Converted WP file 070010-1

Appeal by defendant from judgments entered 18 August 2006 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 29 August 2007.

Attorney General Roy A. Cooper, III, by Assistant Attorney General John C. Evans, for the State.

A. Wayne Harrison, for defendant-appellant.

    JACKSON, Judge.

    On 1 December 2005, the Greensboro Police Department arranged for a confidential undercover informant (“Knowles”) to meet an unnamed individual to receive “nine ounces of powder and a deuce . . . of crack cocaine.” Knowles was equipped with an electronic transmitter, and Detective Larry Marshall (“Detective Marshall”) and other police officers monitored Knowles' conversations.
    In the late afternoon of 1 December 2005, Rashawn Antwan Miller (“defendant”) was sitting in his car _ a white Acura _ parked outside a pet supplies store when he observed his cousin, Lathan McGill (“McGill”), walking toward the store. Defendant motioned to McGill to come to his car , and after McGill got intothe car, defendant handed him two bags _ a brown paper bag and a “clear plastic bag” that was “yellowish” and transparent. Defendant then instructed McGill to walk across the parkway and give the bags “to the other guy in the green van.” Meanwhile, looking specifically for either a white Acura or a purple sport utility vehicle, Detective Marshall had positioned himself in a nearby parking space from which he was able to observe both the back end of defendant's white Acura as well as Knowles' green van.
    After exiting defendant's vehicle, McGill walked to the green van, recognized the driver as Knowles, and got into the van. McGill handed Knowles the bags that defendant had given to him, and Knowles indicated that he needed to get money. McGill then exited Knowles' van, and while walking back toward the store, police officers approached and arrested McGill and Knowles. The officers also detained and questioned Monica Hedgepeth (“Hedgepeth”), McGill's girlfriend, who had been in the parking lot. The police recovered a brown paper bag from the green van, and inside the brown bag were three smaller, plastic bags _ two containing a white powder and one containing a yellow-colored substance.
    Shortly after the arrests, Todd Rourke (“Rourke”), the manager of the pet supplies store, observed defendant enter the store wearing a large white parka and a “baseball cap pulled down . . . real tight.” Defendant had a cell phone and was “nervously pacing . . . back and forth up the aisle.” Rourke observed defendant make five or six trips to the front of the store to look outside at the commotion resulting from the arrests of McGill and Knowles. Defendant then took off his hat “and tossed it on top of a rack of dog chews, and . . . went down another aisle and dumped his cell phone behind a box.” Rourke, believing that defendant was connected to the commotion outside the pet supplies store, informed Detective Mike Montalvo (“Detective Montalvo”) of defendant's presence inside the store. Detective Montalvo entered the store and asked defendant if he owned a white Acura parked outside the store. Defendant admitted that he owned the car. Detective Montalvo told defendant that he was not under arrest but that the police needed a statement from him. Defendant agreed to go to the police station.
    After being arrested, McGill gave an initial statement denying any criminal activity. However, after expressing concern about whether Hedgepeth would be charged, McGill gave a second statement implicating both himself and defendant:
        My cousin Rashawn called me to meet him at the pet store to get dog food. As I pulled up, I seen [sic] car I know. I walked towards the pet store. I saw my cousin. I _ I think it's hop _ H-O-P _ in the car with him. He asked me to take something to somebody. I did. Next, I got out. I got arrested. My girlfriend know [sic] nothing about what I was doing. I took crack to the guy in the green van. Never saw the powder. I didn't get _ I didn't get any money for it.

    On 20 February 2006, defendant was indicted for (1) trafficking by delivery of 200 grams or more of cocaine but less than 400 grams; (2) trafficking by possession of the same amount of cocaine; and (3) conspiracy to commit trafficking by possession of the same amount of cocaine. On 17 August 2006, a jury founddefendant guilty of all charges, and the trial court sentenced defendant to a minimum of seventy months imprisonment with a corresponding maximum of eighty-four months. Defendant gave timely notice of appeal.
    On appeal, defendant first contends that the trial court erred by admitting the hearsay declarations of an unavailable witness in violation of his rights under the Confrontation Clause. We disagree.
    “It is well-settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated.” State v. Thorne, 173 N.C. App. 393, 396, 618 S.E.2d 790, 793 (2005) (citing Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554 S.E.2d 331, 332 (2001)). “A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.” N.C. Gen. Stat. § 15A-1443(b) (2005).
    “Under the Confrontation Clause of the Sixth Amendment, a defendant is guaranteed the right to effectively cross-examine a witness . . . .” Thorne, 173 N.C. App. at 396, 618 S.E.2d at 793 (citing United States v. Abel, 469 U.S. 45, 50, 83 L. Ed. 2d 450, 456 (1984)). In Crawford v. Washington, the United States Supreme Court held that “[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”Crawford, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 203 (2004). Specifically,
        Crawford held that where testimonial evidence is at issue, it is only admissible based on a finding that the witness is unavailable for trial and that the defendant has had a prior opportunity for cross-examination. Where non-testimonial evidence is involved, however, the ordinary rules of evidence apply in regards to admissibility.

State v. Ferebee, 177 N.C. App. 785, 788, 630 S.E.2d 460, 462 (2006) (citing Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203). “Statements are testimonial if they '“were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”'” State v. Sutton, 169 N.C. App. 90, 96, 609 S.E.2d 270, 275 (alteration omitted) (quoting Crawford, 541 U.S. at 52, 158 L. Ed. 2d at 193), disc. rev. denied, 359 N.C. 642, 617 S.E.2d 658 (2005).
    First, defendant contends that a portion of Detective Marshall's testimony includes a declaration from Knowles that revealed that the drugs had been delivered. However, the portion of the transcript to which defendant cites does not include any such testimony. Although Detective Marshall later testified that he “knew from the conversation [between McGill and Knowles] that drugs were there,” he did not testify as to any statement made by Knowles concerning the delivery of the drugs. Accordingly, defendant's assignment of error is overruled.
    Defendant also assigns error to (1) Detective Marshall's testimony that, based upon his conversations with Knowles, he and other officers “were looking for a white Acura CL”; (2) DetectiveMarshall's testimony that he overheard Knowles say on the monitoring device “something to the effect that that might be him,” at which point Detective Marshall observed McGill walking towards the green van; (3) Detective Montalvo's testimony describing the investigatory steps preceding the drug transaction, including Knowles' informing him where the transaction would take place; and (4) Detective Montalvo's testimony that Knowles stated, “The stuff looks good. Stuff looks good.” Defendant contends that these declarations, respectively, (1) identified defendant's vehicle as being involved in the transaction; (2) identified McGill as being a participant in the transaction; (3) described the developing transaction; and (4) indicated that the drugs had been delivered.
    Contrary to defendant's contention, however, none of these statements constitute hearsay, a threshold condition for a Crawford and Confrontation Clause analysis. See Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 198 (noting that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted”). None of the statements challenged by defendant were offered for the truth of the matter asserted, and as our Supreme Court has explained, “'[i]f a statement is offered for any purpose other than that of proving the truth of the matter stated, it is not objectionable as hearsay.'” State v. Chapman, 359 N.C. 328, 354, 611 S.E.2d 794, 815 (2005) (quoting State v. Irick, 291 N.C. 480, 498, 231 S.E.2d 833, 844.45 (1977)).    One example of admissible nonhearsay is “[a] statement which explains a person's subsequent conduct,” State v. Canady, 355 N.C. 242, 248, 559 S.E.2d 762, 765 (2002), and this Court has addressed the admissibility of such statements made by confidential informants to testifying government agents. See State v. Levya, __ N.C. App. __, __, 640 S.E.2d 394, 399, appeal dismissed and disc. rev. denied, __ N.C. __, __ S.E.2d __ (Aug. 23, 2007) (No. 131P07).         In Leyva, the trial court admitted testimony by detectives referencing statements made by a confidential informant. The defendant argued that his right to confrontation was violated by admission of that evidence. We concluded that the defendant incorrectly categorized the statements as testimonial because the evidence was introduced to explain the officers' presence at the location of a drug sale, not for the truth of the matter asserted.

State v. Wiggins, __ N.C. App. __, __, 648 S.E.2d 865, 871 (2007). In Wiggins, this Court again found no error in the admission of a police officer's testimony referencing statements by an informant. See id. at __, 648 S.E.2d at 871. Much as in the instant case, we noted in Wiggins that (1) the State explained to the trial court that the statements were not offered for their truth; (2) the trial court gave a limiting instruction; and (3) “the statements were offered to explain how the investigation of Defendants unfolded, why Defendants were under surveillance at the Quality Inn, and why Deputy Duprey followed the vehicle to the Quality Inn.” Id. at __, 648 S.E.2d at 871.
    Here, Detective Marshall's testimony about the white Acura was offered to explain why the officers were looking for a white Acura, and his testimony that Knowles stated, “[T]hat might be him,” wasoffered to explain when and why Detective Marshall “looked up and observed a black male [McGill] walking” in the parking lot toward the white Acura. The only declaration by Knowles in Detective Montalvo's testimony was that “[h]e said it was going to take place in front of the pet store on . . . High Point Road,” and this statement was used to explain Detective Montalvo's subsequent conduct, such as informing “other [police] units [to] move in closer to that area.” Additionally, Detective Montalvo's testimony that Knowles said, “The stuff looks good,” was not offered to explain the quality of the drugs, but rather to explain Detective Montalvo's subsequent conduct. As Detective Montalvo explained, “That's our cue that the narcotics are there and for me or Detective Marshall to get on the radio and announce the arrest team to move in.”
    None of the statements challenged by defendant constituted hearsay, and the trial court specifically and repeatedly instructed the jury to not consider statements allegedly made by Knowles for their truth. See id. at __, 648 S.E.2d at 871 (“We further note that . . . the trial court gave the jury a limiting instruction pertaining to confidential informants.”); see also State v. Clark, 165 N.C. App. 279, 288, 598 S.E.2d 213, 220 (“Here, the trial court failed to give the jury a limiting instruction. Because the jury could have considered this evidence for the truth of the matter asserted, we cannot presume it was offered and received as corroborating evidence.”), disc. rev. denied, 358 N.C. 734, 601 S.E.2d 866 (2004). The testimony to which defendant assigns erroris not objectionable pursuant to Crawford or the Confrontation Clause, and accordingly, defendant's argument is overruled.
    Defendant also contends that the trial court erred in permitting, over his objection, an excerpt from an audiotape, as well as the corresponding transcript, containing a conversation between Knowles and McGill. We disagree.
    Defendant first argues in his brief that “[t]his material tended to confuse the jury,” thereby implying that the trial court erred in failing to exclude the evidence pursuant to Rule 403 of the North Carolina Rules of Evidence. See N.C. Gen. Stat. . 8C-1, Rule 403 (2005) (noting that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury”). Defendant, however, neither objected at trial nor assigned error on this basis, and accordingly, we decline to consider this argument.
    Defendant's primary contention with respect to the audiotape and transcript is that they constituted testimonial hearsay. Defendant objected at trial to the introduction of the audiotape and transcript and argued that “any statement of Mr. Knowles' produced _ presented to the jury is hearsay.” However, as discussed supra, only those statements offered for the truth of the matter asserted constitute hearsay. See N.C. Gen. Stat. . 8C-1, Rule 801 (2005). Here, the audiotape and transcript were not offered for the truth of their contents, but instead, to (1) demonstrate defendant's involvement in a conspiracy and (2) corroborate McGill's testimony.    During the recorded conversation, McGill twice asked Knowles if he informed “Ray” of another transaction that Knowles had planned. Also, Knowles asked McGill, “Yo, where ya'll going to be at,” to which McGill responded, “Uh, I don't know man, call Rashon [sic].” As the State argued to the trial court, the audiotape and transcript “reinforce[] or corroborate[] . . . the conspiracy allegation. That is, that Mr. McGill referred Mr. Knowles anytime an inquiry was made to Ray or Rashawn.” Additionally, “[i]t has been well established in this state that '[a] prior consistent statement of a witness is admissible to corroborate the testimony of the witness whether or not the witness has been impeached,' even though the statement was hearsay.” State v. Walters, 357 N.C. 68, 88.89, 588 S.E.2d 344, 356 (first alteration added) (quoting State v. Jones, 329 N.C. 254, 257, 404 S.E.2d 835, 836 (1991)), cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003). Both the transcript and audiotape of McGill's conversation with Knowles corroborated McGill's testimony regarding that conversation. Therefore, the trial court did not err in admitting the audiotape and transcript, and accordingly, defendant's assignment of error is overruled.
    In his final argument, defendant contends that the trial court erred in failing to dismiss the conspiracy charge against defendant. We disagree.
    It is well-established that
        [t]he standard for ruling on a motion to dismiss is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is theperpetrator of the offense. Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion. 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. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.

State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005) (internal quotation marks and citations omitted). “'In “borderline” or close cases, our courts have consistently expressed a preference for submitting issues to the jury, both in reliance on the common sense and fairness of the twelve and to avoid unnecessary appeals.'” State v. Manning, __ N.C. App. __, __, 646 S.E.2d 573, 577 (2007) (alteration omitted) (quoting State v. Hamilton, 77 N.C. App. 506, 512, 335 S.E.2d 506, 510, disc. rev. denied, 315 N.C. 593, 341 S.E.2d 33 (1986)).
    “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. In order to prove conspiracy, the State need not prove an express agreement; evidence tending to show a mutual, implied understanding will suffice.” State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991) (citing State v. Bell, 311 N.C. 131, 141, 316 S.E.2d 611, 617 (1984)). “This evidence may be circumstantial or inferred from the defendant's behavior.” State v. Shelly, __ N.C. App. __, __, 638 S.E.2d 516, 525 (citing State v. Choppy, 141 N.C. App. 32, 539 S.E.2d 44 (2000), appeal dismissedand disc. rev. denied, 353 N.C. 384, 547 S.E.2d 817 (2001)), disc. rev. denied, 361 N.C. 367, 646 S.E.2d 768 (2007).
    In the case sub judice, McGill testified that defendant asked McGill to deliver cocaine to Knowles. McGill testified, “Well, he handed me a bag and asked me to walk over and give it to his partner, his friend that he knew. The guy that had pulled up in the green van.” Although McGill did not receive any money from defendant for performing this action,   (See footnote 1) McGill, who was twenty years old at the time of the trial, explained that he assisted defendant because “I was his cousin and I basically _ you know, I was just his little 'do boy.'” McGill further noted that he had delivered drugs on defendant's behalf on previous occasions, stating, “He used me as his 'do boy' most of the time.” The evidence also showed that McGill was aware of the contents of the bags that he delivered to Knowles. In his statement to police, McGill acknowledged that he recognized the contents of the transparent, yellowish bag as being crack. McGill also testified that he “basically knew exactly what it was from the beginning,” especially since McGill was defendant's cousin and he “knew what he [defendant] did.” Finally, McGill testified that McGill directed Knowles to contact defendant with respect to payment for the drugs.     Viewing the evidence in the light most favorable to the State, we hold that the State presented substantial evidence that defendant engaged in a criminal conspiracy by agreeing with McGill to traffic drugs. Accordingly, defendant's assignment of error is overruled.
    Defendant failed to argue assignment of error number eight, and therefore, this assignment of error is deemed abandoned. See N.C. R. App. P. 28(b)(6) (2006).
    No Error.
    Judges CALABRIA and GEER concur.
    Report per Rule 30(e).

Footnote: 1