. at 316, 575 S.E.2d at 529 (the officer's testimony “merely explain[ed] why he was suspicious of defendants after observing their conduct”). We hold accordingly.
III. Officer Koonce's investigative notes
    Defendant next asserts the trial court erred in admitting into evidence Officer Koonce's investigative notes because such notes are not admissible as substantive evidence and no limitinginstruction was given to explain to the jury that the notes are for purposes of corroboration only. The State responds that the notes were admitted for corroboration, and since defendant did not request an instruction, there is no error. We agree with the State.
    We have previously held investigative notes of an officer were admissible to “illustrate or corroborate” testimony. State v. Harden, 42 N.C. App. 677, 682, 257 S.E.2d 635, 639 (1979). Moreover, “[t]he admission of evidence, competent for a restricted purpose, will not be held error in the absence of a request by defendant for a limiting instruction.” State v. Chandler, 324 N.C. 172, 182, 376 S.E.2d 728, 735 (1989). Accordingly, we find no error with the court's admission of Officer Koonce's investigative notes into evidence to corroborate his testimony despite the court's failure to give a limiting instruction to the jury.
IV. Instruction on Flight
    Defendant asserts the court erred by instructing the jury on the doctrine of flight because “[t]he evidence was clear that the defendant ran only for three to four seconds” before he submitted to the police. The State contends the length of the flight is not determinative and there is sufficient evidence in the case at bar for a jury instruction on flight. We find no error.
        “[A] trial court may not instruct a jury on defendant's flight unless 'there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.' Mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidencethat defendant took steps to avoid apprehension.”

State v. Anthony, 354 N.C. 372, 425, 555 S.E.2d 557, 590-91 (2001) (internal citations omitted). “'Where there is some evidence supporting the theory of the defendant's flight, the jury must decide whether the facts and circumstances support the State's contention that the defendant fled.'” State v. Lloyd, 354 N.C. 76, 120-21, 552 S.E.2d 596, 627 (2001) (quoting State v. Norwood, 344 N.C. 511, 535, 476 S.E.2d 349, 360 (1996)). In the case at bar, Officers Koonce and Marshall each testified that, when the police arrived, defendant ran from the scene and scaled a small fence before succumbing to instructions to “Get down!” This evidence is sufficient to warrant an instruction on flight.
V. Instruction on Constructive Possession
    Defendant asserts the trial court erred in instructing the jury on constructive possession. “'The doctrine of constructive possession applies when a person lacking actual physical possession nevertheless has the intent and capability to maintain control and dominion over a controlled substance.'” State v. Givens, 95 N.C. App. 72, 76, 381 S.E.2d 869, 871 (1989) (quoting State v. Baize, 71 N.C. App. 521, 529, 323 S.E.2d 36, 41 (1984)). Where, as here, the narcotics are not found in an area under defendant's exclusive control, “other incriminating circumstances must be established for constructive possession to be inferred.” State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287, 289 (1993). “[E]vidence from which a jury might infer that defendant was fleeing from the area where illegal drugs were found is. . . [an example of a] circumstancesupporting an inference of constructive possession.” Id., 109 N.C. App. at 687, 428 S.E.2d at 290 (citing State v. Harrison, 93 N.C. App. 496, 378 S.E.2d 190 (1989)). In the case at bar, defendant's possession of the narcotics could only be proven through the doctrine of constructive possession since Officer Koonce's testimony established that he never saw defendant with the drugs and the drugs were not found on defendant's person. Nevertheless, the drugs were found between the cars, where only defendant and the confidential informant, who had been thoroughly checked for narcotics prior to the set-up, had been speaking. Although the State could not establish actual possession, the doctrine of constructive possession was properly presented to the jury. We find no error.
VI. Denial of Motion to Dismiss
    Finally, defendant asserts the court erred in denying his motion to dismiss. To review a motion to dismiss for insufficient evidence, this Court asks “whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense” and considers the evidence in the light most favorable to the State. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925-26 (1996). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id. Although defendant does not assert insufficient evidence of a given element of one of the crimes or of the identity of defendant, he argues “[w]ithout belaboring th[e] argument, the appellant asks the Court to review the record for ananalysis of the sufficiency of the admissible evidence. . . .” We have found no error with the evidence admitted. In addition, we have reviewed the record and find sufficient evidence of each element of every crime and of defendant being the perpetrator. Accordingly, we overrule defendant's assignment of error.
    No error.
    Judges McGEE and STEELMAN concur.
    Report per Rule 30(e).

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