Opinion
No. COA09-1196
Filed 3 August 2010 This case not for publication
Appeal by defendant from judgment entered 9 December 2008 by Judge J.B. Allen, Jr., in Wake County Superior Court. Heard in the Court of Appeals 25 March 2010.
Attorney General Roy Cooper, by Assistant Attorney General Melisa H. Taylor, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant.
Wake County No. 08 CRS 000175.
In December 2007, Vlasco Matos (defendant) became the subject of a Raleigh Police Department investigation. Defendant contacted Victor Anicama, a police informant. Anicama informed the Raleigh Police Department that defendant had contacted him. The police arranged for Anicama and a second informant, Pierre Estrella, to contact defendant and offer to sell him a kilogram of cocaine. In exchange for their assistance, Anicama received reduced charges on an existing drug case, and Estrella received $200.00.
On 18 December 2007, the informants called defendant from a Raleigh police station and offered to sell defendant some cocaine. During the phone conversation, they discussed prices between $19,000.00 and $20,000.00 for a kilogram of cocaine. They also arranged to meet in a store parking lot to further discuss the deal. The Raleigh Police Department set up surveillance around the meeting location, and the informants wore audio recording devices. Defendant sat in the informants' car for twenty minutes, during which time he asked to see a sample of the drugs, and the informants refused.
On 3 January 2008, the police instructed Anicama to call defendant from the police station and to settle on a price of $19,000.00 for a kilogram of cocaine. Anicama called defendant as instructed and set up another meeting in a store parking lot. Defendant and a second man met the informants in the parking lot. Defendant asked to see the cocaine powder rather than the brick, but the informants refused. Eventually, several of defendant's friends drove up in an Audi. Both defendant and Anicama looked in the driver's side window of the Audi before the Audi drove away. Police then arrested defendant and four other men, including the men in the Audi, whom defendant admitted were his friends. Defendant had $2,108.00 on his person, and there was another $18,000.00 in the Audi. Defendant admitted that the money in the Audi was his, but he claimed that he planned to use the cash to pay bills, pay for a wedding party, and repay a personal loan.
Defendant was charged with attempt to traffic in cocaine by possession and conspiracy to traffic in cocaine by possession. A jury found defendant guilty of attempted trafficking. The trial court sentenced defendant to twenty-nine to forty-four months' imprisonment. Defendant now appeals.
Defendant first argues that the trial court erred by denying his motion to dismiss the charge of attempting to traffic cocaine for insufficient evidence. On a defendant's motion for dismissal on the ground of insufficiency of the evidence, the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.
Our review of the trial court's denial of a motion to dismiss is well understood. [W]here the sufficiency of the evidence . . . is challenged, we consider the evidence in the light most favorable to the State, with all favorable inferences. We disregard defendant's evidence except to the extent it favors or clarifies the State's case. When a defendant moves for dismissal, the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion.
State v. Hinkle, 189 N.C. App. 762, 766, 659 S.E.2d 34, 36-37 (2008) (quotations and citation omitted; alterations in original).
"The elements of an attempt to commit a crime are (1) an intent to commit the crime, (2) an overt act done for that purpose, going beyond mere preparation, (3) but falling short of the completed offense." State v. Collins, 334 N.C. 54, 60, 431 S.E.2d 188, 192 (1993). "Between preparation for the attempt and the attempt itself there is a wide difference. The preparations consist in devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement towards the commission after the preparations are made." State v. Addor, 183 N.C. 734, 737, 110 S.E. 650, 651 (1922) (quotations and citation omitted). The elements of the crime of trafficking in cocaine are set out in General Statute section 90-95(h)(3): "Any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine . . . shall be guilty of a felony, which felony shall be known as `trafficking in cocaine'. . . ." N.C. Gen. Stat. § 90-95(h)(3) (2009).
Here, the State presented sufficient evidence of each element of the crime. Defendant initiated contact with one of the informants, and then later agreed to a meeting with Anicama to discuss the purchase of a kilogram of cocaine. At the meeting, defendant discussed the price and asked to see a sample of the cocaine. Defendant then attended a second meeting set up for the purpose of exchanging $19,000.00 for a brick of cocaine. Defendant arrived at the meeting and asked to see the cocaine. Defendant's friends arrived at the meeting with $18,000.00, which defendant admitted was his. Defendant also had $2,000.00 on his person. All of this evidence demonstrates defendant's intent to possess more than twenty-eight grams of cocaine in violation of N.C. Gen. Stat. § 90-95(h)(3).
These actions were also overt acts going beyond the preparation stages of trafficking cocaine. Defendant points to our opinion in State v. Parker to support his claim that these actions were mere preparation. 66 N.C. App. 355, 311 S.E.2d 327 (1984). The defendant in Parker was found guilty of attempted armed robbery, but this Court held that the trial court erred by not granting the defendant's motion to dismiss for insufficiency of the evidence because the State had not presented sufficient evidence of one element of the crime. Id. at 358, 311 S.E.2d at 329. "The element in question requires a showing that [the] defendant actually attempted to take the property[.]" Id. at 357, 311 S.E.2d at 329. The State offered the following evidence to support this element, which this Court held was insufficient: that the "defendant put a pistol in his toboggan and then into his jacket; that he took his bicycle up the street and parked it; that he observed the S R Market from the bushes across the street; and that he ultimately was seen just outside the entrance to the store." Id. Here, however, defendant went far beyond "lurking outside a place of business with a loaded pistol[.]" Id. at 358, 311 S.E.2d at 329. Defendant was at the meeting location at the agreed-upon time, met with the purported seller, asked to see the cocaine, and brought the cash required to complete the sale. The sale was not consummated because police intervened and arrested defendant. Accordingly, we hold that the trial court did not err by denying defendant's motion to dismiss.
Defendant next argues that the trial court erred by failing to instruct the jury on the defense of entrapment. Defendant argues that he would not have attempted to traffic cocaine but for the actions of the police informants. "North Carolina follows the majority rule which precludes the assertion of the defense of entrapment when the defendant denies one of the essential elements of the offense charged." State v. Neville, 302 N.C. 623, 625, 276 S.E.2d 373, 374 (1981) (citations omitted). In Neville, the Supreme Court noted:
We are not inadvertent to the cases which apparently allow a defendant to raise an entrapment defense even while denying the commission of the offenses charged. Our review of these cases, however, reveals that they deal with the situation where either the State's own evidence raises an inference of entrapment or the defendant denies the intent required for the commission of the offense.
Id. at 626, 276 S.E.2d at 375 (citations omitted). Here, as in Neville, "the State's evidence raises no inference of entrapment, and defendant here has denied doing any acts which were elements of the offense charged." Id. Accordingly, we hold that the trial court did not err by not instructing the jury on the defense of entrapment.
Defendant next argues that the trial court erred by failing to sufficiently clarify the "overt act" element in the jury instructions for attempted trafficking of cocaine. Defendant did not object at trial to the jury instruction, so he now argues that the omission was plain error. We disagree.
"In criminal cases, a question which was not preserved by objection noted at trial . . . may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(c)(4) (2009). "Plain error is 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. Leyva, 181 N.C. App. 491, 499, 640 S.E.2d 394, 399 (2007) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987)).
[I]f the charge of the trial court, when considered as a whole, presents the law of the case so that there is no reasonable ground to believe that the jury was misled or misinformed, then it is not prejudicial error simply because a particular jury instruction might have been better stated.
Cantey v. Barnes, 51 N.C. App. 356, 360, 276 S.E.2d 490, 493 (1981) (citations omitted).
The trial court gave the following jury instruction with respect to the "overt act" element: "[H]e performed an act which was calculated and designed to bring about the crime of trafficking in cocaine by possession [ sic] 400 grams or more, but which fell short of the completed offense." The trial court continued, "Mere preparation or mere planning is not enough to constitute such an act, but the act need not necessarily be the last act required to complete the offense." These instructions properly presented the law of the case, and defendant cannot demonstrate that the instructions misled or misinformed the jury. Accordingly, we hold that the trial court's jury instruction on the "overt act" was not in plain error.
Defendant next argues that the trial court erred by failing to intervene in the prosecutor's closing statement, which defendant alleges was grossly improper.
Where, as here, defendant failed to object to any of the closing remarks of which he now complains, he must show that the remarks were so grossly improper that the trial court erred by failing to intervene ex mero motu. In order to carry this burden, defendant must show that the prosecutor's comments so infected the trial that they rendered his conviction fundamentally unfair. Moreover, the comments must be viewed in the context in which they were made and in light of the overall factual circumstances to which they referred.
State v. Call, 349 N.C. 382, 419-20, 508 S.E.2d 496, 519 (1998) (citations omitted).
Defendant argues that the prosecutor violated her duty to uphold defendant's right to a fair hearing by making improper closing arguments that went beyond the law and facts in evidence. Specifically, defendant objects to the following portions of the prosecutor's closing arguments: (1) Defendant was "willing to pay $19,000" a kilo and "[t]he deal was the defendant would receive a kilo of cocaine and the defendant would pay $19,000 for it." (2) Defendant and Anicama looked into the Audi driven by defendant's friends "to see the money which is the common practice." (3) "This defendant did become the subject of an investigation with the Raleigh Police Department. And I argue to you that the Raleigh Police Department does not just target random people."
None of these statements, taken together or alone, show that "the prosecutor's comments so infected the trial that they rendered his conviction fundamentally unfair." Estrella testified at trial that he and defendant discussed paying $19,000.00 or $20,000.00 for a kilogram of cocaine and that defendant agreed to the price of $19,000.00 for the kilogram. This testimony supports the prosecutor's statement that defendant was willing to pay $19,000.00 for a kilogram of cocaine and that "the deal" was that defendant would pay $19,000.00 for a kilogram of cocaine. When asked whether, on the basis of his training and experience, "a person who is purchasing drugs . . . usually [has] the total amount of money on their person," Raleigh Police Detective Antony Pennica testified:
They do not. It's usually in somebody else's hands because they are afraid of the situation — as in all drug deals, both parties are afraid of being robbed of their cocaine or of their money.
So they usually take steps to put the cocaine or money in other people's hands to throw off the other party.
Detective Pennica's testimony supports the prosecutor's statement that defendant and Anicama looked into the vehicle containing the money for the transaction, which was "common practice." Finally, with respect to the prosecutor's statement that "the Raleigh Police Department does not just target random people," the prosecutor elaborated about the extent of defendant's participation in the aborted drug deal:
The defendant accepted several phone calls from the informant. He talked with them several times. He could have just ignored the calls. He could have told them he wasn't interested, but you never heard that.
Detective Pennica testified that Victor also received calls from the defendant. This shows the defendant was willing to participate. He is calling Victor.
The defendant showed up for two meetings, once to discuss the details and once to make the transaction. He chose to show up. No one forced him to show up.
The defendant knew what a kilo of cocaine was. He talked the talk, he negotiated the price. Defendant brought $19,000 to Wal-Mart to pay for the kilo of cocaine. He withdrew the money just probably within the hour.
I think the tapes showed this happened around six, 6:30. He withdrew the money at five. He had another person bring the $19,000 in a separate car. Shows he is wise to the drug trade, knows how it works.
The context of the prosecutor's challenged statement demonstrates that her statement was supported by evidence. They were not grossly improper, and the trial court did not err by not intervening ex mero motu.
Accordingly, we hold that defendant received a trial free from error.
No error.
Judges JACKSON and STROUD concur.
Report per Rule 30(e).