(I) Did the trial court erroneously fail to submit the
question of defendant's habitual felon status to the jury?
We answer: No, because defendant established his habitual
felon status by entering a guilty plea to the habitual felon
charge.
In August 2000, the State indicted defendant for (a)
possession with intent to sell and deliver marijuana and felonious
possession of marijuana (00 CRS 83048), and (b) possession with
intent to sell and deliver cocaine; defendant was also indicted for
being an habitual felon, with the marijuana and cocaine charges
serving as the predicate underlying substantive offenses. These
drug charges arose from events occurring on 14 March 2000.
Defendant had previously been indicted on 18 October 1999 for being
an habitual felon (99 CRS 23769) in connection with predicate
substantive offenses occurring on 16 March 1999.
On 10 January 2001, defendant was tried on the underlying
felony marijuana and cocaine charges. Before the jury returned
verdicts on these charges, defendant stated that, if the jury
returned a guilty verdict on either predicate felony, he would
stipulate to his three prior felony convictions for purposes of the
habitual felon indictment. Following the jury's guilty verdicts
for felonious possession of marijuana and felonious cocaine
possession under N.C. Gen. Stat. § 90-95 (2001), defendant entered
a plea agreement whereby he pled guilty to various additional
charges, including the habitual felon charge in 99 CRS 23769. The
trial court entered judgment and sentenced defendant according tothe plea agreement.
Defendant relies on this Court's decision in
State v. Gilmore,
142 N.C. App. 465, 542 S.E.2d 694 (2001), whe
rein the defendant
stipulated to the three prior convictions underlying the habitual
felon charge,
see N.C. Gen. Stat. § 14-7.4 (2001); however, the
issue of the defendant's habitual felon status was not submitted to
the jury, nor did the defendant plead guilty to being an habitual
felon.
Gilmore, 142 N.C. App. at 471, 542 S.E.2d at 699. This
Court reversed the defendant's habitual felon conviction,
concluding that the defendant's stipulation to his habitual felon
status, “in the absence of an inquiry by the trial court to
establish a record of a guilty plea, is not tantamount to a guilty
plea.”
Id. (citing
State v. Williams, 133 N.C. App. 326, 330, 515
S.E.2d 80, 83 (1999)).
See N.C. Gen. Stat. § 14-7.5 (2001) (
the
question of a defendant's habitual felon status must be submitted
to a jury);
see also Williams, 133 N.C. App. 326, 515 S.E.2d 80
(holding that alternatively, a defendant may establish his habitual
felon status by entering a guilty plea to the habitual felon
charge).
In this case, defendant contends that this Court's holding in
Gilmore requires that his habitual felon conviction be reversed.
We disagree because unlike
Gilmore, defendant in this case entered
a guilty plea to the habitual felon charge, and the trial court
properly asked defendant questions to establish a record of his
guilty plea. Defendant's first argument is without merit.
(II)
Did the trial court improperly instruct the jury on thecharge of felonious possession of marijuana?
We answer: Yes, because the State concedes and the evidence
shows that the trial court failed to instruct the jury that to
convict defendant of this offense, defendant must have possessed
more than the requisite one and one-half ounces of marijuana.
Preliminarily, we observe that defendant failed to properly
preserve this issue at trial by raising a timely objection.
See
N.C.R. App. P. 10(b)(2) (2002). However, N.C.R. App. P. 10(c)(4)
(2002) provides for “plain error” review of certain questions that
were not properly preserved at trial and are not otherwise deemed
preserved by rule of law. Our courts have applied plain error
analysis to errors in jury instructions,
see State v. Odom, 307
N.C. 655, 300 S.E.2d 575 (1983); however, before granting a new
trial under the plain error rule, “the appellate court must be
convinced that absent the alleged error, the jury probably would
have reached a different verdict.”
State v. Robinson, 330 N.C. 1,
27, 409 S.E.2d 288, 303 (1991).
Defendant properly contended in his assignment of error that
the trial court's erroneous jury instruction on the charge of
felonious marijuana possession amounted to plain error; defendant
also argued “plain error” in his brief. We therefore consider
defendant's argument and apply “plain error” analysis to the trial
court's jury instruction on this charge.
See N.C.R. App. P.
10(c)(4);
see also Odom.
Felonious possession of marijuana under G.S. § 90-95(d)(4)
requires a jury to find that the defendant possessed more than therequisite one and one-half ounces of marijuana.
See G.S. § 90-
95(d)(4);
see also State v. Gooch, 307 N.C. 253, 297 S.E.2d 599
(1982);
State v. Mitchell, 336 N.C. 22, 442 S.E.2d 24 (1994). The
trial court must give proper jury instructions with respect to the
elements of (1) possession, and (2) amount.
See Gooch, 307 N.C. at
256, 297 S.E.2d at 601. The State concedes that here, as in
Gooch,
the trial court failed to instruct the jury with respect to the
element of amount. Accordingly, defendant's conviction and
sentence for felonious possession of marijuana must be vacated.
See Gooch.
However, defendant is not entitled to a new trial on this
charge; rather, we consider the jury's verdict a verdict of guilty
of simple marijuana possession under G.S. § 90-95(a)(3).
Id.
Accordingly, we must vacate the trial court's judgment on the
charge of felonious marijuana possession under G.S. § 90-95(d)(4),
and remand to the trial court for resentencing upon a verdict of
guilty of simple possession of marijuana under G.S. § 90-95(a)(3).
See Gooch, 307 N.C. at 258, 297 S.E.2d at 602.
(III)
Did the trial court err in ordering the forfeiture of
$709 seized from his person at the time of his arrest on drug
charges?
We answer: Yes, because currency is not subject to forfeiture
“solely by virtue of being found in 'close proximity' to the
controlled substance which the defendant was convicted of
possessing.”
State v. McKinney, 36 N.C. App. 614, 617, 244 S.E.2d
455, 457 (1978). G.S. § 90-112(a)(2) subjects to forfeiture:
All money . . . acquired, used, or intended
for use, in selling, purchasing,
manufacturing, compounding, processing,
delivering, importing, or exporting a
controlled substance in violation of [the
Controlled Substances Act].
In
State v. Teasley, 82 N.C. App. 150, 346 S.E.2d 227 (1986),
disc.
review denied and appeal dismissed, 318 N.C. 701, 351 S.E.2d 759
(1987), this Court
concluded that the trial court erred in ordering
the forfeiture of $5,900 found on the defendant's person “at the
time that he possessed a large quantity of narcotics . . . .”
Teasley, 82 N.C. App. at 167, 346 S.E.2d at 237. In
Teasley, the
State conceded that there was no evidence supporting the forfeiture
under G.S. § 90-112(a)(2) other than the defendant's simultaneous
possession of a large quantity of cash and narcotics.
See id.
In
State v. Johnson, 124 N.C. App. 462, 478 S.E.2d 16 (1996),
cert. denied, 345 N.C. 758, 485 S.E.2d 304 (1997), the defendant
was acquitted at trial of the offense of possessing cocaine with
the intent to sell or deliver; however, the defendant was convicted
of cocaine possession. The trial court ordered the forfeiture of
$460 seized from the defendant's person. The defendant appealed,
arguing that “his acquittal of the crime of possession with intent
to sell or deliver cocaine created an insurmountable obstacle to
judicial determination that the seized money was acquired through
selling or delivering cocaine and thus subject to forfeiture.”
Johnson, 124 N.C. App. at 475-76, 478 S.E.2d at 25. This Court
agreed, stating that the trial court was precluded from declaring
the $460 seized from the defendant subject to criminal forfeitureunder G.S. § 90-112(a)(2) where the “defendant was found not guilty
of possessing” the drugs “with the intent to sell or deliver
[them.]”
Id. at 476, 478 S.E.2d at 25.
Similarly, in the instant case defendant was not convicted on
the charges of possession with intent to sell and deliver marijuana
or cocaine under G.S. § 90-95(a)(1); rather, he was convicted of
felonious marijuana possession under G.S. § 90-95(d)(4), and
felonious cocaine possession under G.S. § 90-95(d)(2). As detailed
above, however, defendant's felonious marijuana conviction is
vacated and he is to be resentenced upon remand for simple
marijuana possession under G.S. § 90-95(a)(3); defendant does not
appeal from his cocaine possession conviction. Accordingly, we
conclude that the trial court erred in ordering the forfeiture of
the $709 seized from defendant's person at the time of his arrest,
where he was not convicted under G.S. § 90-95(a)(1) of possessing
the marijuana or the cocaine with the intent to sell and deliver
it.
See Johnson.
In summary, we find no error in the trial court's entry of
judgment on the habitual felon charge (99 CRS 23769) based on
defendant's plea of guilty thereto. We vacate the trial court's
judgment on the felonious marijuana possession conviction (00 CRS
83048), and remand to the trial court for resentencing as upon a
verdict of guilty of simple possession of marijuana under G.S. §
90-95(a)(3). Furthermore, we vacate the trial court's order
directing forfeiture of the $709 seized from defendant.
No error in part, vacated in part, and remanded in part forresentencing.
Judges HUNTER and THOMAS concur.
Report per Rule 30(e).
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