STATE OF NORTH CAROLINA
GENERAL LEE WILLIAMS, III
Attorney General Roy A. Cooper, III, by Assistant Attorney
General David L. Elliott, for the State.
Clifford, Clendenin, O'Hale & Jones, L.L.P., by Walter L. Jones, for defendant-appellant.
General Lee Williams, III (defendant) appeals from a judgment consistent with a jury verdict for attempted trafficking of cocaine by possession dated 20 August 2003. For the reasons stated herein, we find no error.
The State's evidence at trial tends to show that in December 2002, Detective Juan Francisco Tejeda (Detective Tejeda), of the Rockingham County Sheriff's office, was recruited by Greensboro Police Detective John Marsh (Detective Marsh) as an undercover cocaine seller. Detective Marsh had acquired the phone number of a person named Neal who was trying to buy a large amount of cocaine. Neal was later identified as defendant. In an unrecordedphone conversation, Detective Tejeda contacted defendant to discuss making a cocaine transaction. A later face to face meeting was planned. In a second recorded phone call, Detective Tejeda and defendant set up a meeting place, time, and provided vehicle descriptions to identify one another.
At the first meeting, which was recorded, defendant indicated to Detective Tejeda that he was the middleman supplier for five people. The meeting ended with a tentative agreement for Detective Tejeda to provide defendant with five or six kilograms of cocaine at $18,000.00/kilo, with lower weighted purchases ranging up to $22,000.00/kilo. Defendant planned to contact Detective Tejeda by pager after determining how much cocaine his customers needed. Detective Marsh then identified defendant by running a check of defendant's license plate. Defendant paged Detective Tejeda within twenty-four hours. Detective Tejeda contacted defendant by phone, and in an unrecorded conversation, agreed to purchase one kilogram of cocaine for $22,000.00 so defendant's buyers could test the product. Detective Tejeda phoned defendant in a fourth and final recorded phone call to establish a meeting time and place.
The final meeting, recorded by Detective Marsh, occurred in the Four Season's parking lot outside of Belk's at 8:00 p.m. Defendant entered Detective Tejeda's car with a Belk's shopping bag containing twenty-two bundles of cash. Each bundle held approximately $1,000.00. Defendant emptied the bag onto the seat, and told Detective Tejeda to count the bills. Detective Tejeda looked over the money, then told defendant he would call hisbrother to bring the cocaine to them. Defendant waited with Detective Tejeda for the cocaine to arrive. Detective Marsh arrived a few minutes later with other officers, and after a short foot chase, arrested defendant. A total of $22,664.00 in cash was seized from defendant. Defendant presented no evidence at trial. Defendant appeals.
Defendant contends the trial court erred by failing to grant his motion to dismiss for insufficient evidence at the close of the State's evidence. Defendant argues insufficient evidence was offered showing defendant took steps beyond mere preparation sufficient to show attempted possession. We disagree.
In reviewing a motion to dismiss, the trial court determines whether there has been substantial evidence presented for each element of the offense, and that the defendant was the perpetrator. State v. Gunnings, 122 N.C. App. 294, 295, 468 S.E.2d 613, 614 (1996). Substantial evidence is that relevant evidence which a reasonable mind would find sufficient to support a conclusion. All the evidence, whether direct or circumstantial, must be considered by the trial court in the light most favorable to the State, with all reasonable inferences to be drawn from the evidence being drawn in favor of the State. Id. (citations omitted).
Defendant was charged with attempted trafficking by possession of cocaine. The elements of an attempt to commit a crime are (1) an intent to commit the crime, (2) an overt act done for that purpose, going beyond mere preparation, (3) but falling short of the completed offense. State v. Collins, 334 N.C. 54, 60, 431S.E.2d 188, 192 (1993). 'Between preparation for the attempt and the attempt itself there is a wide difference. The preparations consist in devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement towards the commission after the preparations are made.' State v. Addor, 183 N.C. 687, 690, 110 S.E. 650, 651 (1922) (citation omitted).
In State v. Gunnings, the Court found substantial evidence of attempt when the accused drove to an area known for drug sales, approached undercover officers she believed to be cocaine dealers, and exchanged cash for what she thought was cocaine. Gunnings, 122 N.C. App. at 296, 468 S.E.2d at 614. These actions were found to qualify as overt acts to acquire possession of cocaine.
Here, defendant took several steps calculated to acquire cocaine from Detective Tejeda. Id. Defendant engaged in four phone calls and two meetings with a person defendant believed to be a cocaine dealer. Volume and prices of cocaine were discussed by defendant. Defendant made an agreement to buy one kilo of cocaine for $22,000.00 from Detective Tejeda, and agreed on a time and place for the purchase. Defendant arrived with the large amount of cash agreed upon at the established time and place. Defendant then entered Detective Tejeda's car and presented the cash for the exchange, asking for confirmation of the amount. When the amount was verified, defendant waited for delivery of the cocaine. Defendant had completed all the steps of acquiring cocaine and was only waiting for the final delivery at the time he was arrested. Defendant's acts went beyond mere preparation and constituted overt acts in making a final agreement on price and quantity, arriving at the meeting place at the agreed upon time, and delivering $22,000.00 in cash for the purchase.
As stated in Addor, the crime of attempt does not require the last act of the offense to be completed. Addor, 183 N.C. at 689, 110 S.E. at 651. The overt act involved need not be the last proximate act to the consummation of the felony attempted to be perpetrated, but it must be near enough to it to stand either as the first or some subsequent step in a direct movement toward the commission of the felony. State v. Tyner, 50 N.C. App. 206, 207, 272 S.E.2d 626, 627 (1980).
Although Detective Tejeda did not have actual cocaine or a facsimile thereof to deliver, the transaction had reached the last act for completion and Detective Tejeda's ability to complete the transaction is irrelevant. As our Court stated:
[W]hen a defendant has the specific intent to commit a crime and under the circumstances as he reasonably saw them did the acts necessary to consummate the substantive offense, but, because of facts unknown to him essential elements of the substantive offense were lacking, he may be convicted of an attempt to commit the crime.
Gunnings, 122 N.C. App. at 296, 468 S.E.2d at 614 (quoting State v. Hageman, 307 N.C. 1, 13, 296 S.E.2d 433, 441 (1982)). Further, Detective Tejeda testified that in transactions involving large quantities of drugs, it is common practice for a second party to deliver the drugs, to prevent the dealer from being robbed. Defendant had a reasonable expectation that the transaction would be completed, resulting in his possession of one kilo of cocaine.
Therefore, as substantial evidence existed that defendant had committed acts beyond mere preparation to acquire possession of one kilo of cocaine, the trial court properly denied defendant's motion to dismiss the charge of attempted trafficking of cocaine by possession.
Judges McGEE and LEVINSON concur.
Report per Rule 30(e).
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