State v. Hudson

EAGLES, Judge.

I

Defendant first assigns as error the admission into evidence of tape recordings of conversations between Agent Bryant and the defendant. The basis of defendant’s argument is that there was no proper foundation laid for the admission into evidence of the tape recordings in question. We find no error.

To lay a proper foundation for admission into evidence of tape recordings, the State must properly authenticate the evi*392dence. In State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971) our Supreme Court set forth the factors which must be shown for proper authentication:

(1) That the recorded testimony was legally obtained and otherwise competent;
(2) That the mechanical device was capable of recording testimony and that it was operating properly at the time the statement was recorded;
(3) That the operator was competent and operated the machine properly;
(4) The identity of the recorded voices;
(5) The accuracy and authenticity of the recording;
(6) That defendant’s entire statement was recorded and no changes, additions, or deletions have since been made; and
(7) The custody and manner in which the recording has been preserved since it was made.

These standards have been approved in State v. Detter, 298 N.C. 604, 260 S.E. 2d 567 (1979); State v. Griffin, 308 N.C. 303, 302 S.E. 2d 447 (1983); and most recently in State v. Toomer, 311 N.C. 183, 316 S.E. 2d 66 (1984).

Agent Bryant testified that he checked the tape recorder for accuracy prior to taping each conversation by speaking into the microphone and playing it back to see if the machine was operative. He testified that he had used this same machine “hundreds of times.” He further testified that the machine was capable of recording testimony and that the machine was working properly when the calls were taped. Agent Bryant testified that he was familiar with the voices of defendant and her husband and that the voices on the tape belonged to defendant and her husband. He also testified that he had made no changes, additions or deletions since the tapes were recorded and that the tape had been in his custody from the time it was recorded until the time of trial. Further, it appears from the record that the recorded statements were legally obtained and otherwise competent. The recording device was used only to obtain the most reliable evidence possible of a conversation in which the State’s own agent was a partici*393pant and which that agent was fully entitled to disclose. The risk that defendant took by orally offering to provide cocaine for Agent Bryant fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording. See Lopez v. United States, 373 U.S. 427 (1963).

We have carefully examined the record here and hold that the State has met all of the authentication requirements of State v. Lynch, supra. The trial court did not err in admitting the tape recordings in question into evidence.

II

Defendant next assigns as error the admission into evidence of irrelevant, immaterial and prejudicial evidence. The basis of defendant’s argument is the admission into evidence of a “power hitter,” a device said to be used in smoking marijuana. Defendant argues that the “power hitter” had no reasonable connection to proof of the charge of felonious possession of cocaine with intent to sell or deliver. We agree that it was error to admit the “power hitter” into evidence under the facts of this case. However, the error was made harmless by the trial court’s granting a motion to strike as to the “power hitter.” Defendant shows no prejudice by this assignment of error.

Ill

Defendant finally assigns as error the trial court’s denial of defendant’s motions to dismiss made at the close of the State’s evidence, at the close of all evidence, and after the jury’s verdict. We find no error.

Our examination of the record indicates there was substantial evidence, considered in the light most favorable to the State, from which a jury could find the defendant guilty of the crimes charged. However, our examination of the record discloses other errors.

Each indictment in this case alleged the offenses of possession with intent to sell or deliver, in the disjunctive. This was incorrect. State v. McLamb, No. 8412SC200 (— N.C. App. — filed November 6, 1984), citing State v. Helms, 247 N.C. 740, 102 S.E. 2d 241 (1958); State v. Albarty, 238 N.C. 130, 76 S.E. 2d 381 (1953). *394Since defendant did not move to dismiss the indictment, he has waived this defect for purposes of trial. State v. Kelly, 13 N.C. App. 588, 186 S.E. 2d 631, rev’d on other grounds, 281 N.C. 618, 189 S.E. 2d 163 (1972). In this case, however, the verdicts submitted to the jury were also in the disjunctive, i.e., guilty of “possession with intent to sell or deliver.” The other possible verdicts submitted were guilty of possession and not guilty. The verdict of guilty of “possession with intent to sell or deliver” is inherently ambiguous and does not support the judgment. State v. Albarty, supra; State v. Creason, 68 N.C. App. 599, 315 S.E. 2d 540 (1984).

In Creason, as in this case, the jury returned a verdict of guilty of possession with intent to sell or deliver a controlled substance. We held that:

Since so far as the record shows, some jurors could have found defendant guilty of possessing the . . . [controlled substance] with intent to sell, while others could have found him guilty of possessing it with intent to deliver, and it does not positively appear, as our law requires, that all twelve jurors found him guilty of the same offense, the verdict is uncertain and therefore insufficient to support . . . [the] convictions of either of the crimes charged. [Citations omitted.]

68 N.C. App. at 603, 315 S.E. 2d at 544.

In Creason, this court reversed the conviction and remanded to the trial court with instructions to enter judgment for possession of a controlled substance. We find that Creason controls here.

At the trial of this case, the State did not introduce evidence as to the amount of cocaine involved in either indictment. At the charge conference, the trial court informed counsel for the State and defendant that the possible verdicts would be guilty of possession with intent to sell or deliver or possession or not guilty. The trial court stated that possession would be misdemeanor possession as to both indictments.

The evidence brought forth at trial supports a finding of guilty as to misdemeanor possession of cocaine in both counts in light of our decision in Creason, supra.

In Cases No. 82CRS7579 and 82CRS7400 in which defendant was convicted of possessing cocaine with the intent to sell or *395deliver, we remand for entry of judgment as on a verdict of the lesser included offense of misdemeanor possession of cocaine.

Remanded for entry of judgment and for resentencing.

Judges Webb and Braswell concur.