An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-411


Filed: 2 January 2007


v .                         Forsyth County
                            No. 04 CRS 23964
MICHAEL RAY CRUMP                 04 CRS 24439

    Appeal by defendant from judgment entered 11 October 2005 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 16 November 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Kelly Sandling, for the State.

    Gilda C. Rodriquez, for defendant.

    LEVINSON, Judge.

    Defendant (Michael Crump) appeals judgment entered upon his conviction for selling or delivering cocaine in violation of N.C. Gen. Stat. § 90-95(a)(1)(2005). We find no error.
    The State's evidence at trial tended to show the following: On 11 May 2004, Detective D.C. Mason was working in the Undercover Narcotics Division of the Forsyth County Sheriff's Department. Mason testified that he had organized an undercover operation in which he was going to attempt to purchase cocaine from individuals located at 5015 Old Rural Hall Road in Forsyth County, an area that had been the target of an ongoing investigation by the Sheriff's Department. At approximately 9:00 p.m. on 11 May 2004, Mason drove to 5015 Old Rural Hall Road and walked up to the front porch of theresidence. Sitting on the porch were Ronald Lunsford, Mark Combs and defendant. While standing on the porch, Mason told the three men that he wanted to purchase cocaine. Lunsford informed Mason that they did not sell cocaine. When Mason informed Lunsford that he had made a purchase there a week earlier, Lunsford asked him who had sold him the cocaine. In response, Mason stated that it was a “heavyset female with long blonde-brown hair.” Lunsford telephoned his daughter to confirm the prior transaction, and informed Mason that the person who had sold him the cocaine was his daughter. Combs then stated, “I don't know, Ronald, you think we can find him something around here?”
    Combs stood up and told Mason to go towards his vehicle and wait there. Combs went into the residence while defendant began to head toward Mason's vehicle. Defendant looked inside Mason's vehicle. Mason testified that defendant was “right up on the vehicle, just a matter of a foot or two” away from it. The windows to the vehicle were open, and Mason observed defendant walk all the way around the vehicle and look inside of it. As Mason approached defendant at the vehicle, he asked defendant “if he liked it.” Defendant then asked Mason if he was a law enforcement officer and whether he was a confidential informant or otherwise affiliated with law enforcement.
    Combs came outside and asked Mason to have a seat in the vehicle. As Combs and Mason were getting in the vehicle, defendant turned and walked towards the street, which was about fifteen to twenty feet away from Mason's vehicle. Mason testified that as hewas in the vehicle with Combs, he noticed that defendant was standing in the street “just looking back and forth up and down the street.” Inside the vehicle, Mason handed Combs sixty dollars ($60.00) in return for three plastic bags containing a white, rock-like substance. Combs exited Masons's vehicle, and Mason then left the area.
    On cross-examination, Mason testified that he never saw defendant in possession of the cocaine. Additionally, Mason did not observe Combs give defendant any of the money he gave Combs to purchase the cocaine. On redirect examination, Mason testified that he had personally been involved in over fifty undercover drug operations, and that he had been involved in hundreds of others. Mason also testified that based on his training and experience, drug dealers are generally assisted by “lookouts.”
    Detective Johnny Farrell testified that he worked for the High Point Police Department as a narcotics investigator. Ferrell stated that he was contacted by the Forsyth County Sheriff's Department and went to 5015 Old Rural Hall Road on two occasions in May 2004 in an undercover capacity. On one occasion, Ferrell was met by defendant as he walked towards the house and was asked if he was a law enforcement officer.
    Dr. Shirley Brinkley testified as an expert witness in forensic chemistry and provided an opinion that the contents of the packages submitted for analysis tested positive for the presence of cocaine.     Defendant did not present any evidence at trial. The trial court dismissed the charge of possession with intent to sell or deliver cocaine. Defendant was found guilty of the sale or delivery of cocaine and of the status of being an habitual felon. From a judgment imposing a sentence of 110-141 months imprisonment, defendant now appeals.
    Defendant first argues that the trial court erred by (1) charging the jury with an acting in concert instruction, and (2) denying defendant's motion to dismiss the charge of selling or delivering cocaine for insufficiency of the evidence.
     Defendant was charged with violating G.S. § 90-95(a)(1), which makes it unlawful for any person to “sell or deliver . . . a controlled substance[.]” N.C. Gen. Stat. § 90-95(a)(1) (2005). The State proceeded under an acting in concert theory:
        This Court has held, “[a] trial court must give a requested instruction if it is a correct statement of the law and is supported by the evidence.” “Before the court can instruct the jury on the doctrine of acting in concert, the State must present evidence tending to show two factors: (1) that defendant was present at the scene of the crime, and (2) that he acted together with another who did acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.”

State v. Hart, __ N.C. App. __, 633 S.E.2d 102, 110 (2006) (quoting State v. Haywood, 144 N.C. App. 223, 234, 550 S.E.2d 38, 45 (2001), and State v. Robinson, 83 N.C. App. 146, 148, 349 S.E.2d 317, 319 (1986)).
    In the instant case, there was sufficient evidence tending to show that defendant was present at the scene of the crime and actedtogether with others whose acts constituted the selling or delivering of cocaine pursuant to a common plan. When Combs directed Mason to go to his vehicle to wait for him, defendant left the porch and headed towards Mason's vehicle. Defendant circled the vehicle, looking inside it from a close distance. In fact, defendant inspected the vehicle so closely that Mason inquired whether defendant liked the vehicle. Furthermore, defendant asked Mason if he was “a law enforcement officer, a confidential informant, or otherwise affiliated with law enforcement or in any way associated with law enforcement.” Mason further testified that while he was in the vehicle completing the drug transaction with Combs, defendant stood in the street about fifteen to twenty feet away “looking back and forth up and down the street.” Detective Ferrell went to Lunsford's home in May 2004 and was met by defendant, who inquired about whether Ferrell was with law enforcement. Mason testified that drug dealers are frequently assisted by “lookouts.” On these facts, the jury could reasonably infer that defendant's actions were in furtherance of a common plan to sell and deliver cocaine. Consequently, the trial court judge did not err by submitting the acting in concert instruction to the jury, and this assignment of error is overruled.
    In a related argument, defendant contends the trial erred by denying his motion to dismiss the charge of selling or delivering cocaine because there was insufficient evidence that defendant shared a common plan or purpose to sell and deliver cocaine. We disagree.     When ruling on a motion to dismiss, “the trial court must determine whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996).
        Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.

State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (2002) (internal citations and quotation marks omitted). “[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both.” State v. Crouse, 169 N.C. App. 382, 389, 610 S.E.2d 454, 459 (2005)
(quoting State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981)).
        The correct statement of the doctrine of acting in concert in this jurisdiction is that . . . if 'two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.'

State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997) (quoting State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286(1991)). “The principle of concerted action need not be overlaid with technicalities. . . . To act in concert means to act together, in harmony or in conjunction one with another pursuant to a common plan or purpose. . . . These terms mean the same in the law of crimes as they do in ordinary parlance.” State v. Joyner, 297 N.C. 349, 356, 255 S.E.2d 390, 395 (1979). However, “[t]o render one who does not actually participate in the commission of the crime guilty of the offense committed, there must be some evidence tending to show that he, by word or deed, gave active encouragement to the perpetrators of the crime, or by his conduct made it known to such perpetrators that he was standing by to lend assistance when and if it should become necessary.” State v. Ham, 238 N.C. 94, 97, 76 S.E.2d 346, 348 (1953).
    In the instant case, we conclude that the same evidence that supports a jury instruction on the theory of acting in concert also shows that defendant gave active assistance to other(s) in their sale or delivery of cocaine. This assignment of error is overruled.
    Defendant next argues the trial court erred by allowing the use of leg irons on him during trial without providing adequate justification.
        [A] defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary instances. However, not every case wherein the defendant is made to wear shackles will be deemed to be fundamentally unfair. Under section 15A-1031 of the General Statutes, a trial judge may require a defendant to be physically restrained, when the judge finds the restraint to be reasonably necessary to maintain order,prevent the defendant's escape, or provide for the safety of persons. The propriety of physical restraints depends upon the particular facts of each case, and the test on appeal is whether, under all of the circumstances, the trial court abused its discretion. Nevertheless, failure to object to the shackling . . . waive[s] any error which may have been committed.

State v. Thomas, 134 N.C. App. 560, 568, 518 S.E.2d 222, 228 (1999)(internal quotation marks and citations omitted).
    In the instant case, prior to voir dire, the following colloquy occurred:
        [DEFENSE COUNSEL]: My client's leg chained. I don't know if Your Honor has an opinion about that. They've already taken off his handcuffs.

        THE COURT: Yeah, they - they pretty well
        always do that. He's dressed out. He's
        dressed in Polo-type shirt, long sleeved T- shirt, uh-huh.

        [DEFENSE COUNSEL]: I would ask if we could, just, if possible, just for safety reasons, if we could at some point take the leg chains off if you can see them. If that's not possible- I'd - I'd just like to ask. I don't know - that

        THE COURT: Sure.

        THE BAILIFF: Usually what I explained to Ms.
        Rubain was that during jury selection while
        the jurors are back here, we don't have a
        problem doing that.

        THE COURT: Yeah, take it off.

        THE BAILIFF: Or once they - once the jury -
        THE COURT: Once the trial starts, he'll have
        to keep them on.

        [DEFENSE COUNSEL]: And that's fine, Your Honor. Thank you very much.
        THE COURT: That's fine. Take them off now -

        THE BAILIFF: Step over here.

        THE COURT: - so the jury can't look over the
        bar or over the defendant's shoulders and see
        the chains. Then, after the trial starts,
        Ms. Rubain, the jury will be sitting in the
        box, the counsel table is screened on three
        sides, both counsel tables are. So that if
        his legs are under the table and he's sitting
        up there beside you, the jury will not be
        able to see any type of chains on him. As
        long as he doesn't jingle or jump around, he
        shouldn't have any problem. But thank you
        for asking.

    Even assuming that defendant properly preserved this issue for appellate review, defendant is nevertheless unable to demonstrate prejudice. See N.C. Gen. Stat. § 15A-1443(a)(2005)(“A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial[.]”). In the instant case, the record illustrates that defendant was not dressed in traditional prison-clothing, but rather a long sleeve polo shirt. The record further reveals that defendant was not shackled during jury selection. In addition, after the trial began, defendant was seated behind a table that was screened on three sides to prevent the jury from seeing that defendant's legs were shackled. We conclude that the jury would not have reached a different verdict if defendant appeared at trial without leg restraints. Accord Thomas, 134 N.C. App at 570, 518 S.E.2d at 229 (even if the issue of defendant appearing in shackles before the jury had been properly preserved no prejudice to defendant hasoccurred because the “State offered overwhelming evidence of malice, premeditation, and deliberation to support the first-degree murder conviction. Based on the record, we conclude that the jury would not likely have reached a different verdict if defendant had not been made to appear before the jury in shackles.”). This assignment of error is also overruled.
    We have evaluated defendant's remaining assignment of error and conclude that it is without merit.
    No error.
    Judges GEER and JACKSON concur.
    Report per Rule 30(e).

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