Opinion
No. 06-1519.
Filed July 3, 2007.
Mecklenburg County No. 05 CRS 252887.
Appeal by defendant from judgment entered 12 July 2006 by Judge Nathaniel J. Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 June 2007.
Roy Cooper, Attorney General, by Ted R. Williams, Special Deputy Attorney General, for plaintiff-appellee. Haral E. Carlin for defendant-appellant.
The State presented substantial evidence that defendant committed the offense of a sale of a controlled substance, and the trial court properly denied defendant's motion to dismiss. Testimony concerning the character of a neighborhood was used to explain the witness's subsequent conduct. The trial court did not abuse its discretion in limiting defendant's questions of the jurors.
On 8 November 2005, officer Gilberto Narvaez ("Narvaez") was working undercover at a grocery store known for drug activity. Narvaez saw defendant in front of the store and waved defendant over. Defendant approached and Narvaez stated that he wanted to purchase twenty dollars worth of marijuana. Defendant told Narvaez to meet him behind the park located across the street. Narvaez went to the park, and defendant motioned him to come over. Defendant stated, "I don't mess with weed." Narvaez turned around to leave when defendant pointed to the ground and said, "there is something over there on the ground for $20." Narvaez saw three bags of marijuana, and then asked defendant whether he could buy "three bags for twenty?" Defendant shook his head yes. Narvaez then asked defendant if he wanted him to leave the twenty dollars on the ground. Defendant said "yes." Narvaez placed a marked twenty-dollar bill on the ground, picked up the three bags of marijuana, and walked away. Defendant was arrested several minutes later. The twenty-dollar bill left on the ground by Narvaez was not recovered.
Defendant was indicted for the felony sale of marijuana on 28 November 2005. He was found guilty of that charge by a jury on 12 July 2006. Defendant was sentenced to an active term 6 to 8 months. Defendant appeals.
In his first argument, defendant contends that the trial court erred by denying defendant's motion to dismiss. We disagree.
To survive a defendant's motion to dismiss, the State need only prove there is substantial evidence to support that the offense charged was committed and that defendant committed it. State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971). Substantial evidence is the amount of evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Fletcher, 301 N.C. 709, 712, 272 S.E.2d 859, 860-61 (1981). When ruling on defendant's motion to dismiss, the trial court is required to interpret the evidence in the light most favorable to the State. Id. Any reasonable inferences favorable to the State must be drawn there from. Id. For a charge of sale of a controlled substance, under N.C. Gen. Stat. § 90-95(a)(1)(2005), the State must show that defendant intentionally sold a controlled substance to another person. Marijuana is a Schedule VI controlled substance under N.C. Gen. Stat. § 90-94 (2005). There is no dispute that the substance was marijuana, and the only question is whether defendant sold it to Narvaez.
Defendant argues that the mere identification by defendant of marijuana on the ground, coupled with the fact that the marked twenty-dollar bill was never recovered means that the State failed to meet its burden of proof to show that a sale took place. We hold that the State produced sufficient direct and circumstantial evidence that a sale in fact took place.
Direct evidence is that which is immediately applied to the fact to be proved, while circumstantial evidence is that which is indirectly applied by means of circumstances from which the existence of the principle fact may be reasonably deduced or inferred.
Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 80, at 232-33 (6th ed. 2004).
In this case, in response to Narvaez's inquiry about purchasing some marijuana, defendant directed him to go across the street. Defendant then directed his attention to three bags of marijuana lying on the ground and stated the price to be twenty dollars. Upon defendant's instructions, Narvaez left a twenty-dollar bill on the ground and departed. At that point, a sale of the three bags of marijuana was consummated. See State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001), holding that a sale in the context of the Controlled Substance Act means the exchange of a controlled substance for money or any other form of consideration. What happened to the twenty-dollar bill after Narvaez left is immaterial to whether the State provided substantial evidence of the sale of a controlled substance. This argument is without merit.
In his second argument, defendant contends that the trial court erroneously admitted hearsay testimony regarding the reputation of the neighborhood where the offense was committed. We disagree.
In the admission of evidence, the "trial court's decision on motions made pursuant to Rule 403 are binding on appeal, unless the dissatisfied party shows that the trial court abused its discretion." State v. Chapman, 359 N.C. 328, 348, 611 S.E.2d 794, 811 (2005). Defendant must show that the trial court's ruling "was so arbitrary that it could not have been the result of a reasoned decision." State v. Allen, 322 N.C. 176, 189, 367 S.E.2d 626, 633 (1988). Hearsay is inadmissible when it is offered for proving the truth of the matter. State v. Allred, 131 N.C. App. 11, 17, 505 S.E.2d 153, 157 (1998). However, it is not considered inadmissible when offered to show the subsequent conduct of a person. State v. Jackson, 64 N.C. App. 715, 716, 308 S.E.2d 360, 361 (1983) (quoting State v. White, 298 N.C. 430, 437, 259 S.E.2d 281, 286 (1979)). Defendant cites us to the cases of State v. Springs, 184 N.C. 768, 114 S.E. 851 (1922), and State v. Tessnear, 265 N.C. 319, 144 S.E.2d 43 (1965), asserting that they are analogous to the instant case. We find each of them to be distinguishable. Springs held that inadmissible hearsay of the reputation of defendant's place was prejudicial to the outcome of the trial for the charge of possession of spirituous liquor. 184 N.C. at 772, 114 S.E. at 853. Tessnear held that reversible error occurred when inadmissible hearsay of the reputation of defendant's residence was used to find him guilty of possession of non tax paid whiskey. 265 N.C. at 322, 144 S.E.2d at 46. The use of reputation in Springs and Tessnear was prejudicial because it was used to show that the defendants possessed a controlled substance rather than sold a controlled substance. See Springs, 184 N.C. at 772, 114 S.E. at 851; Tessnear, 265 N.C. at 320-21, 144 S.E.2d at 45.
In the instant case, Narvaez stated that he was in that particular neighborhood because it was a "hot spot" for drug activity. This statement was not used for the truth of the matter, but rather to explain why Narvaez was at a particular place. The trial court did not abuse its discretion in admitting this evidence.
We further note that the burden is on the defendant to show a reasonable possibility that had the alleged error not occurred, a different result would have been reached at trial. State v. Hames, 170 N.C. App. 312, 317, 612 S.E.2d 408, 412 (2005). In the instant case, defendant does not articulate how he was prejudiced by this alleged error. He has not met this burden, and as such, this argument is without merit.
In his third argument, defendant contends that the trial court erred in sustaining the State's objection to certain questions during the jury voir dire. We disagree.
"The trial court has broad discretion to see that a competent, fair, and impartial jury is impaneled, and its rulings in that regard will not be reversed absent a showing of an abuse of its discretion." State v. Conaway, 339 N.C. 487, 508, 453 S.E.2d 824, 837-38, cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995). "[W]hile counsel is allowed wide latitude in examining jurors on voir dire, the form of counsel's questions is within the sound discretion of the trial court." State v. Jones, 339 N.C. 114, 134, 451 S.E.2d 826, 835 (1994), cert. denied, 515 U.S. 1169, 132 L. Ed. 2d 873 (1995). Defendant must show the ruling to be "so arbitrary that it could not have been the result of a reasoned decision." Allen, 322 N.C. at 189, 367 S.E.2d at 633.
Defendant assigns as error the sustaining of State's objections to the following questions:
[DEFENSE]: If you were to hear — and I'll also address this question with [prospective juror], if you were to hear in the case, and you probably will hear that [defendant] was at least aware of some marijuana and directed one of the officers to some marijuana. What do you think about that? Do you feel that that — just the involvement or knowledge —
[PROSECUTOR]: Objection.
THE COURT: Sustained.
[DEFENSE]: When you heard that this was a sale of marijuana case, what did you think? What was your first impression?
THE COURT: Sustained. Ask your next question[.] . . .
[DEFENSE]: Obviously in this case you all are going to be asked to listen to all the evidence and determine what you believe to be true and then to apply the law to the facts as you decide that they are. So I want to talk to you all about how you determine the truth in this case. In this case, [defendant] will not be testifying. Is there anyone who has a problem with that?
[PROSECUTOR]: Objection.
THE COURT: Sustained.
[DEFENSE]: Is there anyone who feels that they would have to hear from [defendant] in order to make a decision in this case? Does everyone here understand that there may be many reasons why a person who is charged with a crime may elect not to testify?
[PROSECUTOR]: Objection.
THE COURT: Sustained[.] . . .
[DEFENSE]: Also, there will be times during the trial that I may object to the introduction of evidence, potentially inadmissible evidence, that I may ask to be heard by the judge outside of your presence. Is there anything about that, that any of you — I just ask that you won't hold any of that against [defendant].
[PROSECUTOR]: Objection.
THE COURT: Sustained[.]
Outside the presence of the jury, the trial judge discussed his ruling with counsel and advised defense counsel that the questions were improper stake-out questions. He further went over with counsel how to properly ask the questions upon resumption of jury selection.
Counsel should not fish for answers to legal questions before the judge has instructed the juror on applicable legal principles by which the juror should be guided. Counsel should not argue the case in any way while questioning the jurors. Counsel should not engage in efforts to indoctrinate, visit with or establish `rapport' with jurors.
State v. Phillips, 300 N.C. 678, 682, 268 S.E.2d 452, 455 (1980).
In this case, we do not find that the trial court's rulings rise to the level of an abuse of discretion. This argument is without merit.
NO ERROR.
Judges ELMORE and STROUD concur.