STATE OF NORTH CAROLINA
v. Henderson County
Nos. 03 CRS 2280-81
CHESTER ARTHUR MARTIN
Attorney General Roy Cooper, by Assistant Attorney General
Laura J. Gendy, for the State.
Allen W. Boyer for defendant-appellant.
STEELMAN, Judge.
Defendant Chester Arthur Martin was charged with possession
with intent to sell and deliver cocaine, the sale and delivery of
cocaine and having attained the status of habitual felon. The
State's evidence tends to show that Officer Brian Walsh, of the
Hendersonville Police Department, was working undercover in
Hendersonville, North Carolina. On 18 December 2002, Officer
Walsh was driving an unmarked car, which was equipped with two
video cameras, as a part of his drug interdiction duties. He drove
down First Avenue, an area known for drug activity, when he
observed four individuals walking down the street. After pulling
his car over to the side of the street, one of the fourindividuals, a male, approached Officer Walsh, and asked the
officer what he wanted. In response, Officer Walsh said, “I want
a 40[,]” meaning that he wanted a $40.00 quantity of crack cocaine.
The man then gave Officer Walsh some pieces of a hard, white
substance which appeared to be crack cocaine. After examining and
smelling the substance, however, Officer Walsh began to suspect
that the substance was fake and refused to complete the purchase.
As Officer Walsh was giving the man the substance back,
defendant approached the officer and said, “Hey, you don't want to
buy that. You know it's no good. I can get you the good stuff.”
Defendant tried to get into Officer Walsh's vehicle, but the
officer pulled away because he was concerned that defendant would
harm him. Defendant, however, continued to talk to Officer Walsh
and convinced him to pull over to the curb. Defendant subsequently
directed Officer Walsh to drive to a residence located at 803 7th
Avenue West in Hendersonville. Office Walsh remained in the car
while defendant went into the house. After a few minutes,
defendant emerged from the house and gave Officer Walsh two rocks
of crack cocaine. Officer Walsh gave defendant $40.00, whereupon
defendant returned to the front porch of the residence, and gave
another man the money or a portion of the money. Finally,
defendant returned to the car and, at defendant's request, Officer
Walsh drove him back to First Avenue. During the drive, defendant
asked the officer to share the crack cocaine he had just bought,
but Officer Walsh explained to defendant that he had purchased the
crack cocaine for someone else. The videotape recording taken bythe hidden cameras in Officer Walsh's car on 18 December 2002 was
admitted into evidence at trial.
Defendant did not present any evidence. Defendant twice moved
to dismiss the charges against him based upon the insufficiency of
the evidence. The trial court denied both motions. Thereafter,
the jury found defendant guilty of the substantive drug offenses,
and defendant admitted to having attained habitual felon status.
The trial court entered two judgments, sentencing defendant to
consecutive active terms of 120-153 months imprisonment for the two
drug offenses, as an habitual felon. Defendant appeals.
Defendant's first assignment of error on appeal reads as
follows: “The Trial Court erred in denying Defendant's Motion to
Dismiss at the conclusion of submission of the evidence.” We
disagree.
Defendant argues that there was insufficient evidence of a
sale of cocaine by the defendant to Officer Walsh, and that the
trial judge should have only submitted delivery of cocaine to the
jury. He then opines that if he was only convicted of delivery
instead of a sale, that the court “may have” given him a lesser
sentence. Defendant further asserts that his client was merely a
“mule” in the cocaine transaction and received no financial benefit
from the transaction.
It is well settled that a trial court properly denies a motion
to dismiss if "there is
substantial evidence (1) of each essential
element of the offense charged and (2) that [the] defendant is the
perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215,393 S.E.2d 811, 814 (1990). Substantial evidence has been defined
as that relevant evidence “a reasonable mind might accept as
adequate to support a conclusion.” State v. Franklin, 327 N.C.
162, 171, 393 S.E.2d 781, 787 (1990). When ruling on a motion to
dismiss, the trial court must consider the evidence in the light
most favorable to the State, giving the State the benefit of every
favorable inference to be drawn therefrom. State v. Davis, 130
N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “The test for
sufficiency of the evidence is the same regardless of whether the
evidence is circumstantial or direct." State v. Harding, 110 N.C.
App. 155, 162, 429 S.E.2d 416, 421 (1993) (citations omitted).
“Contradictions and discrepancies [in the evidence] are for the
jury to resolve and do not warrant [dismissal].” State v. Pallas,
144 N.C. App. 277, 286, 548 S.E.2d 773, 780 (2001).
To obtain a conviction for the sale of a controlled substance,
the State need only show that defendant exchanged a controlled
substance for money or any other form of consideration. See State
v. Carr, 145 N.C. App. 335, 343, 549 S.E.2d 897, 902 (2001)(“the
term 'sale,' in the context of the North Carolina Controlled
Substances Act, means the exchange of a controlled substance for
money or any other form of consideration”); but see State v.
Albarty, 238 N.C. 130, 132, 76 S.E.2d 381, 383 (1953)(previously
defining “sale” as “a transfer of goods for a specified price,
payable in money”). If the evidence shows that a defendant sold a
Schedule I or II controlled substance, he is sentenced as a Class
G felon. N.C. Gen. Stat. § 90-95(b)(1)(2003). The evidence tends to show that defendant directed Officer
Walsh, an undercover officer, to 803 7th Avenue West. Once at the
residence, defendant exited Officer Walsh's vehicle and went into
the residence, returning in a few minutes with two rocks of crack
cocaine. Officer Walsh gave defendant $40, whereupon defendant
walked back to the house and handed an unknown amount of money to
a man standing on the front porch of the residence.
Though defendant argues to the contrary, in the light most
favorable to the State, the evidence was sufficient to show that
defendant sold cocaine to Officer Walsh, and supported the
submission of that offense to the jury. We submit that the
evidence is uncontroverted that defendant possessed crack cocaine,
and that he sold that crack cocaine. Whether the defendant was the
agent of another drug dealer, or was in partnership with that
person is irrelevant. Defendant sold a rock of crack cocaine to
Officer Walsh for $40. This assignment of error is without merit.
By his second assignment of error, defendant argues that the
trial court violated the Fifth Amendment to the United States
Constitutions' prohibition against double jeopardy in sentencing
defendant to consecutive terms of imprisonment for possession with
intent to sell or deliver cocaine and the sale or delivery of
cocaine. Defendant concedes that trial counsel did not raise this
constitutional argument at trial, see State v. Mitchell, 317 N.C.
661, 670, 346 S.E.2d 458, 463 (1986)(holding that defendant had
waived his Double Jeopardy claim where it was not raised and ruled
on in the trial court), and thus, this issue has not been properlypreserved as required by N.C.R. App. P. 10(b)(1).
Defendant nonetheless asks that this Court review this
argument under the plain error rule. We note, however, that
defendant did not properly assign plain error to this issue in the
record on appeal, as required by N.C.R. App. P. 10(c)(4), see
N.C.R. App. P. 10(c)(4)(requiring the plain error be “specifically
and distinctly” assigned as error); nor indeed, is plain error
review available to review this issue on appeal. See State v.
Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10(1998)(cautioning
that the North Carolina Supreme Court “has applied the plain error
analysis only to instructions to the jury and evidentiary
matters”).
Finally, defendant asks that this Court exercise its
discretion under Rule 2 of the North Carolina Rules of Appellate
Procedure to consider this assignment of error on appeal.
See N.C.R App. P. Rule 2 (utilized “[t]o prevent manifest
injustice”). We conclude that the use of Rule 2 is not appropriate
here inasmuch as this Court's previous holdings make clear that the
possession with intent to sell or deliver cocaine and the sale or
delivery of cocaine are two separate offenses, and therefore, are
constitutionally punishable as such. See State v. Moore, 327 N.C.
378, 381-82, 395 S.E.2d 124, 126-27 (1990)(noting that G.S. 90-
95(a)(1) created three separate offenses: “(1) manufacture of a
controlled substance; (2) transfer of a controlled substance by
sale or delivery, and (3) possession with intent to manufacture,
sell or deliver a controlled substance”); State v. Cameron, 283N.C. 191, 202, 195 S.E.2d 481, 488 (1973)(“By setting out both the
possession and sale as separate offenses in the statute and by
prescribing the same punishment for possession and for sale, it is
apparent that the General Assembly intended possession and sale to
be treated as distinct crimes of equal degree, to be separately
punished.”), quoted in State v. Dickerson, 152 N.C. App. 714, 717,
568 S.E.2d 281, 282 (2002). Defendant's second assignment of error
is without merit.
NO ERROR.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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