STATE OF NORTH CAROLINA
v. New Hanover County
No. 04 CRS 51966
TOMMY ALBERT HICKS
Attorney General Roy Cooper, by Special Deputy Attorney
General William H. Borden, for the State.
Geoffrey W. Hosford for defendant appellant.
A jury found Tommy Albert Hicks (defendant) guilty of, inter
alia, conspiracy to traffic in cocaine by sale and felony
possession of cocaine. Judgments were entered on the verdicts
sentencing defendant to 35 to 42 months' imprisonment for
conspiracy to traffic in cocaine and 4 to 5 months' imprisonment
for felony possession of cocaine. Defendant appeals.
The State's evidence at trial tended to show the following: Angela Stepps, who had agreed to assist law enforcement, called defendant and told him she wanted to purchase an ounce of cocaine. Defendant informed her he would be able to obtain that amount for her and Ms. Stepps agreed to pay $1,100.00 for the cocaine. They agreed to meet at Advanced Auto at 8:30 p.m. on 5February 2004. Ms. Stepps testified that, if she orders an ounce of cocaine, she should receive an ounce of cocaine.
On the morning of 5 February 2004, defendant called Jose Ramirez and told Mr. Ramirez he wanted to purchase one ounce of cocaine, which he was, in turn, going to sell to a lady. Defendant agreed to purchase the cocaine from Mr. Ramirez at the Monkey Junction Burger King at approximately 6:00 p.m. that night. Before arriving at the Burger King, Mr. Ramirez weighed the cocaine he had agreed to sell to defendant and confirmed it weighed 28 grams. He then placed it back into a plastic bag. Defendant was waiting for Mr. Ramirez when Mr. Ramirez arrived at the Burger King with the cocaine. Defendant then entered Mr. Ramirez's car and closed the door.
Thereafter, law enforcement, who had received advance notice that defendant was going to be meeting his supplier at the Burger King, arrived. Mr. Ramirez's car was searched and law enforcement found, inter alia, a plastic bag containing what appeared to be an ounce of cocaine. The substance in the bag was later analyzed and weighed by a special agent with the State Bureau of Investigation (S.B.I.) and was found to be 27.92 grams of cocaine. This cocaine was the cocaine Mr. Ramirez intended to sell to defendant.
On appeal, defendant first contends the trial court erred in denying his motions to dismiss the charge of conspiracy to traffic in cocaine by sale. We disagree.
The standard for ruling on a motion to dismiss is whether there is substantial evidence (1) of each essential element of theoffense charged and (2) that defendant is the perpetrator of the offense. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). 'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994) (citations omitted). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal. State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (citation omitted), cert. granted in part, 348 N.C. 507, 506 S.E.2d 252 (1998).
The substantive offense of trafficking in cocaine is committed when a person sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine . . . . N.C. Gen. Stat. § 90-95(h)(3) (2005). A criminal conspiracy is an agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful manner. State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991). To prove conspiracy, it is not necessary for the unlawful act to be completed. Id.
In his brief, defendant states that [h]is agreement with Ramirez, even in the light most favorable to the State, was for the purchase of 'an ounce' of cocaine. Defendant argues that anounce of cocaine in drug transactions can actually consist of between 25 and 30 grams and still constitute an ounce to the individuals involved. As such, defendant argues that the use of the term an ounce does not equate to the exact measurement of an ounce in grams.
The State argues an ounce of cocaine is 28.3 grams. We agree with the State. See, e.g., Morgan, 329 N.C. at 660, 406 S.E.2d at 836 (referring to one ounce of cocaine as 28.3 grams); State v. Shook, 155 N.C. App. 183, 188, 573 S.E.2d 249, 252-53 (2002) (referring to the order and sale of one ounce of cocaine as 28.350 grams); and State v. Rozier, 69 N.C. App. 38, 48, 316 S.E.2d 893, 900 (indicating an ounce equals 28.349 grams in a case involving conspiracy to traffic in cocaine).
Defendant further argues that, because the S.B.I. determined the cocaine at issue weighed 27.92 grams, it necessarily follows the agreement was for the sale of 27.92 grams of cocaine, less than the minimum amount of cocaine necessary for a trafficking conviction. See N.C. Gen. Stat. § 90-95(h)(3). This Court has previously rejected such an argument in narcotics conspiracy cases. Indeed, it is the amount of contraband agreed upon, not the amount actually delivered, which is determinative in a narcotics conspiracy case. Rozier, 69 N.C. App. at 49, 316 S.E.2d at 900 (holding there was sufficient evidence to support convictions of conspiracy to traffic in cocaine where the amount of cocaine which actually changed hands was 27.71 grams although the amount agreed upon was an ounce); see also Shook, 155 N.C. App. at 188, 573S.E.2d at 252-53 (holding evidence regarding the order and sale of purportedly one ounce (28.350 grams) of cocaine . . . supports a reasonable jury finding that defendant was attempting to possess, transport, deliver, and sell at least 28 grams of cocaine).
The evidence, considered in the light most favorable to the State and giving the State the benefit of every reasonable inference that may be drawn from the evidence, King, 343 N.C. at 36, 468 S.E.2d at 237, shows that defendant agreed to sell an ounce of cocaine to Ms. Stepps and that he agreed to purchase the ounce of cocaine for his sale to Ms. Stepps from Mr. Ramirez. Mr. Ramirez understood he had been asked to bring defendant one ounce, 28 grams, of cocaine. Further, Mr. Ramirez weighed the cocaine he planned to sell to defendant and confirmed that it weighed 28 grams. We conclude the trial court properly denied defendant's motions to dismiss the conspiracy to traffic in cocaine charge.
Next, defendant contends the trial court abused its discretion in failing to find defendant provided substantial assistance to law enforcement within the meaning of N.C. Gen. Stat. § 90-95(h)(5). We disagree.
Section 90-95(h)(5) of the North Carolina General Statutes provides in relevant part:
The sentencing judge may reduce the fine, or impose a prison term less than the applicable minimum prison term provided by this subsection, or suspend the prison term imposed and place a person on probation when such person has, to the best of his knowledge, provided substantial assistance in theidentification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals if the sentencing judge enters in the record a finding that the person to be sentenced has rendered such substantial assistance.
N.C. Gen. Stat. § 90-95(h)(5).
[T]o overturn a sentencing decision [involving a court's ruling on substantial assistance], the reviewing court must find an 'abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.' State v. Willis, 92 N.C. App. 494, 498, 374 S.E.2d 613, 616 (1988) (citations omitted), disc. review denied, 324 N.C. 341, 378 S.E.2d 808 (1989). For example, a sentencing court's wrongful refusal to consider evidence offered by a defendant in support of a finding of substantial assistance may constitute an abuse of discretion. See State v. Hamad, 92 N.C. App. 282, 289, 374 S.E.2d 410, 414 (1988), aff'd per curiam, 325 N.C. 544, 385 S.E.2d 144 (1989). Even if a sentencing court concludes a defendant provided substantial assistance, however, the decision to reduce a defendant's sentence based upon substantial assistance is in the sentencing court's discretion. Willis, 92 N.C. App. at 498, 374 S.E.2d at 616.
In the present case, there is nothing in the record indicating the trial court wrongfully refused to consider evidence or that it otherwise wrongfully believed it could not as a matter of law make a finding of substantial assistance. Rather, the record shows defendant's counsel presented evidence about several ways in whichdefendant purportedly rendered substantial assistance to law enforcement. After hearing the evidence presented and arguments of counsel, the trial court declined to find defendant rendered substantial assistance. There was no abuse of discretion.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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