State v Strickland, (02-1507) 08/05/2003

Appeal by defendant from judgments entered 17 July 2002 by Judge Howard E. Manning, Jr., in Superior Court, Wake County. Heard in the Court of Appeals 21 July 2003.

Attorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State.

Robert W. Ewing for defendant-appellant.

McGEE, Judge.

    Antonio Maurice Strickland (defendant) was indicted on 28 January 2002 on charges of possession with intent to sell and deliver cocaine, sale of cocaine, and delivery of cocaine. Defendant was indicted for being an habitual felon on 25 February 2002.
    The State presented evidence at trial which tended to show that John Williams drove into Raleigh, North Carolina, to buy crack cocaine on 6 December 2001. As he drove into the downtown area, he saw a man named Leslie Darnell Fowlkes standing in the middle of the street. Williams stopped and asked Fowlkes if he knew the location of a club, and then asked him if he knew where he couldget crack cocaine. Fowlkes told Williams he knew where to get drugs and got in the car with Williams and directed him to the intersection of Blount Street and Bragg Street. Williams told Fowlkes that he wanted "a 40 rock," and Fowlkes got out of the car.
    Williams testified that a couple of minutes after leaving the car, Fowlkes returned with another person. Fowlkes got in Williams' car while the other person walked to the passenger side. Williams handed Fowlkes two twenty dollar bills, and Fowlkes handed them out the window. The man outside the car then passed two small baggies to Fowlkes, who passed the baggies to Williams. Williams drove away.
    On the same evening, officers from the Raleigh Police Department Drug Enforcement Unit were conducting surveillance from a roof at the intersection of Blount Street and Bragg Street. Officer T. R. McElroy observed a man running on Bragg Street towards Blount Street. When the man reached the corner, he yelled, "I have a customer for you." Shortly thereafter, defendant crossed the street and met with Fowlkes. Defendant and Fowlkes walked to Williams' car where they completed a drug sale.
    Following the drug sale, Officer McElroy continued watching defendant. Officer Steve Privatelli radioed a description of Williams' car and Officers Alexander Doughty and D. L. Bond initiated a traffic stop of Williams' vehicle. Sergeant K. A. Wescoe ordered Williams to get out of his car. When Williams exited the vehicle, the cocaine he had fell to the ground. Meanwhile, defendant got into a taxicab, and Officer McElroyradioed to Sergeant Wescoe a description of defendant and the taxicab. Sergeant Wescoe headed in the direction of where the taxicab was going, and stopped the taxicab. Sergeant Wescoe detained defendant, who was the passenger in the taxicab, and confirmed with Officers McElroy and Privatelli that defendant matched the description that they had given out on the radio.
    Defendant was convicted of possession with intent to sell or deliver cocaine, sale of cocaine, and delivery of cocaine. The trial court sentenced defendant as an habitual felon. Defendant was sentenced to two consecutive terms of seventy to ninety-three months imprisonment. The court arrested judgment on the sale of cocaine charge. Defendant appeals.
    Defendant first argues that there was insufficient evidence that he ever possessed cocaine, or that he was the perpetrator of the alleged crimes. Defendant contends that no police officer could testify that they saw cocaine in defendant's possession. Additionally, Williams, who purchased the cocaine, did not see who transferred the cocaine to the middleman. Defendant argues that at most, the State's evidence showed that defendant was merely present outside of Williams' vehicle.
    The State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716- 17, 483 S.E.2d 432, 434 (1997). "'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'" Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). Whenreviewing the sufficiency of the evidence, "[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994) (citing State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)).
    The evidence presented by the State in this case showed that Williams met Fowlkes and told him he wanted to purchase crack cocaine. Fowlkes directed Williams to the intersection of Blount Street and Bragg Street, where Officers McElroy and Privatelli were conducting surveillance. Officer McElroy observed Fowlkes running west on Bragg and yelling, "I have a customer for you." Fowlkes then met with defendant. Fowlkes returned to Williams' car with defendant, got into the car, and Officer McElroy saw defendant hand something into Williams' car and receive money in return. Williams testified that he gave $40.00 to Fowlkes, who in turn handed the money out the window to the man who had returned with him, and the man handed Fowlkes the drugs. Following the transaction, police stopped Williams' car, and when Williams exited his car, drugs fell onto the ground. Williams testified that he had just purchased the drugs. Meanwhile, Officer McElroy watched defendant leave the intersection in a taxicab, which was later stopped by other officers. Defendant was the passenger in the taxicab and matched the description of the person who had handed the object into Williams' care and received back money. In the light most favorable to the State, a reasonable juror could conclude from thisevidence that defendant possessed cocaine and sold it to Williams. Cross, 345 N.C. at 717, 483 S.E.2d at 434.
    Defendant next argues that the trial court erred by sentencing him as an habitual felon because this issue was not submitted to the jury and the record does not show that defendant pled guilty to the status of being an habitual felon. Defendant asserts that his stipulation to being an habitual felon was insufficient to establish that he understood the consequences of his admission. We agree.
    We are bound by our Court's decision in State v. Gilmore, 142 N.C. App. 465, 542 S.E.2d 694 (2001), that a defendant's stipulation to being an habitual felon, "in the absence of an inquiry by the trial court to establish a record of a guilty plea, is not tantamount to a guilty plea." Id. at 471, 542 S.E.2d at 699 (citing State v. Williams, 133 N.C. App. 326, 330, 515 S.E.2d 80, 83 (1999)); see also State v. Edwards, 150 N.C. App. 544, 550, 563 S.E.2d 288, 291-92 (2002) (habitual felon conviction reversed because trial court did not establish a record that defendant's admission was a guilty plea). The trial court did not establish a record that defendant's stipulation was a guilty plea. Therefore, we reverse defendant's conviction of being an habitual felon and remand for a new habitual felon hearing. Additionally, because defendant's conviction on this charge allowed the trial court to enhance defendant's sentences on the underlying offenses of possession with intent to sell or deliver cocaine and delivery of cocaine, we reverse and remand for resentencing on those offenses.     No error in part; reversed and remanded in part.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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