Opinion
No. COA03-207
Filed 18 November 2003 This case not for publication
Appeal by defendant from judgments entered 11 December 2002 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 27 October 2003.
Attorney General Roy Cooper, by Assistant Attorney General James M. Stanley, Jr., for the State. Michael J. Reece, for defendant-appellant.
Wake County Nos. 02 CRS 49806-9.
Defendant Eugenio Dusquesne was charged with trafficking in cocaine by transportation; trafficking in cocaine by possession; conspiracy to traffic in cocaine by possession and transportation; and felonious speeding to elude arrest. The State's evidence tended to show that Officer Julian Patrick Cullifer with the Wake County Sheriff's Department's Drugs and Vice Unit received information from a police agent that defendant was involved in the sale and distribution of narcotics. Officer Cullifer arranged a "buy/bust" transaction through the police agent and enlisted other law enforcement agencies to assist in the "buy/bust."
At approximately 1:11 p.m. on 7 June 2002, the police agent, who was wired for safety purposes, drove to a Burger King near Wake Forest and Falls of the Neuse Roads to purchase one and one-half ounces of cocaine from defendant. The police agent had $1,500 in recorded serial number bills to purchase the cocaine. Officer Cullifer stationed himself in the lot behind the Burger King. Defendant pulled into the parking lot and parked beside the police agent. Inside the agent's car, defendant told the agent that he needed $1,220 for the one and one-half ounces of cocaine. Officer Cullifer heard the money being counted. Defendant then advised the agent that he would be back in five or ten minutes.
Defendant drove one-quarter of a mile up Wake Forest Road to the Falls apartments. Assistant Special Agent Shirley Lefeavers Burch of the State Bureau of Investigation saw defendant arrive at the apartments, get out of his car and turn into a breezeway. Approximately twenty minutes later, she saw defendant come from behind stairs on the first floor and get back in his car. Agent Burch then walked down the breezeway, noted the number of the one apartment and returned to her vehicle for surveillance of the apartment. Officer Cullifer informed Deputy Lambert, who was in a marked police car, that defendant was about to leave the apartment complex and to conduct a vehicle stop of the suspect.
When Deputy Lambert turned on his emergency equipment for the stop, defendant sped away. Police chased defendant for over five miles into downtown Raleigh. Right after Assistant Chief Lewis Nuckles of the Wake County ABC Law Enforcement saw defendant's vehicle in a parking lot, he saw defendant running toward a convenience store on Hillsborough Street. Chief Nuckles pulled over his vehicle and gave chase on foot. During the chase, Chief Nuckles saw defendant throw currency into some bushes. Chief Nuckles apprehended defendant and frisked him for weapons. Less than five minutes later, Chief Nuckles turned defendant over to Officer Cullifer. Officer Cullifer patted down defendant for weapons and drugs and found what he thought was crack cocaine in defendant's pants pocket. The lab later determined that the substance was 29.9 grams of crack cocaine.
In the meantime, Special Agent Burch was watching people leave the apartment defendant had visited. Special Agent Burch and another officer detained the people while they awaited a search warrant. Officer Cullifer returned to the apartment with a search warrant. Police recovered the entire $1,220 of the special funds the special agent had given defendant to purchase the cocaine.
One of the three adults who had come out of the apartment was Lujano Beltran Bernardo. At trial, Bernardo testified through an interpreter that he lived in the apartment searched by police with his wife and children and that his wife sold gold. Bernardo testified that he was currently being held in the Wake County jail because he was arrested for cocaine possession in June. He also testified that he knew defendant and that he had sold defendant cocaine on one occasion three days before his arrest. When asked how much cocaine he had given defendant in the past, defense counsel objected. After conducting a voir dire examination, the trial court allowed Bernardo to testify before the jury that he had sold defendant two ounces of cocaine three days before his arrest. Bernardo then testified that on the day he was arrested, he gave defendant one ounce of cocaine. Bernardo pled guilty to the cocaine charges against him and hoped to receive a lighter sentence through his testimony.
Defendant testified that the only reason he went to Bernardo's apartment was to buy gold jewelry and not drugs. Defendant further testified that he panicked when he saw the police because he had been the victim of police brutality. Defendant testified that the money he received from the man in the Burger King parking lot was for jewelry. He also testified that he did not have any cocaine in his pocket when the police stopped him.
A jury found defendant guilty as charged. The trial court sentenced defendant to thirty-five to forty-two months imprisonment for the two trafficking convictions; a consecutive sentence of thirty-five to forty-two months imprisonment for the conspiracy to traffic in cocaine conviction and a consecutive sentence of ten to twelve months for the felonious speeding to elude arrest conviction. Defendant appeals.
In the sole assignment of error defendant brings forward, he contends the trial court erred by allowing Bernardo to testify that he sold defendant two ounces of cocaine three days prior to the day defendant was arrested. He argues that this evidence placed his character at issue in violation of N.C. Gen. Stat. § 8C-1, Rule 404(b). We disagree.
N.C. Gen. Stat. § 8C-1, Rule 404(b) provides in part: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001). Rule 404(b) is a rule of inclusion of relevant evidence of prior bad acts unless the only reason the evidence is offered is to show the defendant's propensity to commit a crime of the nature of the act charged. State v. Barnett, 141 N.C. App. 378, 389, 540 S.E.2d 423, 430-31 (2000), affirmed 354 N.C. 350, 554 S.E.2d 644 (2001).
Here, the State's witness testified that he had previously sold two ounces of cocaine to defendant. We do not find this evidence was offered to show action in conformity with a propensity. Rather, Bernardo's testimony was probative of defendant's intent and knowledge. Thus, the trial court properly concluded that Bernardo's testimony was admitted for a proper purpose within Rule 404(b). This assignment of error is without merit.
No error.
Judges MCGEE and GEER concur.
Report per Rule 30(e).