STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 04 CRS 23964
MICHAEL RAY CRUMP 04 CRS 24439
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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