STATE OF NORTH CAROLINA
v. New Hanover County
Nos. 03 CRS 63872-73
DORIAN DWAYNE ANDREWS
Attorney General Roy Cooper, by Assistant Attorney General
Susan R. Lundberg, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Matthew D. Wunsche, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Dorian Dwayne Andrews
was indicted on charges of
possession with intent to sell or deliver cocaine, trafficking in
cocaine by delivery, trafficking in cocaine by possession, and
conspiracy to traffic in cocaine
. The State presented evidence at
trial which tended to show the following:
On 7 November 2003,
Officers David Pellegrino and Chris Mayo of the Wilmington Police
Department were driving in a patrol car on Greenfield Street in
Wilmington, North Carolina. As they passed a BP gas station, they
noticed two people standing near a parked vehicle having a
conversation. As they passed, the two men stopped talking and
looked in their direction. After they passed by, the two menwalked to the back of the gas station. The officers thought it was
“odd” since there was nothing behind the gas station and it was
dark, so they turned their car around and went back to the station
to investigate.
When they returned to the gas station, they parked near the
parked car. Defendant was sitting in the driver's seat of the
vehicle. Officer Mayo saw two men come around the corner of the
store and look in their direction. One of the men walked away
while the other, later identified as Leonard White, walked toward
the passenger side of the parked car. The officers got out of the
car and started to approach defendant's car. White appeared
nervous and began to dig into his left pocket with his left hand
while opening the door of the car with his right hand and then sat
in the passenger side of the vehicle. As Officer Mayo walked up to
the passenger side of the car, he observed the following:
Mr. White took his left hand and I noticed him
put it on top of the Defendant's right hand so
it was kind of cupped like that
(demonstrating). As Leonard White took his
hand off of his left hand, I could see in the
Defendant's left hand a clear plastic bag
containing an off-white rock-like substance.
Officer Mayo then testified that defendant looked in his direction
and in the direction of Officer Pellegrino, looked at the bag in
his hand, and tucked it underneath his left arm to conceal it.
Upon seeing this, Officer Mayo alerted Officer Pellegrino that
“It's in his right hand, it's in his right hand.”
The officers then drew their weapons and ordered the two men
to let them see their hands. Defendant failed to comply untilOfficer Pellegrino pointed his weapon at him. Then, defendant put
his hands on the steering wheel and looked straight ahead. Officer
Mayo ordered White out of the car, and when he went to handcuff
him, White ran. Officer Mayo pursued White and eventually caught
him. After securing White, Officer Mayo returned to the car to
assist Officer Pellegrino. Officer Pellegrino holstered his weapon
and opened the driver's side door. When he did so, a bag
containing cocaine fell to the ground. It was later determined
that the bag contained 60.8 grams of crack cocaine. Defendant was
arrested and searched. During the search, Officer Pellegrino
discovered two small bags containing 1.2 grams of crack cocaine.
At trial, defendant testified that he went to the BP gas
station that day “to get me a beer and some blunts and some
cigarettes.” When defendant was leaving, White, his cousin, yelled
for him to stop and asked him for a ride. Defendant stopped the
car and White got in. Defendant testified that when White got in
the car, “something just hit my lap and falls over to the door.”
Defendant stated that he knew White was involved with controlled
substances, and knew what was in the bag as soon as it hit his lap.
As defendant reached for the bag, police officers arrived with guns
drawn. Defendant admitted that he used cocaine, and conceded that
the cocaine found in his pants' pocket was his. However, defendant
denied that the cocaine found in the large baggie was his, and
denied having any discussions with White regarding the drugs.
Defendant was convicted of possession with intent to sell or
deliver cocaine, trafficking in cocaine, and conspiracy to trafficin cocaine. Defendant was sentenced to two concurrent terms of
thirty-five to forty-two months imprisonment and a concurrent term
of eight to ten
months imprisonment.
Defendant appeals.
Defendant first argues
the trial court erred when it denied
his motion to dismiss the trafficking in cocaine charge because
there was insufficient evidence that he ever possessed more than 28
grams of cocaine. Defendant contends that he did not know that
White had cocaine until White tossed the cocaine into his lap.
Thus, defendant argues that he could not knowingly intend to
possess the cocaine.
After careful review of the record, briefs and contentions of
the parties, we find no error.
To survive a motion to dismiss, the
State must present substantial evidence of each essential element
of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483
S.E.2d 432, 434 (1997). “Substantial evidence is relevant evidence
that a reasonable mind might accept as adequate to support a
conclusion.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592,
595 (1992).
“A person has actual possession of a substance if it is on his
person, he is aware of its presence, and either by himself or
together with others he has the power and intent to control its
disposition or use.” State v. Reid, 151 N.C. App. 420, 428-29, 566
S.E.2d 186, 192 (2002)(citation omitted). Here, Officer Mayo
testified that defendant took the bag of cocaine from White and
proceeded to conceal the drugs by tucking it under his left arm.
Officer Pellegrino testified that when he opened the driver's sidedoor, the bag fell to the ground from “close to where his hand
would have been if he dropped it straight down.”
Defendant's
testimony, to the extent it contradicts that of the two officers,
goes to the weight of the evidence, and not the sufficiency of the
evidence on a motion to dismiss.
See State v. Haynesworth
, 146
N.C. App. 523, 527, 553 S.E.2d 103, 107 (2001)(“When considering a
motion to dismiss, the trial court 'is concerned only with the
sufficiency of the evidence to carry the case to the jury and not
with its weight.' Any contradictions or discrepancies in the
evidence are for resolution by the jury and do not warrant
dismissal”).
Accordingly, in the light most favorable to the
State,
a jury could properly infer that defendant knowingly
possessed the cocaine.
Defendant next argues the trial court erred when it denied his
motion to dismiss the charge of conspiracy. Defendant contends
that there was no evidence of any agreement between he and White.
Defendant notes that there was no evidence that he and White spoke
to each other, and argues that he did not know what White was
passing him until it was in his lap.
We find no error. “A criminal conspiracy is an agreement
between two or more persons to do an unlawful act or to do a lawful
act in an unlawful way or by unlawful means.” State v. Lipford, 81
N.C. App. 464, 465, 344 S.E.2d 307, 308 (1986)
. “No express
agreement need be proved; proof of circumstances which point to a
mutual implied understanding to commit the unlawful act is
sufficient to prove a conspiracy.” State v. Howell, ___ N.C. App.___, ___, 611 S.E.2d 200, 205 (2005)
. “The crime is complete when
the agreement is made; no overt act in furtherance of the agreement
is required.” Id.
In the case sub judice, there was substantial evidence to
support a finding of defendant's guilt of conspiracy to traffic in
cocaine. The officers' testimony tended to show that White got in
the defendant's car, defendant reached out and White handed
defendant the bag of cocaine, and defendant immediately attempted
to conceal it. From this evidence, as well as the evidence of the
parties' relationship and the circumstances of the transaction, a
jury could reasonably infer that defendant was waiting in his car
for White to complete the drug transaction, and defendant expected
to receive the cocaine from White. Thus, a jury could properly
conclude that defendant and White had a mutual understanding that
they would traffic in cocaine.
Accordingly, the assignment of
error is overruled.
Defendant finally argues that the trial court committed plain
error when it admitted testimony from Detective Richards that White
expressed a desire to “go to a magistrate and get his bond.”
Defendant contends that the statement demonstrated White's intimate
knowledge of the criminal justice system and imputed the same to
him. Defendant claims that the testimony created a bias against
him. Defendant further argues that the statement was hearsay.
We
are not persuaded.
“A plain error is one 'so fundamental as to amount to a
miscarriage of justice or which probably resulted in the juryreaching a different verdict than it otherwise would have
reached.'” State v. Carroll, 356 N.C. 526, 539, 573 S.E.2d 899,
908 (2002)(quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d
244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912
(1988)), cert. denied, 539 U.S. 949, 156 L. Ed. 2d 640 (2003). It
is to be applied cautiously and only in the exceptional case where
the error is so prejudicial, that justice cannot have been done.
State v. Baldwin, 161 N.C. App. 382, 388, 588 S.E.2d 497, 503
(2003). Here, assuming arguendo that admission of the testimony
was error, we conclude that it does not amount to plain error. It
is speculative to assume that simply because White asked to be
taken to the magistrate so he could get his bond, that the jury
would jump to the conclusion that White had an intimate knowledge
of the criminal justice system. It is even a more tenuous
inference that the jury would impute this knowledge to the
defendant. Thus, we conclude that it is unlikely that but for this
evidence, the jury would have reached a different conclusion.
Accordingly, we find no error.
No error.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
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