Appeal by defendant from judgment dated 18 January 2002 by
Judge Jay D. Hockenbury in New Hanover County Superior Court.
Heard in the Court of Appeals 23 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Rudy E. Renfer, for the State.
Hosford & Hosford, P.L.L.C., by Geoffrey W. Hosford, for
defendant appellant.
BRYANT, Judge.
Leo A. Fenton (defendant) appeals a judgment dated 18 January
2002 entered consistent with a jury verdict finding him guilty of
one count each of trafficking in 494.6 grams of cocaine by (1)
transportation and (2) possession.
At trial, the State's evidence revealed that Officer Bobby
Blackman of the Vice and Narcotics unit of the New Hanover County
Sheriff's Department was on duty at a bus station in Wilmington,
North Carolina on the morning of 13 June 2001 when he noticed
defendant exit a Greyhound bus. Defendant, who was carrying two
bags, appeared to be looking for someone but then made “a U-turn
and started walking towards the street” away from the entrance ofthe bus station. Officer Blackman, who was in plain clothes,
approached defendant and asked to talk to him. Defendant agreed.
Officer Blackman inquired after defendant's departure city, to
which defendant replied he had been in Richmond, Virginia for two
or three days visiting a girlfriend. When Detective Bryan
Warrelmann of the Wilmington Police Department, also in plain
clothes, joined them, Officer Blackman identified himself and
Detective Warrelmann as police officers assigned to the
investigation of drug activity. Officer Blackman asked defendant
if he was carrying anything illegal in his bags and if he would
mind if the police searched them. Defendant answered “no” to both
questions. As Detective Warrelmann searched the first bag, a blue
gym bag, Officer Blackman asked to see defendant's bus ticket. The
ticket was purchased in New Jersey and listed Baltimore, Maryland
as the departure city, with a stop in Richmond. Officer Blackman
asked about the discrepancy between defendant's initial answer and
the printed ticket information, but defendant gave no explanation.
Officer Blackman then inquired whom defendant knew in Wilmington,
whereupon defendant stated he had some friends in the city.
Inside the blue gym bag, Detective Warrelmann found men's
clothing in sizes extra large and double extra large, such as T-
shirts, socks, and boxer shorts, a CD case, a shaving kit, two jars
of cocoa butter, and two jars of hair gel. Detective Warrelmann
opened one of the cocoa butter jars and because “something didn't
look right . . . stuck [his] finger in it.” Detective Warrelmann
felt a hard object inside the jar. Upon inspection of a secondjar, he found another hard, heavily taped object. Based on the
packaging of the objects, Detective Warrelmann suspected he had
found a controlled substance and instructed Officer Blackman to
place defendant under arrest. A chemical analysis by the North
Carolina State Bureau of Investigation later identified the
substance found in the jars to be 494.6 grams of cocaine
hydrochloride, a Schedule II controlled substance.
Detective Warrelmann testified that, after defendant had been
placed in handcuffs and they were still at the bus station,
defendant told them the blue gym bag was not his but “belonged to
a little old lady in Richmond, Virginia, who must have switched
bags with him.” According to Officer Blackman, however, defendant
never told the officers that the blue gym bag was not his,
defendant did not ask the officers to go back on the bus to look
for his bag, and consequently the officers did not enter the bus.
After having been transported to the police station and read
his rights, defendant was interviewed by Detective Tracy Smith.
During the interview, defendant appeared coherent and neither
sleepy nor confused. Defendant told Detective Smith he had left
from New Jersey the day before and had planned to stay at the
Fairfield Inn motel in Wilmington. The purpose of defendant's trip
was to visit his cousin and two women he knew. Defendant had
intended to telephone his cousin once he arrived at the motel.
Detective Smith asked defendant to describe the items in his blue
bag. Defendant listed jeans, socks, cookies, and water, concluding
“[i]f those items were in the bag, then that's my bag.” Defendantagain stated that an old lady had switched bags with him and that
he had already told this to the arresting officers. When Detective
Smith commented on the size and nature of the clothing found in the
bag that did not fit with defendant's description of an old lady,
defendant explained someone must have switched bags while he was
sleeping on the bus. At the conclusion of the interview, Detective
Warrelmann addressed defendant's claim of having accidentally
grabbed the wrong bag upon exiting the bus by comparing the size of
the boxer shorts worn by defendant to the ones found in the blue
gym bag. According to Detective Warrelmann, Defendant wore a size
double extra large consistent with the contents of the bag.
At the close of the State's evidence, defendant moved to
dismiss the charges. The trial court denied the motion, and
defendant presented evidence to show that the blue gym bag he
carried off the bus did not belong to him. At the close of all the
evidence, defendant renewed his motion to dismiss. The trial court
again denied the motion.
After jury deliberations had begun, the jury asked the trial
court whether “transportation [could] be defined more specifically
as to distance drugs are moved.” In response, the trial court
instructed the jury in accordance with State v. Greenidge, 102 N.C.
App. 447, 402 S.E.2d 639 (1991) and defined transportation as “any
real carrying about or movement from one place to another.”
Defendant objected to the instruction. When the jury subsequently
found defendant guilty of two counts of trafficking, defendant
requested the trial court to poll the jury. The court reporter didnot record the individual polling of the jurors, but the trial
court stated for the record that:
the jury was polled and . . . each juror was
asked if he had returned . . . a verdict of
guilty of trafficking in cocaine by
transportation . . . and . . . a verdict of
guilty in trafficking in cocaine by possession
. . . and if that was still his or her
verdict, . . . each juror answered each
question “Yes,” and the Court concludes that
the verdict . . . is a unanimous verdict.
The trial court then proceeded to the sentencing phase of the
trial. The trial court specifically addressed defendant at this
time and asked him if “there [was] anything [he] would like to say
to the Court before [the trial court] sentence[d] [him].”
Defendant responded: “No, sir.” The trial court subsequently
imposed a minimum sentence of 175 months and a corresponding
maximum sentence of 219 months imprisonment.
___________________________
The issues are whether: (I) the State presented substantial
evidence defendant knowingly possessed a controlled substance; (II)
the trial court erred in its instruction to the jury on the element
of transportation; (III) the limited record on the polling of the
jury mandates a new trial; (IV) defendant received ineffective
assistance of counsel; and (V) defendant was denied the opportunity
to exercise his right of allocution.
I
Defendant first argues the trial court erred in denying his
motion to dismiss because the State's evidence of the contents of
the blue gym bag supported his “non-ownership” of the bag. Accordingly, defendant contends, the State failed to present
substantial evidence he knowingly possessed the cocaine found
inside the bag. We disagree.
In ruling on a defendant's motion to dismiss, the trial court
must determine whether, considered in the light most favorable to
the State, (1) there is substantial evidence of each essential
element of the offense charged and (2) the defendant is the
perpetrator.
State v. Cockerham, 129 N.C. App. 221, 223-24, 497
S.E.2d 831, 832 (1998). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164,
169 (1980). In considering the evidence, the trial court must
resolve any contradictions in the State's favor.
State v. Parker,
354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001). The trial court
neither weighs the evidence nor considers evidence unfavorable to
the State because the issue of witness credibility falls within the
province of the jury.
See id.
Knowing possession is an essential element of the trafficking
offenses with which defendant was charged,
see N.C.G.S. § 90-
95(h)(3) (2001), and may be either actual or constructive,
State v.
Bowens, 140 N.C. App. 217, 222, 535 S.E.2d 870, 873 (2000). A
defendant has actual possession of a substance if it is on his
person, he is aware of its presence, and either by himself or with
others, he has the power and intent to control its disposition or
use.
State v. Crawford, 104 N.C. App. 591, 600, 410 S.E.2d 499,
504 (1991). In addition, “the State may overcome a motion todismiss [based on the element of constructive possession] by
presenting evidence which places the accused 'within such close
juxtaposition to the narcotic drugs as to justify the jury in
concluding that the same was in his possession.'”
State v. Harvey,
281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972) (quoting
State v.
Allen, 279 N.C. 406, 411-12, 183 S.E.2d 680, 684 (1971)).
In this case, defendant testified at trial that the blue gym
bag did not belong to him and that unlike the size of clothing
found in the blue bag, he wore size large boxer shorts on the day
of his arrest. For purposes of a motion to dismiss, this evidence,
however, is of no significance as the trial court does not consider
evidence unfavorable to the State.
See Parker, 354 N.C. at 278,
553 S.E.2d at 894. The State's evidence established that the
police took the blue gym bag, in which the cocaine was located,
directly from defendant's person. The clothes found inside the bag
were sizes extra large and double extra large, and Detective
Warrelmann testified defendant wore size double extra-large boxer
shorts when he was placed in custody. As the State's evidence thus
supports a reasonable inference that the bag and its contents,
including the cocaine, belonged to defendant, there was substantial
evidence to support the conclusion that defendant was in knowing
possession of a controlled substance. Accordingly, the trial court
did not err in denying defendant's motion to dismiss.
II
Defendant also assigns as error the trial court's instruction
to the jury on the element of transportation. Specifically,defendant contends the trial court erred in defining transportation
as “any real carrying about or movement from one place to another”
because
Greenidge required “substantial movement.” This argument
is without merit.
In
Greenidge, this Court noted that although “the word
'transport' is not defined in the North Carolina Controlled
Substance Act, [N.C. Gen. Stat. §] 90-87, it has previously been
defined as 'any
real carrying about or movement from one place to
another.'”
Greenidge, 102 N.C. App. at 449, 402 S.E.2d at 640
(quoting
Cunard Steamship Co. v. Mellon, 262 U.S. 100, 122, 67 L.
Ed. 894, 901 (1922)). This Court further explained that because
“'[r]eal' connotes 'substantial' . . . , the type of movement
required for transportation to have occurred is a 'substantial
movement.'”
Id. at 449-50, 402 S.E.2d at 640. As the words “real”
and “substantial” are therefore interchangeable and the trial court
used the definition provided in
Greenidge, it
properly defined the
element of transportation for the jury in the case
sub judice.
Accordingly, defendant's assignment of error is overruled.
See
State v. Yearwood, 147 N.C. App. 662, 669-70, 556 S.E.2d 672, 677
(2001) (no error where the trial court's instructions comport with
North Carolina case law).
III
Defendant next argues the failure to transcribe the actual
process of polling the jury prevented meaningful appellate review
and thus mandates a new trial. We disagree.
“[A] defendant has a constitutional right, upon timelyrequest, to have the jury polled as a corollary to his right to a
unanimous verdict.”
State v. Holadia, 149 N.C. App. 248, 259, 561
S.E.2d 514, 522,
disc. review denied, 355 N.C. 497, 562 S.E.2d 432
(2002). The purpose of polling the jury is:
to give each juror an opportunity, before the
verdict is recorded, to declare in open court
his assent to the verdict which the foreman
has returned, and thus to enable the court and
the parties to ascertain with certainty that a
unanimous verdict has been in fact reached and
that no juror has been coerced or induced to
agree to a verdict to which he has not fully
assented.
Davis v. State, 273 N.C. 533, 541, 160 S.E.2d 697, 703 (1968)
(emphasis omitted).
In this case, the transcript reveals that, following the
polling, the trial court stated for the record that:
the jury was polled and . . . each juror was
asked if he had returned . . . a verdict of
guilty of trafficking in cocaine by
transportation . . . and . . . a verdict of
guilty in trafficking in cocaine by possession
. . . and if that was still his or her
verdict, . . . each juror answered each
question “Yes,” and the Court concludes that
the verdict . . . is a unanimous verdict.
The record thus reflects the individual jurors' assent in open
court to the verdict and the jury's unanimity.
See id.;
see also
State v. Goode, 350 N.C. 247, 264, 512 S.E.2d 414, 424 (1999)
(holding that even though the record did not include the polling of
the individual jurors, it was not silent because the trial court's
statements reflected that each juror had been individually polled
and that each had assented to the guilty verdicts).
As such,
defendant is not entitled to a new trial.
IV
We now address defendant's ineffective assistance of counsel
claim. When attacking a conviction based on ineffective assistance
of counsel, a defendant must show that his counsel's conduct fell
below an objective standard of reasonableness.
State v. Braswell,
312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). The defendant
bears the burden of showing that: (1) his counsel's performance was
deficient in that the errors made were “so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment” and (2) the deficient performance prejudiced the
defense by depriving the defendant of a fair trial.
Id. (citation
omitted) (internal quotation omitted).
During closing arguments, which were not recorded in the
transcript, the State commented on the date of a prior visit by
defendant to Wilmington, which occurred during the Azalea Festival.
The record reflects defense counsel's request to the trial court
for a curative instruction because the State had given the wrong
date for the festival. The trial court denied the request, stating
it would let the jury use its “common sense to know when the Azalea
Festival” was held.
In his brief to this Court, defendant argues the State
“[p]resumably . . . attempted to show that [defendant] could not
have been testifying truthfully because, according to [the State],
the festival always occurs the last week of [April]” as opposed to
the beginning of the month. By failing to have closing arguments
recorded, however, defendant contends his counsel providedineffective assistance as this omission foreclosed meaningful
appellate review of the State's comment. We disagree.
Defense counsel's failure to request the recording of closing
arguments was neither deficient nor was it prejudicial.
See id.
Even though the record does not include closing arguments, it
clearly reflects defense counsel's objection to the State's
comment. Moreover, “[t]he fact that counsel made an error, even an
unreasonable error, does not warrant reversal of a conviction
unless there is a reasonable probability that, but for counsel's
errors, there would have been a different result in the
proceedings.”
Id. at 563, 324 S.E.2d at 248. Defendant offers no
argument of such a probability had defense counsel insisted closing
arguments be recorded. Therefore, defendant has failed to
sufficiently present a claim for ineffective assistance of counsel.
V
Finally, defendant asserts the trial court committed plain
error by denying defendant the opportunity to exercise his right of
allocution during the sentencing hearing.
A defendant's right to allocution is codified in N.C. Gen.
Stat. § 15A-1334(b), which provides that “[t]he defendant at the
[sentencing] hearing may make a statement in his own behalf.”
N.C.G.S. § 15A-1334(b) (2001). This right may be exercised upon
the defendant's request prior to the pronouncement of the sentence.
State v. Miller, 137 N.C. App. 450, 461, 528 S.E.2d 626, 632
(2000). In this case, defendant did not request to exercise his
right of allocution. Further, and contrary to defendant'scontentions in his brief to this Court, the trial court expressly
asked defendant whether he wished to address the court prior to
sentencing, but defendant declined. Accordingly, this assignment
of error is overruled as well.
No error.
Judges TIMMONS-GOODSON and GEER concur.
Report per Rule 30(e).
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