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NO. COA09-483 NORTH CAROLINA COURT OF APPEALS Filed: STATE OF NORTH CAROLINA v. TIMOTHY RAYNARD BIVENS, Defendant. Appeal by defendant from judgment entered 25 September 2008 by Judge Calvin E. Murphy in Stanly County Superior Court. the Court of Appeals 16 November 2009. Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State. Michael E. Casterline for defendant. ELMORE, Judge. On 18 July 2006, law enforcement officials from several jurisdictions in and around Stanly County met at a staging area in Oakboro to conduct an undercover drug interdiction campaign. Under a mutual assistance agreement between law enforcement departments, officers from outside Stanly County's jurisdiction were assigned to go to specific locations and attempt to buy illegal drugs from suspected street-level dealers. Equipped with an undercover car Heard in Stanly County No. 06 CRS 52971 07 CRS 1219 1 June 2010

containing two hidden video cameras and street clothes, Detective Marnee Moberg and Officer Jarrod Hodge went to their designated location to attempt to buy illegal drugs.

-2Once at their designated location on Hamilton Street,

Detective Moberg and Officer Hodge were waved over by Timothy R. Bivens (defendant). Approaching the driver's side window,

defendant asked Detective Moberg what she was looking for, to which she replied: "looking for a 20." experience, dollars' Detective of Moberg Based on her training and that to mean twenty the

understood

worth

crack

cocaine.

Defendant

instructed

detective to pull off the road, while he walked to a dark SUV nearby. Defendant returned with a small plastic baggie containing

a white rock-like substance that both officers believed to be crack cocaine, and Detective Moberg handed defendant a twenty dollar bill. After the transaction, the officers returned to the staging area where many other officers, including Stanly County Sheriff's Office Detective Speights, joined them in viewing the videotapes of the encounter. Detective Speights took the baggie containing the

crack-like substance from the transaction, later identified as calcium carbonate, and helped to identify defendant. A warrant for defendant's arrest was issued 31 July 2006, but was not enforced until February 2007 in order to protect the identities of the officers involved in the undercover operation. On 25 September 2008, defendant was convicted by jury of (1) one count of possession with intent to sell or deliver a

counterfeit controlled substance, (2) one count of sale of a counterfeit controlled substance, and (3) one count of delivery of a counterfeit controlled substance. After the jury returned its

-3verdict of guilty on the above counts, defendant admitted habitual felon status. He was sentenced to an active term of 80 to 105 Defendant now appeals.

months' imprisonment.

I. Jury Instruction Defendant first argues that the trial court committed

reversible error in failing to give the jury instruction requested by defendant, even though that instruction was supported by law. Defendant specifically argues that the trial court should have instructed the jury "with the full definition of [a] counterfeit controlled substance set forth in N.C.G.S.

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South Carolina Law