{ "id": 8520322, "name": "STATE OF NORTH CAROLINA v. RUDOLPH LEE BUNCH", "name_abbreviation": "State v. Bunch", "decision_date": "1991-09-17", "docket_number": "No. 906SC1085", "first_page": "106", "last_page": "113", "citations": [ { "type": "official", "cite": "104 N.C. App. 106" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "389 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "98 N.C. App. 68", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522639 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/98/0068-01" ] }, { "cite": "389 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "97 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521736 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/97/0472-01" ] }, { "cite": "282 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565443 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0149-01" ] }, { "cite": "311 S.E.2d 630", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "66 N.C. App. 702", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526007 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/66/0702-01" ] }, { "cite": "381 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "95 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519499 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/95/0072-01" ] }, { "cite": "203 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "829" } ], "opinion_index": 0 }, { "cite": "285 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562672 ], "year": 1974, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0167-01" ] }, { "cite": "326 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "129" }, { "page": "28", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "313 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725335 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0122-01" ] }, { "cite": "384 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "96 N.C. App. 45", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520083 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/96/0045-01" ] }, { "cite": "361 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "323", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358426 ], "year": 1987, "pin_cites": [ { "page": "382", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0380-01" ] } ], "analysis": { "cardinality": 741, "char_count": 15621, "ocr_confidence": 0.774, "pagerank": { "raw": 1.2015546934591106e-07, "percentile": 0.5938205277604988 }, "sha256": "63dffdad2e641566e1a246442952a355cccc6fa7467ac9400a2c084c6b447a1d", "simhash": "1:a16d4020041f887a", "word_count": 2667 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and Lewis concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RUDOLPH LEE BUNCH" ], "opinions": [ { "text": "COZORT, Judge.\nRudolph Lee Bunch was convicted of one count of felonious sale or delivery of cocaine and one count of felonious possession with the intent to sell a controlled substance. Defendant was sentenced to the ten-year maximum sentence on each charge to run consecutively. Defendant contests on appeal the following: (1) the trial court\u2019s denial of defendant\u2019s motion to dismiss the charges for insufficiency of the evidence; (2) the admission of a police officer\u2019s testimony concerning common practices among individuals involved in drug transactions; (3) the trial court\u2019s denial of defendant\u2019s motion for a continuance and motion for a mistrial based on comments made by the district attorney in the presence of the jury venire; and (4) the trial court\u2019s consideration of defendant\u2019s denial of guilt as a non-statutory aggravating factor in determining his sentence. We find no reversible error in the trial. We remand for resentencing.\nThe State\u2019s evidence at trial tended to show that, on the evening of 23 September 1989, Agent Scott J. Parker, an undercover agent working for the Bertie-Hertford-Northampton Tri-County Drug Task Force, went to the intersection of First and Maple Streets in Ahoskie, North Carolina. Agent Parker observed defendant Rudolph Bunch, (known as \u201cRoot Doctor\u201d), and another male, Michael Britt, as they approached passing automobiles in the area. Agent Parker watched as defendant handed small tinfoil packages to Britt, who then handed the packs to the passengers in the stopped vehicles. As Agent Parker approached the men, defendant asked, \u201chow many?\u201d to which Agent Parker replied that he \u201cwanted one.\u201d Defendant told the officer to \u201cdrop the money on the ground.\u201d Agent Parker put a twenty-dollar bill on the ground. Defendant handed one of the packets to Britt who picked up the money and then handed the pouch to Parker. Agent Parker did not see Britt give the $20.00 to defendant. The tinfoil packet contained one rock of crack cocaine. The defendant offered no evidence.\nDefendant argues that the trial court erred in denying his motion to dismiss for insufficiency of the evidence. This argument is without merit. \u201cIn ruling on a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, giving it the benefit of all reasonable inferences which can be drawn therefrom. If there is \u2018substantial evidence\u2019 of each element of the charged offense, the motion should be denied.\u201d State v. Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987) (citations omitted). First, defendant contends that the State failed to prove the charge of sale or delivery of cocaine. Defendant argues that Agent Parker never delivered any money directly to defendant, nor did the agent see Mr. Britt deliver any money to defendant. This argument fails. Defendant cites State v. Wall, 96 N.C. App. 45, 384 S.E.2d 581 (1989), to support his position. We find Wall distinguishable. In Wall, defendant was indicted for sale and delivery of cocaine to Robert McPhatter. The State\u2019s evidence tended to show that McPhatter gave $25.00 to Tabatha Riley, who actually purchased the cocaine from defendant Wall. There was no evidence defendant knew Riley was buying the cocaine for McPhatter. This Court found a fatal variance between the indictment and the evidence, because the defendant had no knowledge that the middleman was acting on behalf of the undercover police officer. The present case is distinguishable. Defendant had direct contact with Agent Parker and even spoke to him about buying a package of cocaine. Therefore, the trial court did not err in denying the motion to dismiss the sale or delivery charge.\nSecond, defendant asserts that the State failed to present evidence sufficient to sustain a conviction on the charge of possession with the intent to sell or deliver. This argument also fails. The court in State v. Creason, 313 N.C. 122, 326 S.E.2d 24 (1985), stated, \u201c[i]t is the intent of the defendant that is the gravamen of the offense\u201d of possession with the intent to sell or deliver. Id. at 129, 326 S.E.2d at 28 (emphasis in original). Therefore, the defendant need not complete the sale to be found guilty of possession with the intent to sell or deliver. In the present case, defendant\u2019s words and actions established the intent to sell, despite his not having physically received the money from the transaction. The trial court did not err in denying the defendant\u2019s motion to dismiss as to the possession charge.\nDefendant next argues that the trial court erred in admitting into evidence a police officer\u2019s testimony concerning the common practices of drug dealers. We find no error as to the admissibility of the testimony in this particular case. Evidence is admissible if it has \u201cany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (1988), and if it has probative value which outweighs any potential prejudice to the defendant. N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (1988). The test for prejudicial error is \u201cwhether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.\u201d State v. Heard, 285 N.C. 167, 172, 203 S.E.2d 826, 829 (1974). Under N.C. Gen. Stat. \u00a7 8C-1 Rule 701 (1988), opinion testimony from a lay witness is permitted when it is \u201crationally based on the perception of the witness\u201d and is helpful to the jury. As long as the lay witness has a basis of personal knowledge for his opinion, the evidence is admissible.\nAt trial, Agent Parker testified that it was common practice in drug transactions in Ahoskie for one person to hold the money and for another person to carry the drugs. The purpose for such practice was that in the event of an arrest, one individual would not have possession of both the money and the drugs. Other courts have found similar testimony as being non-prejudicial. In State v. Givens, 95 N.C. App. 72, 381 S.E.2d 869 (1989), we held that admission of testimony that scales on defendant was drug paraphernalia was not prejudicial. In State v. Hart, 66 N.C. App. 702, 311 S.E.2d 630 (1984), we found admission of testimony regarding use of quinine and manitol as common practice of drug dealers was not prejudicial. Since the evidence in this case was relevant, based on personal knowledge, and non-prejudicial, the trial judge did not err in admitting the police officer\u2019s testimony.\nDefendant further alleges that the trial court committed reversible error by denying defendant\u2019s motion for a continuance and motion for a mistrial based on comments made by the District Attorney in the presence of the jury venire. Although we find the District Attorney\u2019s speech before the jury to have been inappropriate, we find no prejudicial error. On Monday, 15 June 1990, Judge Samuel T. Currin, the presiding judge, commented in open court, out of the presence of the jurors called for jury service that week, upon what he perceived to be the disorganization and inefficient use of time in court. When court opened on Tuesday, 16 June 1990, the District Attorney responded to the remarks the judge made on Monday. The District Attorney\u2019s statements were made in open court and in the presence of the jurors called for jury service that week. The speech consisted of the following:\nYour Honor, I have several matters but the first matter for trial, I would like to say this if I may in front of the jury concerning remarks yesterday about being disorganized. This is the third straight week that I\u2019ve been in Superior Court. We only have, I have two assistants that work with me and we have three counties. Last week we had Superior Court going on in two different counties. On Memorial Day, our office worked on Memorial Day. Last weekend we worked. When we finished work last week on Thursday or Friday, we had finished court on Wednesday in Bertie County. I held court in, on Thursday, in District Court and Friday District Court and worked Saturday afternoon and Sunday afternoon getting these cases ready for court this week. We only have one person to get these cases ready for court when we do that. I\u2019d like for the jury to be aware of this, the time that we spent. I\u2019m not complaining about the time that we spent on the weekends or the night time because I enjoy my job and I, I wouldn\u2019t be doing it if I did not. I want the jury to be aware of the time that we have to get these cases ready. When you have three straight weeks of Superior Court, it\u2019s difficult to get them ready, to get them ready the way you would like to do so. We make every opportunity to do so. As far as Mr. Flower, I met with Mr. Flower Friday afternoon to go over about 12 of his cases and some of his folks that he had yesterday, it was the first time that he had an opportunity to talk with them because he had been in custody for, for the entire time. I\u2019d like for the jury to be aware of the time that we spent. Sometimes they don\u2019t know. You know, you don\u2019t do this job for perhaps the money. I do it because I, I feel like I\u2019m trying to do something good and uh, and you\u2019d like to be appreciated for the work that you do do. I wanted the jury to be aware of the time that, the time that I had spent over the past three weeks and the weekends that I give up from my family to get these cases ready for trial.\nDefendant\u2019s case was called for trial the day following the District Attorney\u2019s speech. Prior to jury selection, defense counsel moved to continue the matter alleging the prejudicial effect the District Attorney\u2019s speech had on the jurors who were in court. The motion was denied. A later motion for a mistrial based on the same grounds was also denied. We find no reversible error.\nA motion for a continuance pursuant to N.C. Gen. Stat. \u00a7 15A-952(b)(l) (Cum. Supp. 1990) is generally addressed to the sound discretion of the trial judge whose ruling is not subject to review absent a gross abuse of discretion. State v. Searles, 304 N.C. 149, 282 S.E.2d 430 (1981). A trial court\u2019s ruling on a motion for a mistrial pursuant to N.C. Gen. Stat. \u00a7 15A-1061 (1988) is also not reviewable on appeal absent the appearance of a manifest abuse of discretion. State v. Bailey, 97 N.C. App. 472, 389 S.E.2d 131 (1990). We find the defendant has failed to demonstrate an abuse of discretion. The District Attorney\u2019s speech in the present case was only tangentially related to the proceedings involving the defendant. The remarks were not made during defendant\u2019s trial nor on the same day as his trial. The record reflects that defense counsel never requested cautionary instructions, explored any potential prejudice by questioning the venire, or exhausted his challenges to the panel. Consequently, defendant cannot show any unfair prejudicial effect which would justify a. finding of abuse of discretion.\nWe hasten to add that this Court\u2019s decision should not be interpreted as approval of the District Attorney\u2019s speech. The District Attorney\u2019s speech appears to run afoul of Professional Conduct Rule 7.8(a) (1991) which states: \u201cBefore the trial of a case a lawyer connected therewith shall not communicate with or cause another to communicate with anyone he knows to be a member of the venire from which the jury will be selected for the trial of the case.\u201d The official comment following Rule 7.8(a) stresses that there should be no extrajudicial communication with veniremen prior to trial or with jurors during trial by or on behalf of a lawyer connected with the case.\nFinally, we turn to defendant\u2019s assertion that the trial court erred by imposing the maximum sentence on defendant because the defendant denied guilt. We agree, finding this case undistinguishable from State v. Williams, 98 N.C. App. 68, 389 S.E.2d 830 (1990), in which this Court held that while the admission of guilt by a defendant may be a mitigating factor, the failure to-admit guilt cannot be used as a factor in aggravation. In the present case, the judge entered the maximum sentence on each charge and stated:\nMr. Bunch, I imposed the sentence I have in this case because based on the evidence that I have heard and have seen here, just the impression that you have been a major drug dealer in Ahoskie and Ahoskie has a very major drug problem and I do not know anything else to do in your case especially even in the face of your guilt you stand up here and deny it, I . . . impose the maximum sentence that I can to teach you a lesson as well as to protect society and to protect the people of Ahoskie.\nDefendant is entitled to a new sentencing hearing.\nNo error in trial, remand for resentencing.\nJudges ORR and Lewis concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Charles J. Murray, for the State.", "Overton and Carter, by Larry S. Overton, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RUDOLPH LEE BUNCH\nNo. 906SC1085\n(Filed 17 September 1991)\n1. Narcotics \u00a7 4.2 (NCI3d)\u2014 sale or delivery of cocaine \u2014 possession with intent to sell \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to support defendant\u2019s convictions of the sale or delivery of cocaine and possession of cocaine with intent to sell or deliver where it tended to show that, when an undercover officer approached defendant and another man, defendant asked, \u201cHow Many?\u201d and the officer replied that he \u201cwanted one\u201d; defendant told the officer to drop the money on the ground, and the officer put a twenty dollar bill on the ground; defendant handed a tinfoil packet to the other man, who picked up the money and handed the tinfoil packet to the officer; and the packet contained one rock of crack cocaine.\nAm Jur 2d, Drugs, Narcotics, and Poisons \u00a7 47.\n2. Narcotics \u00a7 3.3 (NCI3d)\u2014 common practice in drug transactions \u2014testimony by police officer\nThe trial court did not err in permitting a police officer to testify that it was a common practice in drug transactions for one person to hold the money and for another person to carry the drugs so that, in the event of an arrest, one individual would not have possession of both the money and the drugs. N.C.G.S. \u00a7 8C-1, Rule 701.\nAm Jur 2d, Drugs, Narcotics, and Poisons \u00a7 46.\n3. Criminal Law \u00a7 482 (NCI4th)\u2014 remarks by district attorney\u2014 presence of jury venire \u2014 improper communication \u2014 absence of prejudice\nAlthough remarks by the district attorney concerning the workload of the district attorney\u2019s office and the necessity of weekend work in order to prepare cases for trial, made in the presence of the jury venire in response to the trial court\u2019s remarks the previous day about disorganization and inefficient use of court time, may have violated Professional Conduct Rule 7.8(a), defendant was not prejudiced by these remarks where the remarks were not made during defendant\u2019s trial or on the same day as his trial; they were only tangentially related to the proceedings involving the defendant; and defense counsel never requested cautionary instructions, explored any potential prejudice by questioning the venire, or exhausted his challenges to the panel.\nAm Jur 2d, Trial \u00a7\u00a7 499, 1478.\n4. Criminal Law \u00a7 1114 (NCI4th)\u2014 failure to admit guilt \u2014 improper aggravating factor\nThe trial court erred in aggravating defendant\u2019s sentences for narcotics offenses because defendant failed to admit guilt.\nAm Jur 2d, Criminal Law \u00a7 599; Drugs, Narcotics, and Poisons \u00a7 48.\nAPPEAL by defendant from Judgments entered 15 June 1990 by Judge Samuel T. Currin in HERTFORD County Superior Court. Heard in the Court of Appeals 22 August 1991.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Charles J. Murray, for the State.\nOverton and Carter, by Larry S. Overton, for defendant-appellant." }, "file_name": "0106-01", "first_page_order": 134, "last_page_order": 141 }