State v Brown, (04-76) 04/05/2005

    The State's evidence tended to show the following. On 10 April 2002, Detective D.L. Marshall of the Guilford County Sheriff's Department Vice and Narcotics Division began conducting surveillance of a residence at 202 Penn Place based on information from a confidential informant. As she watched, she saw peopleentering and exiting the house and noted that a vehicle parked in the driveway had a license plate registered to defendant. On the following day, she went undercover to the same residence and knocked on the door. Defendant answered and introduced herself as "Beverly." Defendant asked Detective Marshall how much cocaine she wanted to buy. When Detective Marshall indicated that she wanted an "eight ball" (one-eighth of an ounce of cocaine), defendant told her that it would cost $150.00. After attempting to negotiate a lower price, Detective Marshall gave defendant $150.00 and defendant handed her a plastic bag containing crack cocaine. The detective did not arrest defendant at this time because she hoped to purchase a larger amount of cocaine in the future and because she did not wish to compromise the confidentiality of her informant.
    Approximately six months later, on 1 October 2002, Detective Marshall, after receiving a call from her informant, arranged a meeting with defendant in the parking lot of a grocery store for the purpose of purchasing $100.00 worth of cocaine from defendant. Several other officers accompanied Detective Marshall to the meeting site. Upon arrival, Detective Marshall saw a car in the parking lot with the same license plate she had checked in April and found to be registered to defendant. A man was sitting in the driver's seat while defendant was in the passenger seat. Detective Marshall alerted the other officers as to defendant's presence and they used their vehicles to barricade defendant's car.     Detective H.N. Sampson ran to the passenger side of the car, looked in, and saw defendant clutching something in her right hand. Detective Sampson opened the car door, asked defendant to step out of the car, and told her she was under arrest. As another officer placed her on the ground, defendant let go of a film canister. Detective Sampson handcuffed defendant and then retrieved the canister, which had rollen away. The contents were subsequently determined to be one-half of a gram of crack cocaine. A search of defendant's handbag and her vehicle yielded various items of drug paraphernalia, including multiple pipes for smoking cocaine, a measuring spoon, and small plastic bags of the type commonly used to distribute narcotics.
    Based on these events, defendant was charged with five separate offenses. Specifically, arising out of the 11 April 2002 sale, she was charged with (1) possession with intent to sell and deliver cocaine, (2) sale and delivery of cocaine, and (3) maintaining a dwelling to keep a controlled substance. Based on the 1 October 2002 incident, she was charged with (1) possession with intent to sell and deliver cocaine and (2) maintaining a vehicle to keep a controlled substance. The trial court granted the State's motion for joinder of all five charges under N.C. Gen. Stat. § 15A-926(a) (2003), and a jury trial took place on 7 July 2003.
    At trial, defendant offered her own testimony and her mother's testimony that she was not in Guilford County on 11 April 2002. With respect to the events of 1 October 2002, defendant testifiedthat a friend had driven her to the grocery store in defendant's car to get something to eat. She claimed that as she was getting out of the car, she saw a film canister lying on the ground and picked it up because she was curious about its contents. As she was picking it up, an officer arrested her. She testified that the drug paraphernalia found during the search belonged to her friend, who had used her car for the day, and she had no prior knowledge of their presence in her vehicle.
     The jury convicted defendant of two counts of possession with intent to sell and deliver cocaine, one count of sale and delivery of cocaine, and one count of maintaining a vehicle to keep a controlled substance. Defendant was acquitted of the charge of maintaining a dwelling to keep a controlled substance. For the 11 April 2002 offenses, the trial court sentenced defendant to a term of 16 to 20 months. For the 1 October 2002 offenses, the trial court sentenced defendant to a consecutive term of 9 to 11 months that was suspended with defendant to serve 12 months of unsupervised probation. Defendant filed a timely appeal.

Defendant first argues that joinder of the April and October offenses was improper and requests that her case be remanded for two separate trials. An error in joinder "does not, however, entitle defendant to a new trial unless it resulted in prejudice to the defendant, i.e., unless 'there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial . . . .'" State v.Perry, 142 N.C. App. 177, 181, 541 S.E.2d 746, 749 (2001) (quoting N.C. Gen. Stat. § 15A-1443(a) (2000)). In considering possible prejudice, the admissibility of the evidence of one charge in a trial of the second charge under Rule 404(b) of the Rules of Evidence "is a factor that we may consider." State v. Owens, 135 N.C. App. 456, 461, 520 S.E.2d 590, 593 (1999). See also State v. Bowen, 139 N.C. App. 18, 30, 533 S.E.2d 248, 256 (2000) ("[S]hould the trial court allow joinder, and on appeal that joinder be deemed error, this Court should review any resulting prejudice with reference to Rule 404(b)."). In State v. Herring, 74 N.C. App. 269, 273, 328 S.E.2d 23, 26 (1985), aff'd per curiam, 316 N.C. 188, 340 S.E.2d 105 (1986), this Court held that the trial court did not commit prejudicial error when "evidence of each offense would have been admissible at trial of the others."
N.C.R. Evid. 404(b) states in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

Rule 404(b) is a rule of inclusion. Evidence of other wrongful acts is admissible unless "its only probative value is to show that defendant has the propensity or disposition to commit an offense of the nature of the crime charged." State v. Berry, 356 N.C. 490, 505, 573 S.E.2d 132, 143 (2002).
Under Rule 404(b), evidence of the April events would have been admissible at a trial of the October offenses to provedefendant's knowledge and an absence of mistake or accident. Defendant's defense with respect to the October offenses was that she did not go to the grocery store to make a drug sale, she did not know the film canister contained cocaine, and she had no knowledge of the drug paraphernalia in her vehicle. The fact that Detective Marshall had bought cocaine from this defendant six months previously was admissible to controvert defendant's claim that she did not intend to meet Detective Marshall and that her possession of drugs and drug paraphernalia was accidental and unknowing. See State v. Lloyd, 354 N.C. 76, 89, 552 S.E.2d 596, 608 (2001) (defendant's previous shooting of another victim admissible to show the fact that his gun went off was not an accident); State v. Weldon, 65 N.C. App. 376, 377-78, 309 S.E.2d 263, 265 (1983) (evidence that the police had found heroin in or near her house on two other occasions was admissible to show defendant's "guilty knowledge" of drugs found on the charged occasion), aff'd, 314 N.C. 401, 333 S.E.2d 701 (1985).
With respect to the April offenses, evidence of the October offenses would be admissible to show identity, as permitted by Rule 404(b). Defendant's defense to the April offenses is that she was out of town at the time the events purportedly took place. She thus put her identity at issue, entitling the State to present evidence of other acts if they tended to show that the crime charged and the other offense were committed by the same person. State v. Thomas, 310 N.C. 369, 374, 312 S.E.2d 458, 461 (1984). Evidence that, in October, the detective arranged for a cocainedeal with defendant, that defendant arrived at the arranged location in a car with the same license plate as was parked at the residence in April, and that the detective recognized defendant in October from the April events would tend to establish that defendant was the person with whom the detective dealt in April. See State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793_94 (1986) (evidence of prior dealings in stolen goods between defendant and a specific person was admissible to prove identity because the prior dealings established a course of dealing). We hold, therefore, that since evidence of the October offenses would be admissible in a trial of the April offenses and vice versa, there was no prejudice from joinder. Defendant argues, however, that she was still prejudiced because a jury would not be able to distinguish among the offenses. This Court has previously found that such an assertion, without more, is an insufficient showing of prejudice. Bowen, 139 N.C. App. at 30, 533 S.E.2d at 256 (rejecting defendant's argument that the jury "lumped all of the various charges together" to the defendant's prejudice). Accordingly, we hold that even if joinder was improper, defendant has not demonstrated any prejudice.

    Defendant's next assignment of error contends that the trial court erred in allowing Detective Marshall to refer to her anonymous informant as "confidential" and "reliable" because it amounted to impermissible "vouching" in violation of Rules 405 and 608 of the Rules of Evidence.    Defendant acknowledges that the trial court barred the detective from testifying as to anything that the informant told her. The detective was only allowed to testify that she received unspecified information from the informant upon which she later acted. The informant did not testify.
    Rule 608(a), governing admission of evidence relating to "[t]he credibility of a witness," provides that evidence of the truthful character of a witness "is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise." In this case, the informant was never a witness and, therefore, Rule 608 does not apply to him or her. Thus, we find no merit to defendant's argument that Detective Marshall's testimony violated Rule 608.
    Rule 405 specifies the permissible methods of proving character "[i]n all cases in which evidence of character or a trait of character of a person is admissible." Although the parties dispute whether the character of the informant was at issue, we hold that the detective's testimony, even if in error, was harmless. Defendant argues that she was prejudiced because the detective's references to her confidential and reliable informant (1) bolstered the testimony of the detective by suggesting that the informant corroborated the detective and (2) implied greater wrongdoing on the part of defendant than just the charges before the jury. Since the trial court did not, however, allow the detective to tell the jury what the informant said and the detective ultimately testified to the results of her independentinvestigation, we do not believe "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial." N.C. Gen. Stat. § 15A-1443(a) (2003).

Defendant next argues that the trial court improperly admitted into evidence the crack cocaine that Detective Marshall purchased from defendant in April, the crack cocaine found in the film canister in October, and the State Bureau of Investigation laboratory reports analyzing each substance. Defendant contends that there were flaws in the evidence's chain of custody, which should have resulted in the exclusion of the evidence at trial. It is, however, well-established that "any weak links in a chain of custody relate only to the weight to be given the evidence and not to its admissibility." State v. Campbell, 311 N.C. 386, 389, 317 S.E.2d 391, 392 (1984). See also State v. Montgomery, 291 N.C. 91, 103, 229 S.E.2d 572, 581 (1976).
The evidence offered by the State " must be identified as being the same object involved in the incident and it must be shown that the object has undergone no material change." Campbell, 311 N.C. at 388, 317 S.E.2d at 392. Nevertheless, "[a] detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered." Id. at 389, 317 S.E.2d at 392. No such circumstances appear in the record before us. Instead, the State's evidence generally traced the movements of the cocaine from the crime scenes until it arrived at the trial court, identified the cocaine as being that seized from defendant, and established that the cocaine was unaltered except for testing. Since such a showing met the threshold requirement of admissibility, any weaknesses in the details of the chain of custody were a matter for the jury.

In defendant's next assignment of error, she argues that the trial court should have allowed her motion to dismiss the October charge of possession with intent to sell or deliver. Defendant argues that there was insufficient evidence for a reasonable jury to find she had the requisite intent to sell or deliver. When the trial court is presented with a defendant's motion to dismiss based on the insufficiency of the evidence, it "must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. If substantial evidence of each element is presented, the motion for dismissal is properly denied. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Jones, 161 N.C. App. 615, 624, 589 S.E.2d 374, 379 (2003) (internal citations and quotation marks omitted), appeal dismissed and disc. review denied, 358 N.C. 379, 597 S.E.2d 770 (2004). In this case, the State offered sufficient circumstantial evidence that defendant intended to sell or deliver the crack cocaine in her possession on 1 October. The "intent [to sell and deliver cocaine] may be established by circumstantial evidence. Even where the amount of drugs involved is small, the surrounding circumstances may allow the jury to find an intent to distribute." State v. James, 81 N.C. App. 91, 94, 344 S.E.2d 77, 80 (1986) (internal citations omitted). The State's evidence established that Detective Marshall arranged to purchase crack cocaine from defendant at a specific location; defendant arrived at that location at the agreed-upon time; defendant had crack cocaine in her possession; and a search of defendant's vehicle uncovered multiple pipes for smoking cocaine, a measuring spoon, and small plastic bags of the type commonly used to distribute narcotics. This evidence was adequate to permit a reasonable jury to find that defendant had the requisite intent to sell or deliver cocaine. Accordingly, the trial court properly denied defendant's motion to dismiss.

Finally, with respect to the October transaction, defendant argues that she was entitled to a jury instruction on the lesser included offense of simple possession. "'[O]nly when there is evidence of a lesser included offense is the judge required to charge on a lesser offense.'" State v. King, 99 N.C. App. 283, 290, 393 S.E.2d 152, 156 (1990) (quoting State v. Agubata, 92 N.C. App. 651, 660, 375 S.E.2d 702, 707 (1989)). In this case, defendant argued only that she found the film canister on the ground and did not know that it contained cocaine. She offered no evidence tending to show that, even if the jury found she knowingly possessed cocaine, she did not intend to sell it. She was not, therefore, entitled to an instruction on the lesser included offense of possession.
For the foregoing reasons, we find defendant received a trial free from prejudicial error.

    No error.
    Judges CALABRIA and STEELMAN concur.
    Report per Rule 30(e).

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