Appeal by defendants from judgments dated 17 August 2001 by
Judge Benjamin G. Alford in New Hanover County Superior Court.
Heard in the Court of Appeals 21 August 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Lorrin Freeman, for the State in the Green case; and Assistant
Attorney General Amy L. Yonowitz, for the State in the Miller
case.
Paul Cleavenger for defendant-appellant Green.
Daniel F. Read and Maria J. Mangano for defendant-appellant
Miller.
BRYANT, Judge.
Gregory Donell Miller (Miller) and Terry Lamar Green (Green)
(collectively defendants) appeal judgments dated 17 August 2001
entered consistent with jury verdicts finding Miller guilty of
assault with a deadly weapon on a law enforcement officer,
possession with intent to sell or deliver marijuana, and
misdemeanor maintaining a place to keep and deliver a controlledsubstance and Green guilty of possession with intent to sell or
deliver marijuana.
The trial court allowed the State's pre-trial motion for
joinder of all charges against defendants and denied Green's motion
for separate trials. The evidence presented at trial revealed that
Deputy Christopher Long was out on patrol in Wilmington, North
Carolina on 8 February 2001, when he noted a white Ford pulling out
from a side street onto 17th Street in a reckless manner. Miller
was driving the Ford and Green was a passenger. Deputy Long
verified the vehicle's license plate number and determined that the
license plate, registered to a 1990 Acura, was no longer active.
After losing sight of the vehicle for a short time, Deputy Long
located the Ford parked and unoccupied in the area of Queen Street
and 17th Street. Deputy Long radioed for backup, and Corporal L.
Christopher Robinson and Lieutenant Clarence Hayes with the New
Hanover County Sheriff's Department arrived to assist.
Deputy Long parked his patrol car approximately six car
lengths in front of defendants' vehicle. When Deputy Long saw
Miller and Green walking back to the Ford shortly thereafter, he
got out of his patrol car and approached defendants on foot.
Deputy Long made eye contact with both defendants and called out to
them, at which time “[t]hey jumped in the vehicle.” Miller started
the Ford and drove five or six feet toward Deputy Long, prompting
the officer to draw his weapon and shout commands to stop and turn
off the vehicle. Miller then put the vehicle in reverse and tried
to go backward. But when Miller saw Corporal Robinson in hispatrol car approach from behind, Miller put the Ford in forward
once again and accelerated toward Deputy Long. Deputy Long
testified that he tried to get out of the vehicle's path.
Realizing, however, that he would not be able to escape the
approaching Ford in time, Deputy Long fired two rounds into the
driver's side window, wounding both Miller and Green. Thereafter,
the vehicle proceeded across the street until it struck a parked
automobile.
An ambulance was called, and defendants were pulled out of the
vehicle and searched. Corporal Robinson placed the contents of
Green's pockets on the hood of defendants' vehicle. Corporal
Robinson then inspected the Ford and noticed a bag filled with six
one-by-one-inch Ziploc bags containing what was later determined to
be a total of 15.2 grams of marijuana and several empty plastic
bags on the driver's side floorboard. A small Ziploc bag,
consistent with the six Ziploc bags of marijuana, was also found on
the street outside the passenger door of the vehicle. The items
taken from Green included $191, an amount identical to the amount
of cash found on Miller, and a North Carolina driver's license
issued to a Kevin Donnell Murphy. In addition, police officers
discovered a black jacket on the back seat of the vehicle, the
pockets of which contained a postal scale, nine dollars, and a
Maryland birth certificate and social security card issued to a
Kevin Donnell Murphy.
While Green was in the ambulance, a paramedic discovered a
bulge in Green's right front pants pocket and subsequently removedsmall Ziploc bags measuring one by one inch from the pocket. These
bags were consistent in size with the six individual bags of
marijuana found on the driver's side floorboard of the Ford.
Brooke Cole, an eyewitness to the incident, testified that she
believed Deputy Long would have been struck by defendants' vehicle
had he not jumped out of the way. Another eyewitness, Karen Moore,
confirmed that defendants' vehicle was traveling toward Deputy Long
when he fired two shots into the automobile. In addition, two
expert witnesses in accident reconstruction, one testifying for the
State and the other on Miller's behalf, testified that: when
Miller accelerated toward Deputy Long for the second time, the
vehicle left a ten-foot-long acceleration mark on the street; it
took 1.12 seconds for the vehicle to move from the beginning to the
end of the acceleration mark; and at the end of the acceleration
mark the vehicle was traveling at approximately twelve miles per
hour.
At the close of the State's evidence, Miller moved to dismiss
the charge of assault with a deadly weapon on a law enforcement
officer and Green moved to dismiss the charge of possession. The
trial court denied both motions. Thereafter, only Miller presented
defense evidence and subsequently renewed his motion to dismiss at
the close of all the evidence, which was again denied.
_____________________________
The issues are whether the trial court: (I) abused its
discretion by granting the State's motion for joinder and denying
Green's motion to sever; (II) erred by denying defendants' motionsto dismiss; and (III) erred by allowing the State to refer to
defendants as drug dealers.
I
Green first argues that the trial court abused its discretion
by granting the State's motion for joinder of Green and Miller for
trial. Specifically, Green contends that because the majority of
the trial testimony dealt with the charge against Miller of assault
with a deadly weapon on a law enforcement officer, he was denied a
fair trial and was found guilty simply by association rather than
based on the evidence against him. We disagree.
Charges against two or more defendants may be joined for
trial:
When, even if all of the defendants are not
charged with accountability for each offense,
the several offenses charged:
1. Were part of a common scheme or plan; or
2 Were part of the same act or transaction;
or
3. Were so closely connected in time, place,
and occasion that it would be difficult to
separate proof of one charge from proof of
the others.
N.C.G.S. § 15A-926(b)(2)b. (2001). “[T]he ruling upon a motion for
severance shall not be disturbed on appeal unless defendant
demonstrates an abuse of judicial discretion which effectively
deprived him of a fair trial.”
State v. Lake, 305 N.C. 143, 147,
286 S.E.2d 541, 543-44 (1982);
see State v. Crummy, 107 N.C. App.
305, 330, 420 S.E.2d 448, 462 (1992) (“[a] trial court's ruling on
joinder or severance is within the court's discretion”). Thus,joinder must be denied if separate trials are necessary to give
each defendant a fair trial.
State v. Ervin, 38 N.C. App. 261,
265, 248 S.E.2d 91, 94 (1978);
see also State v. Lowery, 318 N.C.
54, 61, 347 S.E.2d 729, 735 (1986) (“[i]f we were convinced that
juries were unable to separately evaluate the guilt or innocence of
defendants tried jointly because of a tendency to determine guilt
by association at trial, we would never uphold joint trials of
criminal defendants”).
In this case, the offenses committed by Green and Miller were
properly joined for trial because they “[w]ere so closely connected
in time, place, and occasion that it would be difficult to separate
proof of one charge from proof of the others.” N.C.G.S. § 15A-
926(b)(2)b.3. (2001). All of the charges arose out of the same
incident that took place on the corner of 17th Street and Queen
Street in Wilmington on 8 February 2001. Miller's acceleration
toward Deputy Long, which prompted Deputy Long to fire two rounds
into the vehicle wounding Miller and Green, was not only the basis
for the assault charge against Miller but was also the event that
led to the lawful search of defendants and the detection of the
marijuana and thus the remaining charges against defendants. If
the trial had been severed, much of the same evidence would
therefore have needed to be presented to establish a case against
each defendant. Accordingly, there was no abuse of discretion
depriving Green of a fair trial.
See Crummy, 107 N.C. App. at 330,
420 S.E.2d at 462.
II
Defendants next argue the trial court erred by denying their
individual motions to dismiss. We disagree.
In reviewing a motion to dismiss, the trial court must
determine whether there is substantial evidence of each essential
element of the offense charged and defendant is the perpetrator of
the offense.
State v. Payne, 149 N.C. App. 421, 424, 561 S.E.2d
507, 509 (2002). “Substantial evidence is relevant evidence that
a reasonable mind might accept as adequate to support a
conclusion.”
State v. Barrett, 343 N.C. 164, 172, 469 S.E.2d 888,
893 (1996). Furthermore, “[i]n ruling on a motion to dismiss in a
criminal action, the evidence must be viewed in the light most
favorable to the State, with the State receiving the benefit of all
reasonable inferences which may be drawn from the evidence.”
State
v. Smith, 99 N.C. App. 67, 72, 392 S.E.2d 642, 645 (1990).
Miller's Motion to Dismiss
Miller asserts the trial court erred by denying his motion to
dismiss the charge of assault with a deadly weapon on a law
enforcement officer. Conviction of this crime requires proof of:
(1) an assault, (2) with a deadly weapon, (3) on a law enforcement
officer, (4) who is engaged in the performance of his or her
duties. N.C.G.S. § 14-34.2 (2001). Assault is defined as:
an overt act or an attempt, or the unequivocal
appearance of an attempt, with force and
violence, to do some immediate physical injury
to the person of another, which show of force
or menace of violence must be sufficient to
put a man of reasonable firmness in fear of
immediate bodily harm.
State v. Roberts, 270 N.C. 655, 659, 155 S.E.2d 303, 306 (1967)(citation omitted) (internal quotation omitted).
Relying on the “general rule[ that] evidence which is
inherently impossible or in conflict with indisputable physical
facts or laws of nature is not sufficient to take the case to the
jury,”
Douglas v. Booth, 6 N.C. App. 156, 160, 169 S.E.2d 492, 495
(1969), Miller contends only that his motion to dismiss should have
been granted because it was a physical and scientific impossibility
for him to have assaulted Deputy Long. Specifically, Miller
asserts it was impossible for Deputy Long to have been in the path
of defendants' vehicle, moved out of the way, and fired two shots
into the driver's side window, in the span of 1.12 seconds. This
is the amount of time the two experts in accident reconstruction
testified it took for defendants' vehicle to reach the end of the
acceleration mark left on the road the second time Miller drove
forward. According to Miller, the only explanation consistent with
the physical evidence would be that Deputy Long was standing to the
side of the Ford instead of in its path, and therefore, no assault
could have occurred.
We note that besides his assertion, Miller has failed to
present any evidence of a physical and scientific impossibility for
Deputy Long, whose weapon was already drawn, to have reacted in the
manner that he did in 1.12 seconds. Moreover, there was
substantial evidence presented by the State to contradict Miller's
contention. For example: (1) Deputy Long testified that Miller was
driving toward him and that he did not feel as if he could get out
of the vehicle's path in time; (2) an eyewitness corroborated thatthe vehicle was traveling toward Deputy Long; and (3) another
eyewitness testified that Deputy Long would have been struck by the
vehicle had he not jumped out of the way. Since “[c]ontradictions
and discrepancies in the evidence are for the jury to resolve and
do not warrant dismissal,”
State v. Bruce, 315 N.C. 273, 281, 337
S.E.2d 510, 516 (1985), the trial court did not err in denying
Miller's motion to dismiss.
Green's Motion to Dismiss
With respect to his motion to dismiss, Green contends the
State failed to produce substantial evidence of the elements of (1)
possession of marijuana (2) with the intent to sell or deliver.
The elements of the charge of possession of marijuana with
intent to sell or deliver are: (1) knowing, (2) possession, (3) of
marijuana, a controlled substance, (4) with the intent to sell or
deliver. N.C.G.S. § 90-95(a)(1) (2001). In this case, Green
argues there was no evidence he knew the marijuana was in the
vehicle or that he had possession of it, as the marijuana was found
on the driver's side floorboard.
This Court has held:
An accused has possession of marijuana within
the meaning of the [North Carolina] Controlled
Substances Act when he has both the power and
intent to control its disposition. The
possession may be either actual or
constructive. Constructive possession of
marijuana exists when the accused is without
actual personal dominion over the material,
but has the intent and capability to maintain
control and dominion over it.
State v. Wiggins, 33 N.C. App. 291, 292-93, 235 S.E.2d 265, 267(1977) (citations omitted). “[P]ower and intent to control [a]
controlled substance can exist only when one is aware of its
presence.”
State v. Matias, 143 N.C. App. 445, 448, 550 S.E.2d 1,
3,
aff'd, 354 N.C. 549, 556 S.E.2d 269 (2001). “The State is not
required to prove that the defendant owned the controlled
substance, or that [the] defendant was the only person with access
to it.”
State v. Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323
(1987). We recognize that under the doctrine of constructive
possession, Green's presence in an automobile containing drugs does
not, without additional incriminating circumstances, constitute
sufficient proof of drug possession.
See Matias, 143 N.C. App. at
448, 550 S.E.2d at 3. This Court, however, has found sufficient
incriminating circumstances supporting an inference of constructive
possession where a large amount of cash was found on the
defendant's person at the time of arrest and there was evidence
from which a jury might infer that the defendant was fleeing from
the area where illegal drugs were found.
State v. Neal, 109 N.C.
App. 684, 687-88, 428 S.E.2d 287, 290 (1993);
see also State v.
Weems, 31 N.C. App. 569, 571, 230 S.E.2d 193, 194 (1976) (“evidence
which places an accused within close juxtaposition to a narcotic
drug under circumstances giving rise to a reasonable inference that
he knows of its presence may be sufficient to justify the jury in
concluding that it is in his possession”).
In the case
sub judice, the State produced evidence at trial
that a small Ziploc bag was found in the street on the passenger
side of the vehicle. In addition, Green was found in possession ofnumerous Ziploc bags measuring one by one inch. The bags found in
Green's pocket and the bag found on the street were consistent in
size with the six individual bags of marijuana found packaged
together on the driver's side floorboard of the Ford. The evidence
also showed that Green and Miller were each in possession of the
same amount of cash, i.e. $191. Furthermore, Green ignored Deputy
Long's orders both prior to and after entering the vehicle and
instead attempted to flee the scene with Miller. Finally, Green
was in possession of a North Carolina driver's license issued to a
Kevin Donnell Murphy. In the back seat of the vehicle, police
officers discovered a black jacket, the pockets of which contained
a postal scale and a birth certificate and social security card,
both of which were issued to a Kevin Donnell Murphy. This evidence
is sufficient to justify a reasonable conclusion that Green had
“the intent and capability to maintain control and dominion over”
the marijuana
and therefore had constructive possession of the
controlled substance.
Wiggins, 33 N.C. App. at 293, 235 S.E.2d at
267;
see Barrett, 343 N.C. at 172, 469 S.E.2d at 893.
Green further argues that, because 15.2 grams of marijuana “is
not generally considered divisible for sale,” the State failed to
produce sufficient evidence of his intent to sell or deliver
marijuana. Green, however, has failed to cite any authority in his
brief to this Court to support his argument. As such, it is deemed
abandoned.
See N.C.R. App. P. 28(b)(6) (assignments of error in
support of which no authority is cited will be taken as abandoned).
III
Finally, Miller contends the trial court erred by allowing the
State during the opening statement and closing argument to
characterize defendants as “drug dealers” and to state that they
were “splitting drug proceeds.” We note at the outset that opening
statements were not recorded. Thus, we are unable to review the
State's opening statement for error.
See State v. Moore, 75 N.C.
App. 543, 548, 331 S.E.2d 251, 254 (1985) (“This Court's review on
appeal is limited to what is in the record or in the designated
verbatim transcript of proceedings. An appellate court cannot
assume or speculate that there was prejudicial error when none
appears on the record before it.”).
“'[C]ounsel are given wide latitude in arguments to the jury
and are permitted to argue the evidence that has been presented and
all reasonable inferences that can be drawn from that evidence.'”
State v. Jones, 355 N.C. 117, 128, 558 S.E.2d 97, 105 (2002)
(citation omitted). Nevertheless, “[a] prosecutor should refrain
from making characterizations relating to a defendant which are
calculated to cause prejudice before the jury 'when there is no
evidence from which such characterizations may legitimately be
inferred.'”
State v. Thompson, 118 N.C. App. 33, 43, 454 S.E.2d
271, 277 (1995) (quoting
State v. Britt, 288 N.C. 699, 712, 220
S.E.2d 283, 291 (1975)).
In the present case, the evidence showed that a bag of
marijuana was found on the driver's side floorboard of the vehicle
in which Miller and Green were driving. The bag of marijuana
contained six smaller bags, measuring one inch by one inch, each ofwhich contained marijuana. These bags were consistent in size and
appearance with bags found in Green's possession. Moreover, a
postal scale was found in the pocket of a jacket found in the back
seat of the vehicle. Finally, Miller and Green were each in
possession of exactly $191. Under these circumstances, the
characterization of defendants as “drug dealers” and the statement
that they were “splitting drug proceeds” were reasonable inferences
for the State to argue based on the evidence.
See Jones, 355 N.C.
at 128, 558 S.E.2d at 105. This assignment of error is therefore
overruled.
No error.
Judges McGEE and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***