STATE OF NORTH CAROLINA
v
.
Dare County
No. 99 CRS 6049, 6050, 6051
NICHOLAS N. CAULEY 00 CRS 520, 1696
Attorney General Roy Cooper, by Assistant Attorney General
Edwin Lee Gavin II, for the State.
Alexy, Merrell, Wills & Wills, L.L.P., by James R. Wills, III,
for defendant-appellant.
EAGLES, Chief Judge.
Nicholas Cauley (“defendant”) appeals from the trial court's
judgments entered on jury verdicts finding him guilty of
trafficking by possession of heroin, trafficking by transportation
of heroin, second degree kidnapping, common law robbery, conspiracy
to commit common law robbery, breaking or entering, and conspiracy
to commit breaking or entering. On appeal, defendant argues that
the trial court erred in denying his motion to quash, denying his
motions to dismiss, and submitting written instructions to the
jury. After careful consideration of the record and briefs, we
find no error. The State's evidence tends to show the following: On the
morning of 8 October 1999, office manager Sally Hoadley arrived at
Qwacker's Tavern, located in Duck, North Carolina. Shortly after
Ms. Hoadley arrived and removed the previous day's receipts from
the office safe, defendant and Henry Gasby entered the office.
Upon entering the office, defendant put his arm around Ms.
Hoadley's neck, asked her the location of the bathroom, and pulled
her towards the office door. When Ms. Hoadley replied that there
was no bathroom, defendant stopped, pulled Ms. Hoadley back to the
center of the room, and unsuccessfully attempted to tie her up.
After Mr. Gasby tied Ms. Hoadley up, the two men took a bag
containing approximately $9,000.00 and fled.
Within minutes, Ms. Hoadley freed herself, telephoned Julia
Lee, and informed Ms. Lee that she had been robbed. Ms. Lee then
telephoned Robert Lane, property manager of a neighboring building,
who immediately went to Qwacker's. When he arrived at Qwacker's,
Mr. Lane saw defendant and Mr. Gasby leave the restaurant, get into
a brown mini-van, and drive south. Mr. Lane went to the
restaurant's office, where he telephoned 9-1-1 with a description
of the suspects, their vehicle, and their direction of travel.
Deputies George Farrow and Ed Cutrell of the Dare County
Sheriff's Office received a call from dispatch informing them that
Qwacker's had been robbed, a description of the suspects, their
vehicle, and their direction of travel. Shortly thereafter, the
officers observed a brown mini-van headed south with two occupants
matching the suspects' description. The officers activated theirblue lights, and a high speed chase ensued. Eventually, the mini-
van stopped in a business's parking lot. Both defendant and Mr.
Gasby ran from the mini-van, but the officers quickly apprehended
them. Mr. Lane came to the parking lot in which the mini-van had
stopped and identified both men as the persons that he had seen
leaving Qwacker's. Inside the mini-van, police found 86 capsules
and “approximately 504 waxed envelopes” containing a substantial
amount of heroin and bags containing approximately $9,000.00.
Defendant was tried during the 5 June 2000 Criminal Session of
Dare County Superior Court. The jury found defendant guilty of
trafficking by possession of heroin, trafficking by transportation
of heroin, second degree kidnapping, common law robbery, conspiracy
to commit common law robbery, breaking or entering, and conspiracy
to commit breaking or entering. The trial court sentenced
defendant to substantial terms of imprisonment and entered
judgment. Defendant appeals.
Defendant first assigns error to the trial court's denial of
his motion to quash the indictments charging trafficking by
possession of heroin and trafficking by transportation of heroin.
Specifically, defendant contends that both indictments had been
impermissibly amended in violation of G.S. § 15A-923(e). After
careful review, we disagree.
On 13 December 1999, the Dare County Grand Jury indicted
defendant on the charges of trafficking by possession and
trafficking by transportation of “14 grams or more but less than 28
grams of heroin,” in violation of G.S. § 90-95(h). Thereafter, on10 April 2000, the Dare County Grand Jury indicted defendant on the
charges of trafficking by possession and trafficking by
transportation of “28 grams or more of heroin” in violation of G.S.
§ 90-95(h). The revised weight of the heroin was based on a State
Bureau of Investigation's (“SBI”) lab analysis of the heroin.
Prior to trial, defendant filed a motion to quash contending that
the indictments were “amended indictment[s] rather than []
superseding indictment[s].” After a hearing, the trial court
denied the motion.
“A bill of indictment may not be amended.” G.S. § 15A-923(e);
see also State v. Hughes, 118 N.C. App. 573, 576, 455 S.E.2d 912,
914 (1995). Conversely,
[i]f at any time before entry of a plea of
guilty to an indictment or information, or
commencement of a trial thereof, another
indictment or information is filed in the same
court charging the defendant with an offense
charged or attempted to be charged in the
first instrument, the first one is, with
respect to the offense, superseded by the
second and, upon the defendant's arraignment
upon the second indictment or information, the
count of the first instrument charging the
offense must be dismissed by the superior
court judge. The first instrument is not,
however, superseded with respect to any count
contained therein which charged an offense not
charged in the second indictment or
information.
G.S. § 15A-646.
Here, the 10 April 2000 indictments charged defendant with
offenses based on the same misconduct charged in the 13 December
1999 indictments. Defendant did not plead guilty to the charges in
the 13 December 1999 indictments. Moreover, defendant had not beenbrought to trial before 10 April 2000, the date on which the second
indictments were returned. Because the 10 April 2000 indictments
charged defendant with offenses based on the same misconduct as the
earlier indictments and were issued “before entry of a plea of
guilty . . . or commencement of a trial,” we conclude that the 10
April 2000 indictments superseded the earlier indictments pursuant
to G.S. § 15A-646. While the better practice may be to caption the
indictment as “superseding indictment,” the absence of that
language is not fatal. Accordingly, we overrule defendant's
assignment of error.
Next, defendant assigns error to the trial court's denial of
defense motions to dismiss the charges of trafficking by possession
of heroin, trafficking by transportation of heroin, and kidnapping.
Defendant contends that the State presented insufficient evidence
to sustain his convictions for these offenses. We disagree.
At the close of the State's evidence, and again at the close
of all the evidence, defendant moved to dismiss the trafficking by
possession of heroin, trafficking by transportation of heroin, and
kidnapping charges, inter alia. The trial court denied the
motions. The standard for review of a motion to dismiss “is
whether there is substantial evidence (1) of each essential element
of the offense charged and (2) that defendant is the perpetrator of
the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811,
814 (1990). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). Indetermining the sufficiency of the evidence, “[t]he trial court
must consider such evidence in the light most favorable to the
State, giving the State the benefit of every reasonable inference
to be drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439
S.E.2d 578, 585 (1994).
First, defendant argues that there was insufficient evidence
to convict him of trafficking by possession and trafficking by
transportation of 28 grams or more of heroin. “To prove
trafficking in heroin, G.S. [§] 90-95(h)(4) requires proof of
possession of heroin or any mixture containing heroin in an amount
of four grams or more.” State v. Agubata, 92 N.C. App. 651, 660,
375 S.E.2d 702, 707 (1989). Upon conviction of trafficking, if it
is found that the quantity of heroin is 28 grams or more, a
defendant “shall be punished as a Class C felon and shall be
sentenced to a minimum term of 225 months and a maximum term of 279
months in the State's prison and shall be fined not less than”
$500,000.00. G.S. § 90-95(h)(4)(c).
Trafficking in heroin “has two elements: (1) knowing
possession (either actual or constructive) of (2) a specified
amount of heroin.” State v. Keys, 87 N.C. App. 349, 352, 361
S.E.2d 286, 288 (1987). Here, defendant does not challenge the
element of possession. Instead, defendant challenges the amount of
heroin on the basis that only samples of the heroin were tested and
that there was a discrepancy in the evidence regarding the total
number of wax envelopes. At trial, Investigator Leary Sink of the Dare County Sheriff's
Office testified that he collected the evidence from inside the
brown min-van on 8 October 1999. Including the other evidence
collected, Investigator Sink testified that he collected
“approximately 504 waxed envelopes” containing an off white powder.
Laurie Richards, a forensic chemist with the SBI, testified that
she tested and weighed the 504 envelopes. In her initial testing,
Ms. Richards weighed and tested the contents of only 25 of the
envelopes. From this representative sample, Ms. Richards
determined that the substance was heroin and that the extrapolated
weight of the contents of the 504 envelopes was 21.5 grams.
Prior to trial, the envelopes were resubmitted to the SBI for
an exact weight. In the trial transcript, Investigator Sink states
that he resubmitted 408 envelopes to be weighed. In his brief,
defendant concedes “that this was either a mistake in his testimony
or a transcription mistake” and Investigator Sink “meant to say 480
[envelopes].” Upon the subsequent testing, Ms. Richards testified
that she opened the 480 envelopes, weighed their contents, added
the weight to the weight of the first 25 envelopes, and determined
the actual weight of the contents of the 504 envelopes to be 22.3
grams. We note that the weight of the heroin in the envelopes was
added to weight of the heroin in the 86 capsules (7.2 grams) in
determining that defendant trafficked in 28 grams or more of
heroin.
As to defendant's argument that the evidence was insufficient
because only samples of the heroin were tested and weighed, thisCourt's decision in State v. Harding, 110 N.C. App. 155, 429 S.E.2d
416 (1993) is dispositive. In Harding, an expert chemist tested
and weighed a representative sample of 165 total packets of heroin.
We held that an expert chemist may give his opinion as to the whole
of a substance even though only part of the whole has been tested.
Id. at 163, 429 S.E.2d at 422; see also State v. Holmes, 142 N.C.
App. 614, 619, 544 S.E.2d 18, 21 (2001). Accordingly, we conclude
that Ms. Richards' opinion testimony regarding the heroin was
sufficient to defeat defendant's motion to dismiss.
Additionally, defendant argues that a discrepancy in the
evidence, i.e. 504 or 505 total envelopes (480 resubmitted
envelopes plus the 25 originally tested envelopes equals 505
total), constitutes insufficient evidence of the amount of heroin
to support his conviction. Contradictions and discrepancies in the
evidence do not warrant dismissal of the case, but are for the jury
to resolve. See State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d
451, 455 (2000). This issue was properly submitted to the jury for
its determination. We hold that the State presented sufficient
evidence that defendant trafficked by possession and transportation
of 28 grams or more of heroin.
Second, defendant contends that there was insufficient
evidence to convict him of second degree kidnapping. “The elements
of kidnapping are: (1) confinement, restraint, or removal from one
place to another; (2) of a person; (3) without the person's
consent; (4) for the purpose of facilitating the commission of a
felony. N.C.G.S. § 14-39(a) []. If the victim was released in asafe place and neither sexually assaulted nor seriously injured,
the kidnapping is of the second degree. N.C.G.S. § 14-39(b).”
State v. Lucas, 353 N.C. 568, 582-83, 548 S.E.2d 712, 722 (2001).
Defendant's challenge relates to the element of restraint.
Defendant contends that the restraint necessary for the
kidnapping was not a separate and complete act, independent of and
apart from the common law robbery. “The term 'restrain' connotes
restriction by force, threat or fraud with or without confinement.
Restraint does not have to last for an appreciable period of time
and removal does not require movement for a substantial distance.
Restraint or removal of the victim for any of the purposes
specified in [G.S. § 14-39] is sufficient to constitute
kidnapping.” State v. Brayboy, 105 N.C. App. 370, 375, 413 S.E.2d
590, 593 (1992) (citations omitted). “Our Supreme Court has noted
that restraint or removal is inherently an element of some
felonies, such as armed robbery and rape, and therefore, the
restraint, confinement or removal required of the crime of
kidnapping, has to be something more than that restraint inherently
necessary for the commission of these other felonies.” State v.
Raynor, 128 N.C. App. 244, 250, 495 S.E.2d 176, 180 (1998).
Here, the State's evidence shows that when he entered
Qwackers' office, defendant put his arm around Ms. Hoadley's neck,
asked her the location of the bathroom, and pulled her towards the
office door. When Ms. Hoadley replied that there was no bathroom,
defendant pulled Ms. Hoadley back to the center of the room and
attempted to tie her hands behind her back. Viewing the evidencein the light most favorable to the State, we conclude that the
facts here tend to show that the restraint utilized in the
kidnapping was more than that inherently necessary for the
commission of the robbery. Thus, the trial court did not err in
denying defendant's motion to dismiss.
In his final assignment of error, defendant contends that the
trial court erred in submitting written instructions to the jury
during its deliberations. After careful review, we conclude that
defendant's assignment fails.
“A trial court has inherent authority, in its discretion, to
submit its instructions on the law to the jury in writing.” State
v. McAvoy, 331 N.C. 583, 591, 417 S.E.2d 489, 494 (1992). Here,
the jury requested during their deliberations that they receive
“[t]he law on common law robbery[] [and] first degree kidnapping.”
Defendant objected to the submission of the written instructions on
these charges. Nevertheless, the court proceeded to verbally
charge and then submit to the jury in writing the instructions on
the two offenses, all consistent with the pattern jury
instructions.
Here, defendant argues that the trial court violated G.S. §
15A-1233(b) by submitting the written instructions to the jury
without his consent. G.S. § 15A-1233(b) provides that “[u]pon
request by the jury and with consent of all parties, the judge may
in his discretion permit the jury to take to the jury room exhibits
and writings which have been received in evidence.” (Emphasis
added). In State v. Bass, 53 N.C. App. 40, 45, 280 S.E.2d 7, 11(1981), this Court held that G.S. § 15A-1233(b) “applies to
exhibits and writings received as evidence, not jury instructions.”
Accordingly, we conclude that G.S. § 15A-1233(b) does not forbid
submission of instructions to the jury in writing. Consequently,
the trial court did not abuse its discretion in submitting the
written instructions to the jury. Defendant's assignment of error
is dismissed.
In sum, we conclude that defendant received a fair trial free
from prejudicial error.
No error.
Judges HUDSON and BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***