An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1573

NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2003

STATE OF NORTH CAROLINA

v .                         Craven County
                            No. 01 CRS 7463, 50765
RICHARD EARL HARPER

    Defendant.

    Appeal by defendant from judgment entered 19 March 2002 by Judge Benjamin G. Alford in Superior Court, Craven County. Heard in the Court of Appeals 16 September 2003.

    Attorney General Roy Cooper, by Assistant Attorney General John P. Scherer, II, for the State.

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

    WYNN, Judge.

    By this appeal, Defendant, Richard Earl Harper, contends the trial court erroneously, (I) denied his motion to suppress his pre- trial incriminating statement, (II) instructed the jury on constructive possession, (III) denied his motion to dismiss the charge of possession with intent to sell and deliver cocaine, (IV) sentenced him to an imprisonment term grossly disproportionate to the offense committed, and (V) sentenced him under the habitual felon act and structured sentencing act. We find no error in his trial.
    At approximately midnight on 29 August 2001, Craven County Sheriff's Department investigators served a search warrant forcocaine, drug paraphernalia, U.S. currency documents and photographs on a residence in Cove City, North Carolina leased to Defendant's girlfriend. Although Defendant contended he resided with his mother, evidence also indicated Defendant lived with his girlfriend. After handcuffing Defendant and his girlfriend, the officers conducted the search which revealed drug paraphernalia and crack cocaine. Upon finding the cocaine, Investigator D.R. Craft said, “Found it” and Defendant stated, “That's all I had.”
    Defendant was indicted for possession with intent to sell and deliver cocaine and attaining the status of a habitual felon. After conviction of the lesser offense of possession of cocaine, Defendant admitted his habitual felon status and pled guilty to possession with intent to sell and distribute marijuana.   (See footnote 1)  From his convictions and sentence of 110 months to 141 months imprisonment, Defendant appeals.
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On appeal, Defendant first contends the trial court erred by denying his motion to suppress his statement--“That's all I had”-- because it was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966). We disagree.
    In evaluating a trial court's ruling on a motion to suppress, our standard review is that “the trial court's findings of fact are conclusive on appeal if supported by competent evidence, even ifthe evidence is conflicting. Additionally, the trial court's determination of whether an interrogation is conducted while a person is in custody involves reaching a conclusion of law, which is fully reviewable on appeal.” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001). Moreover, “a practice that the police should know is reasonably likely to evoke an incriminating response from a suspect . . . amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” State v. DeCastro, 342 N.C. 667, 684, 467 S.E.2d 653, 661 (1996).
    In this case, the State concedes Defendant was in custody at the time the incriminating statement was made and there is no indication in the record that Defendant had been advised of his constitutional rights prior to making the incriminating statement. Thus, the question for our determination is whether Defendant's statements were given in response to an interrogation by law enforcement officers which would bring his statements under the exclusionary rule established in Miranda.
    The pertinent facts of this case indicate that Defendant was handcuffed, sitting on the bed in a bedroom diagonally across from the kitchen, with an investigator sitting next to him while Investigator Craft searched the kitchen. Two other officers searched other areas of the home and a third investigator remainedwith Defendant's girlfriend. Investigator Craft could see Defendant from the kitchen. After Investigator Craft found the cocaine, he looked at Defendant and the investigator sitting next to Defendant and “expressed to everyone” that he had found it as he walked out of the kitchen. When Investigator Craft made this statement, Defendant was looking directly at him and responded “That's all that I had.”
    In State v. Young, 65 N.C. App. 346, 309 S.E.2d 268 (1983), after the police confronted the defendant with a brown paper bag containing a concealed pocketbook the following conversation occurred:
        Officer:    “I wonder whose this is.”
        Defendant: “It ain't mine. You didn't get it         from me.”
        Officer: “I wonder whose this is.”
        Defendant:”It ain't mine.”
        Officer:     “It's yours or Duke's one.”
        Defendant: “It's mine, I'm not going to get Duke in trouble.”

The trial court concluded the exchange between the officer and defendant was interrogation. However, in State v. Porter, 303 N.C. 680, 281 S.E.2d 377 (1981), our Supreme Court, in concluding a defendant's statement was spontaneous and voluntary, reiterated the rule that volunteered statements of any kind are not barred by the Fifth Amendment. In Porter, the Defendant and another had just been apprehended and handcuffed when the officer radioed his supervisor to inform him the two suspects had been taken into custody. The supervisor asked the officer if he had recovered a bank bag and the defendant, hearing the question, stated “the bank bag is in the car.”     The facts of this care are analogous to those in Porter. Here, three investigators were conducting a search for drugs and drug paraphernalia pursuant to a search warrant obtained based upon a confidential informant's tip. Upon finding the drugs in the kitchen, Investigator Craft announced to everyone that he had “found” the drugs. Defendant then stated “That's all I had.” These facts are factually dissimilar from the circumstances in Young, where the officer approached the defendant, addressed his comments to the defendant only, and made an accusation that the bag belonged to the defendant. Accordingly, we conclude Defendant's statement was not rendered as the result of interrogation and hold the trial court did not err in denying Defendant's motion to suppress the statement.
    Defendant next argues the trial court erred in instructing the jury on constructive possession because such an instruction was not warranted by the evidence and was contrary to the trial court's prior rulings. As an initial matter, we note Defendant did not object to the constructive possession charge at trial; accordingly Defendant's arguments are subject to plain error review. See N.C. R. App. P. 10(b)(1). “Under a plain error analysis, the defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.” State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
    Defendant contends the State should have been estopped from arguing a constructive possession theory because the Statecontended Defendant had no possessory interest in the home and therefore no standing to challenge the search warrant in its arguments against Defendant's motion to suppress the cocaine. We disagree.
    “Constructive possession exists when the defendant while not having actual possession, . . . has the intent and capability to maintain control and dominion over the narcotics.” State v. Butler, 356 N.C. 141, 146, 567 S.E.2d 137, 140 (2002). “Where such [drugs] are found on the premises under the control of the accused this fact, in and of itself gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on the charge of unlawful possession.” State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). However, “unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.” State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989). Thus, under the holding in Davis, even assuming Defendant did not have a possessory interest in the home, if the State could demonstrate other incriminating circumstances tying Defendant to the drugs, a constructive possession instruction could be given to the jury.
    In this case, the pertinent facts indicate the residence was leased to Defendant's girlfriend and that Defendant often spent the night with his girlfriend. Indeed, Defendant had just finished taking a shower when the investigators arrived and a letter carrier testified Defendant received mail at the address. Moreover, thetelephone number assigned to that location was in Defendant's name with the house's address listed as Defendant's address. Finally, Defendant's statement “That's all I had” is an indication the drugs belonged to Defendant. Accordingly, the trial court did not commit plain error in instructing the jury on constructive possession.
    Defendant next contends the trial court erred in denying his motion to dismiss the charge of possession of cocaine with the intent to sell and distribute because the evidence presented was insufficient as a matter of law to establish each element of the offense. We disagree.
    “The standard for ruling on a motion to dismiss is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In determining the sufficiency of the evidence, the 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. Harris, 145 N.C. App. 570, 578, 551 S.E.2d 499, 504 (2001).
    “Under the charge of possession with the intent to sell or deliver cocaine, the State has the burden of proving: (1) the defendant possessed the controlled substance; and (2) with the intent to sell or distribute it.” State v. Diaz, ____ N.C. App. ____, 575 S.E.2d 523, 531 (2002). As stated, the State presented sufficient evidence of Defendant's constructive possession of thecocaine. Indeed, Defendant's statement “That's all I had” indicates his ownership and control of the cocaine. Thus, the question becomes whether there was sufficient evidence of Defendant's intention to sell and distribute the drugs.
    The State presented evidence of plastic baggies with the corners ripped off of the ends. Investigator Craft testified the drug dealers put the drugs in the baggies, tear the ends off and then wrap it for resale. In the brass kitchen chandelier, Investigator Craft found a baggie that contained crack cocaine individually wrapped in plastic. The investigators also found a black digital scale. This testimony constituted substantial evidence of Defendant's intent to sell and distribute the cocaine. Accordingly, we hold the trial court did not err in denying Defendant's motion to dismiss.
    Defendant next contends his sentence of 110 to 141 months imprisonment was grossly disproportionate to the offense committed and therefore violates the Eighth Amendment to the United States Constitution and Article I, § 27 of the North Carolina Constitution. Citing Lockyer v. Andrade, 270 F.3d 743 (9th Cir. 2001), Defendant argues that had he not received a consolidated sentence of 110 to 141 months or roughly 9.2 to 11.75 years in prison based upon his status as a habitual felon, he would have received a sentence of 16-20 months imprisonment, assuming consecutive sentences and no findings of aggravation. We disagree.
    We initially note that Defendant has not properly preserved this issue for appellate review as “it is well settled that anerror, even one of constitutional magnitude, that defendant does not bring to the trial court's attention is waived and will not be considered on appeal. State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39 (2002). Nevertheless, even assuming Defendant had properly preserved this issue for consideration, Defendant's sentence was not grossly disproportionate to the offense committed. See State v. Clifton, ____ N.C. App. ____, 580 S.E.2d 40 (2003)(considering the U.S. Supreme Court's decision in Lockyer v. Andrade, this Court stated that “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” and that our U.S. Supreme Court indicated factors such as the length of sentence, the availability of parole, severity of the underlying offense, and the impact of recidivism should be considered in the analysis). In this case, Defendant had five prior convictions for either possession with the intent to sell and distribute cocaine or the sale and delivery of cocaine between 1991 and 1995. Accordingly, even assuming this issue was properly preserved, we conclude Defendant's sentence was not grossly disproportionate to the offense committed.
    In Defendant's final argument, he contends the combined use of the Habitual Felons Act and the Structured Sentencing Act deprived him of his constitutional rights against double jeopardy, to due process of law and to be free from excessive and cruel or unusual punishment. We note however that Defendant neither presented these constitutional questions to the trial court nor presented anyarguments on appeal in support of his contentions. Accordingly, pursuant to State v. Wiley, 355 N.C. 592, 565 S.E.2d 22 (2002), State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991), State v. Parker, 137 N.C. App. 590, 530 S.E.2d 297 (2000), and N.C. R. App. P. 28(b)(6), this assignment of error is deemed abandoned. Indeed, this Court cannot determine whether Defendant's constitutional right to due process of law was violated without an argument as to how the combined use of the Habitual Felons Act and Structured Sentencing Act was problematic in this case. Moreover, this Court in State v. Brown, 146 N.C. App. 299, 552 S.E.2d 234, disc. rev. denied, 354 N.C. 576, 559 S.E.2d 186 (2001) rejected the argument that the combined use of these acts violated the prohibitions against double jeopardy.
    No error.
    Judges TYSON and LEVINSON concur.
    Report per Rule 30(e).


Footnote: 1
        Defendant had been charged in a separate indictment with possession with intent to sell and deliver marijuana. This charge arose from conduct occurring on or about 31 January 2001 and not from any evidence obtained on 29 August 2001.

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