State v Ismail, (02-1662) 08/19/2003

Appeal by defendant from judgments entered 23 July 2002 by Judge Sanford L. Steelman, Jr., in Superior Court, Union County. Heard in the Court of Appeals 4 August 2003.

Attorney General Roy Cooper, by Assistant Attorney General William W. Stewart, Jr., for the State

Haakon Thorsen for defendant-appellant.

McGEE, Judge.

    Defendant was indicted (1) for possession with intent to sell and deliver cocaine on 23 July 2001; (2) for selling cocaine and delivery of cocaine on 4 March 2002; and (3) for having attained the status of habitual felon on 29 April 2002.
    The State presented evidence at trial which tended to show that from January through April 2001, Officer David McCallister of the Monroe Police Department was assigned to an undercover investigation seeking to prevent street level drug transactions. Officer McCallister's role was to "drive around as many nights and weeks as [he] could purchasing illegal narcotics, specifically crack cocaine." As Officer McCallister went out to purchase drugson 16 February 2001, he passed by Monroe Discount Beverage, where he saw a man wave at him, and he pulled his vehicle over. Officer McCallister rolled his window down and asked the man if he "could [] get me a 20." Officer McCallister testified that he was referring to "a 20 dollar rock of crack cocaine." The man told Officer McCallister to "hold on," and then walked across the street to talk to another man. He received an item from the other man and then walked back to Officer McCallister's vehicle and "placed one rock of crack cocaine into [Officer McCallister's] hand." The drug transaction was recorded on a videotape, which was played for the jury while Officer McCallister described his purchase of cocaine from defendant. Officer McCallister identified defendant as the person who sold him the crack cocaine.
    After he drove away, Officer McCallister radioed Detective T.J. Goforth, who was acting as backup and as evidence custodian for Officer McCallister. Officer McCallister told Detective Goforth that he had just made a drug buy and described the seller as a "black male wearing a Members Only jacket and a black toboggan." Detective Goforth waited for Officer McCallister to leave, and then went to the area where the drug transaction occurred to look for the person matching the description of the seller. Detective Goforth saw defendant, who matched the description. Defendant told Detective Goforth that his name was Abdul Ismail. Detective Goforth identified the defendant in court as the person who told her his name was Abdul Ismail. After speaking with defendant, Detective Goforth met with OfficerMcCallister and took custody of the drugs. Forensic drug analysis identified the drugs as being 0.1 of a gram of cocaine.
    Defendant was convicted of possession with intent to sell or deliver cocaine, sale of cocaine, delivery of cocaine and of being an habitual felon. Defendant was sentenced to 133 to 169 months' imprisonment. The trial court arrested judgment on the delivery of cocaine charge. Defendant appeals.
    Defendant first argues that there was insufficient evidence that he was the perpetrator of the alleged crimes. Specifically, defendant contends that McCallister's identification was not convincing. McCallister only described the drug seller as a black male wearing a Member's Only jacket and a black toboggan. Defendant notes that McCallister did not say whether the man was short or tall, heavy or thin, or provide any other description. Defendant therefore contends that McCallister's description was too general. Additionally, defendant argues that McCallister's in- court identification, over a year later, was too far removed in time to be a dependable identification. Defendant further notes that Detective Goforth did not see McCallister and defendant together. Finally, defendant argues that there was no other evidence connecting him to the drugs, noting that there were no fingerprints, no drugs were found on defendant, and he made no confession or admission.
    After careful review of the record, briefs and contentions of the parties, we find no error. To survive a motion to dismiss, the State must present substantial evidence of each essential elementof 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)). When reviewing 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)).
    In the case before us, Officer McCallister identified defendant in court as the person who sold him the drugs. Detective Goforth testified that she went to the scene of the drug buy shortly thereafter, and that defendant matched the description of the seller given by Officer McCallister. Defendant argues that this evidence identifying him as the perpetrator of the offense was insufficient. However, defendant did not move to suppress the identification. Except where out-of-court procedures result in an unreliable in-court identification, "it is for a jury to determine the credibility of [a] witness's identification of the defendant." State v. McCraw, 300 N.C. 610, 616, 268 S.E.2d 173, 177 (1980). The trial court did not err by denying defendant's motion to dismiss for insufficiency of the evidence. See State v. Scott, 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002)("on a motion to dismiss, the trial court should be concerned only about whether the evidenceis sufficient for jury consideration, not about the weight of the evidence").
    Defendant next argues that the trial court erred by sentencing him to a disproportionate punishment. Specifically, defendant contends that his sentence in excess of eleven years for selling one $20 rock of cocaine was excessive. Defendant additionally argues that his sentence under habitual felon laws violated double jeopardy, because he had already been punished for his prior felonies.
    Initially, we note that defendant is not entitled to review of his habitual felon conviction because he pled guilty. N.C. Gen. Stat. § 15A-1444(a) (2001). Defendant is also not entitled to review of his sentence since he was sentenced in the presumptive range. N.C. Gen. Stat. § 15A-1444(a1) (2001). Defendant's right to appellate review is limited to a review of whether the sentence imposed resulted from an incorrect calculation of defendant's prior record level. N.C. Gen. Stat. § 15A-1444(a2) (2001). However, defendant does not seek review of his prior record level calculation.
    We additionally note that defendant did not raise this issue at trial. "'Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.'" State v. Williams, 355 N.C. 501, 528, 565 S.E.2d 609, 625 (2002) (citations omitted).
    Finally, even assuming arguendo that the issue was preserved for appellate review, defendant's argument is without merit. "[O]ur Supreme Court has held that the procedures set forth in our habitual felon statute, N.C. Gen. Stat. § 14-7.1 et seq., comport with a defendant's federal and state constitutional guarantees." 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)).
    No error.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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