An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA05-1579


Filed: 3 October 2006


    v.                        Mecklenburg County
                            Nos. 03 CRS 259826 - 259827

    Appeal by defendant from judgments entered 15 July 2005 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 2 October 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Keischa M. Lovelace, for defendant-appellant.

    TYSON, Judge.

    Terry Renee McCauley (“defendant”) appeals from judgments entered after a jury found her to be guilty of possession with intent to sell or deliver cocaine and sale of cocaine . We find no prejudicial error.

I. Background
A. State's Evidence
    The State's evidence tended to show on 16 December 2003 two undercover police officers, one male and one female, observed defendant standing outside a convenience store. The male officer asked defendant where he could obtain some “yap-yap,” a slang term for crack cocaine. Defendant stated she knew “where you [could] get some good stuff,” entered the officers' vehicle, and directedthem to drive to a house located less than one mile from the store. Upon arrival at the house, defendant asked the officers for money to purchase the cocaine. The female officer handed defendant a marked $20.00 bill. Defendant exited the vehicle and entered the house, leaving her jacket in the vehicle as assurance she would return . Defendant returned a few minutes later, showed the officers two rocks of crack cocaine, gave the cocaine to the female officer, and asked them to share the cocaine with her. The officers declined her request and gave a signal to surveillance officers to arrest defendant.
B. Defendant's Evidence
     Defendant testified she saw a man exit a convenience store on 16 December 2003. She approached him and asked him to give her some change. The man asked her where he could obtain crack cocaine. She got into the backseat of the man's vehicle and rode with him and a female passenger to a house two blocks from the store. The female gave her $20.00 to purchase cocaine. The female also asked defendant for assurance that she would return to the vehicle. Defendant left her coat in the vehicle, went inside the house, and purchased crack cocaine. Defendant gave the crack cocaine to the female and asked for a piece of the cocaine. The female showed her a soda can and stated, “we're going to hit out of this.” As the three individuals began to ride to a place where she thought they were going to consume the crack cocaine together, police officers stopped them.
     A jury found defendant to be guilty of possession with intentto sell or deliver cocaine and sale of cocaine. Defendant appeals.
II. Issues
    Defendant asserts the trial court erred by: (1) submitting an acting in concert instruction to the jury; and (2) allowing the undercover police officers to testify regarding common behaviors of drug dealers .
     Defendant neither argues nor cites any authority for her other assignments of error in the record on appeal. These assignments of error are deemed abandoned. N.C. R. App. P. 28(a) (2006).
III. Acting in Concert
    Defendant argues the trial court's instruction was not justified because the State lacked evidence of any agreement or plan between defendant and the actual drug dealer to sell drugs to third parties.
    Acting in concert inculpates a defendant who does not perform any or all of the acts necessary to constitute an offense, but acts pursuant to a common plan or purpose with others who perpetrate other acts necessary to constitute the offense. State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979). The offense of possession with intent to sell consists of three elements: (1) possession of a substance; (2) the substance is a controlled substance; and (3) the possession must be with the intent to sell or deliver the substance. State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001). Proof of the element of intent to sell or deliver consists of evidence tending to show the defendant intended to engage in a “transfer of controlled substances from oneperson to another.” State v. Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985). The crime of sale or delivery of a controlled substance is complete upon the transfer of a controlled substance from one person to another, regardless of whether or not there is an agency relationship. State v. Price, 170 N.C. App. 57, 64, 611 S.E.2d 891, 896 (2005). It is not necessary for the State to show that the defendant received remuneration. State v. Pevia, 56 N.C. App. 384, 387, 289 S.E.2d 135, 137, cert. denied, 306 N.C. 391, 294 S.E.2d 218 (1982).
    Defendant's own testimony and other evidence is uncontradicted that she purchased and transferred the controlled substance to the undercover police officers. Defendant performed all of the acts necessary to constitute the offenses. It is not reasonably possible that a jury could have rendered a different verdict had the instruction not been given. This assignment of error is overruled.
IV. Drug Dealer Behaviors
    Defendant next contends the trial court erred by allowing the undercover police officers to testify regarding common behaviors of drug dealers. As noted above, a defendant is prejudiced by an error, other than constitutional error, only when it is reasonably possible that if the error had not been made, then a different outcome may have resulted. N.C. Gen. Stat. § 15A-1443(a) (2005). Presuming, without deciding, the court erred by admitting this testimony, we conclude that the admission of the evidence was not prejudicial error given defendant's admissions and otheroverwhelming evidence of her guilt.
V. Conclusion
    It was not prejudicial error for the trial court to instruct the jury on acting in concert or allow the police officers to testify regarding the behaviors of drug dealers. Defendant received a fair trial free from prejudicial error she preserved, assigned, and argued.
    No Prejudicial Error.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

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