Opinion
No. COA12–995.
2013-08-6
STATE of North Carolina v. Lenise Saxon WILLIAMS, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Tenisha S. Jacobs, for the State. Daniel F. Read for defendant-appellant.
Appeal by defendant from judgments entered 30 April 2012 by Judge Anderson D. Cromer in Moore County Superior Court. Heard in the Court of Appeals 27 February 2013. Attorney General Roy Cooper, by Assistant Attorney General Tenisha S. Jacobs, for the State. Daniel F. Read for defendant-appellant.
GEER, Judge.
Defendant Lenise Saxon Williams appeals from her conviction of possession of cocaine and possession of drug paraphernalia. On appeal, defendant primarily argues that the trial court violated Rule 404(b) of the Rules of Evidence when it admitted evidence of a prior drug transaction in which defendant sold cocaine to an informant. Because the possession charge occurred when the same informant attempted to arrange another transaction with defendant under the same circumstances, the prior transaction was properly admitted to show that defendant possessed the cocaine with the intent to sell or deliver it. The evidence was, therefore, admissible under Rule 404(b).
Facts
The State's evidence tended to show the following facts. On 16 March 2010, while working as a paid informant for and under the direction of the Moore County Sheriff's Office, Rebecca Tharp called defendant and asked about purchasing from defendant seven grams of crack cocaine for $300.00. After defendant confirmed she had that amount of cocaine, they agreed to meet at Martin's Grill, a restaurant in Aberdeen, North Carolina, to conduct the sale. Eleven days previously, on 5 March 2010, defendant sold Ms. Tharp between $60.00 and $100.00 worth of cocaine after being called by Ms. Tharp in a similar manner.
After Ms. Tharp set up the deal, Detective Wes Hart of the Moore County Sheriff's Office and other officers prepared to conduct a “buy/bust” operation in which Ms. Tharp would buy cocaine from defendant and then officers of the Moore County Sheriff's Office would move in and arrest defendant. Ms. Tharp was equipped with a hidden audio recording device, and she was given $300.00 in cash.
After preparing Ms. Tharp, Detective Hart set up a surveillance position near Martin's Grill in order to monitor the transaction. While Ms. Tharp waited at the restaurant, defendant and Ms. Tharp exchanged a few phone calls in which defendant indicated she would be late. When defendant arrived at Martin's Grill, she was riding in the front passenger seat of a white Toyota with another woman driving the car. Ms. Tharp got into the back seat. After defendant told Ms. Tharp that she “didn't have but so much on her,” the driver of the car began to pull out of the parking lot.
Upon seeing the Toyota begin to leave the lot, officers immediately stopped the car. It is the policy of the Moore County Sheriff's Office not to allow vehicles involved in buy/bust operations to leave the planned site of the sale because of safety concerns for the informant and the potential that suspects will try to flee. When the officers moved in, Ms. Tharp saw defendant stuff into the front of her pants a bag of what appeared to be crack cocaine.
Officers removed defendant and the driver of the white Toyota from the car. Detective Hart interviewed Ms. Tharp and recovered from Ms. Tharp the $300.00 she had been given. Sergeant Leigh Ann Brooks of the Aberdeen Police Department asked defendant whether defendant had any illegal drugs on her, and defendant admitted she had hidden some crack cocaine in the front of her pants. Sergeant Brooks searched defendant and recovered a clear plastic bag containing a substance that chemical analysis ultimately showed to be .2 grams of cocaine base. In addition, Detective Hart seized $130 .00 in cash from defendant's right front pocket.
On 10 May 2010, defendant was indicted for possession with intent to sell or deliver (“PWISD”) cocaine, maintaining a vehicle to keep a controlled substance, and possession of drug paraphernalia. Defendant did not present evidence at trial. At the close of the State's evidence, the trial court, with the State's consent, dismissed the charge of maintaining a vehicle to keep a controlled substance.
The jury found defendant guilty of possession of drug paraphernalia and possession of cocaine, a lesser included offense of PWISD cocaine. For misdemeanor possession of drug paraphernalia, the trial court sentenced defendant to a term of 120 days imprisonment. For felony possession of cocaine, the trial court sentenced defendant to a presumptive-range term of six to eight months imprisonment, but suspended the sentence and placed defendant on 18 months of supervised probation to begin upon defendant's release from imprisonment on the possession of drug paraphernalia sentence. Defendant timely appealed to this Court.
Discussion
Defendant first argues that the trial court's admission of evidence of a prior drug sale between defendant and the informant violated Rule 404(b). Rule 404(b) provides:
Evidence 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.
(Emphasis added.) Our Supreme Court has explained that Rule 404(b) is “a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, 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).
A determination whether evidence was properly admitted under Rule 404(b) involves a three-step test. First, is the evidence relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried? Coffey, 326 N.C. at 278, 389 S.E.2d at 54. Second, is that purpose relevant to an issue material to the pending case? State v.. Anderson, 350 N.C. 152, 175, 513 S.E.2d 296, 310 (1999). Third, is the probative value of the evidence substantially outweighed by the danger of unfair prejudice? State v. Summers, 177 N.C.App. 691, 697, 629 S.E.2d 902, 907 (2006). With respect to the first two steps, “[w]e review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b).” State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012). We review the third step for abuse of discretion. Id.
“[I]ntent to sell or distribute the controlled substance” is an element of PWISD. State v. Nettles, 170 N.C.App. 100, 105, 612 S.E.2d 172, 175 (2005). In this case, the trial court admitted the evidence at issue for the purpose of showing defendant's intent to sell or deliver the cocaine found on her person on the date of the charged offense.
The State's evidence showed that 11 days prior to the charged offense, Ms. Tharp called defendant to set up a purchase of crack cocaine, and defendant arrived in a white car to meet Ms. Tharp at a predetermined location. On that occasion, defendant actually sold Ms. Tharp crack cocaine.
Given that this recent sale involved Ms. Tharp and defendant engaging in precisely the same behavior as on 16 March 2010, when the charged offense occurred, the evidence of the earlier completed sale provided evidence that when defendant met with Ms. Tharp on 16 March 2010, she had cocaine with her for the purpose of selling it. See State v. Montford, 137 N.C.App. 495, 497, 501, 529 S.E.2d 247, 249–50, 252 (2000) (holding that when defendant was charged with two counts of sale and delivery of cocaine to police informant, evidence of defendant's prior sale of same drug to same police informant was admissible under Rule 404(b) to show intent). See also State v. Morgan, 329 N.C. 654, 660–61, 406 S.E.2d 833, 836–37 (1991) (holding that evidence of four prior occasions on which defendant bought cocaine from same seller, paying in advance with delivery later, was admissible under Rule 404(b) to show intent for purposes of charge of conspiracy to possess cocaine with intent to sell or deliver). The evidence was, therefore, admissible under Rule 404(b).
Defendant does not argue that the evidence, even if relevant for a proper purpose, should have been excluded under Rule 403 of the Rules of Evidence. Accordingly, we hold that the trial court did not err in admitting the evidence.
Defendant next argues that the trial court erred in denying her motion to dismiss the PWISD charge because the State presented insufficient evidence of intent. She does not, however, argue that the trial court erred in submitting the lesser included offense of possession of cocaine. The jury convicted defendant only of the lesser charge.
“[I]t is well established in North Carolina that a conviction on a lesser offense renders any error in submission of a greater offense harmless.” State v. Williams, 100 N.C.App. 567, 573, 397 S.E.2d 364, 368 (1990). See also State v. Williams, 154 N.C.App. 176, 181, 571 S.E.2d 619, 622 (2002) (holding that “any error in submission to the jury of the greater offense was rendered harmless by the jury's verdict convicting defendant of the lesser offense”). Accordingly, even assuming, arguendo, that insufficient evidence of intent existed, the jury's verdict convicting defendant of only possession of cocaine rendered any error harmless.
No error. Judges STEELMAN and ROBERT N. HUNTER, JR., concur.
Report per Rule 30(e).