An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-761

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2003

STATE OF NORTH CAROLINA

v .                         Richmond County
                            Nos. 01 CRS 724
ROBERT EDWARD WILLIAMS,                01 CRS 2499
        Defendant.

    Appeal by defendant from judgment entered 31 January 2002 by Judge W. Erwin Spainhour in Richmond County Superior Court. Heard in the Court of Appeals 25 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Gwendolyn W. Burrell, for the State.

    Bruce T. Cunningham, Jr., for defendant-appellant.

    HUDSON, Judge.

    Defendant Robert Edward Williams was convicted of one count of possession with intent to manufacture, sell, and deliver cocaine; one count of sale and delivery; and for being a habitual felon. He appeals his conviction and sentence on various grounds. For the reasons set forth below, we find no error.

BACKGROUND

    We begin with a summary of the State's evidence at trial.
    
    Chief Deputy Phil Sweatt testified that on 9 February 2001, he and other deputies from the Richmond County sheriff's department were “doing some drug work” at Biddle's Trailer Park, where defendant lived. Sweatt saw a vehicle pull into the trailer park and observed one Andrew Ellerbe get out of the vehicle and walk tothe rear door of defendant's trailer. Sweatt saw defendant answer the door and hand something to Ellerbe. As Ellerbe came around the trailer, Sweatt grabbed him and wrestled him to the ground. Ellerbe threw down what looked to Sweatt to be crack cocaine. Sweatt handcuffed Ellerbe, picked up what Ellerbe had dropped, and gave it to Detective Smith, who kept it for evidence.
    Sweatt and other officers went to defendant's residence and knocked on the back door. Sweatt identified himself, told defendant that he had observed the sale that had just occurred, and asked defendant whether he had any more crack in the house. Defendant responded no, that was all he had. Defendant then gave the officers permission to search his home. No other crack cocaine was found on the premises.
    Ellerbe also testified for the State. He testified that he went to Biddle's Trailer Park on 9 February 2001 to buy crack cocaine. He said that he gave defendant forty or fifty dollars and that defendant gave him one piece of crack cocaine in return.
    Detective Smith then testified that he had taken possession of the suspected cocaine, secured it, and submitted it to the lab in Raleigh for analysis. David Nichols, a forensic drug chemist with the State Bureau of Investigation, testified that he had analyzed the substance seized from Ellerbe. Nichols said that the material was 0.4 grams of cocaine base, also known as crack cocaine.
    The jury found defendant guilty of one count of possession of cocaine and one count of delivery of cocaine. Defendant also pled guilty to being a habitual felon. At sentencing, the trial courtfound that defendant had a prior record level of III and sentenced defendant within the presumptive range on both convictions to a consolidated prison term of 116 months to 149 months. Defendant appeals.          
ANALYSIS
A.
    Defendant first argues that the State violated his due process rights by “manipulation” of his prior record to indict him as a habitual felon in the way most advantageous to the State. Specifically, he alleges that the State deliberately chose a two- point conviction over another, four-point conviction in the habitual felon indictment, thereby maximizing his prior record point total. Although the prosecutor did manipulate defendant's record by this selection, we do not agree that this violates his due process rights.
    We note at the outset that defendant failed to raise this argument in the trial court. It is well settled that “a constitutional question [regarding the indictment] which is not raised and passed upon in the trial court will not ordinarily be considered on appeal.” State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 340-41 (citation and quotation marks omitted), cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). Moreover, even if this issue were properly before us, we are not persuaded that defendant's due process rights were violated. The statute restricts which felonies may form the basis of the habitual felon charge only by prohibiting the prosecutor from using any oneconviction both to support the habitual felon indictment and to calculate a defendant's prior record level. N.C. Gen. Stat. § 14- 7.6 (2001). Nothing in the Habitual Felon Act or our Constitution prohibits what the prosecutor did here. Thus, we overrule this assignment of error.
B.
    Defendant next contends that the trial court erred by removing a juror over his objection. Since the court failed to specifically find that the juror could not be fair and impartial, defendant argues, the court should not have removed her. Again we disagree.
    Here, the assistant district attorney informed the trial judge that, during a fifteen-minute recess, Detective Creed Freeman of the Richmond County sheriff's office and Owen Honeycutt with the State Bureau of Investigation had seen juror number three, Sara Smith, engaging in conversation with another defendant, Jeffrey Brown, who was on the court docket charged with selling cocaine and being a habitual felon. Honeycutt also observed the same juror making a nodding motion that acknowledged various defendants seated in the courtroom, including this defendant.
    The court held a hearing outside the presence of the jury and first questioned Detective Freeman. Freeman testified that he had been in the courtroom all morning. During the break, he noticed the juror go to the parking lot across the street from the courthouse where she met Brown and his female companion. Freeman testified that he was familiar with Brown because he had arrested him for drug violations. He further acknowledged that Brown was onthe court calender. Freeman identified the female companion as Sheila Smith, Brown's girlfriend. Honeycutt also testified outside the presence of the jury. He indicated that he had observed the juror leave the jury room and nod to a man and woman in the back of the courtroom that were sitting near him.
    The trial judge questioned the juror. The judge asked her if she recalled his instructions not to talk with anyone about the case during the recess. She replied that she did. At first, she denied that she knew Brown and indicated that she had talked with someone about employment. Later, the judge asked the juror whether she had talked with Brown in the parking lot across the street. This time, she answered, “Yeah, I talked to my cousin, his girlfriend.” The judge reminded her that she had just told him that she had not gone across the street and talked with a man who was in the presence of a woman. When asked why she had not told the judge the truth, the juror explained that it had “slipped her mind.”
    The trial court found that there was a question as to whether the juror could be fair and impartial and that her actions created an appearance of impropriety. Accordingly, the judge excused the juror and replaced her with an alternate juror.     
    We find no error in the judge's actions. After a jury has been impaneled, any further challenge to a juror is a matter within the trial court's discretion. State v. McLamb, 313 N.C. 572, 576, 330 S.E.2d 476, 479 (1985). Here, the trial judge had the opportunity to observe and hear the challenged juror and was in thebest position to determine if there was any reason to question whether she could be fair and impartial. In his discretion, he determined that there was, and we see no indication that he abused his discretion.
C.
    Defendant also asserts that the State violated the double jeopardy clause of the United States Constitution when it added one point to his prior record level on the worksheet for an offense that had already been used to enhance his sentence pursuant to the Habitual Felon Act. This issue is without merit. One point may be added to a defendant's prior record level if all the elements of the present offense are included in any prior offense for which the offender was convicted, whether or not the prior offense or offenses were used to determine the prior record level. N.C. Gen. Stat. § 15A-1340.14(b)(6) (2001). That was what occurred here. Defendant was convicted of possession of cocaine in count one and convicted of delivery of cocaine in count two. He previously had been convicted of selling or delivering cocaine on 15 January 1998. Because all the elements of the present offense were present in the prior offense of delivery of cocaine, the State properly added the additional point in calculating defendant's prior record level. We find no error.
    D.
    Defendant asserts that the trial court erred by imposing a sentence in 01 CRS 2499 because his status of habitual felon is not a substantive offense. This argument has no merit becausedefendant did not receive a separate sentence for the status of being a habitual felon. Rather, the trial court sentenced defendant for the underlying felonies in one judgment and commitment and then used the habitual felon status to enhance the punishment for the underlying substantive felony. We overrule this assignment of error.
E.
    Next, defendant argues that the trial court erred when it failed to find whether the offense was mitigated or aggravated before it selected a minimum sentence. We have rejected this argument in State v. Streeter, 146 N.C. App. 594, 553 S.E.2d 240 (2001), cert. denied, 356 N.C. 312, 571 S.E.2d 211 (2002), cert. denied, ___ U.S. ___, 154 L. Ed. 2d 1071 (2003), and are bound to do so here.

F.
    Defendant also contends that his prison term of 116 months to 149 months constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth amendments to the U.S. Constitution. This argument has no merit.
    “Habitual felon laws have withstood scrutiny under the Eight Amendment to the United States Constitution in our Supreme Court and in the United States Supreme Court.” State v. Cates, 154 N.C. App. 737, 741, 573 S.E.2d 208, 210 (2002), disc. review denied, 356 N.C. 682, 577 S.E.2d 897 (2003) (citing Rummel v. Estelle, 445 U.S. 263, 63 L.Ed. 2d 382 (1980) and State v. Todd, 313 N.C. 110, 326S.E.2d 249 (1985)). Thus, as long as the court sentences defendant within the limits set forth by the legislature, as the trial court did here, the Eight Amendment is not offended. Id.
G.
    Finally, defendant argues that the Habitual Felon and Structured Sentencing acts are irrational because they punish both greater and lesser sentences with the same severity. Defendant cites no authority to support this argument, and we do not believe that it has merit.
    CONCLUSION
    For the reasons set forth above, we find no error in defendant's convictions and sentence.
    No error.
    Judges MARTIN and ELMORE concur.
    Report per Rule 30(e).

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