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.
McCULLOUGH, Judge.
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.
No error.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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