Opinion
No. COA010-1015
Filed 17 May 2011 This case not for publication
Appeal by defendant from judgment entered 17 February 2010 by Judge Jack W. Jenkins in Brunswick County Superior Court. Heard in the Court of Appeals 9 March 2011.
Attorney General, Roy A. Cooper, by Assistant Attorney General, Kathryn J. Thomas, for the State. McCotter, Ashton Smith, P.A., by Rudolph A. Ashton, III, and Charles K. McCotter, Jr., for defendant-appellant.
Brunswick County Nos. 08 CRS 57059, 09 CRS 3235.
Where evidence of defendant's prior acts was admitted to prove identity, intent, knowledge, plan, and preparation and not to prove defendant's character, the evidence was properly admitted under N.C. Gen. Stat. § 8C-1, Rule 404(b). Where there was substantial evidence of every essential element of the crimes charged, defendant's motion to dismiss for insufficiency of the evidence was properly denied. Where the trial court gave a jury instruction regarding the limited purpose for which evidence of defendant's prior acts could be received, there was no error in the jury instruction. Where the trial court's response to a jury question did not lead to an ambiguous verdict, there was no error; and where no evidence exists that the trial court imposed an active sentence as punishment for defendant's failure to enter a guilty plea, there was no error.
Facts and Procedural History
The evidence at trial tended to indicate the following: Steven Lanier (Sergeant Lanier), a sergeant with the Drug Enforcement Division of the Brunswick County Sheriff's Office, met with William Stanley (Stanley), a confidential informant. Sergeant Lanier prepared to have Stanley purchase cocaine from Rodney Lloyd Parker (defendant). Stanley had known defendant for fifteen years and had previously been to defendant's home. Stanley called defendant and arranged to buy $100.00 worth of crack cocaine. Sergeant Lanier testified that on 10 December 2008, he and a fellow agent, Rich Roman (Agent Roman), met with Stanley at a location "where [you] meet somebody to go get prepared for a drug deal that's undercover," known as a "staging area." Seargeant Lanier and Agent Roman searched Stanley's person and his vehicle prior to the controlled buy, making sure that Stanley did not have any contraband, drugs, or money. Sergeant Lanier issued Stanley a recording device and $100.00 in cash from which the serial numbers were catalogued, and then sent him to purchase cocaine from defendant.
Sergeant Lanier observed Stanley leave the staging area, drive to defendant's residence at 315 Eighth Street, and pull into defendant's driveway. Approximately two minutes later, Sergeant Lanier drove away from defendant's residence and return to the staging area. He did not directly witness the controlled purchase of cocaine. Next, Sergeant Lanier testified that he saw Stanley leave defendant's residence and that Stanley did not make any other stops. Sergeant Lanier and Agent Roman met Stanley at the staging area and nothing was found, other than the drugs from the controlled buy, after a search of Stanley's person and vehicle. Stanley gave Sergeant Lanier the drugs he had purchased from defendant and returned the recording device. The drugs tested positive for the presence of cocaine and Sergeant Lanier testified that the street value of the cocaine was consistent with the $100.00 used to make the purchase.
Defendant was indicted in June 2009 for possession with intent to manufacture, sell and deliver cocaine and for sale of cocaine. On 17 February 2010, a jury found defendant guilty of both charges. Defendant was sentenced to serve an active sentence of sixteen to twenty months. From this judgment, defendant appeals.
On 8 February 2011, defendant filed a motion to amend the record on appeal moving to add a revised prior record sheet, an original judgment of 17 February 2010, and an amended 26 January 2011 judgment. In his motion, defendant stated that there is no objection from the State to amend the record on appeal. Defendant also stated that on 26 January 2011, defendant was re-sentenced to a term of 15 to 18 months. Defendant contended that the prior record level was improperly calculated and that he is entitled to a new sentencing hearing. Defendant's motion to amend the record on appeal was denied by separate order of this court on 3 March 2011. Therefore, we will not address defendant's contentions regarding sentencing as set forth in the motion.
On appeal, defendant raises the following issues: whether the trial court (I) erred by admitting evidence of defendant's prior conduct under N.C. Gen. Stat. § 8C-1, Rule 404(b); (II) erred by denying defendant's motion to dismiss for insufficiency of the evidence; (III) committed plain error by failing to instruct the jury properly; (IV) erred in its response to a jury question; and (V) erred by punishing defendant with an active sentence for failure to accept a plea bargain.
I
Defendant first argues that the trial court erred by admitting evidence of prior conduct under N.C. Gen. Stat. § 8C-1, Rule 404(b). Defendant contends that the evidence of prior crimes, wrongs, and acts was not sufficiently similar to the crimes he was charged with and that any probative value was outweighed by the prejudicial nature of the evidence. Defendant states that "[t]here is a reasonable possibility that had Stanley's prior acts testimony not been allowed a different result may have been reached." We disagree.
"We review a trial court's determination to admit evidence under N.C. R. Evid. 404(b) . . . for an abuse of discretion." State v. Register, ___ N.C. App. ___, ___, 698 S.E.2d 464, 470 (2010) (citation omitted). "`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. Evidence which is not relevant is not admissible, and all relevant evidence is admissible." State v. Lofton, 193 N.C. App. 364, 370, 667 S.E.2d 317, 322 (2008) (internal quotation marks and citations omitted).
However, under N.C.G.S. § 8C-1, Rule 404(b),
[e]vidence 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.G.S. § 8C-1, Rule 404(b) (2009).
Rule 404(b) is one of inclusion, "subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged." State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). As long as the prior acts provide "substantial evidence tending to support a reasonable finding by the jury that the defendant committed a similar act or crime and its probative value is not limited solely to tending to establish the defendant's propensity to commit a crime such as the crime charged," the evidence is admissible under Rule 404(b). State v. Stager, 329 N.C. 278, 303-04, 406 S.E.2d 876. 890 (1991).
State v. Stevenson, 169 N.C. App. 797, 800, 611 S.E.2d 206, 209 (2005).
[T]he ultimate test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C. G.S. § 8C-1, Rule 403. . . . Finally, once a trial court has determined the evidence is admissible under Rule 404(b), the court must still decide whether there exists a danger that unfair prejudice substantially outweighs the probative value of the evidence.
Lofton, 193 N.C. App. at 371, 667 S.E.2d at 322 (citations omitted). In addition, "[w]hether evidence is admissible under Rule 404(b) `is constrained by the requirements of similarity and temporal proximity.'" State v. Moore, 173 N.C. App. 494, 500, 620 S.E.2d 1, 6 (2005) (citation omitted).
In the present case, during a voir dire examination of Stanley, the following exchange occurred:
[State]: . . . I'm not going to ask him anything about any of the previous buys he's done in the yard. My attempt was that [Stanley has] known him since 1995. How did you contact him when you needed to, using that phone number? And did you have — was your relationship with him a friendly relationship. Did you have any existing relationship outside of that?
The Court: and, [defendant's counsel,] you wish to be heard on your objection?
[Defendant's counsel:] yes, your honor. I would just say that it's extremely prejudicial to hear about any prior buys that he's not been charged with. Just — the sales. Sorry. That he's not been charged with. I just think it's extremely prejudicial for the jury to hear that.
The Court: let me ask you this: under 404b, the — this motion that could be offered to prove . . . opportunity, preparation, plan, knowledge, identity, absence of mistake, entrapment or accident; I mean, how would you argue that this evidence does not fall fairly squarely within that language? . . . I think the issue before the court really, is whether it's probative value outweighs it's prejudicial effect. And it appears to be within 404b, however. And I am concerned though, that the state could go too far with this and start going down this road and really emphasizing the past alleged transactions, which could transcend beyond the purpose of 404b and start getting into something that would not be proper. So I would caution. I am going to allow the state to very briefly ask about this, merely to establish the absence of the state [sic], the opportunity, preparation, plan, so forth. But, very limited. Very limited. Don't go down that road very far.
[State]: yes, sir. And my other intention was to use this to establish just the relationship between the parties, which I believe is also permissible.
The Court: well, that's part of what I'm thinking here, when I say in terms of plan, knowledge, identity, absence of the state [sic]. . . . that sort of thing because that seems to fall within the intent of 404b and as well, within the intent of what you're trying to accomplish.
Subsequently, Stanley testified before the jury that he first met defendant in 1995 in order to purchase cocaine because defendant "had the best stuff." There was no friendship or existing, legitimate business relationship. Stanley testified that he always initiated contact with defendant by calling his phone number, 200-0697. He had been going to defendant's home for approximately eight years. Stanley admitted to selling cocaine at times and engaging in the business of "crack cocaine rental" with defendant. When asked by the state to explain what a "crack cocaine rental" would entail, defendant objected, and the trial court sustained the objection, directing the state to proceed to other questions.
After review of the transcript concerning the testimony of Stanley as to defendant's prior acts, we hold that the trial court did not abuse its discretion in allowing the evidence under 404(b). Stanley's testimony regarding his visits to defendant's home for eight years to purchase cocaine certainly provided "substantial evidence tending to support a reasonable finding by the jury that the defendant committed a similar act or crime . . . as the crime charged." Stevenson, 169 N.C. App. at 800, 611 S.E.2d at 209. However, the probative value of the evidence was properly determined by the trial court to outweigh its prejudicial effect. The evidence regarding the type and length of relationship that existed between Stanley and defendant, that Stanley knew the location of defendant's residence and knew defendant's phone number, was admissible to prove the "other purposes" of Rule 404(b) such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake[.]" N.C.G.S. § 8C-1.
Further, the trial court gave the jury the following limiting instruction:
Evidence has been received tending to show that [Stanley] purchased cocaine from the defendant on occasions prior to the date of this alleged offense. This evidence was received solely for the purpose of showing the identity of the person who committed the crime charged in this case, if it was committed. That the defendant had the intent, which is a necessary element of the crime charged in this case. That the defendant had the knowledge, which is a necessary element of the crime charged in this case. That there existed in the mind of the defendant, a plan, scheme, system or design, involving the crime charged in this case. That the defendant had the opportunity to commit the crime, the absence of the state [sic] . . . entrapment, the absence of accident. If you believe this evidence, you may consider it, but only for the limited purpose for which it was received.
By reminding the jury of the limited purpose the evidence of prior acts by defendant was to be received, the trial court's admonition "guarded against the possibility of prejudice." Stevenson, 169 N.C. App. at 802, 611 S.E.2d at 210. The trial court did not abuse its discretion in admitting this testimony under 404(b). Defendant's argument is overruled.
II
In his second argument, defendant contends that the State failed to produce substantial evidence of sale of cocaine and possession of cocaine with the intent to manufacture, sell or deliver. Defendant argues that there was no evidence of any sale on the audio tape recording, no evidence that he "ever possessed cocaine[,]" and no evidence as to how the sale took place. As a result, defendant argues the trial court erred in denying his motion to dismiss for insufficiency of the evidence.
When reviewing a motion to dismiss for insufficiency of the evidence, this Court must Aexamine the evidence adduced at trial in the light most favorable to the State to determine if there is substantial evidence of every essential element of the crime. Evidence is `substantial' if a reasonable person would consider it sufficient to support the conclusion that the essential element exists." State v. Forte, ___ N.C. App. ___, ___, 698 S.E.2d 745, 748 (2010) (citation omitted). "Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citing State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). "The denial of a motion to dismiss for insufficient evidence is a question of law, which this Court reviews de novo[.]" State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007) (citations omitted).
Defendant was found guilty of crimes under N.C. Gen. Stat. § 90-95(a)(1) for selling cocaine and for possession with intent to manufacture, sell, or deliver cocaine. N.C.G.S. § 90-95(a)(1) states that it is unlawful for any person "[t]o manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance[.]" N.C.G.S. § 90-95(a)(1) (2009). "[T]he language of N.C.G.S. § 90-95(a)(1) creates the following three offenses: (1) manufacture of a controlled substance, (2) transfer of a controlled substance by sale or delivery, and (3) possession with intent to manufacture, sell or deliver a controlled substance." State v. Carr, 145 N.C. App. 335, 342, 549 S.E.2d 897, 902 (2001) (internal quotation marks and citation omitted).
"Under the charge of possession with the intent to sell or deliver cocaine, the State has the burden of proving: (1) the defendant possessed the controlled substance; and (2) with the intent to sell or distribute it." State v. Wiggins, 185 N.C. App. 376, 388, 648 S.E.2d 865, 874 (2007) (citation omitted). "The offense of sale of cocaine has two elements: (1) the sale or delivery of (2) a controlled substance (cocaine)." State v. Neal, 196 N.C. App. 100, 103, 674 S.E.2d 713, 716 (2009). In the instant case, the evidence showed that prior to 10 December 2008, Stanley had a phone conversation with defendant where they discussed the purchase of $100.00 worth of cocaine. On 10 December 2008, Stanley, after being thoroughly searched and cleared of having any money, contraband, or drugs on his person or vehicle, was given $100.00 to purchase cocaine from defendant. Stanley went to defendant's home where he purchased $100.00 worth of cocaine from defendant in the same manner and consistent with the prior transactions Stanley had with defendant when purchasing cocaine. Sergeant Lanier witnessed Stanley arrive at defendant's residence, depart from defendant's residence two minutes later with no additional stops, and shortly thereafter received the substance Stanley had just purchased from defendant which tested positive for the presence of cocaine. Viewing this evidence in the light most favorable to the State, there was substantial evidence that defendant possessed the cocaine with the intent to sell or distribute it and that defendant sold cocaine. Defendant's argument is without merit.
III
Defendant argues that the trial court committed plain error by instructing the jury that evidence had been received tending to show that Stanley purchased cocaine from defendant on occasions prior to 10 December 2008 "because the instruction was not a proper cautionary instruction on Rule 404(b) evidence based upon the evidence presented at trial." Defendant contends that the instruction failed to advise the jury that the evidence could not be used to establish defendant's character or that he acted in conformity therewith. Particularly, defendant argues that the trial court erred by expressing its opinion of the evidence when it stated that "evidence has been received today that [Stanley] purchased cocaine from [defendant] on occasions prior to the date of this alleged offense."
Because defendant failed to object to the instruction at trial, we review this issue under the plain error standard. State v. Farmer, 158 N.C. App. 699, 703, 582 S.E.2d 352, 355 (2003). "In deciding whether a defect in the jury instruction constitutes 'plain error,' the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt." Id. (quoting State v. Odom, 307 N.c. 655, 661, 300 S.E.2d 375, 378-79 (1983)). Under plain error review, we must "determine if the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]" State v. Carrigan, 161 N.C. App. 256, 262, 589 S.E.2d 134, 139 (2003) (citation and quotation marks omitted).
Defendant contends that the trial court failed to instruct the jury that the evidence presented regarding defendant's prior sales to Stanley could not be used to prove the character of defendant or that he acted in conformity therewith and that the instruction "did not go far enough to avoid prejudice to [defendant]." However, for the reasons stated in issue I, the trial court's limiting instructions to the jury as to how to treat the 404(b) evidence served to "guard[] against the possibility of prejudice." Stevenson, 169 N.C. App. at 802, 611 S.E.2d at 210. This argument is overruled.
IV
In defendant's fourth argument, he contends that the trial court erred in its answer to a jury question. The statute at issue is N.C.G.S. § 90-95(a)(1). The jury was given a verdict sheet which read "[w]e, the Jury by unanimous verdict find the defendant, RODNEY LLOYD PARKER, GUILTY of possession with intent to manufacture, sell and and [sic] deliver cocaine, OR GUILTY of Possession of cocaine OR NOT GUILTY." In its fourth note sent to the trial court, the jury submitted the following question in regard to this verdict sheet:
We need to know if the typo of and, and — typed twice, on file number 08-crs-57059, is going to be a problem in any way? We need a clear definition of what manufacturing in the charge means, please. Does it all fall under one category, as a single charge or should we look at each word separately. Could we please have a copy of the six pages of instruction?
Addressing the jury, the trial court noted that typing the word "and" twice was not a problem. The trial court proceeded to read to the jury, the definition of "manufacturing" from the North Carolina General Statutes. Next, the trial court stated the following, in pertinent part:[the fourth jury note] says, "`We need a clear definition of what manufacturing in the charge means, please? Does it all fall under one category, as a single charge?' The answer is no. 'Should we look at each word separately?' The answer is yes."
As previously stated in issue II, the language of N.C.G.S. § 90-95(a)(1) creates the following three offenses: (1) manufacture of a controlled substance, (2) transfer of a controlled substance by sale or delivery, and (3) possession with intent to manufacture, sell or deliver a controlled substance. Carr, 145 N.C. App. at 342, 549 S.E.2d at 902. Defendant argues that the trial court's disjunctive instruction led to an ambiguous verdict and that it allowed alternative bases upon which the jury could find defendant guilty under N.C.G.S. § 90-95(a)(1). Citing State v. Lyons, 330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991), defendant argues that "a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense." Therefore, defendant contends that there is no way to determine whether the jurors unanimously found that defendant possessed cocaine with intent to transfer (sell or deliver) or with intent to manufacture.
In the case before us, defendant's indictment and verdict sheet were not in the disjunctive. However, when the trial court responded to the jury's fourth question, it stated that each word, "manufacture," "sell," and "deliver," should be considered separately. When a "statute criminalizes two or more discrete and separate wrongs, we must examine the verdict, the charge, the jury instructions, and the evidence to determine whether any ambiguity as to the unanimity has been removed." State v. Petty, 132 N.C. App. 453, 461, 512 S.E.2d 428, 434 (1999) (citation omitted). In State v. Creason, the defendant was convicted of possession with intent to sell or deliver a controlled substance in violation of N.C.G.S. § 90-95(a)(1). State v. Creason, 313 N.C. 122, 326 S.E.2d 24 (1985). The defendant in Creason argued that the use of the disjunctive jury form resulted in a non-unanimous verdict, similar to the case before us. The Creason court held that "[i]t is the intent of the defendant that is the gravamen of the offense" and that "[t]he form of the verdict did not afford the jury with . . . alternative illegal acts, only one, namely, possession of LSD with the requisite intent." Id. at 129-31, 326 S.E.2d 29. Similar to the reasoning used by the Creason court, we hold that "the indictment charged only one offense and that possession with intent to place [cocaine] in commerce by transferring them was the gravamen of that offense. So long as the jury could find that the possession was with the intent to sell[,] . . . deliver[,] . . . [or manufacture the cocaine,] the crime was proved and the requirement of unanimity satisfied." State v. Hartness, 326 N.C. 561, 566, 391 S.E.2d 177, 180 (1990) (citation omitted). Defendant's argument is overruled.
V
Finally, defendant argues that the trial court erred by punishing defendant with an active sentence for trying his case rather than entering a guilty plea. Defendant asserts that because he was offered probation during a plea bargain before trial, "imposition of an active sentence after the exercise of his right to a jury trial may have been improper." We disagree.
"The extent to which a trial court imposed a sentence based upon an improper consideration is a question of law subject to de novo review." State v. Pinkerton, ___ N.C. App. ___, ___, 697 S.E.2d 1, 4, writ allowed by, 364 N.C. 331, 700 S.E.2d 230 (2010) (citation omitted).
A sentence within the statutory limit will be presumed regular and valid. However, such a presumption is not conclusive. If the record discloses that the court considered irrelevant and improper matter in determining the severity of the sentence, the presumption of regularity is overcome, and the sentence is in violation of defendant's rights. A defendant has the right to plead not guilty, and he should not and cannot be punished for exercising that right. Where it can reasonably be inferred from the language of the trial judge that the sentence was imposed at least in part because defendant did not agree to a plea offer by the state and insisted on a trial by jury, defendant's constitutional right to trial by jury has been abridged, and a new sentencing hearing must result.
State v. McFadden, 181 N.C. App. 131, 133, 638 S.E.2d 633, 634 (2007) (citations and internal quotation marks omitted).
Defendant fails to cite any evidence in the record that the trial court imposed an active sentence based upon defendant's decision to be tried by jury rather than enter a guilty plea. On the contrary, a review of the transcript reveals that defendant's counsel stated the following:
Your Honor . . . I'm asking for probation, as the last plea offer in this case, was for probation and the state was satisfied with that. The only difference it seems now, is that he has elected to go to trial, use his constitutional rights and he shouldn't be punished for that.
The trial court responded by stating that:
the fact that any plea offer has been made is irrelevant to the court. The court's not going to consider that, one way or the other, for sentencing. . . . and the court definitely, does not believe in punishing people for exercising their constitutional right to a trial. The court would never do that and does not believe that's appropriate. The court has heard the evidence, though, and has heard the testimony of [Stanley] and also, of the defendant. And based on that testimony and the history of this case and just based on all other matters proffered before the court, the court is going to sentence accordingly.
The trial court then imposed an active sentence of sixteen (16) to twenty (20) months. Because the trial court sentenced defendant within the statutory limit and because the language of the trial court is clear that the active sentence was not imposed by consideration of defendant's refusal to enter a guilty plea, defendant's argument is without merit. For the reasons stated herein, we find no error in the in judgment of the trial court.
No error.
Judges ELMORE and GEER concur.
Report per rule 30(e).