State v Davidson, (02-1211) 05/06/2003

Appeal by defendant from judgment entered 1 May 2002 by Judge James M. Webb in Forsyth County Superior Court. Heard in the Court of Appeals 14 April 2003.

Attorney General Roy Cooper, by Assistant Attorney General Lisa G. Glover, for the State.

Hall & Hall, P.C., by Susan P. Hall, for defendant-appellant.

MARTIN, Judge.

    A jury found defendant guilty of possession of cocaine with intent to sell or deliver and the sale of cocaine. Following his guilty plea to habitual felon status, the trial court consolidated defendant's offenses and sentenced him to 84 to 110 months' imprisonment. Defendant appeals.
    The State's evidence tended to show that on the morning of 25 October 2001, Winston-Salem Police Officer Allison Trivette was investigating reports of local cab drivers using their taxis to facilitate drug sales. Working undercover from a Motel 6 on Patterson Avenue, Trivette called a cab and asked the driver to take her somewhere to buy crack cocaine. The driver proceeded tothe 1900 block of Maryland Avenue Homes. As they entered the apartment complex, defendant approached the cab, spoke with the driver, and sold Trivette .26 grams of crack cocaine for $20. Trivette returned to Maryland Avenue Homes in an unmarked vehicle on 26 October 2001. After pulling into the front entrance, Trivette observed defendant walking past her and transmitted his description to fellow officers over her body wire. Police then took defendant into custody, and Trivette identified him as the person who sold her the cocaine. Police found no contraband on defendant at the time of his arrest.
    In his own testimony, defendant denied being the person who sold the cocaine to Trivette on 25 October 2001. While he acknowledged spending much of 26 October 2001 smoking cocaine-laced cigarettes, defendant further denied possessing drugs of any kind at the time of his arrest.
    On appeal, defendant claims the indictment for his instant offenses fails to charge that he committed the offenses after attaining habitual felon status. However, “[i]t is well established precedent that the principal felony indictment need not refer to the defendant's alleged status as an habitual offender.” State v. Sanders, 95 N.C. App. 494, 504, 383 S.E.2d 409, 416, disc. review denied, 325 N.C. 712, 388 S.E.2d 470 (1989). This argument is without merit.
    Defendant next claims he was not arraigned on the habitual felon indictment prior to the close of the State's evidence at trial in accordance with G.S. § 15A-928 (2001). However, bypleading guilty to habitual felon status, defendant waived any procedural irregularities leading up to the plea. See State v. Reynolds, 298 N.C. 380, 394-95, 259 S.E.2d 843, 852 (1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 795 (1980); State v. Daughtry, 236 N.C. 316, 72 S.E.2d 658 (1952). Moreover, this issue lies outside of defendant's limited appeal of right from his guilty plea to habitual felon status, and defendant did not move in the trial court to withdraw his plea. See N.C. Gen. Stat. § 15A-1444(a1), (e) (2003). We further note that the procedures for special indictments under G.S. § 15A-928 do not apply to indictments for habitual felon status, which must be addressed in a separate proceeding following a defendant's conviction for the substantive felony. See State v. Sullivan, 111 N.C. App. 441, 432 S.E.2d 376 (1993).
    In his final assignment of error, defendant avers the trial court erred in refusing to instruct the jury on the lesser included offense of misdemeanor possession of an unnamed Schedule II controlled substance. “An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002) (citation omitted). "Conversely, when all the evidence tends to show that defendant committed the crime charged in the bill of indictment and there is no evidence of the lesser-included offense, the court should refuse to charge on the lesser-included offense." State v. Summitt, 301 N.C. 591, 596, 273S.E.2d 425, 427, cert. denied, 451 U.S. 970, 68 L. Ed. 2d 349 (1981).
    There was no evidence to support a jury instruction on the offense of simple possession of an unidentified Schedule II controlled substance. The State's proffer tended to establish that defendant sold crack cocaine to Trivette on the morning of 25 October 2001. Defendant denied participating in the transaction. He offered no evidence that he merely possessed a controlled substance without intending to sell or deliver it, or that the substance at issue was anything other than crack cocaine.
    No error.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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