264 N.C. App. 204
N.C. Ct. App.2019Background
- Undercover Detective Tyndall arranged multiple cocaine buys from James Williams at a Bojangles in Warsaw; a third buy was set for $1,200 for one ounce.
- At the meeting, Williams did not personally appear; three men in a car (including Chevallier) approached Tyndall and displayed a bag of white powder. Williams said on the phone, “them are my boys, deal with them.”
- Tyndall retrieved his scale, the bag was weighed (one ounce), he signaled officers, and a takedown prevented the exchange; the powder was later determined to be counterfeit cocaine.
- During arrest, officers observed Chevallier’s hands low; a long firearm was found on the passenger-side floor where his hand had been. Chevallier, a felon, was charged with firearm possession and several counterfeit-drug offenses.
- At trial: cocaine charges were dismissed; jury convicted Chevallier of possession of a firearm by a felon, possession with intent to sell a counterfeit controlled substance, attempted sale of a counterfeit controlled substance, and delivery of a counterfeit controlled substance. Chevallier later pled guilty to habitual felon status.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Chevallier) | Held |
|---|---|---|---|
| Admissibility of Williams’ out-of-court statement under co-conspirator exception ("them are my boys, deal with them") | Statement was admissible because State proved a prima facie conspiracy between Williams and the three men; the remark was in furtherance of the conspiracy. | Statement was inadmissible because State failed to prove an agreement/conspiracy—Williams and the men didn’t agree if the men brought counterfeit drugs. | Admission was proper; sufficient prima facie evidence of conspiracy existed and the remark aided that showing. |
| Motion to dismiss attempted sale of a counterfeit controlled substance (insufficient evidence) | Evidence (prior buys, planned meeting, handshake-to-handling of money/scale/packet, and actions in furtherance) showed intent and overt acts beyond preparation—sufficient for attempted sale. | Insufficient evidence that Chevallier acted with intent to sell or committed an overt act beyond preparation. | Denial of motion upheld; substantial evidence supported attempted sale theory. |
| Motion to dismiss delivery of a counterfeit controlled substance (insufficient evidence) | Same transactional facts supply sufficient evidence of a transfer/delivery (or attempted delivery) under acting-in-concert theory. | Insufficient proof of an actual or attempted delivery by Chevallier. | Denial of motion upheld; substantial evidence supported delivery theory. |
| Jury instruction on "actual" possession of firearm (as opposed to only constructive possession) | Evidence that Chevallier sat with his hands low where a rifle lay, officers saw the weapon immediately when opening the door, and photo corroborated location—supports actual possession instruction. | No evidence of physical custody of the gun on Chevallier’s person; only constructive-possession evidence existed, so actual-possession charge was unsupported. | Instruction upheld; evidence supported actual-possession theory and, even if erroneous, any error was harmless given strong constructive-possession proof. |
Key Cases Cited
- State v. Valentine, 357 N.C. 512 (discusses co-conspirator hearsay exception and prima facie conspiracy requirement)
- State v. Lee, 277 N.C. 205 (describes elements for admissibility of co-conspirator statements)
- State v. Barnes, 345 N.C. 184 (defines criminal conspiracy as express or implied agreement)
- State v. Morgan, 329 N.C. 654 (conspiracy completes once union of wills for unlawful purpose is formed)
- State v. Williams, 345 N.C. 137 (State need only produce evidence sufficient to permit jury to find conspiracy)
- State v. Moore, 327 N.C. 378 (sale/delivery of controlled substances: transfer is the gravamen; sale vs delivery are alternative theories)
- State v. Squires, 357 N.C. 529 (acts in furtherance like possession of drugs and scales can support attempted sale)
- State v. McNeil, 359 N.C. 800 (actual possession can be proven circumstantially)
- State v. Barts, 316 N.C. 666 (acting-in-concert doctrine: all who act together are guilty of crimes committed in furtherance)
- State v. Creason, 313 N.C. 122 (defines "sale" as transfer of property for a specified price)