State v. Luke ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-966
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 11 CRS 207253
JEREMIAH LAMONT LUKE
Appeal by defendant from judgment entered 20 December 2012
by Judge Eric L. Levinson in Mecklenburg County Superior Court.
Heard in the Court of Appeals 31 March 2014.
Roy Cooper, Attorney General, by Scott T. Slusser, Special
Deputy Attorney General, for the State.
Anne Bleyman for defendant-appellant.
DAVIS, Judge.
Defendant Jeremiah Lamont Luke (“Defendant”) appeals his
conviction for attempted trafficking in at least 400 grams of
cocaine by possession. On appeal, he contends that the trial
court erred by (1) denying his motion to dismiss the charge for
insufficient evidence; and (2) failing to instruct the jury on
abandonment. Defendant gave notice of appeal in open court.
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After careful review, we conclude that Defendant received a fair
trial free from error.
Factual Background
The State’s evidence tended to show the following: On 11
February 2011, Charlotte-Mecklenburg Police Officer Gresham
Wilhelm (“Officer Wilhelm”) and Detective Rolando Ortiz
(“Detective Ortiz”) led an undercover narcotics operation known
as a “reversal,” in which Detective Ortiz offered to sell
Defendant one kilogram, or “ki[,]” of cocaine for $32,000.
Through an intermediary, Terry Harrell (“Harrell”), Detective
Ortiz arranged to meet Defendant in the parking lot of a Target
department store on Albemarle Road in Charlotte, North Carolina.
They were then to proceed to Detective Ortiz’s residence to
weigh and test the cocaine and to count the purchase money.
Officer Wilhelm and his partner stationed their patrol car
on Albemarle Road approximately one block away from the Target
parking lot. Surveillance officers observed a suspect arrive in
the parking lot in a Chevrolet Tahoe that was registered in
Defendant’s name.
After “[a] phone call was placed[,]” Detective Ortiz drove
into the parking lot and parked his vehicle beside the Tahoe.
Defendant was driving the Tahoe, and Harrell was in the front
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passenger’s seat. Detective Ortiz greeted Defendant, sat down
in the Tahoe’s back seat, and asked him: “Have you got the
stuff?” Defendant reached behind the seat and produced “a white
bag with a large amount of currency in it[.]” Detective Ortiz
indicated his approval, closed the bag, and told Defendant:
“Follow me.” He then returned to his own vehicle and exited the
parking lot onto Albemarle Road, followed by Defendant.
Officer Wilhelm observed “Detective Ortiz’s truck pass
[his] location and saw . . . [D]efendant’s black Chevy Tahoe
following him outbound [on] Albemarle Road past [his] location.”
While maintaining visual contact with the two vehicles, Wilhelm
pursued Defendant through traffic for approximately three
quarters of a mile. When Wilhelm’s marked patrol car was
situated directly behind Defendant’s Tahoe at a stop light,
Detective Ortiz turned left off of Albemarle Road. Defendant
proceeded straight on Albemarle Road and was stopped by Officer
Wilhelm “almost immediately.” A search of Defendant’s vehicle
yielded “several cell phones” and “a white JanSport book bag . .
. in the back right passenger’s seat that was unzipped and had a
large sum of U.S. currency” totaling $31,700 inside.
Defendant was questioned at the Department’s Hickory Grove
Division by Detective Jimmy Neil Messer (“Detective Messer”).
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After initially claiming that he had gone to the Target parking
lot to purchase four pounds of marijuana for $32,000, Defendant
“changed his story” and admitted “that he was there to purchase
a kilo of cocaine.” Defendant also told Detective Messer that
he had planned to divide the cocaine into 3.7-gram increments
called “eight-balls”1 and sell them. A recording of Detective
Messer’s interview of Defendant was played to the jury.
Analysis
I. Denial of Motion to Dismiss
Defendant first challenges the trial court’s denial of his
motion to dismiss the charge due to a lack of sufficient
evidence. We review the court’s ruling de novo. State v.
Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).
[T]he trial court must determine whether
substantial evidence has been presented in
support of each element of the charged
offense. The evidence is to be considered
in the light most favorable to the State,
giving the State the benefit of every
reasonable inference to be drawn from that
evidence.
State v. Nabors, 365 N.C. 306, 312, 718 S.E.2d 623, 626 (2011)
(citations and internal quotation marks omitted). “The trial
court must also resolve any contradictions in the evidence in
1
Detective Messer explained that “an eight-ball of cocaine is
known to be 3.7 grams[.]”
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the State’s favor.” State v. Parker, 354 N.C. 268, 278, 553
S.E.2d 885, 894 (2001), cert. denied, 535 U.S. 1114, 153 L.Ed.2d
162 (2002).
The elements of trafficking in 400 grams or more of cocaine
by possession are (1) knowing possession of cocaine (2) that
weighs at least 400 grams. See N.C. Gen. Stat. § 90-95(h)(3)(c)
(2013); State v. White, 104 N.C. App. 165, 168, 408 S.E.2d 871,
873 (1991). “‘The elements of an attempt to commit any crime
are: (1) an intent to commit the substantive offense, and (2)
an overt act done for that purpose which goes beyond mere
preparation, but (3) falls short of the completed offense.’”
State v. Gartlan, 132 N.C. App. 272, 274-75, 512 S.E.2d 74, 76-
77 (quoting State v. Miller, 344 N.C. 658, 667, 477 S.E.2d 915,
921 (1996)), appeal dismissed and disc. review denied, 350 N.C.
597, 537 S.E.2d 485 (1999).
Defendant first claims an absence of evidence that he
intended to possess cocaine. He points to his statement to
Detective Messer that he was meeting Detective Ortiz in order to
purchase four pounds of marijuana. Though Defendant later
acknowledged that he planned to purchase a kilogram or “ki” from
Ortiz, he notes that neither he nor Detective Messer ever
mentioned “cocaine” during their interview. Defendant suggests
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that the term “ki” could just as easily have referred to a
kilogram of marijuana.
We are not persuaded by Defendant’s argument. Both Officer
Wilhelm and Detective Ortiz testified that the arrangement
between Defendant and Detective Ortiz was the purchase of a
kilogram of cocaine for $32,000. The State adduced evidence
that $32,000 was a “legit[imate] price” for this quantity of
cocaine but far above the going rate for four pounds of even the
most “exotic” marijuana. Detective Messer further testified
that Defendant’s use of the term “eight-ball” denoted “3.7 grams
of cocaine” in the drug trade and was not “used to refer to
marijuana[.]” Although Defendant cites in his brief to case law
from another jurisdiction suggesting that “eight-ball” could
signify either cocaine or marijuana, the jury was free to credit
the testimony of Charlotte-Mecklenburg police officers familiar
with the local jargon. Inasmuch as “[i]ntent must normally be
proved by circumstantial evidence,” State v. Barlowe, 337 N.C.
371, 379, 446 S.E.2d 352, 357 (1994), we find the State’s
evidence supported a reasonable inference that Defendant
intended to possess cocaine when he met Detective Ortiz.
Defendant also challenges the evidence that he committed an
“overt act” in furtherance of his intended possession of
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cocaine, as required to establish an attempt. Miller, 344 N.C.
at 667, 477 S.E.2d at 921. “An overt act for an attempt crime .
. . must reach far enough towards the accomplishment of the
desired result to amount to the commencement of the
consummation. It must not be merely preparatory.” Gartlan, 132
N.C. App. at 275, 512 S.E.2d at 77 (citation omitted). “In
other words, while it need not be the last proximate act to the
consummation of the offense attempted to be perpetrated, it must
approach sufficiently near to it to stand either as the first or
some subsequent step in the direct movement towards the
commission of the offense after the preparations are made.”
State v. Addor, 183 N.C. 735, 736, 110 S.E. 650, 651 (1922)
(citation and quotation marks omitted).
We conclude the State offered substantial evidence of an
overt act by Defendant sufficient to constitute an attempt to
possess a kilogram of cocaine. Even assuming arguendo that
Defendant’s arrangement of the transaction through Harrell may
be fairly described as merely preparatory, Defendant’s
subsequent conduct of meeting Detective Ortiz – a stranger – at
the appointed place, presenting the $31,700 in purchase money,
letting Ortiz into his vehicle, and then following him toward
the agreed-upon exchange site represented at least the “first .
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. . step in the direct movement towards the commission of the
offense after the preparations [we]re made.” Id. Accordingly,
we hold the trial court properly denied Defendant’s motion to
dismiss.
II. Refusal to Give Jury Instruction on Abandonment
Defendant next claims the trial court erred in denying his
request for a jury instruction on the doctrine of abandonment.2
We disagree. In Miller, our Supreme Court made clear that a
defendant has no right to an abandonment defense once he has
completed, with the requisite intent, an overt act in
furtherance of a crime. Gartlan, 132 N.C. App. at 275, 512
S.E.2d at 77 (“‘[O]nce a defendant engages in an overt act, the
[attempt] offense is complete, and it is too late for the
defendant to change his mind.’” (quoting Miller, 344 N.C. at
669, 477 S.E.2d at 922)).
In light of our conclusion — as discussed above — that
Defendant committed an overt act toward trafficking in cocaine
by possession, we further conclude he was not entitled to an
abandonment instruction. While Defendant notes that he ceased
following Detective Ortiz’s vehicle when Officer Wilhelm’s
2
By requesting the instruction and obtaining an unfavorable
ruling at the charge conference, Defendant properly preserved
this issue for our review. Roberts v. Young, 120 N.C. App. 720,
726, 464 S.E.2d 78, 83 (1995) (citing N.C.R. App. P.10(b)(2)).
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patrol car appeared behind his Tahoe, this action came “too
late” to constitute an abandonment of his offense. Miller, 344
N.C. at 669, 477 S.E.2d at 922.
Conclusion
For the reasons stated above, we conclude that Defendant
received a fair trial free from error.
NO ERROR.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).