An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1369


Filed: 2 August 2005


         v.                        New Hanover County
                                Nos. 03 CRS 63872-73
DORIAN DWAYNE ANDREWS                                

    Appeal by defendant from judgments entered 5 May 2004 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 18 July 2005.

    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).

*** Converted from WordPerfect ***