                             NO. COA13-635

                     NORTH CAROLINA COURT OF APPEALS

                         Filed: 21 January 2014


STATE OF NORTH CAROLINA

     v.                               Rowan County
                                      Nos. 11 CRS 52332, 12 CRS 4115
NAMATH PHILIP BEAM



     Appeal by Defendant from judgment entered 28 September 2012

by Judge W. David Lee in Superior Court, Rowan County.    Heard in

the Court of Appeals 10 December 2013.


     Attorney General Roy Cooper, by Associate Attorney General
     Laura Askins, for the State.

     Appellate Defender Staples Hughes, by Assistant Appellate
     Defender Katherine Jane Allen, for Defendant.


     McGEE, Judge.


     A jury found Nathan Philip Beam (“Defendant”) guilty on 28

September 2012 of possession of heroin and trafficking in opium or

heroin by transportation.     The actions leading to Defendant’s

convictions began on 13 April 2011, when the Rowan County Sheriff’s

Department and other law enforcement agencies entered the home of

Joshua Sprinkle (“Sprinkle”) pursuant to a search warrant obtained

on information that Sprinkle had been dealing illegal narcotics

from his residence.    In an effort to improve his legal position,
                                          -2-
Sprinkle agreed to cooperate with authorities by disclosing his

heroin source, and by agreeing to set up a delivery with that

source.       Sprinkle told officers that he had been obtaining heroin

from a “Mexican” named “Daniel” who was always driven to Sprinkle’s

house by the same white man.

      At trial, Sprinkle identified “Daniel” from a photograph as

Daniel Ponce (“Ponce”).          Sprinkle also identified Defendant as the

man     who    always    drove    Ponce     to   Sprinkle’s   house   for     the

transactions. Sprinkle called Ponce on 13 April 2011, and arranged

for a delivery of heroin.            Later that day, a truck, driven by

Defendant and containing Ponce as a passenger, backed into the

driveway to Sprinkle’s house.             Officers approached the truck, and

Ponce, sitting in the passenger seat, dropped two bags that he had

in his hands onto the floorboard of the truck.             The bags were later

determined to contain heroin, and a total of 20.2 grams of heroin

were recovered from the truck Defendant was driving on 13 April

2011.

      Defendant was arrested and charged with multiple drug-related

offenses.      The jury found Defendant guilty of possession of heroin

and   trafficking       in   opium   or   heroin   by   transportation   on    28

September 2012.         Defendant was sentenced to an active sentence of

90-117 months.       Defendant appeals.

                                          I.
                                         -3-
      In Defendant’s first argument he contends that the trial court

erred in denying one of Defendant’s requested instructions to the

jury.      We disagree.

      Specifically, Defendant argues the trial court should have

instructed the jury in accordance with a footnote in the pattern

jury instructions that, in order to convict Defendant, the State

had   to    prove     that   Defendant    “knew    what    he     transported   was

[heroin].”       In    State   v.   Coleman,      this    Court    addressed    that

footnote:

             Footnote 4 of pattern instructions – criminal
             260.17 and 260.30 advises the trial judge to
             further instruct the jury where defendant
             contends he did not know the identity of the
             substance. Footnote 4 of pattern instruction
             – criminal 260.17 reads, as follows: “If the
             defendant contends that he did not know the
             true identity of what he possessed, add this
             language to the first sentence: ‘and the
             defendant knew that what he possessed was
             [heroin].’”      N.C.P.I.—Crim.   260.17   n.4
             (emphasis added).    Therefore, if given as
             proposed by defendant, the first sentence of
             pattern instruction-Crim. 260.17 would read as
             follows: “First, that defendant knowingly
             possessed heroin and defendant knew that what
             he possessed was heroin.”       N.C.P.I.—Crim.
             260.17 n.4.

State v. Coleman, __ N.C. App. __, __, 742 S.E.2d 346, 349 (2013).

In Coleman, the “defendant’s sole              defense to the charges of

trafficking in heroin by possession and by transportation was that

he did not know the box in his possession contained heroin.”                     Id.

at __, 742 S.E.2d at 350.           Recorded statements of the defendant
                                         -4-
were played at the trial in Coleman, where the defendant stated

multiple times “that when he was in possession of the box, he

believed that it contained only marijuana and cocaine[,]” and not

heroin.    Id. at __, 742 S.E.2d at 349.              Because the defendant’s

sole defense was that he believed the box he was carrying only

contained marijuana and cocaine, and that he did not know it also

contained heroin, this Court held that the trial court erred in

failing    to   give   the    additional       instruction       concerning     the

defendant’s knowledge of the type of contraband he was carrying.

Id. at __, 742 S.E.2d at 352.

     The   present     case   is    distinguishable      from    Coleman.       The

additional instruction in Coleman was clearly required so that the

jury would not mistakenly convict the defendant of knowingly

possessing heroin if they believed his defense that he only knew

about the marijuana and cocaine, and had no knowledge that heroin

was contained in the box as well.1 In the case before us, Defendant

presented no evidence or argument that he was confused as to the

correct    identity     of    the    illegal    drugs    carried        by   Ponce.

Defendant’s argument at trial was that he was just driving Ponce,

and had no knowledge that Ponce was carrying any illegal drugs

whatsoever.      Concerning        the   possession    charge,    the    jury   was


1 It is unclear in Coleman whether there was any cocaine in the
box, or if the defendant was arguing that he believed one of the
substances was cocaine when in fact it was heroin.
                                       -5-
instructed that the State had to prove beyond a reasonable doubt

that Defendant,

            acting either by himself or acting together
            with another person or persons, knowingly
            possessed opium, including heroin or any
            mixture containing opium or heroin, and that
            the amount which he possessed was 14 grams or
            more or less than 28 grams, it would be your
            duty to return a verdict of guilty. If you do
            not so find or have a reasonable doubt as to
            one or more of these things, it would be your
            duty to return a verdict of not guilty.

Similarly, the instruction of trafficking required the jury to

determine   beyond     a    reasonable   doubt   that   Defendant      knowingly

transported heroin, or some other form of opium.              The jury clearly

did not believe Defendant’s argument that he did not know Ponce

was carrying heroin.            Because Defendant did not present any

evidence that he was confused or mistaken about the nature of the

illegal drug Ponce was carrying, we hold that the additional

instruction Defendant requested was not required.              The trial court

did not err in denying Defendant’s requested instruction.

                                       II.

       In Defendant’s second argument, he contends the trial court

committed   plain     error    in   allowing   irrelevant     and    prejudicial

testimony at trial.         We disagree.

       Sprinkle testified that Defendant drove Ponce to Sprinkle’s

residence on twenty to twenty-five occasions in the month and a

half   leading   up    to     Defendant’s    arrest,    and   that    Ponce   was
                                -6-
delivering heroin on each of those occasions.         The following

colloquy occurred between the State and Sprinkle:

          Q. I believe it was your prior testimony that
          every time [Ponce] came to your house,
          somebody else was driving.

          A. Yes, sir.

          Q. Who was driving on the other occasions that
          Mr. Ponce came to your house?

          A. On every occasion?        On   every   single
          occasion he come up?

          Q. Yes.

          A. Mr. Namath Beam [Defendant].

          Q. Okay.     On the other occasions when
          [Defendant] would drive, how would he pull
          into the driveway there?

          A. He would pull past the driveway and then
          back up.

          Q. And was this on every occasion including
          the ones where you actually conducted the
          transaction in the driveway?

          A. Yes, sir, it is.

The trial court instructed the jury that it should limit its

consideration of this testimony to issues concerning Defendant’s

“motive, opportunity, and plan or . . . lack of mistake with regard

to the crimes charged in this case.”

     Later in the trial, Chief Deputy David C. Ramsey (“Chief

Deputy Ramsey”) of the Rowan County Sheriff’s Office testified

that “Sprinkle said that his dealings were directly with [Ponce]
                                -7-
but that the white guy had been in the vehicle and the deal was

done in his presence.”   Defendant did not object to this testimony

at trial, but argues on appeal that “it was plain error for the

trial court not to strike from the record the above testimony and

provide a curative instruction[.]”    Following the close of all the

evidence, the trial court instructed the jury, including giving

the following instruction:

          As I indicated to you earlier, ladies and
          gentlemen, at the time the evidence was
          received tending to show that on earlier
          occasions the defendant drove a vehicle
          occupied by another passenger to the residence
          of the witness, Joshua Sprinkle, and that on
          those occasions the passenger exchanged
          controlled substances with the witness for
          cash money, you recall my earlier instruction
          that that evidence was received solely for the
          purpose of showing that the defendant had a
          motive for the commission of the crimes
          charged in this case, that there existed in
          the mind of the defendant a plan, scheme,
          system, or design involving the crimes charged
          in this case, that the defendant had the
          opportunity to commit the crimes, and the
          absence of mistake with respect to the
          commission of the crimes charged in this case.
          As I previously instructed you, if you believe
          this evidence, you may consider it, but only
          for the limited purposes for which it was
          received.   You may not consider it for any
          other purpose.

     Assuming, arguendo, that it was improper for Chief Deputy

Ramsey to give the above testimony, when considered in light of

the limiting instruction and the other evidence presented at trial,
                                 -8-
we hold any error did not rise to the level of plain error.    This

argument is without merit.

                                 III.

    In Defendant’s final argument, he requests that this Court

“examine the sealed records and order a new trial if the records

contain relevant, discoverable, impeaching, and/or exculpatory

evidence.”   We find no error.

    We have examined the contents of the sealed envelope.       We

hold that there is nothing contained in the envelope that would

warrant granting Defendant a new trial, or any other relief.

    No error.

    Judges HUNTER, Robert C. and ELMORE concur.
