State v Shuff, (04-590) 03/15/2005

Appeal by defendant from judgment entered 11 February 2004 by Judge Beverly T. Beal in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 January 2005.

Attorney General Roy Cooper, by Assistant Attorney General Q. Shante Martin, for the State.

Carlton, Rhodes and Carlton, by Gary C. Rhodes, for defendant- appellant.

    STEELMAN, Judge.

    Defendant was indicted for the felony of possession with intent to sell and deliver cocaine arising out of a 12 March 2003 incident. On 11 February 2004, defendant was found guilty of that charge by a jury, and was sentenced to 10 to 12 months incarceration in the Department of Corrections. Defendant appeals.
    At the trial of the defendant, the State presented evidence that at about 3:15 p.m. on 12 March 2003, a clear, sunny day, Officer Hudson was working undercover in the Smallwood community of Charlotte as part of a long term operation to curb illegal drug sales. Officer Hudson encountered Sheila Davis (Davis), who he knew to be a convicted prostitute and crack cocaine addict. Officer Hudson asked Davis where he could find $30 worth of “hard,”which is the common street term used to describe crack cocaine. Davis motioned for Officer Hudson to follow her up the street. As Officer Hudson followed Davis in his car, he saw that she was walking towards defendant on North Gregg Street, and that defendant was walking towards her. Officer Hudson was four to five feet away from defendant when he first observed him. Hudson described defendant as wearing a white tank top shirt, low riding blue jeans about halfway down his mid section, with a pair of gray sweat pants sticking out from underneath. Defendant “also had his braids pulled up on the very top of his head sticking out almost like a water fountain kind of look.” Officer Hudson did not observe another person in the area who fit defendant's description. When Davis and defendant met on the street, Officer Hudson pulled his car up beside the two, and looked directly at defendant. While defendant and Davis spoke, Officer Hudson drove around the block. While pulling away, Officer Hudson observed defendant place an object in Davis' hand in his rear view mirror. When Officer Hudson returned after taking approximately a minute to drive around the block, Davis came to his car window and gave him two rocks of crack cocaine in return for $30. As a matter of common practice in undercover narcotics work, Officer Hudson allowed Davis to keep one of the crack rocks “for her trouble.”
    Once Officer Hudson left the scene, he radioed a description of defendant to the cover officers and asked them to make an identification of defendant. About a minute later Officer Boger arrived in the area and identified defendant. Officer Boger didnot see anyone else in the area that matched defendant's description.
    On 1 April 2003, Officer Steven Winterhalter was working undercover in the Smallwood neighborhood. While driving down West Trade Street in the Smallwood community, Officer Winterhalter came into contact with Kenneth King. Officer Winterhalter asked King if he was “holding” (slang for asking someone if they are selling any controlled substances) and told King that he was looking for “a couple of dimes of hard.” King got into the car with Officer Winterhalter, and they drove to the intersection of South Gregg and Roslyn Avenue. King got out of Officer Winterhalter's car at this intersection, and Winterhalter recognized defendant standing beside a white Cadillac. While Winterhalter waited at the intersection, he observed a “hand to hand” drug transaction between defendant and King. A “hand to hand” is a quick transaction which can be a quick handshake or a slap used to exchange the drugs quickly so as to be undetected. After the hand to hand transaction between defendant and King, King returned to Winterhalter's vehicle and produced three rocks of crack cocaine, for which Officer Winterhalter gave King $30. Within seconds of leaving the scene, Officer Winterhalter radioed the description of defendant to the cover officers.
    In his first and second assignments of error, defendant contends that the trial court erred in denying his motions to dismiss at the close of State's evidence and at the close of all evidence. We disagree.    “Upon defendant's motion for dismissal, the question for the [trial court] is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)(citations omitted). Substantial evidence is relevant evidence that a reasonable person would find sufficient to support a conclusion. State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987)(citation omitted). When reviewing a motion to dismiss based on insufficiency of the evidence, this Court must
        view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. . . . Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then “it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.”

State v. Barnes, 334 N.C. 67, 75-76, 430 S.E.2d 914, 918-19 (1993)(citations omitted)(emphasis removed). “The test of the sufficiency is the same whether the evidence is circumstantial or direct, or both . . . .” State v. Jones, 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981).
    In order to prove possession with intent to sell or deliver a controlled substance under N.C. Gen. Stat. § 90-95(a)(1) (2003), the State must prove “(i) the unlawful (ii) possession (iii) of a controlled substance (iv) with the intent to sell or deliver it.”State v. Pulliam, 78 N.C. App. 129, 131, 336 S.E.2d 649, 651 (1985). In the instant case the State's evidence tended to show that Officer Hudson, acting undercover, asked Davis where he could buy some crack cocaine. Davis motioned for Officer Hudson to follow, and approached defendant. Looking in his rear-view mirror, Officer Hudson observed defendant place something in Davis' hand. After driving around the block, Officer Hudson approached Davis and she gave him two rocks of crack cocaine. Defendant was not lawfully entitled to possess cocaine, yet there is substantial evidence that he did possess it, and gave it to Davis. Officer Hudson approached Davis for the specific purpose of buying cocaine, and gave her money for that purpose. She approached defendant to get the cocaine, Hudson saw defendant pass something to Davis. Davis then approached Hudson with the cocaine. This constituted substantial evidence of defendant's possession of cocaine with intent to sell or deliver.
    Further, Officer Hudson testified that he had formal training in identifying suspects. His view of defendant during the transaction was unimpeded, and it was a clear and sunny day. Officer Hudson gave a detailed description of defendant to his backup officers within seconds of the end of the transaction, and based on Officer Hudson's description, defendant was located by Officer Boger within one minute of Officer Hudson's call. Officer Hudson identified defendant in court as the person he had witnessed on 12 March 2003. This evidence, viewed in the light most favorable to the State, was sufficient to withstand defendant'smotions for dismissal. These assignments of error are without merit.
    In his third assignment of error, defendant argues that the trial court committed plain error by failing to question defendant to make sure his decision not to testify was voluntary. We disagree.
    “This [Supreme] Court has never required trial courts to inform a defendant of his right to testify or to make an inquiry on the record regarding his waiver of the right to testify.” State v. Smith, 357 N.C. 604, 618, 588 S.E.2d 453, 463 (2003), cert. denied, Smith v. North Carolina, __ U.S. __, 159 L. Ed. 2d 819 (2004)(citation omitted). Our Supreme Court has held “that absent a defendant's indication that he wished to testify, it cannot be said that the trial court denied defendant of his right.” Id. at 619, 588 S.E.2d at 463 (citation omitted). This assignment of error is without merit.
    In his fourth assignment of error, defendant argues that the trial court committed error by admitting the identification testimony of Officer Hudson without affording defendant a voir dire examination of the officer. We disagree.
    “Although the better practice dictates 'that the trial judge, even upon a general objection only, should conduct a voir dire in the absence of the jury, find facts, and thereupon determine the admissibility of in-court identification testimony . . . [f]ailure to conduct the voir dire . . . does not necessarily render such evidence incompetent.'” State v. Smith, 21 N.C. App. 426, 427, 204S.E.2d 693, 694 (1974)(citation omitted). In the instant case the evidence shows that Officer Hudson, trained in identification techniques, observed defendant on a clear, sunny day at close distance for nearly 45 seconds. “[W]here as here, the evidence is clear and convincing that the in-court identification of the defendant originated with observation of the defendant at the time of the [crime] . . . the failure to conduct a voir dire must be deemed harmless error.” Id. at 428, 204 S.E.2d at 694. This assignment of error is without merit.
    In his fifth assignment of error, defendant argues that the trial court erred in admitting evidence without it having been properly authenticated, or, in the alternative, without giving a limiting instruction. “Defendant fails to cite any statute or caselaw in support of this assignment of error. 'It is not the function of the appellate courts to search out possible errors which may be prejudicial to an appellant; it is an appellant's duty, acting within the rules of practice, to point out to the appellate court the precise error of which he complains.'” State v. Stevenson, 136 N.C. App. 235, 244, 523 S.E.2d 734, 739 (1999)(citation omitted); see also N.C.R. App. P. Rule 28(b)(6); State v. Bonney, 329 N.C. 61, 82, 405 S.E.2d 145, 157 (1991). This assignment of error is without merit.
    In his sixth, seventh, and ninth assignments of error, defendant argues that the trial court erred by improperly admitting certain 404(b) evidence at trial, by failing to grant defendant's motion for a mistrial on the grounds that the evidence wasimproperly admitted, and in giving an insufficient limiting instruction to the jury concerning the 404(b) evidence. We disagree.
    Defendant points to the testimony of Officer Winterhalter, recounted above, concerning his undercover participation in a subsequent drug deal involving defendant. We first note that defendant failed to object to the limiting instruction given by the trial court at trial.   (See footnote 1) Because he did not object at trial, and because he does not assert that the limiting instruction as given amounts to plain error, he has not preserved this issue for appellate review. N.C.R. App. P. Rule 10(c)(4)(2003); State v. McNeill, 140 N.C. App. 450, 460, 537 S.E.2d 518, 524 (2000), overruled on other grounds by Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004).
    Defendant argues that in order for 404(b) evidence to be admissible, the conduct must have occurred prior to the offense for which the defendant stands trial. Defendant is mistaken. Rule 404(b) also applies to other acts committed after the offense for which the defendant is being tried. See State v. Strickland, 98 N.C. App. 693, 695, 391 S.E.2d 829, 831 (1990).
    Defendant next argues that the evidence admitted fails the test for admissibility under Rule 404(b). “Recent cases decided by this Court under Rule 404(b) state a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts bya defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.” State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
        Thus, even though evidence may tend to show other crimes, wrongs, or acts by the defendant and his propensity to commit them, it is admissible under Rule 404(b) so long as it also “is relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried.”

State v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247 (1987)(citation omitted). “[E]vidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused.” State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986). “The burden is on the defendant to show that there was no proper purpose for which the evidence could be admitted.” State v. Young, 317 N.C. 396, 412, 346 S.E.2d 626, 635 (1986). “Nevertheless, the ultimate test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403.” State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988). “The question of what evidence should be excluded under Rule 403 is a matter left to the sound discretion of the trial court.” State v. Haskins, 104 N.C. App. 675, 680, 411 S.E.2d 376, 381 (1991)(citation omitted). “Hence, the trial court's decision will not be disturbed, unless it 'is manifestlyunsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'” State v. McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413 (1998)(citation omitted).
    In the instant case, the State offered this evidence to prove intent and modus operandi. The two events occurred within one month of each other; both occurred in the late afternoon; both occurred in the area of West Trade Street and Gregg Street in Charlotte; in both instances the undercover officers approached individuals asking for cocaine, and those individuals directed the officers to accompany them to where defendant was standing; in both instances defendant used those third parties to deliver the cocaine to the undercover officers; in both instances defendant exchanged the drugs for money in a hand to hand transaction with the third parties. This evidence was relevant to show both defendant's intent to sell and deliver the cocaine on 12 March 2003, and his modus operandi in carrying out that intent. The trial court did not abuse its discretion in determining that the contested evidence was more probative than prejudicial under the Rule 403 balancing test, as the two incidents were sufficiently similar and close in time. See State v. McCracken, 157 N.C. App. 524, 529, 579 S.E.2d 492, 496 (2003). Because this evidence was properly admitted, the trial court did not err in denying defendant's motion for a mistrial based upon the admission of this evidence. These assignments of error are without merit.
    In defendant's eighth assignment of error he argues that the trial court erred in failing to grant his motion for a mistrialbecause the State was allowed to offer prejudicial evidence of identification by use of an inadmissable photograph. We disagree.
    We initially note that this assignment of error is subject to dismissal pursuant to N.C. R. App. P. Rule 28(b)(6), as defendant provides no authority in support of his argument. See State v. Stevenson, 136 N.C. App. 235, 244, 523 S.E.2d 734, 739 (1999).
    “N.C. Gen. Stat. § 15A-1061 states, in part, a defendant's motion for mistrial must be granted 'if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.'” State v. Vines, 105 N.C. App. 147, 154, 412 S.E.2d 156, 161 (1992). “The decision as to whether prejudice has occurred is addressed to the discretion of the trial judge and is not reviewable absent a showing of gross abuse of discretion.” Id.
    In the instant case, in response to questioning from the State concerning his photo identification of defendant, Detective Hudson testified: “Once I got to the location with the other uniform officers there was a book given to me of mugshot photos.” Defendant objected at this point, but was overruled. Officer Hudson continued: “Of mugshot photos, that being pictures of people that had been _“ whereupon defendant again objected. Out of the presence of the jury, the trial court heard defendant's argument that the term “mugshot” implied that the defendant had been arrested prior to the incident in question, and was therefore prejudicial. The State had no objection to prohibiting OfficerHudson from using that term. The jury was called back to the courtroom, and the trial court issued the following instruction: “There was an objection. I'm sustaining the objection and striking the evidence on that particular question. You should disregard it. Don't speculate about it. Don't concern yourselves at all about it. Just listen to the next question and listen to the evidence.” Officer Hudson then continued his testimony without using the offending term.
    Defendant argues that the prejudicial damage had been done, and was not cured by the subsequent instruction. “Where a trial court sustains a defendant's objection to the answer of a witness, strikes same, and instructs the jury not to consider it, the jury is presumed to have heeded the instruction and any prejudice is removed.” State v. Gregory, 37 N.C. App. 693, 697, 247 S.E.2d 19, 22 (1978). In Gregory, this Court found that a witness' statement that he had committed crimes at the defendant's behest was not so prejudicial as to warrant a mistrial when the trial court had sustained defendant's objection and stricken the testimony. We hold that Officer Hudson's reference to defendant's “mugshot” did not warrant a mistrial on these facts, and therefore the trial court did not commit a gross abuse of discretion in so ruling. This assignment of error is without merit.
    NO PREJUDICIAL ERROR.
    Judges TIMMONS-GOODSON and HUDSON concur.
    Report per Rule 30(e).

Footnote: 1