{ "id": 8555766, "name": "STATE OF NORTH CAROLINA v. CHARLES FRANKLIN FORNEY", "name_abbreviation": "State v. Forney", "decision_date": "1978-11-21", "docket_number": "7826SC609", "first_page": "703", "last_page": "708", "citations": [ { "type": "official", "cite": "38 N.C. App. 703" } ], "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": "246 S.E. 2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 315", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552523 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0315-01" ] }, { "cite": "89 S.Ct. 669", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1969, "opinion_index": 0 }, { "cite": "21 L.Ed. 2d 590", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1969, "opinion_index": 0 }, { "cite": "393 U.S. 1042", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11414204, 11414340, 11414470, 11414536, 11414153, 11414602, 11414679, 11414268, 11414398 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/us/393/1042-02", "/us/393/1042-04", "/us/393/1042-06", "/us/393/1042-07", "/us/393/1042-01", "/us/393/1042-08", "/us/393/1042-09", "/us/393/1042-03", "/us/393/1042-05" ] }, { "cite": "161 S.E. 2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559459 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0106-01" ] }, { "cite": "42 A.L.R. 3d 1072", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1972, "opinion_index": 0 }, { "cite": "276 F. 2d 941", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1951741 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/f2d/276/0941-01" ] }, { "cite": "89 S.Ct. 613", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1969, "opinion_index": 0 }, { "cite": "21 L.Ed. 2d 597", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1969, "opinion_index": 0 }, { "cite": "393 U.S. 1045", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11415642, 11415540, 11415591 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/us/393/1045-03", "/us/393/1045-01", "/us/393/1045-02" ] }, { "cite": "89 S.Ct. 293", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1968, "opinion_index": 0 }, { "cite": "21 L.Ed. 2d 276", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1968, "opinion_index": 0 }, { "cite": "393 U.S. 939", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11383939, 11384042, 11383983, 11384084, 11384152 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/us/393/0939-01", "/us/393/0939-03", "/us/393/0939-02", "/us/393/0939-04", "/us/393/0939-05" ] }, { "cite": "397 F. 2d 215", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2146005 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/f2d/397/0215-01" ] }, { "cite": "308 F. 2d 26", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 201149 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/f2d/308/0026-01" ] }, { "cite": "95 S.E. 2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "245 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606795 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/245/0158-01" ] }, { "cite": "191 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8577000, 8576941, 8576974, 8577013, 8576957 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0761-04", "/nc/281/0761-01", "/nc/281/0761-03", "/nc/281/0761-05", "/nc/281/0761-02" ] }, { "cite": "186 S.E. 2d 926", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573988, 8573958, 8573928, 8573973, 8574009 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0724-04", "/nc/280/0724-02", "/nc/280/0724-01", "/nc/280/0724-03", "/nc/280/0724-05" ] }, { "cite": "185 S.E. 2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "13 N.C. App. 323", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553051 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/13/0323-01" ] }, { "cite": "207 S.E. 2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569001, 8569037, 8568885, 8568920, 8568954 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0666-04", "/nc/285/0666-05", "/nc/285/0666-01", "/nc/285/0666-02", "/nc/285/0666-03" ] }, { "cite": "205 S.E. 2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "22 N.C. App. 55", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11299168 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/22/0055-01" ] }, { "cite": "94 S.Ct. 546", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1973, "opinion_index": 0 }, { "cite": "38 L.Ed. 2d 334", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1973, "opinion_index": 0 }, { "cite": "414 U.S. 1042", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11809861, 11809578, 11809675, 11809388, 11809247, 11809939, 11809460, 11809331, 11809631, 11809524, 11810107, 11809789, 11810015 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/414/1042-10", "/us/414/1042-06", "/us/414/1042-08", "/us/414/1042-03", "/us/414/1042-01", "/us/414/1042-11", "/us/414/1042-04", "/us/414/1042-02", "/us/414/1042-07", "/us/414/1042-05", "/us/414/1042-13", "/us/414/1042-09", "/us/414/1042-12" ] }, { "cite": "196 S.E. 2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "518" } ], "opinion_index": 0 }, { "cite": "283 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559413 ], "year": 1973, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0570-01" ] }, { "cite": "167 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "275 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558608 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/275/0288-01" ] }, { "cite": "187 S.E. 2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "281 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573795 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/281/0081-01" ] }, { "cite": "81 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] } ], "analysis": { "cardinality": 587, "char_count": 11182, "ocr_confidence": 0.827, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.523083005997647 }, "sha256": "5fa29573997977a4b1d224669744794b29e45d1de5987684be10fe9db289480d", "simhash": "1:2345563f577f3552", "word_count": 1914 }, "last_updated": "2023-07-14T21:32:33.594298+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges VAUGHN and MARTIN (Robert M.) concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHARLES FRANKLIN FORNEY" ], "opinions": [ { "text": "MITCHELL, Judge.\nThe defendant first assigns as error the admission of evidence tending to show that, on the night prior to the alleged sale of heroin giving rise to the charges against the defendant, Agents Prillaman and LeFeavers had first met the defendant and been informed by him that he wished to purchase cocaine. As a general rule, evidence is not properly admitted which tends to show that the defendant has committed a criminal offense other than that for which he is being tried. State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). \u201cHowever, such evidence is competent to show \u2018the quo animo, intent, design, guilty knowledge, or scienter, or to make out the res gestae, or to exhibit a chain of circumstances in respect of the matter on trial, when such crimes are so connected with the offense charged as to throw light upon one or more of these questions.\u2019 State v. Jenerett, 281 N.C. 81, 187 S.E. 2d 735; State v. Atkinson, 275 N.C. 288, 167 S.E. 2d 241.\u201d State v. Humphrey, 283 N.C. 570, 572, 196 S.E. 2d 516, 518, cert. denied, 414 U.S. 1042, 38 L.Ed. 2d 334, 94 S.Ct. 546 (1973). The evidence of this defendant\u2019s stated desire to purchase cocaine shortly before the crimes charged was competent to show his intent, motive, and guilty knowledge. State v. Logan, 22 N.C. App. 55, 205 S.E. 2d 558, cert. denied, 285 N.C. 666, 207 S.E. 2d 752 (1974). It additionally tended to show a course of dealing by the defendant with the agents which shed light upon their transactions concerning the crime charged. If this evidence was in fact evidence of a prior criminal offense, it was, nonetheless, properly admitted.\nThe defendant next assigns as error the admission into evidence of the opinion of the State\u2019s witness as to the meaning of the word \u201ctester\u201d as used by the defendant. The defendant made a timely objection to the testimony but did not state the ground for his objection or request a finding by the trial court as to the witness\u2019 expertise. In the absence of a request for a finding by the trial court as to the qualifications of the witness as an expert, the record need not reflect that a specific finding on the subject was made. The trial court\u2019s finding that the witness is an expert is implicit in the ruling on the admissibility of the evidence. State v. Johnson, 13 N.C. App. 323, 185 S.E. 2d 423 (1971), cert. granted, 280 N.C. 724, 186 S.E. 2d 926, appeal dismissed, 281 N.C. 761, 191 S.E. 2d 364 (1972).\nFindings as to the competency of a witness to testify as an expert lie within the trial court\u2019s discretion. In the absence of a showing of abuse of discretion or insufficient evidence to support the finding, the trial court\u2019s determination is conclusive. State v. Moore, 245 N.C. 158, 95 S.E. 2d 548 (1956). The finding of the trial court was sufficiently supported by evidence, and there was no showing of an abuse of discretion. The evidence was properly admitted.\nThe defendant next contends that the trial court erred in denying his motion to dismiss on the ground that there was no evidence tending to show that he had possession of the heroin. We do not agree. Possession can be shown by the exercise of dominion and control. United States v. Jones, 308 F. 2d 26 (2nd Cir. 1962). Dominion and control can be exercised directly or through an employee or agent whom one dominates or whose actions one can control. 28 C.J.S. Drugs and Narcotics Supplement \u00a7 205, p. 303. Such domination or control over an agent having physical custody of drugs is exercised by one who is sufficiently associated with the agent to be able to easily cause him to produce the drugs for a customer. United States v. Baratta, 397 F. 2d 215 (2d Cir. 1968), cert. denied, 393 U.S. 939, 21 L.Ed. 2d 276, 89 S.Ct. 293 (1968), reh. denied, 393 U.S. 1045, 21 L.Ed. 2d 597, 89 S.Ct. 613 (1969); Cellino v. United States, 276 F. 2d 941 (9th Cir. 1960); Annot., 42 A.L.R. 3d 1072 (1972). The evidence tended to show that the defendant was able to produce the unidentified man in physical possession of the drugs on short notice at a place of the defendant\u2019s choosing. The record further reveals that the unidentified man arrived in possession of the amount of heroin desired by the agents and with apparent prior knowledge that the agents were the individuals who wished to make the purchase. He immediately entered into negotiations concerning the price of the fifteen glassine bags of heroin and made the requested sale immediately to individuals apparently previously unknown to him. This evidence was sufficient to support a conclusion by the jury that the defendant was able to easily cause the unidentified man to appear and produce heroin for customers and exercised dominion and control over the man and the drugs he physically possessed.\nThe defendant also assigns as error certain remarks made by the district attorney in his argument to the jury. At one point in the closing argument for the State, the defendant\u2019s objection to a statement that he was in the dope business was overruled. As sufficient evidence was introduced to show that the defendant was in possession of heroin with the intent to sell, the remark was supported by the evidence. The objection was properly overruled.\nThe defendant also objected to a statement by the prosecutor that the defendant ran a heroin network. The objection was sustained, and the trial court immediately instructed the jury to disregard the statement. Any error was, therefore, cured by the trial court\u2019s prompt actions.\nThe defendant additionally excepts in his case on appeal to other remarks made by the prosecutor to which no objection was made at trial. Objections to the arguments of the prosecutor must be made before the case goes to the jury in order to provide the trial court with an opporutnity to take appropriate corrective action. State v. Peele, 274 N.C. 106, 161 S.E. 2d 568 (1968), cert. denied, 393 U.S. 1042, 21 L.Ed. 2d 590, 89 S.Ct. 669 (1969).\nFurthermore, appellate courts ordinarily do not interfere with the trial court\u2019s control of jury arguments unless the impropriety of remarks by counsel is extreme and clearly calculated to prejudice the jury in its deliberations. State v. Hunt, 37 N.C. App. 315, 246 S.E. 2d 159 (1978). We have reviewed the argument of the prosecutor in its entirety, and find that it does not warrant our intervention.\nThe defendant received a fair trial free from prejudicial error, and we find\nNo error.\nJudges VAUGHN and MARTIN (Robert M.) concur.", "type": "majority", "author": "MITCHELL, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Associate Attorney Norman M. York, Jr., for the State.", "Steve Dolley, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLES FRANKLIN FORNEY\n7826SC609\n(Filed 21 November 1978)\n1. Criminal Law \u00a7 34.7\u2014 guilt of other offense \u2014 admissibility to show intent\nIn a prosecution for possession with intent to sell and sale of heroin, evidence of defendant\u2019s stated desire to purchase cocaine shortly before the crimes charged was competent to show his intent, motive and guilty knowledge, and it additionally tended to show a course of dealing by the defendant with undercover agents which shed light upon their transaction's concerning the crimes charged.\n2. Narcotics \u00a7 3.3\u2014 tester \u2014 opinion as to definition \u2014 admissibility\nIn a prosecution for possession and sale of heroin, the trial court did not err in permitting a State\u2019s witness to give an opinion as to the meaning of the word \u201ctester\u201d as used by defendant since defendant objected but made no request for a finding by the trial court as to the witness\u2019s expertise, and the trial court\u2019s finding that the witness was an expert was implicit in its ruling on the admissibility of the evidence.\n3. Narcotics \u00a7 4.3\u2014 possession of heroin \u2014actual possession by one other than defendant \u2014 control and dominion by defendant\nIn a prosecution for possession of heroin where the evidence tended to show that an unidentified black man actually had the heroin in his possession and sold it to undercover agents, the trial court did not err in denying defendant\u2019s motion to dismiss, since evidence was sufficient to permit the jury to conclude that defendant was able easily to cause the unidentified black man to ap- . pear and produce heroin for customers and that defendant exercised dominion and control over the man and the drugs he physically possessed.\n4. Criminal Law \u00a7 102.3\u2014 prosecutor\u2019s jury argument\u2014 no error\nIn a prosecution for possession and sale of heroin, the district attorney\u2019s remark in his jury argument that defendant was in the dope business was supported by the evidence; the trial court properly instructed the jury to disregard the district attorney\u2019s statement that defendant ran a heroin network; and any objections to remarks made by the prosecutor to which no objections were made at trial are not considered on appeal.\nAPPEAL by defendant from Thornburg, Judge. Judgment entered 31 January 1978 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 24 October 1978.\nThe defendant was indicted for felonious sale and delivery of the controlled substance heroin and felonious possession of the controlled substance heroin with the intent to sell and deliver. Upon his pleas of not guilty to both charges, the jury returned a verdict of not guilty on the charge of felonious sale and delivery of heroin and guilty on the charge of felonious possession of heroin with intent to sell and deliver. From judgment sentencing him to imprisonment for a term of seven years, the defendant appealed.\nThe State\u2019s evidence tended to show that on 25 May 1976, two undercover narcotics agents employed by the State Bureau of Investigation, John Prillaman and Shirley LeFeavers, met the defendant at a grocery store and told him they wanted to buy some heroin. The defendant told the agents to go to a particular service station and he would join them shortly. The agents complied with his directions and met the defendant at the service station shortly thereafter. The defendant then told the agents that he had to leave and would be back in a few minutes. While the agents were waiting for the defendant\u2019s return, a man known as Lilly approached them and asked if they had seen the defendant. Agent LeFeavers testified that on a prior occasion she had heard the defendant say that Lilly was his \u201ctester.\u201d She then testified that a \u201ctester\u201d was a person who sampled drugs for a purchaser.\nAbout fifteen minutes after the defendant left the service station, he returned in the company of a black male whose identity was unknown to the agents. The two men got out of their car and Agent Prillaman got out of his. A conversation between Prillaman and the unidentified black male as to the price of the heroin to be bought and sold ensued. The man offered to sell Prillaman \u201chalf a load\u201d or fifteen glassine bags of heroin. Prillaman agreed and the man sat down on the sidewalk and counted out fifteen glassine bags of heroin. He handed the bags of heroin to Prillaman in exchange for the agreed upon price. The bags were chemically examined and the contents were found to contain heroin.\nThe defendant did not elect to present evidence at trial.\nAttorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Associate Attorney Norman M. York, Jr., for the State.\nSteve Dolley, Jr., for defendant appellant." }, "file_name": "0703-01", "first_page_order": 731, "last_page_order": 736 }