An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
                                       -2-
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
                                         -3-
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”).
                                    -4-
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[.]”
                                            -5-
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
                                         -6-
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
                                           -7-
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 .
                                       -8-
. . 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)).
                                -9-
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).
