Appeal by defendant from Brannon, Judge. Judgment entered 24 April 1981 in Superior Court, Cumberland County. Heard in the Court of Appeals 2 March 1982.
Martin (Robert M.), Judge. Judges Martin (Harry C.) and Whichard concur.
Defendant alleges in her first assignment of error that the trial court erred in allowing certain testimony concerning the "acts or declarations" of an alleged co-conspirator and in her fourth assignment that the court erred in denying defendant's motion to dismiss at the close of the State's evidence. Considering these arguments together, we disagree.
According to the general rule, when the State has introduced prima facie evidence of a conspiracy, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members. State v. Conrad, 275 N.C. 342, 168 S.E.2d 39 (1969). State v. Tilley, 292 N.C. 132, 138, 232 S.E.2d 433, 438-39 (1977) explains the rule:
Before the acts or declarations of one conspirator can be considered as evidence against his co-conspirators, there must be a showing that "(1) a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) while it was active, that is, after it was formed and before it ended." State v. Lee, 277 N.C. 205, 213, 176 S.E.2d 765, 769-70 (1970); State v. Conrad, supra at 348, 168 S.E.2d at 43.
The conspiracy must be established independently of the declarations or acts sought to be admitted. State v. Wells, 219 N.C. 354, 13 S.E.2d 613 (1941); Bryce v. Butler, 70 N.C. 585 (1874). Ideally, the State should first establish a prima facie case for the existence of the conspiracy with extrinsic evidence and then tender the declarations and acts of the conspirators linking them to the criminal venture. This order of proof is not always feasible and can be altered. "Sometimes for the sake of convenience the acts or declarations of one are admitted in evidence before sufficient proof is given Page 376} of the conspiracy, the prosecutor undertaking to furnish such proof in a subsequent state of the cause." State v. Jackson, 82 N.C. 565, 568 (1880). "Because of the nature of the offense courts have recognized the inherent difficulty in proving the formation and activities of the criminal plan and have allowed wide latitude in the order in which pertinent facts are offered in evidence. '[A]nd if at the close of the evidence every constituent of the offense charged is proved the verdict rested thereon will not be disturbed. . . .' (Citations omitted.)" State v. Conrad, supra at 347, 168 S.E.2d at 43.
Applying these principles to the assignment of error raised by the defendant, we find no error in the admission of the acts and declarations of Debbie Russell. We believe the prosecution sufficiently established a prima facie case of conspiracy on the part of defendant and Debbie Russell to sell LSD by evidence other than that now challenged.
The State's witness, William A. Simons of the City-County Bureau of Narcotics, testified that pursuant to a conversation with Debbie Russell he went to a residence on 14 July 1980 where he met the defendant. While in the company of Debbie Russell, Angela Russell, and others, Simons asked defendant if she had any "acid" for sale. After defendant responded that she presently was without the drug, the witness further discussed the sale of LSD. Defendant stated she could obtain it and asked if Simons could call her the next day. Defendant gave Simons a telephone number and he was instructed to ask for Rose Russell. On 15 July 1980 Simons went to a shopping center where he placed a call from a phone booth to the number defendant had given him the previous day. He spoke to a person whose voice he recognized as defendant's. The defendant stated she would send Debbie Russell with the drug to meet Simons and Debbie Russell would be there in approximately five minutes. Simons testified further that after five minutes Debbie Russell arrived where Simons had been waiting.
Thereupon, the trial court instructed the jury on the admissibility of evidence relating to acts and declarations of co-conspirators. Based on the evidence presented at this point, it is reasonable to infer that an agreement had been entered to sell and deliver the LSD to Simons. As in State v. Cooley, 47 N.C.
App. 376, 268 S.E.2d 87, disc. rev. denied, 301 N.C. 96, 273 S.E.2d 442 (1980), the State presents a compelling case against defendant based on the close association between defendant and Debbie Russell, the fact that both were present during conversations in which a drug deal was made, and the defendant's using Debbie Russell to exchange the drugs for money.
Thus because independent evidence established a prima facie case of conspiracy, all of the evidence of Debbie Russell's actions and statements in furtherance of the conspiracy which occurred during the conspiracy were properly admitted against the defendant by the trial court. Id. Defendant concedes that if the acts and declarations of Debbie Russell were properly admitted into evidence that sufficient evidence existed to withstand defendant's motion to dismiss at the close of the State's evidence. Considering the evidence in the light most favorable to the State, the trial court properly denied defendant's motion to dismiss. Id.
The defendant in her second assignment of error argues that the trial court improperly allowed Officer Simons to testify concerning other distinct and independent offenses. Officer Simons testified that subsequent to the conversation with defendant about the purchase of LSD, defendant asked if he wanted to purchase marijuana. Furthermore, the witness stated defendant was seen holding plastic bags containing "green vegetable matter." Although Simons said he did not ...