State v Miller, (02-1413) 10/21/2003

Appeal by defendant from judgment entered 15 May 2002 by Judge Russell J. Lanier in Onslow County Superior Court. Heard in the Court of Appeals 26 August 2003.

Everett & Hite, L.L.P., by Stephen D. Kiess, for defendant- appellant.

Roy Cooper, Attorney General, by James M. Stanley, Jr., Assistant Attorney General, for state-appellee.

    WYNN, Judge.
    By this appeal, Defendant David J. Miller presents the following issues: (1) Did the trial court erroneously deny his motion to dismiss for insufficient evidence; (2) Was there a fatal variance between the indictment and the evidence presented at trial; (3) Did the trial court erroneously deny Defendant the opportunity to present evidence during the habitual felon phase; (4) Did the trial court erroneously exclude relevant, material, and admissible evidence of an alternative possible owner of the cocaine; and (5) Does the combined use of the Habitual Felons statute and Structured Sentencing Act violate the United States and North Carolina Constitutions. We uphold Defendant's convictions on charges of possession with intent to sell and deliver cocaine,driving while license revoked, and of having attained the status of habitual felon. However, we hold the evidence was insufficient to convict Defendant of manufacturing a controlled substance, possession with intent to manufacture a controlled substance, and maintaining a vehicle for the keeping and selling of a controlled substance.
    The State's evidence tended to show that narcotics officers with the Onslow County Sheriff's Department saw Defendant drive a Ford Explorer off the roadway onto the shoulder of the road. Defendant stopped the vehicle partially blocking a driveway, exited the vehicle, left the engine running and lights on, and walked on the driveway toward the house. According to Sergeant Richard Bumgarner and Detective Charles Carnes, when they called out Defendant's name, he threw a plastic bag in the surrounding area. After placing Defendant under arrest for driving without a license, Sergeant Bumgarner found nine-hundred seventy-five dollars in Defendant's front pocket.
    In the meantime, Detective Carnes found a bag containing what the State Bureau of Investigation later identified as 11.5 grams of crack cocaine in the area where Defendant had thrown the bag. No drugs or contraband were found in the vehicle.
    Defendant was convicted of possession with intent to manufacture, sell and deliver cocaine; manufacturing a controlled substance; maintaining a vehicle for keeping and selling a controlled substance; and driving while his license was suspended. The trial court adjudged Defendant to have obtained the status ofa habitual felon, consolidated his convictions, and sentenced him to a term of 100 to 129 months imprisonment. Defendant appeals.
    ___________________________________________________
    Defendant first contends the evidence was insufficient to support the charges of (1) manufacturing a controlled substance; (2) possession with intent to manufacture, sell and deliver cocaine; and (3) maintaining a vehicle for keeping and selling a controlled substance. Thus, he contends the trial court should have granted his motion to dismiss those charges   (See footnote 1) . We agree that the charges of manufacturing a controlled substance, possession with intent to manufacture, and maintaining a vehicle for keeping and selling a controlled substance should have been dismissed. However, we uphold Defendant's conviction on the charge of possession with intent to sell and deliver cocaine.    First, as to the charge of manufacturing a controlled substance, N.C. Gen. Stat. § 90-87 (15) (2001) defines manufacturing as:
        the production, preparation, propagation, compounding, conversion, or processing of a controlled substance by any means, whether directly or indirectly, artificially or naturally, or by extraction from substances of a natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis; and “manufacture” further includes any packaging or repackaging of the substance or labeling or relabeling of its container except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance . . ..

In State v. Childers, 41 N.C. App. 729, 731-32, 255 S.E.2d 654, 656 (1979), this Court further defined conversion as the “changing [of a substance] from one form, state or character into another” and processing as the subjugation of something “to a particular method, system or technique of preparation, handling or other treatment designed to effect a particular result.”
    In this case, although the State offered evidence sufficient for the jury to find that the Defendant possessed the cocaine broken down into smaller saleable units, no evidence was offered to show that he changed the character of the substance or that he was the one who broke the drug into smaller units. Nor was there any showing of when the cocaine was packaged, by whom, or for what purpose. See State v. Baxter, 21 N.C. App. 81, 203 S.E.2d 93, rev'd on other grounds, 285 N.C. 735, 208 S.E.2d 696 (1974), overruled on other grounds, State v. Childers, 41 N.C. App. 729,255 S.E.2d 654 (1979) (held state failed to show that (1) the marijuana was being manufactured and (2) that it was being done by defendant).
    Moreover, the evidence was insufficient to show possession with intent to manufacture. Indeed, there was no evidence of drug paraphernalia used in packaging or repackaging. See State v. Brown, 310 N.C. 563, 313 S.E.2d 585 (1984) (held that when defendant was arrested in his residence with over $1,700 in his pockets and in close proximity to cocaine and drug paraphernalia used in packaging cocaine there was substantial evidence that defendant was packaging and repackaging cocaine); State v. Perry, 316 N.C. 87, 340 S.E.2d 450 (1986)(held evidence that defendant was seen carrying a silver package which held 390 glassine envelopes containing heroin and mannitol, defendant had almost $7,500 in his sock, and defendant's key and a power bill in his name for an apartment where police found mannitol, rubber gloves, boxes with empty bindles or envelopes, a strainer, album covers, aluminum foil, scotch tape, rubber bands, measuring spoons and other items gave rise to a reasonable inference that defendant did manufacture heroin by packaging the controlled substance.); State v. Roseboro, 55 N.C. App. 205, 210, 284 S.E.2d 725, 728 (1981) (“The evidence of plastic bag corners, two sets of scales, and of the Ziploc bags found with the marijuana in the water heater was sufficient for the issue of manufacturing to go to the jury.”); State v. Outlaw, 96 N.C. App. 192, 199, 385 S.E.2d 165, 169 (1989) (held because defendant had packaged cocaine in his possession and packagingmaterials were found in the house and garage, there was sufficient evidence to support a reasonable inference on the manufacturing charge). Thus, under N.C. Gen. Stat. § 90-87 (15) (2001) and our case law, we must hold that the evidence in this case was insufficient to support the charge of manufacturing of a controlled substance.
    However, while the evidence was insufficient to support the charges of manufacturing a controlled substance and possessing with intent to manufacture a controlled substance, we hold there was sufficient evidence that Defendant possessed a controlled substance with intent to sell or deliver. See N.C. Gen. Stat. §90-95 (a)(1) (2001). To establish this offense, the State must show 1) defendant possessed a substance, 2) the substance was a controlled substance, and 3) defendant had the intent to distribute or sell the controlled substance. State v. Casey, 59 N.C. App. 99, 116, 296 S.E.2d 473, 483-84 (1982).
    In this case, indisputably, the bag found by Detective Carnes contained cocaine, a schedule II controlled substance under N.C. Gen. Stat. § 90-90. The testimony of two sheriff officers that they saw Defendant throw a plastic bag and a plastic bag of cocaine was located in the same location was sufficient evidence to reasonably infer that Defendant possessed the cocaine.   (See footnote 2) 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.”).
    Moreover, Defendant's intent to sell or deliver the controlled substance is shown by the “ordinary circumstantial evidence such as the amount of the controlled substance possessed and the nature of its packaging and labeling to carry the burden.” Casey, 59 N.C. App. at 118, 296 S.E.2d at 484. Defendant had nine-hundred seventy-five dollars on his person, the cocaine had an estimated street value of over one thousand dollars and was broken into smaller five, ten, and twenty dollar pieces. Thus, there was substantial evidence of this charge. Accordingly, while we hold that the evidence was insufficient to show that Defendant possessed with intent to manufacture a controlled substance, the evidence sufficiently established that Defendant possessed with intent to sell and deliver cocaine.
    Next, Defendant challenges the sufficiency of the evidence offered by the state to support the charge that he maintained a vehicle for the purpose of keeping or selling a controlled substance in violation of N.C. Gen. Stat. § 90-108(a)(7). To support a conviction for this offense, “the State must prove that the defendant did (1) knowingly (2) keep or maintain (3) a vehicle (4) which is used for the keeping or selling (5) of controlled substances.” State v. Mitchell, 336 N.C. 22, 31, 442 S.E.2d 24, 29 (1994); N.C. Gen. Stat. § 90-108(a)(7) (2001). Moreover, the State must prove the vehicle was kept “over a duration of time” for use in keeping or selling of controlled substances. Id. at 32, 442S.E.2d at 30. Temporary possession by a defendant of a controlled substance inside of a vehicle is insufficient to support a conviction under N.C. Gen. Stat. § 90-108(a)(7). Id. at 32-33, 442 S.E.2d at 30. “The determination of whether a vehicle . . . is used for keeping or selling controlled substances will depend on the totality of the circumstances.” Id. at 34, 442 S.E.2d at 30.
    In this case the State argues the evidence showing that Defendant possessed 11.5 grams of cocaine broken into smaller saleable items, had a large amount of cash on his person, and was the only occupant of the vehicle he drove was sufficient to show Defendant was maintaining the vehicle for the keeping or selling of drugs. However, Defendant argues the evidence was insufficient to show he kept or maintained the vehicle. We agree.
    The record on appeal confirms that there was no evidence of drugs, drug paraphernalia, or other contraband in the vehicle. Although Defendant was apprehended after getting out of the running vehicle, the State introduced no evidence that Defendant owned the vehicle or that he had driven the vehicle on any other occasion. Since the State failed to offer substantial evidence that Defendant kept or maintained the vehicle, an essential element of the charge, we hold the trial court should have dismissed this charge.
    Defendant next contends there was a fatal variance between the indictment and evidence presented at trial. This assignment of error was not properly preserved. Even if the error was properly preserved, we would hold this argument is without merit.
    The indictment read:        The jurors for the State upon their oath present that on or about the date of offense shown and in Onslow County the defendant... unlawfully, willfully and feloniously did [possess]   (See footnote 3) with intent to manufacture, sell and deliver a controlled substance, 11.5 grams of cocaine which is included in Schedule II of the North Carolina Controlled Substance Act. G.S. 90-95 (a)(1)

[emphasis added]. This indictment identifies the crime and puts Defendant on reasonable notice to defend against it and prepare for trial. State v. Sturdivant, 304 N.C. 293, 311, 283 S.E.2d 719, 731 (1981). The fact the indictment used the term “and” instead of “or” does not defeat the indictment. State v. Helms, 247 N.C. 740, 742, 102 S.E.2d 241, 243 (1958) (“As a general rule, where a statute specifies several means or ways in which an offense may be committed in the alternative, it is bad pleading to allege such means or ways in the alternative; the proper way is to connect the various allegations in the accusing pleading with the conjunctive term 'and' and not with the word 'or'.”).
    Defendant next contends the trial erred by not allowing him to present evidence during the habitual felon phase of the trial that he was not in fact guilty of the crimes for which he had previously accepted plea agreements. However, N.C. Gen. Stat. § 14-7.4 (2001) provides that evidence of prior convictions is sufficient to prove the charge of being a habitual felon. “Questioning the validity of the original conviction is an impermissible collateral attack.” State v. Creason, 123 N.C. App. 495, 500, 473 S.E.2d 771, 773 (1996). This assignment of error is without merit.
    Defendant next contends that the trial court committed error by excluding relevant, material, and admissible evidence of an alternative possible owner of the cocaine. The trial court held that testimony by sheriff officers about the reputations of the owner of the house and his brother for drug dealing were irrelevant. Admission of evidence of third-party guilt is a well established rule:
        Evidence that another committed the crime for which the defendant is charged generally is relevant and admissible as long as it does more than create an inference or conjecture in this regard. It must point directly to the guilt of the other party. Under Rule 401 such evidence must tend both to implicate another and be inconsistent with the guilt of the defendant.

State v. Floyd, 143 N.C. App. 128, 133, 545 S.E.2d 238, 240-41 (2001) (citing State v. Cotton, 318 N.C. 663, 667, 351 S.E.2d 277, 279-80 (1987)). [emphasis in original.]
    In this case, Defendant sought to do no more than create conjecture that another might be the owner of the cocaine. He offered no evidence implicating the guilt of another party. He simply sought to use the reputation of others to raise the inference that another might be guilty. Thus, this assignment of error is without merit.
    In his final assignments of error, Defendant argues the combined use of the North Carolina General Statutes §§ 14-7.1 to -7.6 (Habitual Felons Act) and Structured Sentencing, see N.C. Gen.Stat. §§ 15A-1340.10 - 1340.23 (2001), violates the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 18, 19, 21 and 27 of the North Carolina Constitution by subjecting him to double jeopardy, and constitutes excessive and cruel and unusual punishment under the Eighth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 27 of the North Carolina Constitution. We disagree.
    This Court rejected an identical challenge to the Habitual Felons Act and Structured Sentencing Act on the basis of double jeopardy in State v. Brown, 146 N.C. App. 299, 552 S.E.2d 234 (2001). In Brown, our Court held that structured sentencing and the Habitual Felons Act are used to enhance a defendant's punishment for his current offense, not to punish the defendant for his prior convictions, and there was no constitutional violation. Id. Our courts have held that the procedures set forth in the Habitual Felons Act comport with a criminal defendant's federal and state constitutional guarantees. State v. Wilson, 139 N.C. App. 544, 550-51, 533 S.E.2d 865, 870 (2000) (upholding Habitual Felons Act against separation of powers challenge); State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 31 (2000) (citing State v. Todd, 313 N.C. 110, 118, 326 S.E.2d 249, 253 (1985) (holding the Habitual Felons Act alone did not violate double jeopardy)); and State v. Hodge, 112 N.C. App. 462, 468, 436 S.E.2d 251, 255 (1993) (upholding Habitual Felons Act against due process, equal protection, and double jeopardy challenges).     Our state has “made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional approaches to punishment, must be isolated from society in order to protect the public safety.” Ewing v. Cal., ____ U.S. ___, ___, 155 L. Ed. 2d 108, 119 (2003) (upholding California's three strike law giving life imprisonment to a person convicted of a felony after two or more previous convictions for serious or violent felonies). Such habitual felon laws have been upheld against challenges that they violate the Eighth Amendment to the U. S. Constitution in our Supreme Court and in the United States Supreme Court. Id.; Lockyer v. Andrade, ___ U.S. ___, 155 L.Ed.2d 144 (2003); Rummel v. Estelle, 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980); State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985); “Only in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment.” State v. Ysaguire, 309 N.C. 780, 786, 309 S.E. 2d 436, 441 (1983). This is not such a case.
    Defendant was convicted for felony possession of cocaine (1997 and 2001), for felony attempted larceny (1995), felony possession of a stolen automobile (2001), along with several violent and non- violent misdemeanors. Given Defendant's previous conviction history, we find that his sentence is neither cruel nor unusual. See State v. Aldridge, 76 N.C. App. 638, 640, 334 S.E.2d 107, 108(1985) (thirty year sentence for possession of stolen goods as a habitual felon did not constitute cruel and unusual punishment).
    In sum, we reverse Defendant's convictions for manufacturing a controlled substance, possession with intent to manufacture a controlled substance, and maintaining a vehicle for keeping and selling a controlled substance. We, however, uphold his conviction on the offense of possession with intent to sell and deliver, driving while his license was revoked, and obtaining the status of a habitual felon. Accordingly, we remand for resentencing on those offenses.
    No error in part, reversed in part, remanded for resentencing.
    Judges HUDSON and CALABRIA concur.
    Report per Rule 30(e).

Footnote: 1