State v. Moore

• Decision Date: 05 February 2008
• Docket Number: No. COA06-1671.,COA06-1671.
• Citation: 656 S.E.2d 287
• Parties: STATE of North Carolina v. Stanley MOORE.
• Court: North Carolina Court of Appeals

656 S.E.2d 287

STATE of North Carolina v. Stanley MOORE.

No. COA06-1671.

Court of Appeals of North Carolina.

February 5, 2008.

Appeal by defendant from judgments entered 13 April 2006 and 17 April 2006 by Judge James U. Downs in Transylvania County Superior Court. Heard in the. Court of Appeals 9 October 2007.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Barry H. Bloch, for the State.

Anne Bleyman, Chapel Hill, for defendant-appellant.

JACKSON, Judge.

Stanley Moore ("defendant") appeals from judgments entered upon jury verdicts finding him guilty of two counts of possession of cocaine with the intent to sell or deliver, one count of misdemeanor maintaining and keeping a dwelling for the keeping and selling of cocaine, and one count of sale and delivery of cocaine. For the following reasons, we hold no error in defendant's trial but remand the case for resentencing.

Detective Charles A. Hutcheson, Jr. ("Detective. Hutcheson") of the Brevard Police Department and Officer Robert Shuler ("Officer Shuler") of the. Transylvania County Sheriffs Office worked together as part of the Transylvania County Narcotics Task Force ("the Task Force"). Among other drug interdiction and investigatory tactics, members of the Task Force commonly employ the services of paid informants to purchase narcotics and identify drug dealers. Two such informants were Thomas Lamar Wynne ("Wynne") and Mary Ann Ferguson. ("Ferguson").

On 1 March 2005, Wynne and his wife met with Detective Hutcheson and Officer Shuler. Detective Hutcheson searched Wynne, Wynne's wife, and their vehicle for drugs, finding none. The officers taped a digital recording device to Wynne's chest and wired Wynne's vehicle with a transmitting device. Detective Hutcheson gave Wynne $60.00 to use for the purchase of crack cocaine. At trial, Detective Hutcheson testified that when he provided informants, such as Wynne, with currency to use in controlled purchases, he would either photocopy the currency or write down the serial numbers. After Detective Hutcheson provided Wynne with the $60.00, Wynne and his wife departed, and Detective Hutcheson and Officer Shuler observed Wynne's vehicle turn onto Loeb Drive. At trial, Wynne testified that (1) he knocked on the door of 109 Loeb Drive, where defendant's fiancée, Wanda Robinson ("Robinson"), rented a house; (2) defendant answered and told Wynne to enter; (3) Wynne stated to defendant, "[L]et me get a 60"; and (4) defendant gave Wynne three rocks in exchange for the $60.00 provided by Detective Hutcheson. Following the transaction, Wynne gave Detective Hutcheson three rocks, stating that he had purchased the crack from defendant. Detective Hutcheson again searched Wynne and Wynne's vehicle, but found no other drugs.

On 8 March 2005, Wynne and his wife again met with Detective Hutcheson, who this time was accompanied by North Carolina Alcohol Law Enforcement Officer Webb Corthell ("Officer Corthell"). Detective Hutcheson searched Wynne and his vehicle for drugs, finding none. Officer Corthell wired Wynne with a digital recording device, and Detective Hutcheson wired Wynne's vehicle with a transmitting device. Detective Hutcheson provided Wynne with another $60.00 to purchase crack cocaine, and Wynne and his wife drove to 109 Loeb Drive. When Wynne arrived, he encountered defendant working on an automobile in the driveway approximately fifty feet from the house. Wynne testified that he did not enter the house during this visit. Because it was getting dark outside, defendant asked Wynne to retrieve a flashlight, which Wynne obtained from his aunt across the street. Defendant testified, "[T]hat's the only time, I said anything to [Wynne] and other than that, I had my head in that car...." Wynne testified that after retrieving a flashlight, he told defendant that he "need[edl a little" and that he was "in a rush." Wynne further testified that he asked defendant for "a 60" and that defendant provided "three rocks" in exchange for the $60.00. Defendant denied hearing Wynne ask for drugs. After the transaction, Wynne gave Detective Hutcheson three rocks. Detective Hutcheson again searched Wynne and Wynne's vehicle, but found no other drugs.

On 19 March 2005, defendant was arrested. The police never executed a search warrant on 109 Loeb Drive to determine if defendant possessed the currency provided to Wynne by Detective Hutcheson, and Detective Hutcheson acknowledged at trial that the specific dollar bills provided to Wynne were not recovered. On 22 March 2005, defendant posted bond and was released from pre-trial custody.

Meanwhile, Ferguson informed Detective Hutcheson that she likely could purchase drugs from defendant as well as individuals at the residence of Kenny Townsend ("Townsend") on Silversteen Road. On 14 June 2005, Ferguson met with Officer Shuler and Detective Tony Owen ("Detective Owen") of the Brevard Police Department. Detective Owen searched Ferguson for drugs, finding none, and Officer Shuler wired her with a digital recording device. Detective Owen provided Ferguson with $40.00 with which to purchase crack cocaine. Detective Owen and Officer Shuler then drove Ferguson to a restaurant within approximately 250 yards of Townsend's residence and watched as she walked toward Silversteen Road. When Ferguson knocked on the downstairs door of Townsend's residence, defendant answered. Ferguson was not expecting to see defendant there. Ferguson testified,

I said is Kenny [Townsend] around and he [defendant] said no, what you need, something to that effect. And I says anything going on, and he said what you want? And I said I got 40. And he said ... step inside [and] ... close the door. When I closed the door it became very dark in that room, but I watched him walk back to the back left corner of that room, messed around there a little bit, he came back up to me, and there was a table right beside the door.

He was at the table a minute, and I went to offer him the $40, and he just kind of stepped back. And I said oh, you want me to lay it down. I thought maybe he just, you know, felt a little weird about taking the money. When I laid it down, I cracked the door open, there were two rocks of crack cocaine laying on the table. They hadn't been there before. He brought them up and laid them down there.

I picked up the crack and I said thanks, and he picked up ... the money.

Defendant denied selling crack cocaine to Ferguson and testified that he was at Townsend's residence to borrow tools. After the transaction, Ferguson gave the crack cocaine to Detective Owen, and the officers searched Ferguson for other drugs, finding none.

On 7 February 2006, defendant was indicted for two counts of possessing cocaine with the intent to sell or deliver, one count of possessing a Schedule II controlled substance with the intent to sell or deliver, one count of maintaining a place to keep controlled substances, and two counts of selling or delivering a Schedule II controlled substance. On 13 April 2006, a jury found defendant (1) not guilty of one count of selling or delivering a Schedule II controlled substance, (2) not guilty of one count of possessing cocaine with the intent to sell or deliver, and (3) guilty of all remaining charges. After making findings on aggravating and mitigating factors, the trial court sentenced defendant as a prior record level III offender to the following consecutive terms of imprisonment: (1) two terms of twelve to fifteen months; (2) one term of twenty to twenty-four months; and (3) one term of 120 days. Defendant gave timely notice of appeal.

On appeal, defendant first argues that the trial court erred in denying his motions to dismiss on the grounds of improper delegation of authority and outrageous government conduct. Specifically, defendant contends that the Task Force's practice of paying informants, such as Wynne and Ferguson, for each controlled purchase of drugs constituted an improper delegation of law enforcement duties and "the very sort of unfair, improper, extreme, unjustifiable or outrageous government conduct the courts must protect its citizens against." We disagree.

It is well-established that

[t]he 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 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). "The trial court's conclusions of law, however, are reviewable de novo." State v. Hyatt, 355 N.C. 642, 653, 566 S.E.2d 61, 69 (2002), cert. denied, 537 U.S. 1133, 123 S.Ct. 916, 154. L.Ed.2d 823 (2003).

Preliminarily, we note that defendant's arguments with respect to both delegation of law enforcement authority and outrageous government conduct are constitutional issues. See, e.g., Yakus v. United States, 321 U.S. 414, 424, 64 S.Ct. 660, 88 L.Ed. 834, 848 (1944) (indicating that delegation of governmental power to private individuals may violate due process); United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989) (describing the outrageous government conduct defense in terms of due process). Defendant, however, made no constitutional argument at trial and, therefore, failed to preserve such an argument for appellate review. See State v. Roache, 358 N.C. 243, 291, 595 S.E.2d 381, 412 (2004).

Additionally, defendant argues in his brief, quoting Velarde-Villarreal v. United States, 354...