Opinion
No. COA12–1510.
2013-06-4
STATE of North Carolina v. Nathan Tyrone BLACK.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State. Irving Joyner for Defendant.
Appeal by Defendant from judgment entered 15 August 2012 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 7 May 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State. Irving Joyner for Defendant.
STEPHENS, Judge.
Procedural History and Evidence
This appeal arises from Defendant Nathan Tyrone Black's conviction of possession of cocaine with intent to sell and deliver, felony possession of a schedule IV controlled substance, and having attained the status of habitual felon. The evidence at trial tended to show the following:
On 13 October 2009, Officer Patrick Tierney of the Concord Police Department (“CPD”) was contacted by Sergeant Jeffrey Duffell of the Rowan County Sheriff's Department (“RCSD”). Duffell sought Tierney's assistance with serving felony arrest warrants on Defendant. Defendant was believed to be staying at the apartment of his child's mother, Aleciandra Cannon, in Concord, a town in Cabarrus County and thus outside Duffell's jurisdiction. Tierney, Duffell, and several other law enforcement officers went to Cannon's apartment. No one answered Tierney's knock on the door, but the officers noticed a Dodge Charger automobile parked directly in front of the apartment. Looking through the car's windows, Tierney, who had more than ten years of experience working on vice and narcotics cases, and a CPD detective with similar experience observed what appeared to be marijuana scattered across the gear shift area.
In this opinion, we use the spelling of Duffell's surname as it appears in the trial transcript, but note that it appears as “Duffle” in the trial court's order denying Defendant's motion to suppress. The officer gave his first name as “Jeffrey” at trial and that name also appears in the order denying Defendant's motion to suppress, although the name “Scott Duffell” appears on the witness list at the beginning of the trial transcript.
The officers used a “slim jim” to open the locked doors of the car.
After confirming that the substance they had seen was marijuana, the officers searched the interior of the car. In an unlocked console near the gear shift, they discovered two plastic baggies, one of which contained crack cocaine and the other Xanax. Officers also discovered a court document with Defendant's name on it and a lease agreement for the Dodge Charger in Defendant's name. The lease agreement listed Cannon as an authorized driver. Before trial, Defendant moved to suppress the evidence discovered as a result of the officers' search of the car. Following voir dire testimony on the matter, the trial court concluded that evidence of a crime (possession of marijuana) was found in plain sight and denied the motion.
Tierny requested a warrant to search Cannon's apartment, but before it came through, Cannon returned home and gave consent for a search. A canine officer did not detect anyone in the apartment, and the other officers began a search of the premises. In one of the bedrooms, an officer saw a chest of drawers that had been pushed into a closet under an attic access door in the ceiling. A footprint and fresh insulation were present on top of the chest of drawers. The officer, believing Defendant was hiding in the ceiling, called for him to come down but received no response. The officer looked up into the attic space and saw a hole in the sheetrock between Cannon's apartment and the apartment next door. The resident of the next-door apartment told officers that she heard something in her attic. As the officers entered the neighbor's apartment, Defendant fell through the ceiling and was taken into custody.
During Duffell's testimony, he began to explain the nature of the warrants he was attempting to serve on 13 October 2009, and Defendant objected on the basis of Rule of Evidence 404(b). The trial court held another voir dire. Duffell explained that he had been working with an informant and an undercover RCSD deputy, Kevin Lee Myers. Myers testified that he had accompanied the informant to buy crack cocaine from Defendant on 27 July, 7 August, and 26 August 2009. On each occasion, the drugs had been packaged in plastic baggies similar to those found in Defendant's car on 13 October 2009, although different quantities were involved in the undercover purchases. The undercover purchases occurred in various parking lots in Rowan County, and, during each, Defendant was in a silver Honda automobile. Each purchase was made hand to hand as Defendant sat in the driver's seat of the Honda. Myers noted the strong smell of marijuana emanating from Defendant's car during one of the purchases. Myers also noted that young children were present in the car with Defendant during one sale. The trial court overruled Defendant's objection and allowed the evidence to show Defendant's “common plan or scheme[,] .... intent and absence of entrapment and knowledge.” At the close of the hearing, Defendant stated that the presence of children in Defendant's car during one drug sale was not relevant, but the court overruled that objection as well. When the trial resumed, Duffell and Myers testified to essentially the same facts as presented on voir dire. Defendant did not object to the testimony. The jury found Defendant guilty of the two drug offenses, and Defendant pleaded guilty to the habitual felon charge. The trial court sentenced Defendant to 133 to 169 months imprisonment. Defendant appeals.
Discussion
On appeal, Defendant brings forward two arguments: that the trial court erred (1) in allowing testimony from Duffell and Myers about the undercover drug sales and (2) by failing to dismiss the possession of cocaine with intent to sell and deliver charge at the close of all evidence. We disagree. I. Rule 404(b) evidence
Defendant first argues that the trial court erred in violation of Rule of Evidence 404(b) by admitting testimony about Defendant's undercover drug sales. We disagree.
Defendant also cites Rules 401 and 402 in asserting that the evidence was not relevant to the crimes for which he was being tried. As noted below, relevancy is part of a trial court's analysis of challenges brought pursuant to Rule 404(b). See, e.g., State v. Mack, 188 N.C.App. 365, 376, 656 S.E.2d 1, 10 (2008).
Under our Rules of Evidence, relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, and generally all relevant evidence is admissible, except as otherwise provided in the law. Evidence which is not relevant is not admissible. A trial court's rulings on relevancy are technically not discretionary, though we accord them great deference on appeal.
State v. Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 222–23 (citations, quotation marks, and brackets omitted), cert. denied, ––– U.S. ––––, 181 L.Ed.2d 529 (2011).
When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling, as it did here, we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court's Rule 403 determination for abuse of discretion. .... Rule 404(b) is a clear general rule of inclusion. The rule lists numerous purposes for which evidence of prior acts may be admitted, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. This list is not exclusive, and such evidence is admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime....
Though it is a rule of inclusion, Rule 404(b) is still constrained by the requirements of similarity and temporal proximity. Prior acts are sufficiently similar if there are some unusual facts present in both crimes that would indicate that the same person committed them. We do not require that the similarities rise to the level of the unique and bizarre.
State v. Beckelheimer, 366 N.C. 127, ––––, 726 S.E.2d 156, 159 (2012) (citations and quotation marks omitted).
However,
[w]here evidence is admitted without objection, the benefit of a prior objection to the same or similar evidence is lost, and the defendant is deemed to have waived his right to assign as error the prior admission of evidence. Having failed to object, [a] defendant is entitled to relief based on this assignment of error only if he can demonstrate plain error. Under the plain error rule, [the] defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result. [T]he appellate court must study the whole record to determine if the error ha[d] such an impact on the guilt determination, therefore constituting plain error.
State v. Berry, 143 N.C.App. 187, 193, 546 S.E.2d 145, 151 (quotations and citations omitted), disc. review denied, 353 N.C. 729, 551 S.E.2d 439 (2001).
As noted supra, Defendant objected to the testimony in question and presented arguments to the trial court on voir dire, but when the evidence was later introduced at trial, Defendant did not object. Accordingly, Defendant is entitled only to plain error review.
Defendant contends that it was plain error for the trial court to admit testimony from Duffell and Myers about Myers' three undercover purchases of crack cocaine from Defendant in July and August 2009 because these sales were not relevant to the charges arising from the events of 13 October 2009, and the admission of this testimony violated Rule of Evidence 404(b). We are not persuaded.
In Mack, the defendant was charged with selling drugs. 188 N .C.App. at 377, 656 S.E.2d at 10. The State was permitted to introduce evidence that, two months after the drug sales that led to the charges, the defendant was present during additional drug sales at the same location and that the defendant
was seen in the possession of a plastic baggie containing a “white substance” during both ... transactions. The main difference between the two transactions appears to have been [the] defendant's role in the transactions themselves: in the [charged] transactions [the] defendant approached the cars himself, while in the [later] transactions he handed a “white substance” to a [nother] man ..., who then approached the cars.
Id. at 377, 656 S.E.2d at 10–11. This Court found no violation of Rule 404(b) in the admission of the evidence because, “[g]iven the similarities between the ... transactions, the fact that [the] defendant played a different role in the [later] transactions is insufficient, by itself, to classify the two transactions as dissimilar.” Id. at 377, 656 S.E.2d at 11.
After careful review, we conclude that the facts here are analogous to those in Mack, and, as in that case, the evidence of Defendant's prior drug sales to Myers was properly admitted. Both the July and August 2009 undercover sales and the events of 13 October 2009 involved crack cocaine similarly packaged in plastic baggies and kept within easy reach of the driver's seat in a car used by Defendant. Myers smelled marijuana emanating from Defendant's car during one of the undercover sales and marijuana was scattered in the gear shift area of Defendant's car on 13 October 2009. We conclude that the undercover sales were relevant to show Defendant's intent to sell the cocaine found on 13 October 2009. We also conclude that the circumstances of the July and August 2009 undercover sales were sufficiently similar and close enough in time to the evidence discovered on 13 October to be admissible under Rule 404(b).
We also agree with Defendant that Myers' passing reference to the presence of young children in Defendant's car during one of the undercover sales was not relevant to the contested issues at trial. However, any error in the admission of those brief comments was harmless because Defendant cannot show they affected the outcome of his trial. See Berry, 143 N.C.App. at 193, 546 S.E.2d at 151 (“Under the plain error rule, [the] defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.”) (citation and quotation marks omitted). Defendant has failed to establish plain error in the admission of evidence about the undercover drug sales. II. Motion to Dismiss
Indeed, Defendant makes no attempt to explain how Myers' reference to the children prejudiced him beyond a blanket statement that the testimony about the undercover drugs sales as a whole “had the effect of unfairly prejudicing” him.
Defendant next argues that the trial court erred in denying his motion to dismiss the possession of cocaine with intent to sell and deliver charge. We disagree.
When a defendant moves under N.C.G.S. § 15A1227 (a)(2) for dismissal at the close of all the evidence, the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense. If so, the motion to dismiss is properly denied. The trial court is to view all of the evidence in the light most favorable to the State and give it all reasonable inferences that may be drawn from the evidence supporting the charges against the defendant. The trial court is not required to determine that the evidence excludes every reasonable hypothesis of innocence prior to denying defendant's motion to dismiss. The trial court must determine as a matter of law whether the State has offered substantial evidence of all elements of the offense charged so any rational trier of fact could find beyond a reasonable doubt that the defendant committed the offense.
We also have emphasized that:
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The terms more than a scintilla of evidence and substantial evidence are in reality the same and simply mean that the evidence must be existing and real, not just seeming or imaginary. If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion to dismiss should be allowed. This is true even though the suspicion so aroused by the evidence is strong.
The trial court should only be concerned that the evidence is sufficient to get the case to the jury; it should not be concerned with the weight of the evidence.
State v. Beaver, 317 N.C. 643, 647, 346 S.E.2d 476, 479 (1986) (citations, quotation marks, brackets, emphasis, and ellipsis omitted).
On appeal, Defendant contends that, “[e]xcluding the testimony regarding the prior sales of drugs by [him in July and August 2009], the only evidence which the State produced to support the indictment showed no more than a possible constructive possession of drugs.” As discussed in section I, the testimony from Duffell and Myers regarding Defendant's prior drug sales was properly admitted, and we conclude that, in the light most favorable to the State, that testimony constituted substantial evidence that Defendant had the specific intent to sell or deliver some part of the cocaine seized from his car on 13 October 2009. Further, as noted in Beaver, a motion to dismiss is properly denied if “there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense.” Id. (emphasis added). Simple possession is a lesser included offense of possession with intent to sell or deliver. State v. Gray, 56 N.C.App. 667, 670, 289 S.E.2d 894, 896 (citation omitted), disc. review denied, 306 N.C. 388, 294 S.E.2d 214 (1982). Thus, the trial court's denial of the motion to dismiss would have been proper even if there was no evidence of intent to sell. Accordingly, this argument is overruled.
NO PREJUDICIAL ERROR IN PART; NO ERROR IN PART. Judges McGEE and HUNTER, JR., ROBERT N., concur.
Report per Rule 30(e).