Opinion
No. 04-1553.
Filed 6 September 2005.
Henderson County Nos. 03 CRS 2280-81.
Appeal by defendant from judgments entered 4 May 2004 by Judge C. Philip Ginn in Henderson County Superior Court. Heard in the Court of Appeals 8 August 2005.
Attorney General Roy Cooper, by Assistant Attorney General Laura J. Gendy, for the State. Allen W. Boyer for defendant-appellant.
Defendant Chester Arthur Martin was charged with possession with intent to sell and deliver cocaine, the sale and delivery of cocaine and having attained the status of habitual felon. The State's evidence tends to show that Officer Brian Walsh, of the Hendersonville Police Department, was working undercover in Hendersonville, North Carolina. On 18 December 2002, Officer Walsh was driving an unmarked car, which was equipped with two video cameras, as a part of his drug interdiction duties. He drove down First Avenue, an area known for drug activity, when he observed four individuals walking down the street. After pulling his car over to the side of the street, one of the four individuals, a male, approached Officer Walsh, and asked the officer what he wanted. In response, Officer Walsh said, "I want a 40[,]" meaning that he wanted a $40.00 quantity of crack cocaine. The man then gave Officer Walsh some pieces of a hard, white substance which appeared to be crack cocaine. After examining and smelling the substance, however, Officer Walsh began to suspect that the substance was fake and refused to complete the purchase.
As Officer Walsh was giving the man the substance back, defendant approached the officer and said, "Hey, you don't want to buy that. You know it's no good. I can get you the good stuff." Defendant tried to get into Officer Walsh's vehicle, but the officer pulled away because he was concerned that defendant would harm him. Defendant, however, continued to talk to Officer Walsh and convinced him to pull over to the curb. Defendant subsequently directed Officer Walsh to drive to a residence located at 803 7th Avenue West in Hendersonville. Office Walsh remained in the car while defendant went into the house. After a few minutes, defendant emerged from the house and gave Officer Walsh two rocks of crack cocaine. Officer Walsh gave defendant $40.00, whereupon defendant returned to the front porch of the residence, and gave another man the money or a portion of the money. Finally, defendant returned to the car and, at defendant's request, Officer Walsh drove him back to First Avenue. During the drive, defendant asked the officer to share the crack cocaine he had just bought, but Officer Walsh explained to defendant that he had purchased the crack cocaine for someone else. The videotape recording taken by the hidden cameras in Officer Walsh's car on 18 December 2002 was admitted into evidence at trial.
Defendant did not present any evidence. Defendant twice moved to dismiss the charges against him based upon the insufficiency of the evidence. The trial court denied both motions. Thereafter, the jury found defendant guilty of the substantive drug offenses, and defendant admitted to having attained habitual felon status. The trial court entered two judgments, sentencing defendant to consecutive active terms of 120-153 months imprisonment for the two drug offenses, as an habitual felon. Defendant appeals.
Defendant's first assignment of error on appeal reads as follows: "The Trial Court erred in denying Defendant's Motion to Dismiss at the conclusion of submission of the evidence." We disagree.
Defendant argues that there was insufficient evidence of a sale of cocaine by the defendant to Officer Walsh, and that the trial judge should have only submitted delivery of cocaine to the jury. He then opines that if he was only convicted of delivery instead of a sale, that the court "may have" given him a lesser sentence. Defendant further asserts that his client was merely a "mule" in the cocaine transaction and received no financial benefit from the transaction.
It is well settled that a trial court properly denies a motion to dismiss if "there is substantial evidence (1) of each essential element of the offense charged and (2) that [the] defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence has been defined as that relevant evidence "a reasonable mind might accept as adequate to support a conclusion." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). When ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State, giving the State the benefit of every favorable inference to be drawn therefrom. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). "The test for sufficiency of the evidence is the same regardless of whether the evidence is circumstantial or direct." State v. Harding, 110 N.C. App. 155, 162, 429 S.E.2d 416, 421 (1993) (citations omitted). "Contradictions and discrepancies [in the evidence] are for the jury to resolve and do not warrant [dismissal]." State v. Pallas, 144 N.C. App. 277, 286, 548 S.E.2d 773, 780 (2001).
To obtain a conviction for the sale of a controlled substance, the State need only show that defendant exchanged a controlled substance for money or any other form of consideration. See State v. Carr, 145 N.C. App. 335, 343, 549 S.E.2d 897, 902 (2001) ("the term `sale,' in the context of the North Carolina Controlled Substances Act, means the exchange of a controlled substance for money or any other form of consideration"); but see State v. Albarty, 238 N.C. 130, 132, 76 S.E.2d 381, 383 (1953) (previously defining "sale" as "a transfer of goods for a specified price, payable in money"). If the evidence shows that a defendant sold a Schedule I or II controlled substance, he is sentenced as a Class G felon. N.C. Gen. Stat. § 90-95(b)(1)(2003). The evidence tends to show that defendant directed Officer Walsh, an undercover officer, to 803 7th Avenue West. Once at the residence, defendant exited Officer Walsh's vehicle and went into the residence, returning in a few minutes with two rocks of crack cocaine. Officer Walsh gave defendant $40, whereupon defendant walked back to the house and handed an unknown amount of money to a man standing on the front porch of the residence.
Though defendant argues to the contrary, in the light most favorable to the State, the evidence was sufficient to show that defendant sold cocaine to Officer Walsh, and supported the submission of that offense to the jury. We submit that the evidence is uncontroverted that defendant possessed crack cocaine, and that he sold that crack cocaine. Whether the defendant was the agent of another drug dealer, or was in partnership with that person is irrelevant. Defendant sold a rock of crack cocaine to Officer Walsh for $40. This assignment of error is without merit.
By his second assignment of error, defendant argues that the trial court violated the Fifth Amendment to the United States Constitutions' prohibition against double jeopardy in sentencing defendant to consecutive terms of imprisonment for possession with intent to sell or deliver cocaine and the sale or delivery of cocaine. Defendant concedes that trial counsel did not raise this constitutional argument at trial, see State v. Mitchell, 317 N.C. 661, 670, 346 S.E.2d 458, 463 (1986) (holding that defendant had waived his Double Jeopardy claim where it was not raised and ruled on in the trial court), and thus, this issue has not been properly preserved as required by N.C.R. App. P. 10(b)(1).
Defendant nonetheless asks that this Court review this argument under the plain error rule. We note, however, that defendant did not properly assign plain error to this issue in the record on appeal, as required by N.C.R. App. P. 10(c)(4), see N.C.R. App. P. 10(c)(4) (requiring the plain error be "specifically and distinctly" assigned as error); nor indeed, is plain error review available to review this issue on appeal. See State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10(1998) (cautioning that the North Carolina Supreme Court "has applied the plain error analysis only to instructions to the jury and evidentiary matters").
Finally, defendant asks that this Court exercise its discretion under Rule 2 of the North Carolina Rules of Appellate Procedure to consider this assignment of error on appeal. See N.C.R App. P. Rule 2 (utilized "[t]o prevent manifest injustice"). We conclude that the use of Rule 2 is not appropriate here inasmuch as this Court's previous holdings make clear that the possession with intent to sell or deliver cocaine and the sale or delivery of cocaine are two separate offenses, and therefore, are constitutionally punishable as such. See State v. Moore, 327 N.C. 378, 381-82, 395 S.E.2d 124, 126-27 (1990) (noting that G.S. 90-95(a)(1) created three separate offenses: "(1) manufacture of a controlled substance; (2) transfer of a controlled substance by sale or delivery, and (3) possession with intent to manufacture, sell or deliver a controlled substance"); State v. Cameron, 283 N.C. 191, 202, 195 S.E.2d 481, 488 (1973) ("By setting out both the possession and sale as separate offenses in the statute and by prescribing the same punishment for possession and for sale, it is apparent that the General Assembly intended possession and sale to be treated as distinct crimes of equal degree, to be separately punished."), quoted in State v. Dickerson, 152 N.C. App. 714, 717, 568 S.E.2d 281, 282 (2002). Defendant's second assignment of error is without merit.
NO ERROR.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).