An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-737


Filed: 20 May 2003


v .                             Mecklenburg County
                                Nos. 00CRS49945, 49947,
MARVIN CHRISTOPHER HEAVNER                49948, 49950

    Appeal by defendant from judgments entered 18 July 2001 by Judge L. Oliver Noble in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 March 2003.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General George K. Hurst, for the State.

    Brian Michael Aus for defendant-appellant.

    HUNTER, Judge.

    Marvin Christopher Heavner (“defendant”) appeals drug convictions involving methylenedioxymethamphetamine (“MDMA”), a drug commonly referred to as ecstasy. On appeal, defendant takes issue with (I) the State's cross-examination of him, (II) the prosecutor's closing argument, (III) the trial court's misstatement of the jury instructions, (IV) the admissibility of certain evidence at trial, (V) the sufficiency of the evidence against him, and (IV) errors in his judgment forms. We find no error, but we remand for correction of the judgments.
    On 4 December 2000, defendant was indicted for (1) trafficking in drugs by possession (00CRS49945), (2) maintaining a place to keep controlled substances (00CRS49947), (3) conspiracy to traffic indrugs (00CRS49948), and (4) trafficking in drugs by delivery (00CRS49950). The matter was tried before a jury on 16 July 2001 with the following evidence being introduced at trial.
    The State's evidence tended to show that Detective Craig Conger (“Conger”) worked as an undercover officer investigating narcotics and vice crimes. Conger had made arrangements through an informant to purchase approximately 100 MDMA pills from Garrett Miller (“Miller”) and another individual, neither of whom Conger had previously met. The purchase was to take place in the parking lot of a movie theater on the night of 14 November 2000. As Conger and the informant drove through the parking lot on that night, the headlights of a Honda Accord (“Honda”) flashed. Conger parked his Acura Legend (“Acura”) in front of the Honda. Miller exited the Honda and, after being introduced to Conger by the informant, told Conger the pills were in the Honda.
    As the men approached the Honda, Conger saw defendant sitting in the driver's seat. Miller got into the back seat as Conger got into the front passenger's seat next to defendant. Once in the Honda, defendant pulled out a cardboard box and placed it on the floor in front of Conger. Defendant asked Conger if he had the money. Conger told defendant that his girlfriend had the money and he would have to call her over. Conger's “girlfriend” was actually his partner, Detective Donna West (“West”), who was parked in an undercover car several rows over from Conger's Acura.
    Once West was standing by the Honda, Conger reached into the box and pulled out ten clear plastic sandwich bags. Conger countedten pills in each bag and then asked defendant if he could get any more pills. Defendant replied that he could “hook” Conger up with some more pills later on. Conger placed the pills on the seat and got out of the Honda to get the money from West. Upon exiting the Honda, Conger gave the pre-arranged takedown signal. Officers converged on the Honda and secured Miller and defendant.
    Following the arrests, West seized the pills, which were later identified by forensic chemist Jennifer Mills as MDMA. Furthermore, West found a handgun and a cell phone while conducting a search of the Honda. West also recovered the title to the Honda that named defendant as the owner.
    At the close of the State's evidence, defendant moved to dismiss the charges against him. Following the denial of that motion, defendant testified that on the night in question, he ran into his friend, Miller, at the Petro Express directly across the street from the theater. Miller told defendant that he was meeting some people in the theater parking lot. Defendant offered to accompany Miller. After parking their cars in the theater parking lot, Miller exited his car and got into the front passenger's seat of defendant's Honda with a cardboard box. Miller pulled pills out of the box and counted them before putting the box on the floorboard of the car. Miller told defendant that he was meeting with a guy (Conger) driving an Acura. Defendant flashed his lights when he saw the Acura.
    Defendant testified that the events that took place after Conger got into defendant's car happened similar to those eventsoffered into evidence by the State with the following exceptions: (1) Defendant denied saying anything to Conger other than perhaps a greeting and that the box was on the floor; and (2) defendant denied ever touching the box or knowing that the pills contained therein were MDMA. Finally, defendant testified that he did count the bags after Conger per Conger's request, but did not ask Miller to get out of his car after seeing the pills because Miller was his friend.
    At the close of all the evidence, defendant renewed his motion to dismiss. The motion was denied. The jury subsequently returned guilty verdicts with respect to all charges against defendant. The offenses of trafficking in drugs by possession, maintaining a place to keep controlled substances, and trafficking in drugs by delivery were consolidated for judgment. Defendant received an active sentence of thirty-five to forty-two months imprisonment and was fined $25,000.00. Additionally, defendant received a consecutive active sentence of thirty-five to forty-two months and a $25,000.00 fine for the charge of conspiracy to traffic in drugs. He appeals the convictions and sentencing.


    Defendant initially argues the trial court erred by denying his motion for a mistrial and failing to provide a curative instruction based on improper questions asked by the prosecutor during the State's cross-examination of him. Specifically, defendant takes issue with the following questions:
        Q [Prosecutor]: So, when [Conger] told this jury that you told him that you could hook him up, meaning get Detective Conger more drugs,that would be Detective Conger lying to this jury, is that right?

        A [Defendant]: That is right. That statement was made by someone else.

        Q:    And that would be Garrett Miller, I assume, that you are talking about?

        A:    Yes.

        Q:    Your friend?

        A:    Yes.

        Q:    Speaking of Garrett Miller, if what you are saying is true, Garrett Miller is your key to freedom, is that right?

        A:    I suppose so.

        Q:    Well, he can exonerate you, can't he?

            MS. PEGRAM [Defense Counsel]: Objection. May we approach?

            COURT: Sustained.

        Q:    If what you are saying is true, has he told you that . . .

            COURT: You may approach.

Defense counsel moved to strike the questions, and the court instructed the jury not to consider them. Thereafter, the prosecutor proceeded as follows:
        Q:    Garrett Miller is your friend, is that right?

        A.    Correct.

        Q.    And your defense lawyer . . .

            MS. PEGRAM: Objection.

        Q.    . . . could have called him as a witness?

            MS. PEGRAM: Objection.
            COURT: Sustained.

The jury was removed from the courtroom. Defendant moved for a mistrial, or in the alternative, requested a curative instruction. Defendant contends that the court's subsequent denial of his motion and request amounted to prejudicial error because the cross- examination improperly suggested that defendant had the burden of producing Miller to prove his own innocence.
    “[I]t is well-settled law that the burden of proof remains with the State regardless of whether a defendant presents any evidence[.]” State v. Howard, 320 N.C. 718, 729, 360 S.E.2d 790, 796 (1987). That burden does not shift to defendant if the prosecutor questions defendant's failure to contradict evidence presented by the State or produce witnesses to corroborate the truth of his testimony. Id. Here, defendant testified that he was a passive observer to the events which led up to his arrest and that Miller was actually the perpetrator of the crimes for which defendant was convicted. The prosecutor's questions, when reviewed in the overall context in which they were made and in view of the factual circumstances to which they referred, sought only to address defendant's failure to have a witness present to corroborate his testimony. The admission of these questions did not result in substantial and irreparable prejudice to defendant thereby amounting to the trial court grossly abusing its discretion in denying the motion for a mistrial. See generally State v. Monk, 63 N.C. App. 512, 305 S.E.2d 755 (1983). Further, since the questions did not prejudice defendant or shift the burden of proof to him, a curativeinstruction was unnecessary. Therefore, defendant's motion for a mistrial was properly denied, as was defendant's request for a curative instruction.


    By defendant's second assignment of error, he argues the trial court erred by overruling his objection to the prosecutor's closing argument. Defendant takes issue with the following portion of that argument:
            I have done my job and Detective West and Detective Conger, and Jennifer Mills, have done their jobs. Now it is time for you to do your job. Find [defendant] guilty and go tell your family and friends that you help limit the drug dealers in this community.

            MS. PEGRAM: Objection.

            COURT: Overruled.

        MR. PERRIN: Hold him responsible. He is not a child.

    “The standard of review for improper closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection.” State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). An improper remark in a closing argument is one which can be construed by a jury that the citizens of the community sought and demand conviction and punishment of defendant. State v. Scott, 314 N.C. 309, 312, 333 S.E.2d 296, 298 (1985). In the instant case, defendant contends that, by overruling his objection, the trial court essentially left the jury with the impression that the community desired punishment of defendant and it was their job toenforce that desire. Yet, “it is not improper for the State to 'remind the jurors that “they are the voice and conscience of the community.”'” State v. Davis, 353 N.C. 1, 30, 539 S.E.2d 243, 263 (2000) (citations omitted), cert. denied, 534 U.S. 839, 151 L. Ed. 2d 55 (2001). Further, “[w]e have held on several prior occasions that similar arguments advising jurors that law enforcement and the State can do no more are not prejudicial.” State v. McNeil, 350 N.C. 657, 688, 518 S.E.2d 486, 505 (1999). See also State v. Barrett, 343 N.C. 164, 180, 469 S.E.2d 888, 897 (1996) (“[t]he buck stops here, ladies and gentlemen, and you cannot pass it along. It's in your laps. The police can't do anymore, the Judge can do no more. It's up to you to decide”). Accordingly, the trial court did not abuse its discretion by denying defendant's objection.

    Next, defendant argues the trial court erred when it misstated the jury instructions. The proposed instruction to be given to the jury was to state, inter alia, that the trial court has “not reviewed the contentions of the State or of the Defendant . . . .” However, the trial court gave the following instruction without objection from defendant:
            I have no [sic] reviewed the contentions [sic] or of the Defendant, but it is your duty not only to consider all of the evidence but also to consider all the arguments, the contentions and positions urged by the State's attorney and the Defendant's attorney in their speeches to you, and any other contentions that arises from the evidence and to weigh them in the light of your common sense, and as best you can to determine the truth of this matter.
(Emphasis added.) Defendant contends the court's misstatement of the instruction implied that his contentions were not worthy of review. Yet, our rules of appellate procedure clearly state that a defendant “may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict . . . .” N.C.R. App. P. 10(b)(2). Since defendant failed to object, he now asserts plain error.
    “Under a plain error analysis, defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.” State v. Jones, 355 N.C. at 125, 558 S.E.2d at 103. Our Supreme Court has further stated that “even when the 'plain error' rule is applied, '[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.'” State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977)). Here, while we recognize the court misstated the instruction, we cannot conclude that this minor error was so fundamentally prejudicial to defendant that he is now entitled to a new trial. Thus, defendant's third assigned error is overruled.

    By his fourth assignment of error, defendant argues the court erred in denying his motion to suppress evidence allegedly seized from defendant's Honda. We disagree.    In reviewing the denial of a motion to suppress, we are limited to determining whether the trial court's findings of fact are supported by competent evidence and whether those findings in turn support legally correct conclusions of law. State v. Reid, 151 N.C. App. 420, 566 S.E.2d 186 (2002). In the case sub judice, defendant did not assign error to any of the court's findings; therefore, we must determine whether those findings support the court's ultimate conclusion. State v. Cheek, 351 N.C. 48, 520 S.E.2d 545 (1999).
    Defendant contends that the MDMA pills should have been suppressed because the State's failure to seize the box that contained the pills was a violation of his due process rights under either the State or Federal Constitution. However, “'[u]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.'” State v. Hunt, 345 N.C. 720, 725, 483 S.E.2d 417, 420 (1997) (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 102 L. Ed. 2d 281, 289 (1988)). Defendant does not argue there was bad faith on the part of the police in failing to seize the box. Moreover, there was neither evidence nor findings by the court that suggested the police acted in bad faith. On the contrary, the evidence and findings actually indicated that the MDMA pills were properly seized and maintained in police custody. Thus, in the absence of bad faith, defendant's motion was properly denied.

    Defendant also assigns error to the court's denial of his motion to dismiss due to insufficiency of the evidence. Towithstand a motion to dismiss for insufficient evidence, the State must present substantial evidence of each element of the offense and of defendant's perpetration of the defense. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The evidence must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
    Knowledge is an essential element of each of the crimes for which defendant was convicted. See N.C. Gen. Stat. §§ 90-95(h), (i); 90-108(a)(7) (2001). Defendant only contends that there was insufficient evidence to support that he knowingly possessed and maintained MDMA or conspired to traffic in that drug. However, since the controlled substance was found in defendant's car and under his control, “'this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.'” State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001) (citation omitted). Also, other evidence, when considered in the light most favorable to the State, showed that: (1) defendant was aware of the pills' presence in the Honda before Conger got into the car; (2) defendant assisted Conger in counting the pills; and (3) defendant told Conger he could “hook” Conger up with more pills at a later time. This evidence further establishes the case should have gone to the jury. Therefore, defendant's motion to dismiss was properly denied.
    Finally, defendant assigns error to the trial court entering judgments that indicated he was sentenced to a presumptive punishment for his drug convictions. Specifically, the court marked the box on the judgment forms that indicated defendant's sentences were “within the presumptive range of sentences authorized under G.S. 15A-1340.17(c)” and not imposed “for drug trafficking offenses.” Defendant contends that since he was found guilty of Class G felonies with a prior record level of one, the appropriate presumptive range for his sentences was within ten to sixteen months and not thirty-five to forty-two months. The State concedes that the trial court erred in marking the wrong box on the judgment forms, but it contends that the error should not result in our vacating defendant's sentence and resentencing him as a Class G felon. In State v. Lorenzo, 147 N.C. App. 728, 735, 556 S.E.2d 625, 629 (2001), this Court held that where a sentence was proper, but improperly recorded, the case must be remanded to the trial court to correct the judgment so that it conforms to the sentence. Aside from being improperly recorded, defendant's sentences would have otherwise been correct had the appropriate box been marked. Thus, we remand defendant's case to the trial court to correct the judgments in the manner stated above.
    No error. Remanded for correction.
    Chief Judge EAGLES and Judge CALABRIA concur.
    Report per Rule 30(e).

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