An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-895


Filed: 15 July 2003


v .                         Craven County
                            Nos. 00 CRS 3124
                                00 CRS 53773
                                01 CRS 54862


    Appeal by defendant from judgment entered 29 January 2002 by Judge Benjamin G. Alford in Craven County Superior Court. Heard in the Court of Appeals 26 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Dorothy Powers, for the State.

    Poyner & Spruill, L.L.P., by Joseph E. Zeszotarski, Jr., for defendant-appellant.

    GEER, Judge.

    In this appeal, we address two issues: (1) Whether the trial court erred in denying defendant's motion to dismiss; and (2) whether the trial court erred in sentencing defendant as a habitual felon with a prior record level of IV. Because sufficient circumstantial evidence exists to support the jury's verdict and because this Court has already rejected defendant's sentencing argument in State v. Cates, 154 N.C. App. 737, 573 S.E.2d 208 (2002), disc. review denied, 356 N.C. 682, 577 S.E.2d 897 (2003), we affirm.    The State's evidence tended to show the following. At approximately 4:10 a.m. on 2 September 2001, Officer Derrick P. Dubay was dispatched to a fight on Biddle Street in New Bern. When Officer Dubay arrived at the scene, he explained to defendant, James Brown Green, Jr., that "due to the nature of the call" the officer would have to pat Green down for weapons. At that point, defendant tried to run away. Officer Dubay grabbed defendant by the arms and held him against the front of his patrol car. While defendant was struggling with Officer Dubay, defendant, according to Officer Dubay, "made a deliberate motion to throw something underneath [the patrol] car." Positioned directly behind defendant, Officer Dubay did not see whether any object actually left defendant's hand.
    Officer Dubay placed defendant in handcuffs with assistance from two other officers, who had arrived as backup. After informing defendant that he was under arrest for obstructing and delaying a law enforcement officer, Officer Dubay reached underneath the left front wheel of his patrol car, close to the area where he had patted down defendant, and recovered two bags. One bag was torn open, while the other contained a quantity of crack cocaine.
    On 13 November 2001, a grand jury indicted defendant for possession with intent to sell and deliver cocaine. On 28 January 2002, a jury found defendant guilty of the lesser included offense of possession of cocaine. Pursuant to a plea agreement entered 29 January 2002, defendant admitted habitual felon status and pledguilty to other charges pending against him, including possession of a firearm by a felon, possession of cocaine with intent to sell and deliver, and driving while impaired.
    In his brief, defendant has argued only three of his nine assignments of error. Under Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure, he has abandoned the six assignments of error not argued.
    Defendant made a motion to dismiss at the close of the State's evidence and at the close of all of the evidence arguing that there was insufficient evidence to permit a reasonable jury to conclude that defendant possessed cocaine. In reviewing a trial court's denial of a motion to dismiss, the appellate court views the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence and resolving any contradictions in the evidence in the favor of the State. State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994), cert. denied, __ N.C. __, 533 S.E.2d 475 (1999). The trial court properly denies a motion to dismiss if the evidence, when viewed in this light, is such that a rational trier of fact could find beyond a reasonable doubt the existence of each element of the crime. Id.
    It does not matter if the State has relied upon circumstantial, as opposed to direct, evidence. As our Supreme Court has stated:
        "Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence." The evidence needonly permit a reasonable inference of the defendant's guilt of the crime charged in order for that charge to be properly submitted to the jury. Once the court determines that a reasonable inference of the defendant's guilt may be drawn from the circumstances, "it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty."
Id. (citations omitted).
    Under N.C. Gen. Stat. § 90-95(a)(1) (2001), felonious possession of a controlled substance requires proof of two elements: (1) possession of a controlled substance; and (2) the substance must be knowingly possessed. Defendant contends that the record contains insufficient evidence of possession. If a reasonable inference of defendant's possession can be drawn from the evidence, then the evidence is sufficient to submit the issue of possession to the jury. State v. Welch, 89 N.C. App. 135, 137, 365 S.E.2d 190, 191 (1988) ("Direct evidence of defendant's possession of the heroin was not required; it is sufficient that defendant's possession can reasonably be inferred from the evidence."), disc. review denied, 322 N.C. 485, 370 S.E.2d 235 (1988).
    In this case, the jury could have reasonably inferred that defendant possessed cocaine based on the evidence that Officer Dubay saw nothing on the street as he drove up to the fight and parked, that defendant attempted to flee when told he would be patted down, that Officer Dubay patted defendant down near the area where the cocaine was found, that defendant made a throwing motion in the exact direction where the cocaine was later found, and thatno one else was standing near the cocaine's location. See Welch, 89 N.C. App. at 137, 365 S.E.2d at 191 (jury could infer possession from evidence that defendant had an object in a paper sack, that the sack was empty when searched, that defendant had no opportunity to rid himself of the object except while in a phone booth, that drugs in the shape of the object were found in the phone booth a minute after defendant was there, and no one else was seen around the phone booth). Defendant argues that Officer Dubay's failure to see anything leave defendant's hand (while struggling and standing behind defendant in the early morning hours) necessarily means nothing was in defendant's hand. This contention amounts to drawing an inference from the evidence in favor of defendant and not the State, an impermissible approach on a motion to dismiss. It was proper for the trial court to allow the jury to decide whether or not defendant possessed the cocaine.
    Second, defendant contends that the prosecutor unconstitutionally manipulated the habitual felon and structured sentencing laws by selecting as the basis for the habitual felon status the three prior offenses carrying the minimum sentencing points, thus maximizing the number of points left available to determine Green's prior record. This approach resulted in defendant's having a prior record level IV for sentencing rather than a level III. This precise argument was made and rejected in Cates, 154 N.C. App. at 739, 573 S.E.2d at 209 . This assignment of error is overruled.    Defendant concedes that his remaining arguments have already been rejected by this Court. Since defendant raises these arguments for preservation purposes only, we do not address them.

    No error.
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).

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