STATE OF NORTH CAROLINA
v. Mecklenburg County
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.
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.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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