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.
I.
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.
II.
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.
III.
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.
IV.
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.
V.
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.
VI.
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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