STATE OF NORTH CAROLINA
v. Durham County
No. 99CRS70775
WILLIAM MORRIS McQUAIG
Attorney General Roy Cooper, by Special Deputy Attorney
General George W. Boylan, for the State.
Douglas T. Simons for defendant-appellant.
TYSON, Judge.
William Morris McQuaig (“defendant”) was charged with felony
possession with intent to sell and deliver cocaine and misdemeanor
possession of drug paraphernalia. The State's evidence tended to
show that Bobby Lewis and Bobby McClure were drinking at Lewis'
home when defendant arrived on the evening of 28 November 1999.
Defendant told Lewis and McClure that he needed to make a run.
Lewis asked defendant what he meant, whereupon defendant pulled out
a bag of cocaine and explained that a “run” meant to get money for
cocaine. Defendant gave McClure cocaine to drive him to “make his
run.” The three men subsequently left in defendant's vehicle--
McClure driving, Lewis in the front passenger seat, and defendantin the backseat with the cocaine. Durham Police Officer D.J.
Osmond stopped the vehicle driven by McClure when the vehicle ran
a red light. Another Durham Police Officer, C.H. Chappell, arrived
on the scene. McClure was arrested for DWI and various other
traffic offenses. During a search made incident to a lawful
arrest, Officer Chappell retrieved a “push rod,” used in crack
cocaine pipes, from the driver's pocket. The officer asked Lewis
and defendant to exit the vehicle. Lewis, who had an outstanding
warrant for his arrest, attempted to flee on foot. When both
officers gave chase, defendant remained standing by the vehicle.
The officers subsequently apprehended Lewis and placed him under
arrest. Officer Osmond also arrested defendant after Officer
Chappell told Officer Osmond that he had found drugs by defendant's
feet in the back of the car. The search incident to defendant's
lawful arrest yielded cash and a pager. The search did not yield
any drugs or weapons on defendant's person. The cocaine found by
defendant in the back of the car was packaged as if for sale, and
the pager found on his person, had more than twenty messages.
Defendant presented the testimony of his wife, Tamaria
McCollum. McCollum testified that she repeatedly called her
husband on his pager on the evening in question, and that she
customarily gave him money from her rental properties to pay their
expenses, and that she has seen Lewis use cocaine at his house on
previous occasions. Bobby McClure also testified for defendant.
McClure refuted Lewis' testimony that defendant had given him
cocaine to drive that evening. McClure stated that it was Lewiswho asked him to drive the night of the arrest.
The jury found defendant guilty as charged. The trial court,
by consolidated judgment, sentenced defendant to fifteen to
eighteen months imprisonment. Defendant appeals.
Defendant did not object to the trial court's jury charge
before the jury retired as required by N.C.R. App. P. 10(b)(2) in
order to preserve the issue for appeal. In his sole assignment of
error, defendant argues that the trial court committed plain error
in instructing the jury. See State v. Odom, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983). Defendant contends that the trial court's
instruction that “merely being present at or near the scene does
not make a person guilty of the crime charged,” was prejudicial
error. We have reviewed the transcript and cannot find this
misstatement in the trial court's instruction.
It is well settled that “[w]here 'a defendant requests an
instruction which is supported by the evidence and is a correct
statement of the law, the trial court must give the instruction, at
least in substance.'” State v. Clegg, 142 N.C. App. 35, 46, 542
S.E.2d 269, 277, appeal dismissed and disc. review denied, 353 N.C.
453, 548 S.E.2d 529 (2001) (quoting State v. Garner, 340 N.C. 573,
594, 459 S.E.2d 718, 729 (1995) (citations omitted)). It is
equally settled that a court's instruction will not be taken in
isolation, but will be viewed as a whole. See State v. Boykin, 310
N.C. 118, 125, 310 S.E.2d 315, 319 (1984).
Here, defendant requested that the trial court give the
following instruction on “mere presence” to the jury: A person is not guilty of a crime merely
because he is present at or near the scene
where a crime is alleged to have been
committed. Merely being present at or near
the scene, does not make a person guilty of
the crime charged.
To find the Defendant guilty, the
prosecution must prove beyond a reasonable
doubt by competent evidence that Mr. McQuaig
did actually commit or actively aid in
committing this crime.
In this case, the mere presence of Mr.
McQuaig at or near the scene where the crime
is alleged to have occurred is not sufficient
evidence for a finding of guilt.
The trial court gave the following instruction:
Possession of a substance may be either
actual or constructive. . . . .
A person has constructive possession of a
substance if he does not have it on his person
but is aware of its presence, and has either
by himself or together with others, both the
power and intent to control its disposition or
use. A person's awareness of the presence of
the substance and his power and intent to
control its disposition or use may be shown by
direct evidence or may be inferred from the
circumstances.
If you find beyond a reasonable doubt
that a substance was found in close physical
proximity to the defendant, that would be a
circumstance from which, together with other
circumstances, you may infer that the
defendant was aware of the presence of the
substance and had the power and intent to
control its disposition or use. However, the
defendant's physical proximity, if any, to the
substance does not by itself permit an
inference that the defendant was aware of its
presence or had the power or intent to control
its disposition or use. Such an inference may
be drawn only from this and other
circumstances which you find from the evidence
beyond a reasonable doubt.
And, second, that the defendant intendedto sell or deliver the cocaine. Intent is
seldom, if ever, provable by direct evidence.
It must ordinarily be proved by circumstances
from which it may be inferred.
. . . .
A person is not guilty of a crime merely
because he is present at or near the scene
where a crime is alleged to have been
committed. Merely being present at or near
the scene does not make a person guilty of the
crime charged.
(Emphasis supplied). Reading this portion of the court's charge,
it immediately becomes clear that the trial court did give
defendant's requested instruction, “'at least in substance.'” See
Clegg, 142 N.C. App. at 46, 542 S.E.2d at 277 (quoting Garner, 340
N.C. at 594, 459 S.E.2d at 729 (citations omitted)). This
assignment of error is overruled.
No error.
Judges GREENE and HUDSON concur.
Report per Rule 30(e).
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