STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 04CRS231560
TONY SMITH OTIS 04CRS52169
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Edwin Lee Gavin II, for the State.
Mary Exum Schaefer for defendant-appellant.
HUNTER, Judge.
Tony Smith Otis (“defendant”) appeals from his conviction for
sale of cocaine and his habitual felon status. For the reasons
stated below, we find no error.
On 19 July 2004, the Mecklenburg County grand jury indicted
defendant on charges of sale of a controlled substance, cocaine,
and of possession with intent to sell and deliver cocaine. The
grand jury subsequently charged defendant with having attained
habitual felon status. At trial, the State introduced evidence
tending to show the following:
In the late evening hours of 13 July 2004, Officer Mark Temple
(“Officer Temple”) and Detective Paul Brent Foushee (“DetectiveFoushee”) were working undercover in the vice and narcotics unit.
Officer Temple initially testified that defendant signaled for him
to stop that night and approached his vehicle with an unknown man.
After reviewing his statement during cross-examination, Officer
Temple corrected himself and stated that the unknown man rather
than defendant had yelled for him to stop. When defendant and the
unknown man approached his vehicle, Officer Temple asked for a dime
rock. The unknown man, who was dressed in dark clothing and was on
a bicycle, told Officer Temple to drive around the corner. Officer
Temple radioed nearby uniformed officers on the arrest team and
described defendant as wearing white pants, white shirt and a white
hat.
After Officer Temple drove around the block, the unknown man
directed him to defendant. Officer Temple then drove to defendant
and asked him for a crack rock. Defendant handed one crack rock,
which was packaged in a clear plastic baggie, to Officer Temple,
and Officer Temple handed a marked twenty-dollar bill to defendant.
As Officer Temple drove away, he notified the arrest team that the
transaction had been completed and again gave the location and
description of the two men. Approximately one and a half minutes
later, those officers notified Officer Temple that the two men had
been apprehended. Officer Temple and Detective Foushee then drove
past the two men who were standing between two police cars on the
side of the road. Officer Temple positively identified defendant
and the unknown man as the individuals who were involved in the
offense. Detective Foushee testified that the unknown man flagged them
down on the date in question. Defendant and the unknown man came
to the driver's side window and spoke with Officer Temple, and the
unknown man directed them to circle the block. The unknown man
then directed them to defendant, and Officer Temple purchased a
rock of crack cocaine from him for twenty dollars. Although a
marked twenty-dollar bill was used for the purchase, both officers
testified it was not recovered from either defendant or the unknown
man. Detective Foushee stated that the unknown man was “hawking”
or drumming up customers for defendant, and the unknown man was
charged with loitering for the purpose of selling.
Officer Larry Edward Deal (“Officer Deal”) testified that he
was a member of the arrest team on the date in question. After
receiving a description of the people involved in the sale along
with confirmation of the sale and its location, Officer Deal and
another officer made the arrest approximately one to one and a half
minutes later. Officer Deal stated there were no other people out
there that night that matched defendant's description, and he said
Officer Temple and Detective Foushee made a positive identification
of defendant following the arrest.
At the close of the State's evidence, defendant moved to
dismiss the two charges due to insufficient evidence. The trial
court denied the motion, and defendant informed the trial court
that he would not be presenting evidence. During the charge
conference, defendant objected to the State's request for an
instruction on acting in concert. He argued that there was noevidence to support the instruction other than what he described as
Detective Foushee's characterization of the unknown man's actions
based upon his experience and deductions. The trial court
overruled the objection. Defendant renewed his motion to dismiss
the charges at the conclusion of the charge conference, and the
trial court again denied the motion.
After receiving the trial court's instructions, the jury
deliberated and found defendant guilty of sale of cocaine, and not
guilty of possession with intent to sell and deliver cocaine.
Defendant then admitted his habitual felon status, and the trial
court imposed a sentence of 96 to 125 months imprisonment. From
the trial court's judgment, defendant appeals.
Defendant contends the trial court erred by instructing the
jury on acting in concert. He argues the record is unclear as to
whether he acted in concert with the unknown man and as to whether
the unknown man was charged or arrested in connection with this
matter. Defendant's argument is not persuasive.
“It is well settled that when a request is made for a specific
instruction that is supported by the evidence and is a correct
statement of the law, the court, although not required to give the
requested instruction verbatim, must charge the jury in substantial
conformity therewith.” State v. Holder, 331 N.C. 462, 474, 418
S.E.2d 197, 203 (1992). In determining whether there is
substantial evidence to support submission of the doctrine of
acting in concert to the jury, the evidence must be viewed in the
light most favorable to the State. State v. Taylor, 337 N.C. 597,608, 447 S.E.2d 360, 367 (1994). “To secure a conviction on the
theory of acting in concert, the State must show [a] defendant was
present at the scene of the crime and that he acted together with
another individual who does the acts necessary to constitute the
crime pursuant to a common plan or purpose to commit the offense.”
State v. Smart, 99 N.C. App. 730, 735, 394 S.E.2d 475, 477 (1990).
When viewed in the light most favorable to the State, there
was ample evidence to support the instruction on acting in concert
for the sale of cocaine. An unknown man flagged down the
undercover officers, and he and defendant both approached the
driver's side window. The unknown man directed the undercover
officers to drive around the block, then directed them to defendant
upon their return. Officer Temple asked defendant for a crack
rock, and defendant gave him a crack rock in a clear plastic baggie
in exchange for twenty dollars. Based on this evidence, the jury
reasonably could conclude defendant and the unknown man acted in
concert according to a common plan to sell cocaine. We hold the
trial court did not err in overruling defendant's objection to the
requested jury instruction.
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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