An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1371


Filed: 16 August 2005



     v .                              Forsyth County
                                     No. 03 CRS 52222

    Appeal by defendant from judgment entered 19 May 2004 by Judge Edwin G. Wilson, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 8 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Joseph Finarelli, for the State.

    Charns & Charns, by D. Tucker Charns, for defendant appellant.

    MCCULLOUGH, Judge.

    Defendant appeals from his criminal convictions and judgments for trafficking in cocaine by possession and possession with intent to sell and/or deliver cocaine. We find no error.
    The State's evidence at trial tended to show the following: on 1 March 2003, Trooper P.M. Dixon of the North Carolina State Highway Patrol observed a Ford Explorer traveling over the speed limit on Martin Luther King, Jr. Boulevard in Winston-Salem, North Carolina. Trooper Dixon proceeded to pull over the Ford Explorer for traveling forty-seven miles per hour in a thirty-five miles per hour zone. Once the vehicle had come to a stop, Trooper Dixon approached and asked the driver for identification. While talkingwith the driver, Trooper Dixon detected the odor of alcohol on the driver's breath, and began investigating the driver for a charge of driving while impaired.
    During his initial approach to the vehicle, Trooper Dixon also observed a black male in the front passenger seat and a black male (defendant) in the vehicle's left side backseat. Next to the backseat passenger, Trooper Dixon observed a glass Pyrex measuring dish with a white, hard rock-like substance stuck to its sides, located on the hump separating the foot wells of the Explorer's rear passenger seats. Based on his past experiences as a police officer, Trooper Dixon suspected the substance to be crack cocaine. Trooper Dixon was alone at the scene, however, and proceeded to leave the passengers in the stopped vehicle while he investigated the driver for driving while impaired.
    At trial, Trooper Dixon testified that he returned to his police cruiser with the driver of the Ford Explorer, at which point the trooper asked if the driver knew the other occupants of the vehicle. Trooper Dixon also testified that the driver was able to identify the right front seat passenger but not the man in the backseat (defendant). Defense counsel objected to this testimony as hearsay, arguing that the statements of the driver and front seat passenger were being offered for the truth of the matter asserted, and did not fall under an exception to the rule against hearsay. In response to the defense counsel's objection, the State contended the statements were not being offered for the truth of the matter, but were included in Trooper Dixon's testimony “to showwhat effect it had on the trooper” and “what he did to further his investigation.” The trial court then overruled defense counsel's objection and denied defense counsel's subsequent oral request for a limiting instruction regarding the use and purpose of this testimony.
    Trooper Dixon further testified that the driver said he had been at a party with the front seat passenger, and the gentleman in the backseat (defendant) had asked for a ride home. Trooper Dixon also asked the driver if he had any weapons or contraband on his person, to which the driver responded that he did not. After questioning the driver, Trooper Dixon performed a search of the defendant and found no weapons or contraband. Once Trooper Dixon completed his DWI investigation, he arrested the driver for driving while impaired by alcohol.
    Following the driver's arrest, Trooper Dixon exited his patrol vehicle to find that Officers Davis and Hamilton from the Winston- Salem Police Department had arrived on the scene. Trooper Dixon explained to the officers that he believed the Ford Explorer contained contraband, and then proceeded to investigate the passengers of the vehicle. Trooper Dixon first approached the front seat passenger, and asked him to exit the vehicle. Trooper Dixon then proceeded to question the front seat passenger, and asked him if he possessed any weapons or contraband. The front seat passenger replied that he did not possess such items, and allowed Trooper Dixon to search his person. Once the Trooper had searched the front seat passenger, and found no weapons orcontraband, the trooper proceeded to approach the backseat passenger (defendant).
    Trooper Dixon then proceeded to open the back, right door of the vehicle, and asked defendant to exit the vehicle. Immediately following this request, defendant jumped up and spun around, placing one of his hands over the back of the seats. Trooper Dixon became suspicious that defendant was hiding something, and once again told defendant to get out of the vehicle. Once defendant had exited the vehicle, Trooper Dixon began a search of defendant for contraband and weapons. While searching defendant, Trooper Dixon observed an object slowly traveling down defendant's pant leg. Upon examination of the object, Trooper Dixon found it to be a clear plastic bag containing a white powdery substance.
    After discovering what he believed to be a controlled substance on defendant's person, Trooper Dixon attempted to arrest defendant. However, defendant would not allow Trooper Dixon to place handcuffs on defendant's wrists. A struggle ensued, causing Officers Hamilton and Davis to intervene on Trooper Dixon's behalf. After subduing defendant, Officer Davis and DMV Officer Rigsbee (who had just arrived on the scene) handcuffed defendant and placed him under arrest. During the struggle Trooper Dixon was injured, and was taken to the hospital following the arrest of defendant.
Shortly after the arrest, Officer Davis began to inspect the premises. Upon his inspection, Officer Davis found a brown paper bag about two feet from the back of the Ford Explorer. Inside the bag, Officer Davis found several bags of white powder, anelectronic scale, and a large amount of U.S. currency. After Officer Davis had inspected the contents of the brown paper bag, Officer Hamilton placed the plastic bag that was found on defendant (containing white power) in the brown paper bag. Officer Robinson later took the brown paper bag to the highway patrol office where it was put in the evidence storage locker.
The next day Trooper Dixon arrived at the highway patrol office and examined the evidence recovered at the scene, including the brown paper bag and the Pyrex measuring cup. Inside the brown paper bag Trooper Dixon found four identical clear plastic bags, each containing white powder. Trooper Dixon also found a digital scale, $5,900 of counterfeit currency, and $540 of real currency. Following his examination of the contents of the brown paper bag, Trooper Dixon emptied the white powder from the four plastic bags into a single plastic bag, and submitted this bag to the State Bureau of Investigation for analysis. The State Bureau of Investigation subsequently reported that the bag contained 95.3 grams of cocaine hydrochloride.
At the conclusion of the State's evidence defendant moved to dismiss the charges, alleging that the State had failed to prove defendant had either actual or constructive possession of any cocaine other than the cocaine contained in the plastic bag that dropped down defendant's leg during Trooper Dixon's search. Further, defendant argued that the State did not prove the amount of cocaine that dropped from defendant was sufficient to support a charge of trafficking in a controlled substance. The trial courtdenied the motion. Defendant declined to offer any evidence, and then renewed his motion to dismiss the charges. Once again the trial court denied the motion.
At the close of the trial, the court instructed the jury on the law including actual and constructive possession. After deliberating, the jury convicted defendant of trafficking in cocaine by possession and of possession with intent to sell and/or deliver cocaine. Pursuant to defense stipulation, the trial court then sentenced defendant on both counts at a prior record level of IV.
In defendant's first argument on appeal, he contends that the trial court erred in denying his motion to sequester the witnesses at the suppression hearing and at trial. Specifically, defendant argues that the record lacks any indication of a good reason for the trial judge to have denied sequestration, and that no offer of proof could be made on this motion. We are unpersuaded by this contention.
    At the request of a party, the trial judge may order witnesses sequestered so that they cannot hear the testimony of other witnesses. N.C. Gen. Stat. §§ 15A-1225; 8C-1, Rule 615. “The aim of sequestration is two-fold: First, it acts as a restraint on witnesses tailoring their testimony to that of earlier witnesses, and second, it aids in detecting testimony that is less than candid.” State v. Harrell, 67 N.C. App. 57, 64, 312 S.E.2d 230, 236 (1984).In the instant case, defendant does not claim that there is any reason to believe any of the State's witnesses were anything less than candid, nor does defendant claim there is any evidence to show the State's witnesses tailored their testimony to that proffered by previous witnesses. Defendant only contends that “there was no legal reason” not to order sequestration, and that sequestration of the witnesses would not have been difficult. Upon review, we find that the record does not contain sufficient evidence to support a contention that any of the State's witnesses offered tailored or untruthful testimony. Moreover, we find that the trial judge was within his discretion in choosing not to sequester the State's witnesses. Harrell, 67 N.C. App. at 64, 312 S.E.2d at 236 (holding the decision of the trial court regarding sequestration of the witnesses is within the discretion of the trial judge and is not reviewable on appeal absent a showing of abuse of discretion). This assignment of error is overruled.
Defendant next contends that the trial court erred by admitting into evidence Trooper Dixon's testimony as to the statements of the other passengers of the Ford Explorer, neither of which testified in court. Specifically, defendant objects to Trooper Dixon's testimony: (1) that the driver of the car knew only one of his two passengers and not defendant, (2) that the driver said he was only giving the defendant a ride home from a party, and (3) that the driver and other passenger told him they did not have any drugs or weapons. We find defendant's claims lack merit.First, defendant argues that Trooper Dixon's statements amounted to hearsay, and were used to explain why defendant was the only person in the Ford Explorer charged with possession of a controlled substance. Defendant further contends that the admission of the out-of-court statements of the driver and front seat passenger violated his rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution as well as Article I, Section 23 of the North Carolina Constitution. We disagree.
Hearsay is defined by statute as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted[,]” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003), and is “not admissible” except as provided either by statute or by the North Carolina Rules of Evidence. N.C. Gen. Stat. § 8C-1, Rule 802 (2003). However, “[o]ut-of-court statements offered for purposes other than to prove the truth of the matter asserted are not considered hearsay.” State v. Golphin, 352 N.C. 364, 440, 533 S.E.2d 168, 219 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001).
Although the testimony provided by Trooper Dixon involved the out-of-court statements of witnesses not present at trial, we find that these statements were neither offered for the truth of the matter asserted nor offered as corroboration. Rather, Trooper Dixon's testimony was offered to explain his subsequent actions in conducting his investigation. Accordingly, we hold that the testimony did not amount to hearsay as defined by N.C. Gen. Stat.§ 8C-1, Rule 801. See State v. Moore, 162 N.C. App. 268, 592 S.E.2d 562 (2004) (holding that out-of-court statements can be admitted as testimony when used to explain the subsequent actions of a law enforcement official). Likewise, as this testimony was not hearsay its admission did not violate either the federal or state constitutions. See U.S. Const. Amend. VI; Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004) (holding the Confrontation Clause of the United States Constitution does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted). See also N.C. Const. Art. I, § 23 (2003). Therefore these assignments of error are overruled.
Defendant also contends that the trial court erred in not granting his request for a limiting instruction to be placed upon the testimony of Trooper Dixon. After the trial court overruled defendant's objection to Trooper Dixon's testimony as hearsay, the defense requested the statements made by the driver and front seat passenger be accompanied by an instruction explaining the grounds under which the evidence was offered. Specifically, defendant argues the jury should have been instructed that the testimony was not being offered for the truth of the matter asserted. Defendant further argues that the lack of such an instruction amounts to prejudicial error. We disagree.
    When evidence which is admissible for one purpose but not admissible for another purpose is admitted, the court, uponrequest, shall restrict the evidence to its proper scope and instruct the jury accordingly. N.C. Gen. Stat. § 8C-1, Rule 105 (2003). “Requests for special instructions to the jury must be-- (1) In writing, (2) Entitled in the cause, and (3) Signed by the counsel submitting them.” N.C. Gen Stat. § 1-181 (2003).
In the instant case, defendant orally requested a limiting instruction placed upon the testimony of Trooper Dixon as to the out-of-court statements of the driver and front seat passenger of the Ford Explorer, which the trial judge denied. Defendant requested that the court “instruct the jury that this is not for the truth of the matter asserted” as a limiting instruction upon the statements of the out-of-court passengers. However, upon denial of his request, the record fails to show that defendant submitted in writing any jury instructions requesting a limiting instruction with regard to Trooper Dixon's testimony. Further, defendant did not renew his request for the aforementioned limiting instruction in either his written Request for Jury Instructions or during the charge conference at the conclusion of the presentation of evidence. Although a limiting instruction upon the testimony of Trooper Dixon would have been appropriate, we find that the trial judge made no error in denying defendant's oral request for such an instruction. See State v. Moser, 74 N.C. App. 216, 223, 328 S.E.2d 315, 319 (1985) (holding that when a defendant has not submitted the nature and language of a requested jury instruction in writing, the trial court is not in error for refusing to give the orally requested instruction).
In his next argument on appeal, defendant asserts the trial court committed error by failing to grant his motion to dismiss the charge of trafficking in cocaine by possession at the close of the State's evidence and at the close of all the evidence. Defendant contends the State failed to prove each and every element of the offense, and thus, the trial court should have upheld defendant's motion and dismissed the charge. We are unpersuaded by this argument.
A trial court should deny a motion to dismiss if, considering the evidence in the light most favorable to the State and giving the State the benefit of every reasonable inference, “there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). “'To prove the offense of trafficking in cocaine by possession the State must show: 1) [knowing] possession of cocaine and 2) that the amount possessed was 28 grams or more.'” State v. White, 104 N.C. App. 165, 168, 408 S.E.2d 871, 873 (1991) (citation omitted); see also N.C. Gen. Stat. § 90-95(h)(3) (2003). The element of the offense requiring knowing possession can be satisfied by proving: actual possession, constructive possession, or acting in concert with another to commit the crime. State v. Garcia, 111 N.C. App. 636, 639-40, 433 S.E.2d 187, 189 (1993).
In the instant case, defendant contends the State did not present substantial evidence that defendant knowingly possessed the brown paper bag containing the bulk of the cocaine recovered by the police. Defendant further contends that without this brown bag, the police cannot prove that defendant possessed a sufficient amount of cocaine (at least 28 grams) to satisfy the trafficking statute. Upon review of the testimony presented at trial, we hold that the State showed sufficient incriminating circumstances from which the trial court could have inferred constructive possession of at least 28 grams of cocaine when ruling on defendant's motion to dismiss. The testimony presented at trial tended to show: that defendant was sitting in the backseat next to a Pyrex dish containing a white substance, that defendant actually possessed a plastic bag containing cocaine, that defendant resisted arrest, that a brown paper bag containing cocaine wrapped in plastic bags (identical to the plastic bag found on defendant) was found several feet from the rear of the Ford Explorer, and that the total amount of cocaine recovered by the police was 95.3 grams. Thus, there is evidence from which a jury could find that defendant was in knowing possession of at least 28 grams of the controlled substance. This assignment of error overruled.
In his final argument on appeal, defendant contends that the trial court erred in finding defendant to be a level IV for purposes of sentencing. We find this contention lacks merit.
     “The prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender's prior convictions ....” N.C. Gen. Stat. § 15A-1340.14(a) (2003). When determining a prior record level, the court classifies prior offenses at the classification assigned to that offense at the time the offense for which the offender is being sentenced is committed. N.C. Gen. Stat. § 15A-1340.14(c). Proof of a prior conviction can be established by: (1) stipulation of the parties, (2) an original or copy of the court record of the prior conviction, (3) a copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts, or (4) any other method found by the court to be reliable. N.C. Gen. Stat. § 15A-1340.14(f). Defendant may be deemed to have stipulated to previous convictions where defense counsel makes a statement demonstrating that he has reviewed the convictions listed on the prior record level worksheet and does not dispute the existence of those convictions. See State v. Morgan, 164 N.C. App. 298, 306-08, 595 S.E.2d 804, 810-11 (2004) (holding defendant had stipulated to her previous convictions where the defense counsel “conceded the existence of the convictions by arguing that Defendant should be sentenced at a level III on the basis of her prior record” and only objected to the number of points that a third-degree homicide conviction from New Jersey should receive).
In the case sub judice, the State submitted a prior record level worksheet to the court showing defendant to be a level IV for sentencing purposes. After this worksheet was submitted, the following exchange took place:            THE COURT: Yes. Does the defendant stipulate to his prior record level?

            [DEFENSE COUNSEL]: Your Honor, we stipulate he's a Level IV at this point.

            THE COURT: All right.

Accordingly, we hold that defendant conceded that he should be sentenced at a level IV on the basis of his prior record. Defendant does not assert on appeal that any of the prior convictions listed on the worksheet do not exist. Moreover, defendant does not assert that his classification as a level IV for the purposes of sentencing was inaccurate. Therefore, we hold there was sufficient evidence to show the existence of defendant's prior convictions and record level. This assignment of error overruled.
    In addition, we have carefully reviewed the remaining assignments of error that defendant has brought forward in his brief and have found them to be without merit. They are, therefore, overruled.
    No error.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***