Opinion
No. 07-1463.
Filed 1 July 2008. This case not for publication.
Forsyth County Nos. 06 CRS 57002, 24110.
Appeal by Defendant from judgment dated 31 May 2007 by Judge Anderson D. Cromer in Superior Court, Forsyth County. Heard in the Court of Appeals 14 May 2008.
Attorney General Roy Cooper, by Assistant Attorney General Gary A. Scarzafava, for the State. William D. Spence for Defendant.
James Curtis Caldwell (Defendant) was convicted on 31 May 2007 of possession with intent to sell and deliver marijuana and of having attained habitual felon status. The trial court sentenced Defendant to a term of seventy-two months to ninety-six months in prison. Defendant appeals.
At trial, Officer Richard Workman (Officer Workman) of the Winston-Salem Police Department testified that on 10 June 2006, he conducted surveillance at the Rolling Hills Apartment complex:
Q. Would you please explain to the members of the jury what led to your contact with . . . [D]efendant?
A. We have several drug locations in the city of Winston-Salem. Rolling Hills is our second largest drug area. So, I went there to do surveillance.
Q. Were you at the Rolling Hills Apartment Complex on June 10th, 2006?
A. Yes, ma'am, I was.
Q. And what were you doing there?
A. I was doing surveillance from a covert location. [Building] 730 is a pretty popular breezeway that a lot of drug transactions happen in.
Specifically, Officer Workman testified that he used binoculars to conduct surveillance of Building 730 in the Rolling Hills Apartment Complex (Building 730) from a wooded area approximately one hundred yards away. Officer Workman testified that he witnessed two hand-to-hand transactions involving Defendant. Officer Workman observed a blue vehicle drive toward Building 730 and saw Defendant "flagging his hands." The blue vehicle pulled into a parking space and Defendant approached the vehicle. Officer Workman then testified: "At that time a hand-to-hand transaction occurred where the driver handed [Defendant] money and then [Defendant] handed the buyer a plastic bag," which appeared to contain marijuana. Officer Workman then observed a burgundy vehicle approach Building 730 and saw Defendant "flagging the vehicle down[.]" Defendant approached the burgundy vehicle, and Officer Workman testified that "[a] hand-to-hand transaction occurred" in which Defendant handed the driver a "small plastic bag of marijuana."
After witnessing the two transactions, Officer Workman approached Defendant, identified himself to Defendant as a police officer, and Defendant "ducked down behind the burgundy vehicle." Officer Workman continued to walk toward Defendant and Defendant ran up the stairs in the breezeway of Building 730. Defendant ran into apartment number sixteen and Officer Workman pursued Defendant into the apartment. Officer Workman proceeded directly into the bathroom area and saw Defendant "standing over the toilet wiggling the handle and [saw] the marijuana floating in the toilet in the plastic bags." Officer Workman subsequently placed Defendant under arrest.
Officer Workman testified regarding the items he saw in the toilet: "It was a green leafy matter, which, based on my training and experience, I know to be marijuana. Also was packaged up. The three little bags were torn apart. And I know that to be consistent with nickel bags of marijuana." Officer Workman also testified that he searched Defendant and "located $279[.00] in U.S. currency, pretty much all in $20 bills and $10 bills, which is a common denomination of what the marijuana is sold for."
Officer Michael Knight (Officer Knight) of the Winston-Salem Police Department testified that he responded to a call from Officer Workman on 10 June 2006. Officer Knight further testified regarding the reason he was in the vicinity at the time of Officer Workman's call:
Q. On June 10th of 2006 did there come a time where you were in — somewhere in the 700 to 730 block of Ferrell Court?
A. Yes, ma'am.
Q. And why were you there?
A. Myself and other members of the District II foot . . . patrol unit normally go to the housing authority areas. Ferrell Court is a housing authority property.
These are areas where we've made numerous drug arrests in the past.
Lisa Edwards, a forensic drug chemist, identified the substance retrieved from the toilet as 8.6 grams of marijuana. Defendant did not present any evidence.
I.
Defendant argues the trial court committed plain error by allowing the State's witnesses to testify as to the reputation of the "Rolling Hills" area as a drug area. Defendant did not object to the admission of the evidence at trial, and we thus review this issue for plain error. State v. Blair, 181 N.C. App. 236, 245-46, 638 S.E.2d 914, 921, disc. review denied, 361 N.C. 570, 650 S.E.2d 815 (2007); N.C.R. App. P. 10(c)(4).
Plain error includes error that is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done; or grave error that amounts to a denial of a fundamental right of the accused; or error that has resulted in a miscarriage of justice or in the denial to [the] appellant of a fair trial.
State v. Gregory, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996) (citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). "[I]n order to prevail under the plain error rule, [a] defendant must convince this Court that (1) there was error and (2) without this error, the jury would probably have reached a different verdict." State v. Najewicz, 112 N.C. App. 280, 294, 436 S.E.2d 132, 141 (1993), disc. review denied, 335 N.C. 563, 441 S.E.2d 130 (1994). "In North Carolina, the `general rule is that in a criminal prosecution evidence of the reputation of a place or neighborhood is ordinarily inadmissible hearsay.'" Blair, 181 N.C. App. at 246, 638 S.E.2d at 921 (quoting State v. Weldon, 314 N.C. 401, 408, 333 S.E.2d 701, 705 (1985) (citation omitted)). "However, `"if a statement is offered for any purpose other than that of proving the truth of the matter asserted, it is not objectionable as hearsay."'" Id. (quoting State v. English, 171 N.C. App. 277, 284, 614 S.E.2d 405, 410 (2005) (quoting State v. White, 298 N.C. 430, 437, 259 S.E.2d 281, 286 (1979))).
In Blair, the State asked an officer why he was conducting surveillance of the location where the robbery occurred on the day of the robbery. Id. The officer testified that he conducted the surveillance of that location on that day because police had received "numerous complaints of prostitution, street-level drugs, larcenies, shoplifting, robberies, [and] assaults." Id. (quotation omitted). Our Court held that the officer's testimony "was not admitted for the truth of the matter asserted, but rather to explain why [the officer] was in a position to observe the robbery. Therefore, the statement was not hearsay and was admissible." Id.
Likewise, in the present case, the State asked Officer Workman what led to his contact with Defendant on 10 June 2006 and further asked Officer Workman why he was conducting surveillance of Building 730 at the Rolling Hills Apartment Complex on 10 June 2006. The State also asked Officer Knight why he was in the area on 10 June 2006. In response to those questions, and in an effort to explain their presence in the area, the officers testified about the reputation of the neighborhood as a drug area. As in Blair, we hold this testimony was not offered for the truth of the matter asserted. Rather, it was offered to show why Officer Workman was conducting surveillance on 10 June 2006 and why Officer Knight was in the vicinity. Accordingly, we hold the evidence was not hearsay and was admissible. We overrule this assignment of error.
II.
Defendant argues the trial court erred by denying his motion to dismiss the charge of possession with intent to sell or deliver marijuana. Specifically, Defendant argues there was insufficient evidence that he intended to sell or deliver the marijuana and insufficient evidence to establish Defendant's identity as the perpetrator of the crime. Defendant argues that
although there may be "additional evidence" the State may point to in the trial below (such as the "hand-to-hand transactions") still, the unreliability of this additional evidence, coupled with the extremely small quantity of marijuana in this case (less than 1/3rd of an ounce), negates any additional evidence of an intent to sell[.]
On a motion to dismiss for insufficiency of the evidence, a 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. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). A trial court views the evidence in the light most favorable to the State, drawing all inferences in the State's favor. Id. at 584, 461 S.E.2d at 663.
"The offense of possession with intent to sell or deliver has three elements: (1) possession of a substance; (2) the substance must be a controlled substance; and (3) there must be intent to sell or distribute the controlled substance." State v. Nettles, 170 N.C. App. 100, 105, 612 S.E.2d 172, 175, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005); N.C. Gen. Stat. § 90-95(a)(1) (2007). "While the quantity of drugs seized is evidence of the intent to sell, `it is not an element of G.S. 90-95(a)(1).'" State v. Hyatt, 98 N.C. App. 214, 216, 390 S.E.2d 355, 357 (1990) (quoting State v. Thobourne, 59 N.C. App. 584, 590, 297 S.E.2d 774, 779 (1982), disapproved on other grounds, State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983)).
In support of his argument, Defendant relies upon Nettles and State v. Wiggins, 33 N.C. App. 291, 235 S.E.2d 265, cert. denied, 293 N.C. 592, 241 S.E.2d 513 (1977). However, these cases are distinguishable.
In Nettles, the defendant argued that the State did not prove that he possessed the 1.2 grams of cocaine with the intent to manufacture, sell, or deliver the cocaine. Nettles, 170 N.C. App. at 105, 612 S.E.2d at 175. Our Court recognized that "[w]hile intent may be shown by direct evidence, it is often proven by circumstantial evidence from which it may be inferred." Id. at 105, 612 S.E.2d at 175-76. Our Court further recognized that "[a]lthough `quantity of the controlled substance alone may sufficeto support the inference of an intent to transfer, sell, or deliver,' it must be a substantial amount." Id. at 105, 612 S.E.2d at 176 (quoting State v. Morgan, 329 N.C. 654, 659-60, 406 S.E.2d 833, 835-36 (1991)).
Our Court held that "it cannot be inferred that [the] defendant had an intent to sell or distribute from such a de minimus amount alone." Id. at 106, 612 S.E.2d at 176. However, our Court then examined the other evidence to determine whether it raised an inference of the defendant's intent to manufacture, sell, or deliver the cocaine. Id. at 106-08, 612 S.E.2d at 176-77. Our Court stated as follows: "Based on North Carolina case law, the intent to sell or distribute may be inferred from (1) the packaging, labeling, and storage of the controlled substance, (2) the defendant's activities, (3) the quantity found, and (4) the presence of cash or drug paraphernalia." Id. at 106, 612 S.E.2d at 176. Our Court determined that none of these factors were present. Id. at 107, 612 S.E.2d at 176. Therefore, our Court held that "there was insufficient evidence of [the] defendant's intent to sell or deliver crack cocaine." Id. at 108, 612 S.E.2d at 177.
Unlike in Nettles, the State in the case before us presented evidence of three of the four factors articulated in Nettles. Although the amount possessed by Defendant was de minimus, Officer Workman testified that he discovered the marijuana in the toilet along with "three little bags" that were "consistent with nickel bags of marijuana." Officer Workman also searched Defendant and "located $279[.00] in U.S. currency, pretty much all in $20 bills and $10 bills, which is a common denomination of what the marijuana is sold for." Moreover, just prior to confronting Defendant, Officer Workman observed Defendant engage in two hand-to-hand transactions in which Defendant handed a bag that appeared to contain marijuana to a person inside a vehicle. We hold that this was sufficient evidence from which the jury could infer an intent to sell or deliver the marijuana possessed by Defendant.
In Wiggins, our Court held less than half a pound of marijuana "alone, without some additional evidence, is not sufficient to raise an inference that the marijuana was for the purpose of distribution." Wiggins, 33 N.C. App. at 294, 235 S.E.2d at 268 (emphasis added). However, as we held above, although the amount possessed by Defendant in the case before us was insufficient alone to raise an inference of Defendant's intent to sell or deliver, the State presented sufficient additional evidence of intent to survive Defendant's motion to dismiss.
Defendant argues that Officer Workman's testimony "as to what he observed from 100 yards away through binoculars is in the nature of `inherently incredible' and so patently unreliable that it would not be safe to rely on this testimony for `additional evidence' of [D]efendant's intent to sell and deliver." We cannot agree.
"The credibility of witnesses is a matter for the jury except where the testimony is inherently incredible and in conflict with the physical conditions established by the State's own evidence." State v. Begley, 72 N.C. App. 37, 43, 323 S.E.2d 56, 60 (1984). In State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967), our Supreme Court held:
Where there is a reasonable possibility of observation sufficient to permit subsequent identification, the credibility of the witness' identification of the defendant is for the jury, and the court's doubt upon the matter will not justify granting a motion for judgment of nonsuit, but upon the physical conditions shown here by the State's evidence, the motion should have been allowed.
Id. at 732, 154 S.E.2d at 906. Specifically, in Miller, the State's evidence showed that the only eyewitness was approximately 286 feet away from the man he saw running near the scene of the crime. Id. at 732, 154 S.E.2d at 905. The eyewitness "saw this man run once in each direction, stop at the front of the building, `peep' around it and look in [the eyewitness'] direction." Id. Six hours later, the eyewitness identified the defendant in a lineup. Id. Our Supreme Court held as follows:
Notwithstanding the fact that the exterior of the Oil Company building and the surrounding area were well lighted, it is apparent that the distance was too great for an observer to note and store in memory features which would enable him, six hours later, to identify a complete stranger with the degree of certainty which would justify the submission of the guilt of such person to the jury.
Id.
In contrast to Miller, Officer Workman's testimony regarding Defendant's actions in the present case did not conflict with any physical evidence so as to render it incredible. Officer Workman was only one hundred yards away from Defendant and was able to observe the transactions through binoculars. We hold that the credibility of Officer Workman's testimony was for the jury to determine. We overrule these assignments of error.
III.
Defendant also argues that the trial court "erred in determining Defendant's prior record level to be III based on a total of 6 points and sentencing Defendant at level III." Specifically, Defendant argues that "the State may not assign record level points for a prior conviction which was consolidated for judgment with a conviction used to make [the] defendant a habitual felon[.]" Defendant acknowledges that this issue was decided adversely to his position in State v. McCrae, 124 N.C. App. 664, 665, 478 S.E.2d 210, 211 (1996), disc. review denied, 345 N.C. 645, 483 S.E.2d 715 (1997). However, Defendant urges us to overrule McCrae. "Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court." In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Because we are bound by McCrae, we overrule this assignment of error.
Defendant has failed to set forth an argument pertaining to his remaining assignment of error and we therefore deem it abandoned. See N.C.R. App. P. 28(b)(6).
No error.
Judges ELMORE and JACKSON concur.
Report per Rule 30(e).