State v. Jordan, No. COA08-637 (N.C. App. 4/7/2009)
| Decision Date | 07 April 2009 |
| Docket Number | No. COA08-637,COA08-637 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. TRINI DUWAN JORDAN. |
William B. Gibson for Defendant.
On 16 July 2007, Defendant was indicted on one count (06 CRS 86872) of possession with intent to sell/deliver cocaine, two counts (06 CRS 86874) of trafficking cocaine (one by possession and one by transportation), one count (06 CRS 86874) of conspiring to traffic cocaine, and one count (06 CRS 86877) of knowingly and intentionally maintaining a dwelling used for keeping and selling cocaine. The case came on for trial on 26 March 2008 in Guilford County Superior Court. On 28 March 2008, the jury returned guilty verdicts on all charges. The trial court consolidated the three trafficking counts for sentencing purposes and imposed a prison term of 35 to 42 months. The trial court also consolidated the remaining charges and imposed a consecutive prison term of 10 to 12 months. The trial court suspended the second sentence and placed Defendant on intensive probation upon his release from prison. Defendant promptly gave oral notice of appeal in open court.
On 26 July 2006, Defendant called Charles Vernon Herbert ("Herbert") and asked Herbert to bring him an ounce of cocaine. Herbert agreed to meet Defendant at Jake's Diner in Greensboro to drop off the cocaine. Defendant was to pay Herbert for the cocaine at a later date.
Also on 26 July 2006, officers from the Greensboro Police Department's tactical special enforcement team were involved in an investigation of Defendant. Officer Mark Smith saw Defendant emerge from the building at 5223 Fox Hunt Drive and get into a Dodge pickup truck. Smith followed Defendant for a short while before losing him. Smith located Defendant's truck approximately five to seven minutes later in the rear parking lot of Jake's Diner.
Herbert testified that he arrived at the parking lot before Defendant, and that Defendant parked a few spaces away from Herbert's Chevrolet Tahoe. After talking to Herbert on the cell phone, Defendant pulled over next to Herbert and Herbert handed Defendant a small bag of cocaine. Herbert testified that Defendant said he "had to take his stuff to somebody else and that he would bring my money back."
Officer Scott Atkins testified that he arrived in the vicinity of Jake's Diner and positioned himself with a view of Defendant's truck. After a few minutes, Atkins saw Herbert's Tahoe pull into the lot and park a few spaces away from Defendant's truck. He then saw Defendant move his truck directly next to the Tahoe, get out of his truck, approach the driver's side of the Tahoe, talk for a brief period with Herbert, and take something from Herbert that was "small enough it could fit in your hand[.]" Atkins did not see Defendant put the item in his pocket and testified that as far as he saw, Defendant "had it in his hand the entire time that he went and got into his vehicle." Atkins could not see what Defendant did with the item after Defendant got into his truck. Neither Atkins nor another officer present, Corporal John W. Ryan, saw Defendant throw anything out the window.
Once Atkins saw Defendant get into his truck and start to back up, Atkins radioed the surveillance teams involved in the investigation, directing them to arrest Defendant. Other police vehicles arrived in the parking lot and blocked in both Defendant's and Herbert's vehicles. When Atkins approached Defendant's truck, he observed that the driver's side window was down. Officers searched Defendant but discovered no contraband on him. In searching the area surrounding Defendant's truck, officers found a plastic bag containing an ounce of cocaine on the asphalt about six or seven feet away from the driver's side door and four or five feet away from the front tire. Ryan testified that the bag of cocaine was located directly adjacent to where the driver's window would have been before the truck started to back up. Defendant and Herbert were taken to a nearby police station. Officers obtained a search warrant for the Fox Hunt apartment which Defendant had been seen leaving earlier in the evening. The officers went to the apartment to execute the search warrant and, after knocking and receiving no response, forcibly entered the apartment. Inside they observed a male, Matthew Coln, coming out of the bathroom and a female, Angela Dougherty, sitting in the left back bedroom. Also in the bedroom they found two digital scales, a large plastic bag containing smaller plastic bags, and some marijuana. Additionally, officers found a credit card approval notice addressed to Defendant at "5223 Fox Hunt Dr. Apt B, Greensboro, NC 27407-6356" and two documents from the District Court Division for Randolph County regarding child support orders addressed to Defendant at "1104 Satin Wood Dr., Greensboro, NC 27410-4165."
In the kitchen area hidden in a pantry closet, officers found two bottles containing Inositol, "a common cutting agent for cocaine." They also found "seven individually portioned packages of white powder that were consistent in color and size to the cocaine" and a .22 caliber pistol which belonged to Coln. The white powder was later determined to be a "mix of cocaine base and cocaine hydrochloride."
On appeal, Defendant argues that the trial court erred in denying his motion to dismiss the charges of (A) trafficking cocaine by transportation, (B) knowingly and intentionally maintaining a dwelling used for the keeping and selling of cocaine, and (C) possession with intent to sell or deliver cocaine, as there was insufficient evidence of all of the elements of each of those charges.
The standard for ruling on a motion to dismiss is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion. In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal. State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005) (internal quotation marks and citations omitted). We address each charge in turn.
By Defendant's first assignment of error, he argues that the trial court erred in denying his motion to dismiss the charge of trafficking cocaine by transportation as the State offered insufficient evidence to show that Defendant "transported" cocaine. Specifically, Defendant challenges the sufficiency of the evidence to establish substantial movement of the cocaine from one place to another. We disagree.
In order to sustain a conviction of trafficking a controlled substance by transportation, the State must prove that the defendant (1) knowingly (2) transported a given controlled substance, and that (3) the amount transported was greater than the statutory threshold amount. N.C. Gen. Stat. § 90-95(h)(3) (2007); State v. Shelman, 159 N.C. App. 300, 307, 584 S.E.2d 88, 94, disc. review denied, 357 N.C. 581, 589 S.E.2d 363 (2003).1 "A conviction for trafficking in cocaine by transportation requires that the State show a substantial movement."State v. Wilder, 124 N.C. App. 136, 140, 476 S.E.2d 394, 397 (1996) (quotation marks and citations omitted). Transportation is shown by evidence of carrying or movement of narcotics "from one place to another." State v. Outlaw, 96 N.C. App. 192, 197, 385 S.E.2d 165, 168 (1989) (quotation marks and citation omitted), disc. review denied, 326 N.C. 266, 389 S.E.2d 118 (1990). "Our courts have determined that even a very slight movement may be `real' or `substantial' enough to constitute `transportation' depending upon the purpose of the movement and the characteristics of the areas from which and to which the contraband is moved." State v. McRae, 110 N.C. App. 643, 646, 430 S.E.2d 434, 436, disc. review denied, 334 N.C. 625, 435 S.E.2d 347 (1993). "A determination of whether there has been `substantial movement' involves consideration of `all the circumstances surrounding the movement . . . .'" State v. Manning, 139 N.C. App. 454, 468, 534 S.E.2d 219, 228 (quoting State v. Greenidge, 102 N.C. App. 447, 451, 402 S.E.2d 639, 641 (1991)), disc. review denied and appeal dismissed, 353 N.C. 273, 546 S.E.2d 385 (2000), aff'd per curiam, 353 N.C. 449, 545 S.E.2d 211 (2001). Here, the State presented the following evidence to show that Defendant transported the cocaine: (1) Herbert gave Defendant about an ounce of cocaine contained in a bag; (2) Defendant carried the bag of cocaine from Herbert's Tahoe to his own truck; (3) Defendant got in his truck and began to back out of his parking space when the police blocked his path; (4) when the police got to Defendant's truck, Defendant's window was rolled down and the cocaine was found on the ground next to the driver's side of the truck near the front tire; and (5) the amount of cocaine found near Defendant's truck was approximately one ounce.
Considered in the light most favorable to the State, this evidence is sufficient to show that Defendant personally transported the cocaine from Herbert's Tahoe to his own truck. Furthermore, this evidence supports a reasonable inference that Defendant transported the cocaine by backing up his truck...
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