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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1541


Filed: 3 July 2007

                                Wake County
    v.                            No.    04 CRS 103205, 84879


    Appeal from judgment entered 21 September 2005 by Judge Thomas D. Haigwood in Wake County Superior Court. Heard in the Court of Appeals 11 June 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Steven A. Armstrong, for the State.

    Lynne Rupp for defendant-appellant.

    MARTIN, Chief Judge.

    A jury found defendant guilty of conspiracy to sell cocaine. He entered a plea of guilty to having attained habitual felon status and a prior record level III. The trial court determined defendant had a prior record level of III and sentenced him to an active prison term of 104 to 135 months. Defendant appeals.
    The State adduced evidence that Raleigh Police Officers G.J. Porterfield and J.L. Jordan made an undercover purchase of crack cocaine at the intersection of Lord Anson Drive and Poole Road on the night of 13 October 2004, as part of the department's Community Assistance Narcotics Enforcement or CANE project. Porterfield, a sixteen-year veteran of the department, had been a patrol officerin defendant's Poole Road neighborhood for five and one-half years and described the T-intersection of Poole Road and Lord Anson Drive as a “high complaint area” for drug activity. Based on his familiarity with street-level drug sales in the area, Porterfield described the method of conducting such transactions as follows:
            Basically how street-level drug transactions usually occur is a vehicle or a person on foot would walk into the area and make visual contact with potential sellers.

            If that person is a seller they will acknowledge. Usually the terminology is: “What do you need? What can I get you?”

            From that point the talk is about what type of drug, how much they want, and how much they want to spend.

        . . .

            What shorthand is used for it is: “I need a 20. I need a rock.” That type language.

Jordan, a twenty-seven-year veteran of the department, had participated in “well over a hundred” drug investigations as both an investigator and a patrol officer and had “made numerous arrests from that particular corner for drug sales[.]” From his experience, cocaine dealers typically did not carry drugs on their person, in case they were arrested or robbed. They maintained a hidden “stash” of drugs which they could access as needed to make a sale. Jordan further averred that it was not “unusual for someone to work selling drugs in order to get drugs for themselves.”
     On the night of 13 October 2004, Porterfield and Jordan drove in an unmarked van to the intersection of Poole Road and Lord AnsonDrive and parked in front of a convenience store. From the passenger's seat, Jordan saw defendant standing next to a second man at the edge of the store's parking lot. Jordan and defendant made eye contact and nodded at each other. Defendant approached Jordan's window and asked, “What do you need?” According to Jordan, “that's what they do usually. If they're selling drugs they come to you. They ask you the question what you need, what you want, what you look for.” Jordan replied that he “needed a 20,” which was “street terminology for $20 worth of cocaine, crack cocaine.” Defendant turned to his left toward the convenience store and “hollered for someone to come to him.” A woman, later identified as Chana Marks, walked over to the van from the direction of the store and joined defendant at Jordan's window. Defendant told Marks, “Go get him a 20.” Marks walked down Poole Road, turned left beside a house, and disappeared from Jordan's view. Defendant returned to his prior location in the parking lot. Within “a minute or two at the most,” Marks came back to Jordan's window and, without saying a word, gave him a small off-white pebble-shaped object wrapped in the corner of a plastic baggie in exchange for $20. Marks walked over to defendant and spoke with him while the officers radioed the take-down unit. As she walked back down to the corner of Poole Road, uniformed officers arrived and detained her and defendant. Officers found a crack pipe in Marks' pocket. Defendant had no drugs, drug paraphernalia or money on his person. A forensic chemist tested the object Marks sold toJordan and determined that it was one-tenth of a gram of cocaine base.
    Marks testified that she had been convicted for selling crack cocaine to Jordan and served an eight month prison sentence. She had worked for fifteen years as a “drug runner” for multiple dealers, receiving crack cocaine in exchange for her services. The dealers in the area either held the drugs on their persons or kept their stashes of drugs “very c[l]ose to them where they can see them.” Marks had known defendant for years from the neighborhood but did not work with him or sell drugs for him. On the night of 13 October 2004, she was standing near defendant on the sidewalk in front of the convenience store when a van arrived. After the van's occupant said something to defendant, he turned toward Marks and said, “[H]e's got a 20.” Marks walked across the street and obtained $20 worth of crack cocaine from a dealer named Marcus, who was “sitting right on the corner of the front porch of the house.” After completing the sale, she was arrested on her way to deliver the money to Marcus. The police took the $20 bill from her and found the “stem” she used to smoke cocaine. Marks denied stopping to speak to defendant before returning to Marcus.


    On appeal, defendant claims the trial court erred in denying his motion to dismiss the conspiracy charge. While conceding the evidence showed his belief “that Marks was a potential drug source” for Jordan, he contends the State adduced no proof that he conspired with Marks in her criminal activity. Defendant notesthat he was unable to provide Jordan with the cocaine he requested and that Marks disavowed any working arrangement with him.
    In reviewing the sufficiency of the State's evidence, we must determine whether, when viewed in the light most favorable to the State, it would permit a rational juror to find defendant guilty of the charged offense beyond a reasonable doubt. State v. Sumpter, 318 N.C. 102, 107-08, 347 S.E.2d 396, 399 (1986). “The State is entitled to all reasonable inferences that may be drawn from the evidence. Contradictions in the evidence are resolved favorably to the State.” Id. at 107, 347 S.E.2d at 399. To withstand a motion to dismiss, the evidence must create more than a mere suspicion of the defendant's guilt but need not exclude every reasonable hypothesis of innocence. State v. Barfield, 127 N.C. App. 399, 401, 489 S.E.2d 905, 907 (1997).
    “A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means.” State v. Lowery, 318 N.C. 54, 71, 347 S.E.2d 729, 740 (1986). Defendant was charged with conspiracy to sell cocaine, a felony under N.C. Gen. Stat. §§ 90-95(a)(1), 90- 95(b)(1), 90-98 (2005). To be guilty of conspiracy, the members need not enter into an explicit agreement to engage in the unlawful enterprise. “'A mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense.'” State v. Johnson, 164 N.C. App. 1, 17, 595 S.E.2d 176, 185 (quoting State v. Bindyke, 288 N.C. 608, 615-16, 220 S.E.2d 521, 526 (1975)), disc. review denied, 359 N.C. 194, 607S.E.2d 659 (2004). Because direct evidence of a conspiracy is rarely available, “the situation of the parties and their relations to each other, together with the surrounding circumstances and the inferences deducible therefrom, may furnish ample proof of conspiracy even in the face of positive testimony to the contrary.” State v. Horton, 275 N.C. 651, 660, 170 S.E.2d 466, 472 (1969), cert. denied, 398 U.S. 959, 26 L. Ed. 2d 545 (1970). “Ordinarily the factual issue of the existence or nonexistence of a conspiracy is for the jury.” State v. Collins, 81 N.C. App. 346, 350, 344 S.E.2d 310, 314 (citation omitted), appeal dismissed, 318 N.C. 418, 349 S.E.2d 601 (1986).
    Viewed in the light most favorable to the State, the evidence depicted defendant and Marks working in tandem to sell $20 worth of crack cocaine to Jordan. Defendant solicited the sale by approaching Jordan's vehicle and inquiring, “What do you need?” After receiving Jordan's order, defendant called Marks over to the vehicle and directed her to obtain a “20” for him. Marks quickly accessed the desired amount of the drug and delivered it to Jordan. After consummating the sale, Marks walked back to defendant and conversed with him. Whether Marks was working for defendant or with him on behalf of a third party, we hold that their joint completion of the drug transaction was sufficient to support a reasonable inference of at least a tacit agreement between them to sell cocaine. Cf. State v. Jackson, 103 N.C. App. 239, 244, 405 S.E.2d 354, 357 (1991) (finding sufficient evidence of conspiracy to traffic in cocaine where the defendant drove the seller to thesite of the transaction in a car containing firearms and “remained seated in the car looking around the parking lot” while the seller delivered the drug), aff'd per curiam, 331 N.C. 113, 413 S.E.2d 798 (1992). Although Marks denied any involvement with defendant, her credibility was a question of fact for the jury. State v. Hyatt, 355 N.C. 642, 666, 566 S.E.2d 61, 77 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003).
    No error.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

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