Opinion
No. COA03-553
Filed May 18, 2004 This case not for publication
Appeal by defendant from judgments entered 2 and 4 October 2001 by Judge Wiley F. Bowen in Harnett County Superior Court. Heard in the Court of Appeals 3 May 2004.
Attorney General Roy Cooper, by Assistant Attorney General Spurgeon Fields, III, for the State. Osborn Tyndall, P.L.L.C., by Amos Granger Tyndall, for defendant-appellant.
Harnett County Nos. 00 CRS 54222, 00 CRS 54508-09.
On 2 October 2001, Charles Anthony Williams ("defendant") was convicted by a jury of possession with intent to sell and deliver cocaine, delivery of cocaine, and sale of cocaine. Defendant was sentenced by Harnett County Superior Court Judge Wiley F. Bowen to 11 to 14 months in the North Carolina Department of Correction for possession with intent to sell and deliver cocaine, and a consolidated sentence of 20 to 24 months for delivery of cocaine and sale of cocaine. The sentences were to run consecutively. Defendant appeals. On 12 October 2000, Detective Charles E. Twitty of the Wake County Sheriff's Department participated in an undercover drug operation with the Angier Police Department. Detective Twitty was assigned to purchase drugs on McIver Street in Angier, North Carolina. The Angier Police Department gave Detective Twitty $20.00 to complete the transaction.
Shortly after Detective Twitty parked in front of a mobile home park on McIver Street, a person, later identified as defendant, approached Detective Twitty's vehicle. Detective Twitty asked him "for a twenty." Defendant handed Detective Twitty a small rocklike substance, and the Detective handed defendant $15.00. Defendant was later indicted for his involvement in this drug transaction.
On appeal, defendant argues that the trial court committed plain error in instructing the jury on the elements of sale and delivery of cocaine. Specifically, defendant argues that the instruction erroneously stated as fact that the elements for delivery and sale had been proven based upon trial testimony. We disagree.
Since defendant did not object at trial, our review is limited to plain error. N.C.R. App. P. 10(c)(4) (2003). Plain error is an error "`so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'" State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993) (citation omitted). When reviewing a jury instruction for plain error, the Court must examine the entire record to determine whether the alleged error had a probable impact on the jury's finding of guilt. State v. Larry, 345 N.C. 497, 515, 481 S.E.2d 907, 917 (1997). To that end, "[the] jury charge must be construed contextually and will be upheld when the charge as a whole is correct." State v. Stephens, 347 N.C. 352, 359, 493 S.E.2d 435, 439 (1997).
Defendant draws the Court's attention to a portion of the trial court's instruction in which the trial court stated the "exchange for cocaine for $15.00 cash would be a sale and delivery of cocaine." Defendant argues that the instruction "relieved the State of its obligation to prove that the Defendant acted knowingly." We disagree.
The transcript reveals the following supplemental instructions were provided:
As to the sale and delivery of cocaine, for you to find the defendant guilty of selling and delivering cocaine the State must prove beyond a reasonable doubt that the defendant knowingly sold and delivered cocaine to C.E. Twitty. The exchange for cocaine for $15 cash would be a delivery of — would be a sale and delivery of cocaine.
So, Members of the Jury, if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant knowingly delivered cocaine to C.E. Twitty you return a verdict of guilty of the delivery of cocaine. If you do not so find or if you have a reasonable doubt then you return a verdict of not guilty of the delivery of cocaine.
As to the sale, if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant sold cocaine to C.E. Twitty you return a verdict of guilty as charged. If you do not so find or if you have a reasonable doubt you return a verdict of not guilty of the sale of cocaine.
When the instruction is read in its entirety, the trial court clearly placed the burden on the State to prove beyond a reasonable doubt that the defendant knowingly sold and delivered cocaine. Defendant fails to show the instruction relieved the State of any burden or intervened in the fundamental duty of the jury. Moreover, our courts have in the past upheld similar instructions involving the definition of a sale of a controlled substance. See State v. Dietz, 289 N.C. 488, 499, 223 S.E.2d 357, 364 (1976) (upholding a trial court's instruction, "An agreement by which the defendant . . . intentionally transferred to Danny Eugene Crumley the controlled substance marijuana in exchange for $20.00 in money actually paid to him by Danny Crumley would be a sale of marijuana."); State v. Carr, 145 N.C. App. 335, 342, 549 S.E.2d 897, 902 (2001) (upholding an instruction, "exchanging cocaine for clothing or video games would constitute a sale of a controlled substance.").
This assignment of error is overruled.
No error.
Judges TIMMONS-GOODSON and ELMORE concur.
Report per Rule 30(e).