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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 September 2007
STATE OF NORTH CAROLINA
v. Cabarrus County
Nos. 06 CRS 5895, 7891
EDWIN DEWAYNE MOORE
Appeal by defendant from judgment entered 18 October 2006 by
Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard
in the Court of Appeals 27 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Karen A. Blum, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defenders David W. Andrews and Benjamin Dowling-Sendor, for
Defendant Edwin Dewayne Moore appeals his convictions for
drug-related crimes related to a transaction on 20 December 2005.
After a careful review of Defendant's arguments on appeal and the
record before us, we affirm Defendant's conviction.
On 18 October 2006, a jury found Defendant guilty of
possession of cocaine with intent to sell or deliver, sale of
cocaine, delivery of cocaine, and habitual felon status, in
connection with a drug transaction on 20 December 2005. At trial,
the State offered evidence tending to show that Investigator Jack
Blalock and Detective Laura Carden employed Johnny K. Melton to
purchase forty dollars' worth of crack cocaine from Defendant on 20December 2005, as part of a buy-bust drug interdiction program
conducted by the Kannapolis Police Department in 2005 and 2006.
Prior to the transaction, Investigator Blalock searched Ms.
Melton's car for contraband and equipped it with audio and video
recording equipment, a microphone, and a transmitter. Detective
Carden also searched Ms. Melton's person and gave her forty dollars
and a plastic evidence bag. Ms. Melton's friend, Debbie Charles,
served as her driver.
Before proceeding to Murphy Street, Ms. Melton used a cellular
phone to call Defendant, whom she knew as Wayne or Wheezy.
Uncertain of Defendant's specific address, Ms. Melton phoned him a
second time from Murphy Street and asked him to come outside. At
trial, the State introduced testimony from a cellular phone company
representative that the two calls placed by Ms. Melton were to the
phone number of a subscriber named Edwin D. Moore, whose billing
address was 716 Murphy Street, Kannapolis, North Carolina.
After the second phone call, Defendant emerged from a house
and approached Ms. Melton's car, then handed her two rocks of what
appeared to be crack cocaine, took her forty dollars, and walked
away. Ms. Melton immediately placed the rocks in the evidence bag,
called Detective Carden, and returned to their rendezvous location,
where Detective Carden secured the evidence bag from Ms. Melton.
Detective Carden then conducted a field test on the substance,
which registered positive for cocaine, before sealing the bag with
tape and labeling it with the case number, item number, and the
date and location of the transaction. She paid Ms. Melton fortydollars in cash for her assistance. The videotape of Ms. Melton's
trip, including the transaction with Defendant, was admitted into
evidence and played for the jury.
Ms. Melton testified that she first met Defendant eight years
before the incident through his brother, Kingy, who was a friend
of her son's father. Detective Carden explained to the jury how
she determined Defendant's name based on information from Ms.
Melton that Kingy had previously been arrested in Concord, North
Carolina. Detective Carden contacted Sergeant Joe O'Donnell of the
Concord Police Department, who reported that Edwin DeWayne Moore
had been in the house with Kingy when Kingy was arrested[,] and
that Mr. Moore used an address of 716 Murphy Street. Sergeant
O'Donnell corroborated this account in his own testimony and also
identified Defendant in court as the person who was arrested with
Kingy Moore in the undercover drug operation in 2004.
Detective Carden then obtained four photographs of Edwin
Dewayne Moore from the websites of the North Carolina Division of
Prisons and the Cabarrus County Jail; Ms. Melton subsequently
identified the subject of the photographs as the man she knew as
Wayne or Wheezy. Following that identification, Detective
Carden added Defendant's name to the evidence bag and submitted it
to the State Bureau of Investigation (SBI) for testing. SBI
forensic chemist Lisa Edwards testified that she analyzed the rock-
like substance received from Detective Carden and determined that
it was .23 grams of cocaine base.
Following the jury's guilty verdicts, the trial court arrestedjudgment on the conviction for delivery of cocaine and consolidated
the remaining offenses for judgment, sentencing Defendant to an
active term of ninety-six to one hundred twenty-five months'
imprisonment. Defendant now appeals, arguing that the trial court
(I) erred by denying his motion to dismiss because the State failed
to show that the substance sold to Ms. Melton was cocaine, and (II)
committed plain error by admitting testimony concerning Defendant's
prior drug arrest in 2004.
Defendant first asserts that the trial court erred by denying
his motion to dismiss because the State failed to show that the
substance sold to Ms. Melton was cocaine, in light of conflicting
evidence as to the amount and packaging of the substance exchanged.
In reviewing the denial of a defendant's motion to dismiss, we
must determine whether the evidence, when viewed in the light most
favorable to the State, would allow a reasonable juror to find the
defendant guilty of the offense beyond a reasonable doubt. State
v. Irwin, 304 N.C. 93, 98, 282 S.E.2d 439, 443 (1981). For
purposes of our review, the State is accorded all favorable
inferences reasonably drawn from the evidence, and its witnesses
are deemed to be credible. State v. Robinson, 355 N.C. 320, 336,
561 S.E.2d 245, 256, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404
(2002). Moreover, [e]videntiary contradictions and discrepancies
are for the jury to resolve and do not warrant dismissal. State
v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005) (internalquotation omitted).
Defendant points to a discrepancy between Ms. Melton's and
Detective Carden's respective descriptions of the substance
obtained by each on 20 December 2005 to support his contention that
the State failed to prove the substance in question was cocaine.
Ms. Melton testified at trial that Defendant placed two unwrapped
rocks in her open hand, but Detective Carden stated that the
evidence bag she received from Ms. Melton contained three pieces,
wrapped in a piece of aluminum foil. As such, Defendant argues
that the State failed to establish that the material Detective
Carden provided to and had analyzed by the SBI was the same
material sold and delivered to Ms. Melton.
Nevertheless, we note that the State also introduced evidence
that Ms. Melton did not have any controlled substances with her in
the car prior to the transaction, that she immediately placed the
rocks she obtained from Defendant into the plastic evidence bag,
and that she then turned the evidence bag over to Detective Carden.
Although Defendant speculates that Ms. Melton's driver friend could
have brought crack cocaine into the car, there was no evidence to
support this theory. To the contrary, Ms. Melton provided the jury
with a complete account of the cocaine's journey from Defendant to
Detective Carden, testifying that she immediately called Detective
Carden after buying the cocaine and then turned over the rocks to
Detective Carden shortly thereafter.
Moreover, although Detective Carden testified that there were
three pieces of cocaine in the evidence bag, rather than two, shealso explained that [o]ne of them looked like it was broke[n].
Detective Carden and Ms. Melton testified that Ms. Melton had
engaged in approximately twenty-five such transactions for the
Kannapolis police during 2005 and 2006. During her testimony, Ms.
Melton was unable to recall such details as the terms of her
written contract with the police and whether she met Detective
Carden at a garage or the police department on the occasion in
question, on 20 December 2005. Under the circumstances, we find it
unremarkable that a frequent witness such as Ms. Melton might not
recall the packaging of a controlled substance purchased almost a
year prior to trial.
As finder of fact, the jury was entitled to find credible Ms.
Melton's testimony that she delivered the rocks obtained from
Defendant directly to Detective Carden. Additionally, Ms. Melton's
account of two unwrapped rocks and Detective Carden's description
of three rocks wrapped in foil represented a contradiction or
discrepancy for the jury to consider in weighing the evidence.
Accordingly, this assignment of error is overruled.
Next, Defendant asserts the trial court committed plain error
by allowing Sergeant O'Donnell to testify that Defendant was
arrested by Concord police during an undercover drug investigation
in 2004. Defendant claims that this evidence of a prior
involvement in a drug crime was inadmissible for any purpose and
was particularly prejudicial given the nature of the instant
charge. In light of what Defendant characterizes as the weakcase against him, he argues that this improper testimony had a
probable effect on the jury's verdict. We disagree.
To establish plain error, a defendant must show an error so
grave as to 'seriously affect the fairness, integrity or public
reputation of judicial proceedings' or otherwise undermine the
validity of the jury's verdict. State v. Scott
, 343 N.C. 313, 339,
471 S.E.2d 605, 620-21 (1996) (quoting State v. Odom
, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1983)).
Thus, in our review of the
record for plain error, defendant is entitled to a new trial only
if the error was so fundamental that, absent the error, the jury
probably would have reached a different result. State v. Walters
357 N.C. 68, 85, 588 S.E.2d 344, 354 (internal quotation omitted),
, 540 U.S. 971, 157 L. Ed. 2d 320 (2003).
Under the North Carolina Rules of Evidence, evidence of a
defendant's prior actions is admissible for the purpose of proving
the identity of the perpetrator of an offense.
N.C. Gen. Stat. §
8C-1, Rule 404(b) (2005). In his testimony, Sergeant O'Donnell
corroborated Detective Carden's description of the means by which
the police were able to determine the name of their suspect based
upon Ms. Melton's account of a man named Wayne or Wheezy who
was the brother of Kingy. Thus, Sergeant O'Donnell's testimony
was proper under Rule 404(b) to help explain why the Concord Police
Department had a record of Defendant's name and address based on
Moreover, we conclude that, in light of the extensive evidence
presented by the State against Defendant, any error in theadmission of Sergeant O'Donnell's testimony did not rise to the
level of plain error. See State v. Bellamy
, 172 N.C. App. 649, 667,
617 S.E.2d 81, 93-94 (2005), appeal dismissed and disc. review
, 360 N.C. 290, 628 S.E.2d 384 (2006); State v. Riley
N.C. App. 546, 552, 583 S.E.2d 379, 384 (2003). The State offered
compelling evidence of Ms. Melton's purchase of cocaine on 20
December 2005, including a videotape shown to the jury, as well as
of Defendant's identity as the seller. Any potential prejudice
from Sergeant O'Donnell's testimony was also mitigated by Detective
Carden's earlier testimony _ elicited by defense counsel on cross-
examination _ that she obtained photographs of Defendant from the
state prison system and the county jail, and by Ms. Melton's
testimony that she bought marijuana from Defendant two weeks prior
to 20 December 2005. We therefore overrule this assignment of
The record on appeal includes additional assignments of error
not addressed by Defendant in brief to this Court. Pursuant to
N.C. R. App. P. 28(b)(6), we deem them abandoned.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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