*1 IN THE APPEALS 270 COURT OF (1989)] App. 270 N.C.
[94
“willfully
feloniously.”
may
court
refer
know” and
trial
the indictments when
explaining
to and summarize
and the
under which the defendant
against defendant
circumstances
213, 217-18,
S.E.
Leggett,
tried. State v.
287
being
832,
(1982);
Shelton,
632, 639-40,
835-36
v.
53
App.
2d
State
N.C.
684,
dismissed,
281
disc. rev. denied and appeal
S.E. 2d
690
306,
(1982);
39
Laughinghouse,
305
No error. Phillips
Judges and Cozort concur. STATE OF NORTH CAROLINA v. ALPHONZA THORPE
No. 8814SC691 (Filed 1989) 20 June § 4— for maintaining building Narcotics sale sufficiency of controlled of evidence substances — Evidence sufficient to be submitted for prosecution knowingly maintaining for used or sale of controlled substances where it tended to show that for room provided financing game marriage and was what considered a to the woman who lease, utilities, license; controlled the and the defend- liquor on premises ant was on or near room each OF THORPE
STATE v. *2 store; and agents when undercover SBI visited occasion were in the store. directions to who plaintiff gave — possession § of narcotics 2. Narcotics 4.4— constructive insufficiency of evidence jury submitted to the
Evidence was insufficient be with intent to sell and deliver in a for prosecution seller drug where there was no evidence that Dilaudid defendant, evidence that de- an no employee agent was narcotics, ever and no fendant had actual in the time evidence that defendant was the store at the sales took 4— in narcotics— aiding abetting §
3. Narcotics and sale of insufficiency of evidence
Evidence insufficient to be submitted to the was in for sale theory abetting prosecution on the aiding where defendant directed customers of Dilaudid to a dealer and remained near the sale but drug to assist him. willingness did not communicate to the dealer concurring part dissenting Judge Chief HEDRICK part. (Thomas H.j, Judge. Judg- Lee defendant from APPEAL Court, County. January 1988 in Superior ment entered DURHAM 7 December 1988. Appeals Heard Court of At- Thornburg, by Deputy H. Attorney Lacy Special General Erwin, Jr., P. State. torney General James for III, Loflin, Loflin, defendant-appellant. Thomas F. & for Loflin ORR, Judge. posses- from his convictions on two appeals Defendant Dilaudid, the controlled substance with intent to sell or deliver sion Dilaudid, and two sale of the controlled substance
two counts of used for the maintaining knowingly counts substances. or sale of controlled consisted of the evidence for the State principal under- who were involved an law enforcement
of various Room. The defend- which involved Doris’ Game investigation cover ant, no evidence. Alphonza Thorpe, presented IN THE COURT OF APPEALS The State’s evidence tended to show that on 13 March Broos, Kay L. agent an for the State Bureau of Investigation, Durham, was working undercover North Carolina with the Broos, assistance of the Durham Vice Squad. Ms. while in her undercover capacity, stopped her van when she observed defendant at the corner Corporation and Roxboro roads. A man who had been defendant approached the van. She him asked (or Dilaudid). if he knew how she could get some D’s This man Henry later identified Charles Thomas. Defendant was across the street away and some 30 feet while Ms. Broos talked to Thomas.
April 9 April are the two dates cited in the indictments defendant. On April Ms. Broos went back to the *3 aforementioned intersection where she again saw defendant. This time she was accompanied by SBI Agent Alexander and two detec- occasion, tives. On this defendant asked Ms. Broos what was going (street on. She answered that she wanted to get some “fours” Dilaudid). slang for There is a conflict at this stated, point. Ms. Broos claims defendant then “Go on inside. It’s my store. okay.” It’s Her partner day, the van that Alex- Agent ander, testified that she thought defendant said to go inside store.
The women then went inside the store and saw Henry Charles Thomas sitting at the bar. Ms. Broos recognized Thomas as being person same she had dealt with previously on 13 March 1986 approached him purchase two “fours.” Thomas stepped behind pulled bar and out a wrapper tinfoil which contained the pills. He handed Agent Broos two pills, gave and she him $100.00. De- fendant was not in the game room at the time this transaction took
Ms. Broos went back to the room day. later that same This time she went inside and spoke to Thomas again. She pur- chased another from pill Thomas. She also asked him where the owner was. He responded owner was not there.
Ms. Agent Broos and Alexander returned to Doris’ Game Room on 16 April They again saw defendant on the street corner. They they told him wanted go inside and get some “fours.” Defendant walked the two women to the front door of the game room. He did go not inside at this time. later,
A little defendant entered the game room and picked up pool stick. He asked Ms. Broos if she had her gotten “fours.” She replied that she had not because she was for him. waiting OF APPEALS He her in front instructed see Thomas who was him, the counter. When Ms. he went behind approached Broos the counter and sold her two “fours.”
After the two women left the purchasing pills, spoke to defendant who was outside. He asked again standing them if gotten had their “fours.” Broos af- Agent responded firmatively. She then told defendant that she was concerned about in the store and she did not Defend- going dealing know. her worry buy ant then told not to and that she could her pills directly from him.
Thorpe years received a total of 16 active sentence on all 90-95(a)(l) He charges. seven-year received two sentences under G.S. 1) for two counts: possession with intent to sell or deliver a con- 2) substance, addition, trolled sale of a controlled substance. two-year knowingly received a sentence for maintaining building unlawfully keeping selling controlled substances 90-108(a)(7). under G.S.
I. Defendant-appellant makes nine of error in the assignments eight questions presented. primary issue to be considered is the assignment of error whether there was sufficient questioning evidence to take these sufficiency
The standard for determining of the evidence *4 on a motion for nonsuit in a criminal trial is: action, a motion for of in
upon judgment nonsuit a criminal State, all of the evidence whether competent favorable considered, incompetent, or must be such evidence must be deemed true and in the light considered most favorable State, discrepancies the and contradictions therein are disregard- every the ed and State is entitled to inference of fact which may reasonably be therefrom. deduced 321, 326, Witherspoon, 237 S.E. 2d (1977). (Citations omitted.) taining violation of G.S. [1] The misdemeanor indictment 90-108(a)(7)(1985). for purposes selling charged This statute reads controlled substances defendant with main in part:
(a) any It shall be unlawful for person: IN THE COURT OF v. THORPE
STATE store, (7) ware- shop, or maintain knowingly keep To controlled persons using is resorted to house . . . which using Article for the in violation of this substances substances, selling keeping is used for the or which such . . . of this Article. the same violation 90408(a)(7). G.S. defend- to the evidence that according
There can be no doubt on the of Doris’ Game being premises knew were sold drugs ant Broos testified: Agent Room.
Well, myself down on the bench Alexander and sat Agent defendant, And the of minutes. couple and we were there a he towards in the front door and came over Thorpe, Mr. walked we were stick. And picked up pool and he pool table couple steps and took another there and came sitting my I fours. And it got me and asked me if and looked at him, no, I on him. waiting told [sic] there,’ said, ‘Well, to Charles pointing on over And there in front of bar Henry Thomas who was him, said, the same one over there and see and he ‘Go on before.’ over whether defendant had control The critical question or maintain” the “keep he could be considered to premises so 90-108(a)(7). evidence on The State’s required store as under G.S. State, issue, most favorable to light the control viewed nonsuit. sufficient evidence to avoid a provides Hall, testimony Avery proof through The State provided officer, while the room was game that parole probation name, provided capital had Thorpe Doris Burnette’s The inference could also be made selling business Cadillac. only in Ms. Burnette’s room was game from the license, Mr. a beer wished obtain couple name because testified that license. Ms. Hall also eligible was not for a Thorpe would work Thorpe so that clearance was obtained his assistance. as Doris wished to have room *5 most light the evidence viewing We conclude that State, this evidence to take there was sufficient favorable to the Thorpe provided presented Evidence was issue to the in what he considered room and was financing game for the OF STATE THORPE utilities, lease, the the and to the woman who controlled
marriage facts, was on In to these defendant the license. addition liquor when the room on each occasion premises near store, directions to who gave visited the and were in the store.
II. felony on two violation charged was also Thorpe 90-95(a)(l): 1) with intent to sell and deliver possession of G.S. 2) II II and of schedule schedule substances and sale for actions on and charge April substances. Each was filed the evidence was not sufficient April 1986. Defendant claims We agree. on either for either occasion. jury charge to to A. with intent to sell nar by possession We begin analyzing
[2]
cotics
9. The
April
for the events on
charge against
ever had
State concedes that there is no evidence that defendant
theory
The States relies on a
possession
actual
of the narcotics.
The State
its indictment.
possession
support
of constructive
168,
The distinctions between
bar
First,
sub
there is no evidence
the record of the case
vious.
Thomas,
seller,
employee
agent
was an
judice
drug
Further,
defendant was
of defendant.
there is no evidence that
the time the
took
the store at
sales
its constructive
The cases which the State relies on to
who
found in
theory typically concern defendants
are
in the possession
of some narcotics which are not
proximity
Brown,
person.
other
See State v.
(1983).
(1984);
Williams,
2d 585
was indicted for unlawful of LSD. State’s evidence showed that a officer observed the defendant at a drive-in police boy the group with a named Tessnear. Several times Tessnear left and went to talk to in other cars. Tessnear would then car, particular building, exchange behind a return to the and an go some left the drive-in with the de- kind would occur. Tessnear Id. fendant and his sister. time,
After some the defendant and his sister returned to the drive-in with then went the same Tessnear. Defendant behind earlier. building police officer had observed Tessnear behind objects. approached Defendant was various A officer picking up police him he had in Defendant pockets. defendant and asked what He cooperated police. at first and then ran from the was arrested days pills later. Police officers found contain- syringes several Id. ing building. LSD behind the appeal,
Defendant’s motion for nonsuit was denied. On this “beyond not the court presented Court held the evidence did take Id. conjecture.” the realm of 208 S.E. 2d at suspicion Ledford, seen in a coming going the defendant was Further, with the who made “the Ledford exchanges.” car man OF where LSD was up objects seen behind picking found; police Ledford fled the is the fact Perhaps condemning most Id. in his pockets. what he had when was asked *7 was more substan- mounted Ledford We believe case sub in the case defendant presented against tial than the facts Therefore, Ledford, of principles in accordance with judice. with in the of charge we the motion for nonsuit hold 9 should have transactions April intent to sell and deliver for granted. been identical of analysis charge
The applies same 16 April transactions. with intent to sell narcotics for 9 transactions and only April difference between the significant Game entered Doris’ 16 transactions is that defendant April However, there is still no Broos on 16. Agent April Room with time the room at the that defendant was sale of Dilaudid took substantially to those 16 similar April
The facts of the sale are to the facts 9. we this situation April Again compare Ledford. than the facts persuasive The facts in are still less question with charge The motion for nonsuit in Ledford. 16 should have deliver for the transaction April intent to sell and granted. been
B.
port
[3]
The State
its second
relies on the
charge
theory
sale and
aiding
delivery of schedule
abetting
to
sup
II
above,
defendant
no evidence that
stated
there is
substances. As
Agent
pur
when
BrOos
Room
actually
Doris’ Game
either of the dates
Thomas on
narcotics from
illegal
chased the
theory of
relies on the
again
The State
in the indictment.
cited
to the sale
to tie defendant
presence
constructive
SBI agents.
Thomas and the
between
transpired
which
transactions
527, 192 S.E.
App.
16 N.C.
Wiggins,
State v.
The State cites
69,
Torain,
(1972),
2d
200 S.E.
App.
20 N.C.
2d 680
(1974),
denied,
(1973),
2d 278
cert.
284 N.C.
665
however,
cases,
theory. These
authority
presence
for its constructive
when
and abettor
of an aider
presence
the constructive
concern
watch
standing
car or
waiting
getaway
that
is
person
that an
holds
Wiggins
committed.
being
while a crime is
a rifle
IN THE COURT OF
278
270
enough
if
close
constructively present
or abettor is
are
aider
530-31, 682-83.
Wiggins
render
S.E. 2d at
assistance.
at
In the
sub
claims
aided Thomas
judice,
case
State
April
April
9 and
illegal
in the sale of the
narcotics on both
occasion,
the SBI
to Thomas.
On each
defendant directed
guilty
aiding
has
Supreme
person
Our
stated a
deed,
“by
if
or
active
abetting
[gives]
encouragement
word
crime
conduct
it known
perpetrator
[makes]
assistance
to such
lend
perpetrator
[is]
Gaines,
necessary.” State
when and if it should become
v.
Ham,
231-32,
132 S.E. 2d
State
quoting
94, 97,
S.E. 2d
to'
question
whether or not
customers
directing
becomes
(but
it)
necessarily
near
not
remaining
a dealer and
the sale
*8
type
“encouragement”
Supreme
is the
“assistance” our
Court
of
Further,
referred to
we must examine whether the offer
in Gaines.
to
the defendant.
perpetrator
to assist was communicated
the
Gaines,
accompanied
perpetrator
In
the two
defendants
(Hill)
where
jewelry
to a
Hill stole a diamond
two
ring.
store
they
Hill
store to
going
defendants claimed
was
to the
thought
Hill
buy
jeweler
When the
Hill of
ring.
stealing
ring,
accused
held
insuffi-
and the defendants fled. Our
there was
Supreme
there
evidence
aiding
cient evidence of
and
because
was no
abetting
addition,
that either
ever had
of the
In
ring.
defendant
they
was
sort of encouragement
there
no evidence
offered
(1963).
Gaines,
260
132
485
to the
S.E. 2d
defendant.
N.C.
crime,
“The
mere
defendant at
scene of
presence
though
sympathy
even
he
in
with the
act and does
criminal
commission,
to
its
not make him
nothing
guilty
does
prevent
(Citations omitted.)
Sanders,
v.
288
the offense.”
State
denied,
v.
218 S.E. 2d
cert.
Sanders
North
Carolina,
Sanders,
did not
U.S.
defendant
dynamite
the hood
placing
assist two of his co-defendants in
under
However,
knew what
of a car.
the defendant
his co-defendants
in
doing,
stayed
gun
were
one
and held a
to the witness’s
but
car
288-89,
Id.
356.
head.
2d at
and
Court held the defendant was
Supreme
to
needed
perpetrators
available
render assistance to the
290,
had
Id. at
IN OF APPEALS THE COURT STATE THORPE to the by accompanying perpetrators willingness assist There sufficient where knew a crime would occur.
place therefore, evidence, abetting aiding charge Id. the defendant. judice, only encouragement
In the case sub evidence pur- to Thomas to was when he directed the Gaines, in convicted illegal narcotics. As stated be chase willingness perpetrator to assist the aiding abetting, 231-32, him. 132 S.E. 2d communicated to Gaines at must be We communication in the case at bar. have no evidence of such denying court motion for nonsuit
The trial erred defendant’s We II of schedule substances. sale and find assignments have reviewed defendant’s other error merit. them to be without conviction.
No error as to the misdemeanor convictions. Reversed Judge concurs. Arnold in part. Judge part concurs and dissents
Chief HEDRICK part. dissenting Judge concurring part Chief HEDRICK *9 error opinion which finds no part I concur maintaining knowingly trial for the misdemeanor of defendant’s con- unlawfully keeping selling dissent, however, opinion part I from trolled substances. evidence my opinion, defendant’s convictions. reversing the verdict to take the case to sufficient deliver with intent to sell or guilty finding I vote sale of controlled substance. substance and controlled error. to find no