An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 20 December 2005
STATE OF NORTH CAROLINA
Nos. 03 CRS 61810
DAVID EUGENE MITCHELL, JR. 03 CRS 61811
Appeal by defendant from judgments entered 15 September 2004
by Judge Judson D. DeRamus, Jr., in Forsyth County Superior Court.
Heard in the Court of Appeals 20 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General
David N. Kirkman, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott
Holmes, for defendant appellant.
Defendant (David Eugene Mitchell, Jr.) appeals from
convictions and judgments for possession with intent to sell and
deliver cocaine, attempt to traffic in cocaine by possession, and
conspiracy to traffic in cocaine by possession. We hold that
defendant received a fair trial, free from prejudicial error.
The evidence tended to show that defendant acted as a
middleman between a cocaine supplier named Algernon Cash (Cash)
and individual drug buyers. As part of a drug-related
investigation, an informant with the narcotics division of the
Forsyth County Sheriff's Office arranged a meeting betweendefendant and an undercover police officer. The informant told
defendant that she had a friend coming down from Virginia who
wanted to purchase two ounces of powder cocaine for $900 per ounce.
The meeting between defendant and the undercover officer took
place on the evening of 3 September 2003 in a Wal-Mart parking lot
in Kernersville, North Carolina. When the officer arrived,
defendant was talking to someone on a cellular phone. Defendant
told the other party to the phone conversation that the buyer had
just arrived and that he (defendant) would be there in just a
moment. Once defendant was off the phone, the officer told
defendant that he wanted two ounces of cocaine and asked if the
price was still $900 per ounce. Defendant confirmed this price, at
which point the officer arranged to pay for one ounce at a time via
two exchanges and passed $900 in cash to defendant. Defendant then
left the Wal-Mart parking lot alone, drove to the parking lot of a
nearby Blockbuster Video, and parked his vehicle next to a green
Mitsubishi Montero registered to Cash. Defendant met with Cash for
approximately two minutes, after which defendant drove back to the
Wal-Mart parking lot and gave the officer a plastic bag containing
a white substance. Defendant told the officer that the bag
contained an ounce of cocaine. The substance and plastic bag had
a weight of 28.7 grams. The substance in the bag was later
identified as 27.7 grams of cocaine.
After consummating this transaction, the officer told
defendant that he was ready to obtain the second ounce. Defendant
replied that Cash had left because defendant and the officer hadarrived late, and Cash needed to get back to his girlfriend, who
was angry with him. Defendant told the officer that they could get
the second ounce in the morning. Defendant, the officer, and the
informant then left the parking lot.
Based on the foregoing incident, defendant was charged with,
and arrested for, inter alia, possession with intent to sell and
deliver cocaine, attempt to traffic in cocaine by possession, and
conspiracy to traffic in cocaine by possession, transportation, and
sale and delivery. Defendant provided the following written
statement to police:
I've been the middleman [between Cash and a buyer] about
three or four different times between three to six months
ago. . . . I met Cash and [the officer] at Wal-Mart in
K'ville and was running late. He had already left by the
time the guy with the money [the officer] got there. So,
I called Cash and he had already came and gone. Usually
the money man and me ride in different cars and they do
the trading there. When I called Cash, he told me to get
the money and meet him at Blockbuster Video. So, I got
the money to meet him. I got the one ounce [of] cocaine
and took it back to the buyer next door.
On two prior occasions in August of 2003, defendant had been
involved in drug sale transactions with a person named Daniel
Brown. In each of those transactions, Brown called defendant, who
then called his contact. Then Brown and defendant drove together to
an Arby's restaurant in Kernersville. In both transactions,
defendant received $700 from Brown, got out of the car and walked
over to a green Mitsubishi Montero. Each time, defendant returned
with a bag containing what defendant described as being an ounce of
cocaine, which defendant then gave to Brown. Brown measured eachdelivery with calibrated scales that he kept in his car, and each
delivery weighed 29.4 grams.
While in jail awaiting trial, defendant wrote the following
letter to Brown:
What's up prison bitch? Not shit here. Today's my Bday
& I ain't even drunk. That sucks. We've been locked
down all day any ways. . . . . My lawyer came to see me
today. He said that they are chargeing [sic] me with
selling & delivering & conspiracy. They can prove that.
The most time I'm facing is 35 to 42 months for the
conspiracy & 10 to 12 months for the selling. It could be
worst [sic]. He said I have a 50-50 chance, if I go to
trial. I could get probation if I testify against Cash
but I turned that down. I don't think he'd do it to me.
I guess I'll be lifting alot [sic] of weight for the next
In the letter, defendant also informed Brown that he was taking
some GED classes, advised Brown to do the same so that they could
be on the same floor of the jail, and indicated common
acquaintances of Brown and defendant who were also being housed on
the same floor of the jail as defendant.
Based on the foregoing evidence, a Forsyth County jury
convicted defendant of attempted trafficking in cocaine by
possession, conspiracy to traffic in cocaine by possession, and
possession with the intent to sell and deliver cocaine. The trial
court imposed consecutive prison sentences of fifteen to eighteen
months and thirty-five to forty-two months for the attempted
trafficking and conspiracy convictions, and a suspended sentence
and probation for the possession conviction. Defendant now
In his first argument on appeal, defendant contends that the
trial court lacked jurisdiction to try him for conspiracy to
traffic in cocaine because the indictment charging him with this
offense was fatally defective. This contention lacks merit.
The challenged indictment alleged the following:
The jurors for the State upon their oath present that on
or about [3 September 2003] and in Forsyth County the
defendant . . . unlawfully, willfully and feloniously did
along with Algernon Lashalle Cash agree, plan, combine,
conspire and confederate . . . to unite for the common
object and purpose of committing and perpetrating the
felony of trafficking in cocaine by possession,
transportation, and sale and delivery of more than 28
grams but less than 200 grams of cocaine, which is
included in Schedule II of the North Carolina Controlled
Defendant contends that the indictment was fatally defective
because it alleged a conspiracy to traffic in cocaine by sale but
failed to aver either the name of the person to whom defendant
conspired to sell cocaine or that the name of such person was
unknown. Significantly, however, conspiracy to traffic in cocaine
by sale was never submitted to the jury. Rather, the trial court
permitted the jury to consider only one of the alternative theories
of conspiracy alleged in the indictment: conspiracy to traffic in
cocaine by possession. Defendant does not allege that the
indictment improperly alleged conspiracy to traffic in cocaine by
The State is restricted at trial to proving the offenses
alleged in an indictment; however, if an indictment sets forth
alterative theories which would support a conviction of the offensecharged, the State has to prove only one of the alleged [theories]
in order to sustain a conviction . . . . State v. Moore, 315 N.C.
738, 743, 340 S.E.2d 401, 404 (1986) (addressing an indictment
which alleged alternative purposes for a kidnapping). Moreover, an
overly broad indictment often may be cured by proper jury
instructions that inform the jury of the conduct for which
defendant may be convicted. State v. Trejo, 163 N.C. App. 512,
516, 594 S.E.2d 125, 128 (2004).
In the instant case, the trial court properly limited the
State to proceeding on the conspiracy charge under a theory which
had been properly set forth in the indictment. The corresponding
assignment of error is overruled.
In his second argument on appeal, defendant contends that
there was a fatal variance between the evidence presented at
trial and the indictments for attempted trafficking in cocaine by
possession and conspiracy to traffic in cocaine by possession.
This contention lacks merit.
The substantive offense of trafficking in cocaine is committed
when a person sells, manufactures, delivers, transports, or
possesses 28 grams or more of cocaine . . . .
(See footnote 1)
N.C. Gen. Stat. §
90-95(h)(3) (2003). Attempt may be charged where there is an
intent to commit the substantive offense and an overt act whichgoes beyond mere preparation but falls short of the completed
offense. State v. Squires
, 357 N.C. 529, 535, 591 S.E.2d 837, 841
(2003), cert. denied
, 541 U.S. 1088, 159 L. Ed 2d 252 (2004).
Conspiracy may be charged where there is an agreement, express or
implied, between two or more persons, to do an unlawful act[.]
State v. Gell
, 351 N.C. 192, 209, 524 S.E.2d 332, 343, cert.
, 531 U.S. 867, 148 L. Ed. 2d 110 (2000).
In the instant case, the indictment for attempting to traffic
in cocaine by possession alleged that defendant did attempt to
possess more than 28 grams of cocaine but less than 200 grams of
cocaine. The indictment for conspiracy to traffic in cocaine by
possession alleged that defendant did . . . agree, plan, combine,
conspire and confederate . . . to unite for the common object and
purpose of committing and perpetrating the felony of trafficking in
cocaine by possession . . . of more than 28 grams but less than 200
grams of cocaine. In his brief to this Court, defendant concedes
that [i]n the present case, all of the State's evidence showed
that the defendant and the undercover officer agreed to an
[exchange of] an ounce and not more than an ounce.
Defendant insists that the language in the indictments which
refers to more than 28 grams is inconsistent with the evidence
because all of the evidence only supports an inference that
defendant attempted to produce exactly 28 grams (one ounce).
Regrettably for defendant, his conversion is erroneous, as an ounce
is equivalent to 28.349 grams. Webster's Third New International
Dictionary, Unabridged 1399 (1971). Therefore, given that the evidenceshowed that defendant believed himself to have been in possession
of, and to have given to the officer, an ounce of cocaine, the
evidence did not conflict with the indictments which alleged that
defendant conspired and attempted to traffic in cocaine by
possessing more than 28 grams of the drug.
The corresponding assignments of error are overruled.
In his third argument on appeal, defendant contends that the
trial court erred by admitting evidence concerning cocaine sales by
defendant to Daniel Brown. This contention lacks merit.
Rule 404(b) of the North Carolina Rules of Civil Procedure
[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). Although admissible
under Rule 404(b), evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. N.C. Gen. Stat. § 8C-1, Rule
In the instant case, defendant was charged with attempt to
traffic in cocaine and conspiracy to traffic in cocaine. Thesecharges put defendant's intent at issue with respect to the amount
of cocaine involved. The evidence concerning defendant's
involvement in drug sales to Brown was probative of defendant's
intent while committing the offenses at issue in the instant case
in that Brown twice sought to purchase an ounce of cocaine and
defendant twice delivered 29.4 grams of cocaine to Brown.
Therefore, the evidence concerning defendant's cocaine sales to
Brown were properly admissible under Rule 404(b). Further, we
discern no abuse of discretion in the trial court's refusal to
exclude the evidence of defendant's sales to Brown pursuant to
The corresponding assignment of error is overruled.
In his final argument on appeal, defendant contends that the
trial court erred by permitting the jurors to take copies of
defendant's letter to Brown into the jury room during their
deliberations without defendant's knowledge or consent. During the
trial, the letter was read into evidence and copies of the letter
were published to the individual jurors. Unbeknownst to the judge
or the parties, some of the jurors took their copies of the letter
into the jury room during deliberations. Once the problem was
discovered, the letter was immediately collected, and the trial
court instructed the jury as follows: [T]he Court cannot at this
point allow you to have the copy of the letter that was in your
seat and there has been no authorization for having it, the copy of
the letter. It is error for a trial court to permit a jury to take
evidence into the jury room without a defendant's consent. N.C.
Gen. Stat. § 15A-1233(b) (2003); State v. Taylor
, 56 N.C. App. 113,
115, 287 S.E.2d 129, 130-31 (1982). However, given the facts and
circumstances of the instant case, we are unpersuaded that the
trial court's error amounted to prejudicial error. See
Stat. § 15A-1443(a) (2003) (A defendant is prejudiced by [non-
constitutional] errors . . . when there is a reasonable possibility
that, had the error in question not been committed, a different
result would have been reached at the trial out of which the appeal
arises. The burden of showing such prejudice . . . is upon the
The corresponding assignment of error is overruled.
No prejudicial error.
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).
Curiously, the State chose to deviate from the statutory
language and allege that more than 28 grams of cocaine was
involved in each offense.
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