Opinion
No. COA10-1360
Filed 17 May 2011 This case not for publication
Appeal by defendant from judgment entered 8 June 2010 by Judge Calvin E. Murphy in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General Steven Armstrong, for the State. Kevin P. Bradley for defendant-appellant.
Mecklenburg County Nos. 09 CRS 248015-248016
On 8 June 2010, a jury convicted Wendell Dontay Herron ("defendant") of conspiracy to sell cocaine, felonious delivery of cocaine, and possession with intent to sell or deliver cocaine. On appeal, defendant contends the trial court erred in (1) denying defendant's motion to dismiss the conspiracy to sell cocaine charge, (2) denying sanctions for the alleged loss of evidence, (3) failing to instruct the jury on hearsay statements, and (4) sentencing defendant at prior record level IV. Defendant also alleges ineffective assistance of trial counsel. We find no error in defendant's trial, but we remand for resentencing.
I. Background
On 1 October 2009, Police Officer Walter Lee Bowers, Jr. ("Officer Bowers") of the Charlotte-Mecklenburg Police Department was working undercover with a back-up team on a "buy-bust" operation focusing on street-level drug sales in a high drug area near a Breezeway Inn motel. Before leaving the police station that day, Officer Bowers was provided with five $20 bills from the "special city impress fund" for use in the buy-bust operation. Police Officer A.Z. Saine ("Officer Saine") photocopied all five bills before they were provided to Officer Bowers.
Driving in an unmarked car, Officer Bowers arrived at the Breezeway Inn and was immediately approached by Juanita Barron ("Barron"). Officer Bowers asked Barron for some "hard," which is a street term for crack cocaine. Barron offered to call someone who could supply the drugs for Officer Bowers on the condition that she be allowed to smoke some of those drugs. Officer Bowers agreed to the deal, and Barron then made the phone call, although Officer Bowers did not hear the phone conversation between Barron and her contact. After making the phone call, Barron informed Officer Bowers that her contact would deliver the drugs within the next few minutes and would be arriving in a red vehicle. Barron waited inside Officer Bowers' car for her contact to arrive.
Shortly thereafter, a red Jeep Cherokee arrived at the Breezeway Inn. Defendant was a passenger in the vehicle, which was owned and driven by Steven William Jones ("Jones"), a friend of defendant. Upon seeing the vehicle, Barron informed Officer Bowers that the red Jeep Cherokee was her contact and asked Officer Bowers to come into her motel room to conduct the transaction. Officer Bowers stated he was not going to get out of his car, but he handed Barron a $20 bill, one of the bills from the special city impress fund, in order to pay for the drugs. Barron took the $20 bill and exited Officer Bowers' car.
From his car, Officer Bowers observed defendant exit the red Jeep Cherokee and go into Barron's motel room with Barron, where the two remained for approximately two minutes. Upon exiting the motel room, defendant returned to the passenger's side of the red Jeep Cherokee, and Barron returned to Officer Bowers' car and got back inside. Barron then placed in Officer Bowers' hand approximately two-tenths of a gram, or $20 worth, of a substance appearing, and later confirmed, to be crack cocaine. The substance was not contained in any "street level packaging."
During the transaction, Officer Bowers' back-up team, consisting of Officer Saine and Sergeant Sean Mitchell ("Sergeant Mitchell"), monitored the conversations over an open line cell phone in Officer Bowers' car. When the drugs were in his hand, Officer Bowers verbally gave the signal for his backup team to move in. The back-up team pulled into the parking lot of the Breezeway Inn and observed the red Jeep Cherokee in the parking lot with its reverse lights on. Sergeant Mitchell approached the passenger's side of the vehicle where defendant was then sitting, and Officer Saine approached the driver's side. Inside the vehicle, Officer Saine observed in plain view the empty corner of a plastic sandwich bag, which is often used to package cocaine. Officer Saine also observed a $20 bill wedged underneath defendant's leg in the passenger seat. Officer Saine suspected defendant of selling the drugs to Barron, so Officer Saine moved to the passenger side of the vehicle, where he arrested defendant, placed him in handcuffs, and retrieved the $20 bill, which was now in defendant's pocket.
Pursuant to normal police practice in Mecklenburg County, upon retrieving the $20 bill, Officer Saine compared the serial number on the bill to the photocopy of the five $20 bills that were provided to Officer Bowers from the special city impress fund. Officer Saine confirmed that the serial number on the bill found in defendant's possession matched the serial number of one of the five bills that was photocopied that morning and given to Officer Bowers. At the scene, Officer Saine immediately noted the match on the photocopy by circling the matching serial number, initialing the notation, and recording his code number, the date, and the complaint number. However, neither Officer Saine, nor any other officer, made a second photocopy of the $20 bill after it was retrieved from defendant's possession. The officers then returned the marked bills back to the special city impress fund so that the bills could be used again in other buy-bust operations.
On 12 October 2009, defendant was indicted by a grand jury for conspiracy to sell a controlled substance, delivery of a controlled substance, and possession with intent to sell or deliver a controlled substance. Prior to trial, defense counsel made a motion for sanctions for failure to preserve evidence as a result of the police department's procedure with respect to the $20 bill found in defendant's possession at the time of his arrest. Defense counsel alleged that the police department's policy of replacing the bills back into the special city impress fund for use in future operations, rather than logging the bill into an evidence locker, constituted a "willful destruction of evidence." At the start of the trial, the trial court denied the motion, finding defendant had failed to demonstrate the police acted in bad faith in failing to produce the actual $20 bill found in defendant's possession at the time of his arrest.
On 7-8 June 2010, the trial court heard testimony by Officers Bowers and Saine, as well as Sergeant Mitchell, regarding the occurrences on 1 October 2009. A chemist with the Charlotte-Mecklenburg Police Department also testified that she had analyzed the substance placed in Officer Bowers' hand by Barron and had concluded that the substance was cocaine. In addition, Jones, the driver of the red Jeep Cherokee, testified on behalf of the defense. Barron did not testify. At the close of the trial, the jury returned a guilty verdict for all charges.
At sentencing, defense counsel stipulated to defendant's prior record level worksheet, which listed eight points for prior convictions plus one point because "all the elements of the present offense are included in any prior offense." The trial court consolidated the three convictions and sentenced defendant as a Class G, Level IV offender and to 16-20 months' imprisonment, with all but 120 days suspended. Defendant was also given 36 months of probation, with the first six months having intensive supervision. Defendant appeals.
II. Motion to dismiss conspiracy charge
Defendant first contends the trial court erred in denying his motion to dismiss the charge for conspiracy to sell cocaine. Defendant argues that no substantial evidence was presented that defendant agreed with Barron that any cocaine delivered to Barron would be sold to a third person.
In order to survive a motion to dismiss for insufficient evidence in a criminal trial, the State must present substantial evidence of (1) each essential element of the charged offense and (2) defendant's being the perpetrator of such offense. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987) (internal quotation marks and citations omitted). "'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 should be allowed.'" State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). "In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences" that can be drawn from the evidence. Fritsch, 351 N.C. at 378-79, 526 S.E.2d at 455; see also State v. Miller, 363 N.C. 96, 98-99, 678 S.E.2d 592, 594 (2009). "[S]o long as the evidence supports a reasonable inference of the defendant's guilt, a motion to dismiss is properly denied even though the evidence also 'permits a reasonable inference of the defendant's innocence.'" Miller, 363 N.C. at 99, 678 S.E.2d at 594 (quoting State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 140 (2002)). Accordingly, "[i]f more than a scintilla of evidence as to each element of the offense is presented, then the case must be submitted to the jury." State v. Essick, 67 N.C. App. 697, 700, 314 S.E.2d 268, 271 (1984) (citing State v. Agnew, 294 N.C. 382, 387, 241 S.E.2d 684, 688 (1978)). "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." Blake, 319 N.C. at 604, 356 S.E.2d at 355 (quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).
Defendant challenges the State's evidence as insufficient to support a reasonable inference that defendant entered into an agreement with Barron to commit the unlawful act of selling cocaine. "A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means." State v. Abernathy, 295 N.C. 147, 164, 244 S.E.2d 373, 384 (1978). "In a prosecution for conspiracy, the State need not prove an express agreement; evidence tending to show a mutual, implied understanding will suffice to withstand defendant's motion to dismiss." State v. Worthington, 84 N.C. App. 150, 162, 352 S.E.2d 695, 703 (1987). In addition, "[t]he existence of a conspiracy may be established by direct or circumstantial evidence. '. . . It may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy[.]'" Abernathy, 295 N.C. at 165, 244 S.E.2d at 384 (quoting State v. Whiteside, 204 N.C. 710, 169 S.E. 711 (1933)). This Court has found that "[o]rdinarily the existence of a conspiracy is a jury question." State v. Gary, 78 N.C. App. 29, 35, 337 S.E.2d 70, 74 (1985).
Defendant argues that the statements made by Barron to Officer Bowers during the transaction, which were testified to by Officer Bowers at trial, are hearsay statements and should have been excluded from the evidence, or at a minimum, should not have been considered by the jury for the truth of the matters asserted. Defendant argues that without those hearsay statements, the evidence raises "only a mere suspicion of guilt," and therefore is insufficient to reach the jury.
However, in the present case, even without the alleged hearsay statements of Barron, the State introduced competent evidence showing the following: (1) Officer Bowers asked Barron for drugs, namely crack cocaine; (2) Barron then made a phone call, and got into Officer Bowers' car to wait for someone after making the call; (3) minutes later, a red Jeep Cherokee pulls into the motel parking lot where Barron and Officer Bowers were waiting inside his car; (4) Officer Bowers gave Barron a marked $20 bill; (5) defendant exited the red Jeep Cherokee, Barron exited Officer Bowers' car, and the two entered a motel room, where they remained for approximately two minutes; (6) upon exiting the motel room, defendant got back into the red Jeep Cherokee, and Barron got back inside Officer Bowers' car, where she placed a substance appearing to be crack cocaine powder into Officer Bowers' hand; (7) upon arrest, an empty "street-level" packaging plastic bag was found inside the red Jeep Cherokee, and a $20 bill was recovered from defendant's pocket; and (8) the $20 bill found in defendant's pocket was confirmed to be the marked bill given to Barron by Officer Bowers. We find this circumstantial evidence is adequate to support a reasonable inference that defendant and Barron entered into an agreement to sell cocaine to Officer Bowers, and therefore, the conspiracy charge was properly submitted to the jury for determination.
Furthermore, because we find this evidence sufficient to support the State's prima facie showing of a conspiracy to sell cocaine between defendant and Barron, the hearsay statements made by Barron to Officer Bowers during the transaction were properly admissible as statements made by a co-conspirator.
Our Supreme Court has previously stated that:
"[t]he rule governing the admission of co-conspirators' statements is that once the State has made a prima facie showing of the existence of a conspiracy, 'the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members. . . .' Prior to considering the acts or declarations of one co-conspirator as evidence against another, there must be a showing that:
"(1) a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) while it was active, that is, after it was formed and before it ended. . . ."
State v. Turner, 98 N.C. App. 442, 445, 391 S.E.2d 524, 525-26 (1990) (alterations in original) (quoting State v. Polk, 309 N.C. 559, 564, 308 S.E.2d 296, 298-99 (1983) (citations omitted)). In addition, the trial judge "may in his discretion admit the statements subject to a later showing of a conspiracy because our courts recognize the 'difficulty in proving the formation and activities of the criminal plan and [they] have allowed wide latitude in the order in which pertinent facts are offered in evidence.'" Id. at 445, 391 S.E.2d at 526 (quoting State v. Tilley, 292 N.C. 132, 139, 232 S.E.2d 433, 438-39 (1977)).
The challenged hearsay statements included Barron's telling Officer Bowers, after making the phone call, that her contact would deliver the drugs for him in the next few minutes and her identification of defendant and the red Jeep Cherokee as her contact. We find these statements were made by Barron in furtherance of the drug sale transaction during the time in which the transaction was occurring and further strengthen the State's evidence showing the existence of an agreement between defendant and Barron to sell cocaine to Officer Bowers. "The State's burden of proof here was only to procure evidence sufficient to permit, but not compel, the jury to find a conspiracy." Turner, 98 N.C. App. at 446, 391 S.E.2d at 526. We hold the State met its burden in the present case, and therefore, the trial court properly denied defendant's motion to dismiss the conspiracy charge.
III. Discovery violation sanctions
Defendant next contends the trial court abused its discretion in denying sanctions for the State's failure to produce the original $20 bill found in defendant's possession at the time of his arrest. Defendant argues that because the $20 bill was returned to the special city impress fund for use in future operations, the State willfully failed to properly preserve the evidence in this case.
"While the trial court has the authority to impose discovery violation sanctions, it is not required to do so. Therefore, whether sanctions are imposed is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion." State v. Moore, 152 N.C. App. 156, 161, 566 S.E.2d 713, 716 (2002) (citations omitted). A trial court abuses its discretion in making a ruling only when the ruling is "so arbitrary that it could not have been the result of a reasoned decision." State v. Thompson, 314 N.C. 618, 626, 336 S.E.2d 78, 82 (1985). Further, "'[the] discretionary rulings of the trial court will not be disturbed on the issue of failure to make discovery absent a showing of bad faith by the state in its noncompliance with the discovery requirements.'" State v. Graham, ___ N.C. App. ___, ___, 683 S.E.2d 437, 441 (2009) (quoting State v. McClintick, 315 N.C. 649, 662, 340 S.E.2d 41, 49 (1986)), appeal dismissed and disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010).
In addition, the "best evidence rule" in North Carolina requires that "the original writing" be produced in order to "prove the content of a writing," unless an exception applies. N.C. Gen. Stat. § 8C-1, Rule 1002 (2009). Defendant correctly contends that the $20 bill removed from his pocket at the time of his arrest is a writing, and ordinarily, the contents of such a writing, such as the serial number of that $20 bill, may only be proved by producing the original $20 bill removed from defendant's possession. However, our statutory rules provide that, "[t]he original is not required, and other evidence of the contents of a writing . . . is admissible if: (1) . . . All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith[.]" N.C. Gen. Stat. § 8C-1, Rule 1004 (2009). Notably, defendant must show bad faith on the part of the State in order to show both that the exception to the best evidence rule does not apply in this case, and that the trial court abused its discretion in denying sanctions for failure to produce evidence.
We find defendant has failed to show bad faith under the circumstances of the present case. At trial, the prosecutor informed the trial court that the process used to identify the bills involved in the present case is standard police procedure due to the very limited availability of special city impress funds that may be used in buy-bust operations. In consideration of the standard police procedures, there was no evidence that the officers involved in this case "willfully destroyed" or "lost" the $20 bill obtained from defendant at arrest in bad faith. Rather, the evidence simply shows that the officers were following standard police procedures. As such, the copy of the $20 bills, which contained Officer Saine's notations regarding the matching serial numbers, was admissible under the best evidence rule exception for "lost" originals and the trial court did not abuse its discretion in denying sanctions for the loss of the evidence.
We note the circumstances of this case are similar to those found in State v. Mlo, 335 N.C. 353, 440 S.E.2d 98 (1994). In Mlo, police officers towed the car of a murder victim to a police impoundment lot. However, the police inadvertently released the car from custody before the defendant, who was charged with the victim's murder, had access to the car in order to run tests for trial. Our Supreme Court held the defendant failed to show bad faith on the part of the police in releasing the car from custody. Id. at 373, 440 S.E.2d at 108. Likewise, in Graham, ___ N.C. App. ___, 683 S.E.2d 437, the State lost the car of the defendant, also a murder suspect, after impounding the car during a murder investigation. This Court held the defendant had failed to show bad faith on the part of the State in losing the car. In addition, the State had preserved soil samples from the tires of the car, to which the defendant had access and could have used at trial. Therefore, this Court held sanctions were not appropriate under those circumstances. Id. at ___, 683 S.E.2d at 442. We fail to see how this case is distinguishable. The officers released the marked $20 bill back into the special city impress fund pursuant to standard police procedure. In addition, the officers noted the copy of the serial number of the $20 bill obtained from defendant by circling, initialing, and providing the identifying officer's code number on the copy of the marked bills used in the operation. Defendant had access to this copy at trial and was able to cross-examine Officer Saine about the procedure he used to identify the bill. Thus, the trial court did not abuse its discretion in denying discovery violation sanctions under the circumstances of the present case.
IV. Plain error in failing to instruct jury
Defendant next contends the trial court erred by failing to instruct the jury that the claimed statements by Barron were not to be considered for the truth of the matter asserted. Defendant argues the trial court's failure to give a limiting instruction was plain error with a probable impact on the jury's verdict. Defendant again argues that without the hearsay statements, "the evidence raises no more than a suspicion of guilt of any of the crimes charged."
Plain error is "a fundamental error so prejudicial that justice cannot have been done." State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602 (2003). "The defendant has the heavy burden of showing that the error constituted plain error[.]" State v. Garris, 191 N.C. App. 276, 288, 663 S.E.2d 340, 349 (2008). "'The plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to plain error, the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.'" State v. Treadway, ___ N.C. App. ___, ___, 702 S.E.2d 335, 340 (2010) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)). Therefore, "'[i]n order to prevail under a plain error analysis, defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different result.'" State v. Smith, ___ N.C. App. ___, ___, 687 S.E.2d 525, 529 (2010) (quoting State v. Steen, 352 N.C. 227, 269, 536 S.E.2d 1, 25-26 (2000)).
As previously discussed, we find certain challenged hearsay statements made by Barron are admissible into evidence under the co-conspirator exception, as the State presented a prima facie case of conspiracy, as well as the other offenses charged, without considering the hearsay statements. Therefore, the trial court did not commit error in failing to instruct the jury that certain of Barron's statements were hearsay and were not to be considered for the truth of the matter asserted. Even assuming arguendo that it was error for the trial court to not provide a limiting instruction regarding certain of Barron's hearsay statements alleged to have been made prior to forming the conspiracy, the error does not rise to the level of plain error. There was sufficient evidence presented by the State of defendant's guilt of each of the offenses charged, and defendant has failed to show that absent the consideration by the jury of Barron's statements for their truth, the jury would have reached a different result.
V. Ineffective assistance of counsel
Defendant contends there was ineffective assistance of counsel at various stages of the trial, including defense counsel's failure to object to alleged hearsay testimony, nonexpert opinion testimony, and testimony concerning the subject matter of the previously denied motion for sanctions.
To establish ineffective assistance of counsel in violation of a defendant's constitutional rights, the defendant bears the burden of meeting a two-part test:
"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. (Emphasis added)."
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). "When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness." State v. Hoover, 89 N.C. App. 199, 211, 365 S.E.2d 920, 927 (1988). Ultimately, defendant has the burden of showing "there is a reasonable probability that, but for counsel's inadequate representation, the result would have been different." State v. Austin, 75 N.C. App. 338, 341, 330 S.E.2d 661, 663 (1985); see also State v. Piche, 102 N.C. App. 630, 638, 403 S.E.2d 559, 564 (1991).
When a court undertakes to engage in such an analysis, [a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.
State v. Yarborough, 198 N.C. App. 22, 38, 679 S.E.2d 397, 409 (2009) (alteration in original) (internal quotation marks and citations omitted), cert. denied, 363 N.C. 812, 693 S.E.2d 143 (2010).
Defendant bases his argument for ineffective assistance of counsel on the following acts by his trial attorney: failure to object to police testimony of Barron's hearsay statements; failure to object to non-expert police testimony which was unhelpful to the jury; and waiving the prior motion for sanctions and objections to the introduction of evidence of the $20 bill obtained from defendant's possession at the time of arrest. We find defendant has failed to show how any of the alleged errors of trial counsel would have changed the outcome of defendant's trial had trial counsel properly objected. Moreover, as we have already stated, certain of Barron's alleged hearsay statements, as well as evidence of the $20 bill obtained from defendant's possession at the time of his arrest, were properly admitted. Thus, trial counsel's failure to object to such evidence was not error, and defendant's claim of ineffective assistance of counsel must fail. State v. Mewborn, ___ N.C. App. ___, ___, 684 S.E.2d 535, 540 (2009) ("The failure to object to admissible evidence is not error.").
VI. Prior record level
Finally, despite defendant's stipulation at trial that his sentencing worksheet properly indicated his prior record level, defendant contends the trial court incorrectly attributed an additional sentencing point to defendant's sentence, as provided in N.C. Gen. Stat. § 15A-1340.14(b)(6), because none of defendant's previous offenses contained all of the elements of the current, most serious offense of conspiring to sell cocaine. "Although a stipulation by the defendant may be sufficient to prove defendant's prior record level, the trial court's assignment of a prior record level is a conclusion of law, which we review de novo." State v. Mack, 188 N.C. App. 365, 380, 656 S.E.2d 1, 12 (2008).
Pursuant to N.C. Gen. Stat. § 15A-1340.14(a) (2009), "[t]he prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender's prior convictions that the court, or . . . the jury, finds to have been proved in accordance with this section." Id. "If all the elements of the present offense are included in any prior offense for which the offender was convicted, whether or not the prior offense or offenses were used in determining prior record level," an additional point should be added. N.C. Gen. Stat. § 15A-1340.14(b)(6).
In the present case, defendant was found guilty of conspiracy to sell cocaine, a class G felony; delivery of cocaine, a class H felony; and possession with intent to sell or deliver cocaine, also a class H felony. At the sentencing hearing, the trial court consolidated the three offenses for sentencing pursuant to N.C. Gen. Stat. § 15A-1340.15(b) (2009) ("If an offender is convicted of more than one offense at the same time, the court may consolidate the offenses for judgment and impose a single judgment for the consolidated offenses."). When the trial court consolidates the offenses for judgment, the judgment "shall contain a sentence disposition specified for the class of offense and prior record level of the most serious offense[.]" N.C. Gen. Stat. § 15A-1340.15(b); see also State v. Jacobs, ___ N.C. App. ___, ___, 688 S.E.2d 726, 730 (2010) ("[W]hen separate offenses of different class levels are consolidated for judgment, the trial judge is required to enter a sentence for the conviction at the highest class."). Accordingly, the prior record level for the offense of conspiracy to sell cocaine, a class G felony, was the only one requisite for sentencing.
The trial court attributed an extra point to defendant's sentence pursuant to N.C. Gen. Stat. § 15A-1340.14(b)(6), finding that "all the elements of the present offense are included in any prior offense." As stated previously, this sentencing point must only correspond to defendant's offense of conspiring to sell cocaine, the most serious offense of his consolidated offenses. See Mack, 188 N.C. App. at 381, 656 S.E.2d at 13 (holding that in sentencing defendant for his consolidated offenses of selling cocaine, a class G felony, and resisting a public officer, a class 2 misdemeanor, defendant's sentence "should have been issued in accordance with the prior record level that would accompany the conviction for selling cocaine," because "selling cocaine was the more serious of the two offenses"). Defendant's prior convictions in the present case include possession with intent to sell or deliver cocaine and conspiracy to commit felonious restraint. However, a review of the sentencing worksheet reveals defendant has no prior conviction containing all the elements of the offense of conspiracy to sell cocaine. While defendant's prior conviction of possession with intent to sell or deliver cocaine does contain all the same elements as his present conviction for the same offense, such offense is inapposite in the present case, as defendant's prior record level must only correspond with the conspiracy offense and not the possession offense. In addition, the trial court may not combine prior offenses in order to meet "all the elements of the present offense" for purposes of adding an additional sentencing point. Therefore, the trial court erroneously added this additional point to defendant's sentence, which elevated his prior record level from Level III to Level IV. Accordingly, we must remand for resentencing at prior record Level III.
VII. Conclusion
We hold the State presented substantial evidence of the charge for conspiracy to sell cocaine, such that the issue was properly submitted to the jury. Because the State presented substantial evidence of conspiracy without relying on the hearsay statements made by Barron, we hold the testimony of Officer Bowers concerning Barron's statements during the drug transaction were admissible in evidence as statements made by a co-conspirator. Accordingly, we hold the trial court did not err in failing to instruct the jury that Barron's statements could not be considered for their truth, and trial counsel's failure to object to such statements was not error. In addition, because defendant has failed to show bad faith on the part of the police in relinquishing the $20 bill found in his possession at the time of his arrest, we hold other evidence, including the photocopy of the bill and the identifying notations of the arresting officer, was admissible at trial under an exception to the best evidence rule. The trial court did not abuse its discretion in denying sanctions for the State's failure to produce the original $20 bill, and trial counsel did not commit error in failing to object to such evidence offered at trial. Finally, defendant has failed to show how the opinion testimony of the officers, if objected to and excluded, would have changed the outcome of his trial, and therefore has failed to show ineffective assistance of trial counsel. Accordingly, we find no error in defendant's trial.
However, because defendant's offenses were consolidated for sentencing, and because defendant's most serious offense is conspiracy to sell cocaine, the trial court must enter a sentence in accordance with defendant's prior record level for that offense. Because we find defendant's prior convictions do not contain an offense which contains all the elements of conspiracy to sell cocaine, we hold the trial court erred in attributing an additional sentencing point to defendant's sentence. Accordingly, we remand to the trial court for resentencing.
No error in part, remanded in part for resentencing.
Judges HUNTER (Robert C.) and BRYANT concur.
Report per Rule 30(e).