State v Haith, (02-558) 05/06/2003

Appeal by defendant from judgments entered 27 September 2001 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 14 April 2003.

Attorney General Roy Cooper, by Assistant Attorney General Donald R. Teeter, for the State.

Hall & Hall, PC, by Susan P. Hall, for defendant appellant.

ELMORE, Judge.

    On 7 May 2001, defendant was indicted on charges of possession of a firearm by a felon, trafficking by possessing cocaine, possession with intent to sell or deliver cocaine, trafficking by transporting cocaine, and conspiracy to traffic cocaine. The case was tried at the 24 September 2001 Criminal Session of Guilford County Superior Court.
    The State presented evidence at trial which tended to show the following: On 7 March 2001, Deputy Randall Shepherd of the Guilford County Sheriff's Department was on patrol when he noticed a 1991 Mercury Grand Marquis operating with no license tag. DeputyShepherd observed three people in the car. Deputy Shepherd pulled behind the car and began to follow it and observed the car “jerking back and forth across the roadway.” Deputy Shepherd activated his blue lights and the car stopped directly in the travel lane. Deputy Shepherd testified that after the car stopped, he observed the driver and the person in the passenger seat switch places, climbing “over and around each other.” Deputy Shepherd ordered the person sitting in the driver's seat out of the car, while defendant remained in the vehicle in the passenger seat. Deputy Shepherd called for backup, and Officer Gordon Snaden arrived at the scene shortly thereafter. While he waited, Deputy Shepherd noticed defendant reach for his upper left leg several times, in response to which Shepherd ordered defendant to put his hands in the air.
    Before Officer Snaden arrived, Deputy Shepherd turned his attention to defendant's leg to see what defendant had been reaching for. Deputy Shepherd put his hand under defendant's left upper leg and retrieved a plastic bag from the seat underneath defendant's leg. The bag contained a black pistol.
    Officer Snaden asked defendant to exit the car, handcuffed him, walked him over to one of the police cars and patted him down. When Officer Snaden reached defendant's right ankle, he noticed two lumps in defendant's sock. Officer Snaden removed the items which appeared to be rocks of crack cocaine packaged in clear plastic sandwich bags. The car that defendant was in was later searched by canine, and a plastic bag containing a third rock of crack cocaine was found underneath the passenger seat of the vehicle. Testinglater confirmed that the three plastic bags collectively contained 56.6 grams of crack cocaine.
    Defendant was taken to jail and given a Breathalyzer test, the result of which showed that defendant had a blood alcohol level of .19. At trial, defendant testified that he had been drinking heavily all day, that he passed out, and that he did not wake up until the car he was in was stopped by the police. Defendant further testified that he knew nothing about the drugs found on his person or in the vehicle.
    Defendant was convicted of trafficking in cocaine by possession, trafficking in cocaine by transportation, and possession of a firearm by a felon. Defendant was sentenced to a term of seventeen to twenty-one months imprisonment for the firearm charge, and a consecutive term of thirty-five to forty-two months imprisonment for the drug charges. Defendant appeals.
    Defendant first argues that the trial court erred by denying his motion to dismiss made at the close of the State's evidence. However, by introducing evidence at trial on his own behalf, defendant waived his right to complain on appeal of the denial of his motion to dismiss made at the conclusion of the State's evidence. N.C. Gen. Stat. § 15-173 (2001); State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). Accordingly, only the sufficiency of the evidence at the close of all of the evidence is before this Court.
    We next consider defendant's contention that the trial court committed plain error in that there was insufficient evidence tosupport the verdicts. Defendant was convicted of three offenses, trafficking in cocaine by transportation, trafficking in cocaine by possession, and possession of a firearm by a felon. First, defendant notes that he was “highly intoxicated” and “unconscious” when he was arrested. Thus, defendant argues that he could not knowingly possess or transport any contraband. Second, defendant asserts that there is no evidence tending to show when he obtained the contraband that was placed on his person. Defendant contends that the cocaine could have been placed on his person after the car came to a complete stop. Therefore, defendant argues there was insufficient evidence to support transportation. Third, defendant contends that there was insufficient evidence that the cocaine found under the passenger seat of the car belonged to him. Defendant notes that the arresting officer testified that defendant switched into the passenger seat just minutes before the car was searched, and thus the cocaine found under the passenger seat could have belonged to one of the vehicle's other occupants. Fourth, defendant argues that the State presented “no competent evidence . . . regarding the weight of the cocaine found under the seat versus the weight of the contraband found on the [d]efendant.” Thus, if this Court were to find that defendant did not possess the cocaine found under the seat, there would be insufficient evidence to show that the cocaine found on defendant's person weighed 28 grams or more. Finally, defendant contends that since there was no evidence that the pistol found in his possession was operable, there was insufficient evidence that the pistol met the definition of afirearm found in N.C. Gen. Stat. § 14-409.39(2) (2001).
    After careful review of the record, briefs and contentions of the parties, we find no error. Initially, we note that plain error analysis applies only to jury instructions and evidentiary matters. State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578, cert. denied, 531 U.S. 1041, 148 L. Ed. 2d 543 (2000). However, it appears that defendant renewed his motion to dismiss at the close of all the evidence. Thus, defendant need not argue plain error on appeal.
    As to defendant's substantive arguments, we find them to be without merit. To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). In ruling on a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, with all reasonable inferences from the evidence going in the State's favor. State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). “Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.” State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988).
    Defendant essentially argues that he “blacked out” and had no knowledge of the drugs, and thus could not knowingly possess ortransport them. Defendant also contends that the drugs could have been placed on his person after the car in which he was traveling came to a stop, in which case there could be no transportation. With respect to “knowing possession” of narcotics, this Court has recently held that:
    [t]he 'knowing possession' element of the offense of trafficking by possession may be established by a showing that (1) the defendant had actual possession, (2) the defendant had constructive possession, or (3) the defendant acted in concert with another to commit the crime. A person has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use.

State v. Reid, 151 N.C. App. 420, 428-29, 566 S.E.2d 186, 192 (2002)(citations omitted). Here, the cocaine was found directly on defendant's person. Furthermore, the arresting officer testified that defendant was driving the car, and exchanged positions with the person in the passenger seat after the car was stopped. This evidence that defendant was driving the car and switched places with a passenger after pulling over could support a jury's finding that defendant was conscious and aware of the drugs' presence on his person while transporting them. Accordingly, when taken in the light most favorable to the State, a jury could properly infer from this evidence that (1) defendant had actual possession of the cocaine while driving the car, thereby satisfying (2) the “knowingly” element of trafficking by possession and trafficking by transportation, and (3) the “transported” element of trafficking by transportation.
    To support a conviction for trafficking in cocaine bypossession or transportation, the quantity of cocaine possessed or transported must be “28 grams or more, but less than 200 grams[.]” N.C. Gen. Stat. § 90-95(h)(3)(a) (2001). Despite defendant's assertion to the contrary, the State presented evidence that the drugs found on defendant's person alone weighed well in excess of 28 grams. Deputy Shepherd testified that the two bags found on the defendant weighed 27.6 and 28.1 grams, respectively, while the cocaine found underneath the passenger seat weighed only 7.2 grams. Thus, even if the cocaine found under the passenger seat were deducted from the total amount of drugs found, there was still sufficient evidence that the cocaine found on defendant's person weighed more than 28 grams.
    Defendant's argument that there was insufficient evidence of possession of a firearm by a felon because there was no evidence that the firearm was operable is wholly without merit. Our Supreme Court has held that “inoperability of a 'handgun or other firearm' is not an affirmative defense to a charge of possession of a firearm by a felon under N.C.G.S. § 14-415.1.” State v. Jackson, 353 N.C. 495, 503, 546 S.E.2d 570, 575 (2001). We are bound by Jackson. Accordingly, this assignment of error is overruled.
    No error.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e)

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