An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1732


Filed: 18 November 2003


v .                         Harnett County
                            No. 01 CRS 54035
DAVID JOVAN MCDONALD                01 CRS 8025

    Appeal by defendant from judgment entered 6 August 2002 by Judge Wiley F. Bowen in Harnett County Superior Court. Heard in the Court of Appeals 15 October 2003.

    Roy Cooper, Attorney General, by Richard L. Harrison, Assistant Attorney General, for the State.

    Anne Bleyman for defendant-appellant.

    STEELMAN, Judge.

    Defendant, David Jovan McDonald, appeals a judgment convicting him of possession with the intent to sell and deliver cocaine and maintaining a vehicle to keep and sell cocaine. He asserts five assignments of error. For the reasons discussed herein, we find no error in part and reverse and remand in part.
    The State's evidence tended to show that on 16 August 2001, the Harnett County Sheriff's Department received a call from a confidential informant. Based on the informant's call, Agent Tim Bradley was dispatched to the Dunn area to look for a black malenamed “Manny,” driving a black Buick with chrome wheels, who had been seen earlier that morning selling cocaine. Agent Bradley was familiar with Manny, identified as defendant, and found him and Carl Washington at a car wash vacuuming the interior of a black Buick with chrome wheels. Agent Bradley, upon noticing that defendant was not alone, radioed for backup. After Detective Christopher Carroll arrived, the officers decided to set up surveillance, but as Agent Bradley was pulling out of the parking lot in his unmarked police car, defendant pulled out behind him. Washington was a passenger in defendant's car. Detective Carroll pulled in behind defendant. Agent Bradley then turned on his blue lights and exited his car. As he approached defendant's vehicle, he observed defendant throw a small golf ball-sized bag out of the passenger window. Agent Bradley retrieved the bag, which contained nineteen individually wrapped off-white waxy rocks, which he believed to be crack cocaine. Agent Bradley placed defendant under arrest. He then searched defendant's person. He found $1,560.00 in cash in defendant's pants pocket.
    Defendant's evidence tended to show that he had been washing his car when he saw the policemen at the car wash. When he was finished, he pulled out of the car wash behind Agent Bradley. Washington retrieved the crack cocaine from his front pants pocket and then threw it out of the passenger window. Defendant toldAgent Bradley several times that the drugs were not his.
    Defendant was eventually charged with possession with intent to sell or deliver cocaine, a Schedule II controlled substance, and with felony maintaining a vehicle for keeping and selling cocaine. He was found guilty by a jury of each charge. The trial court consolidated the two charges and sentenced defendant to ten to twelve months in prison. Defendant appeals.
    In his first assignment of error, defendant argues that the trial court erred by ruling that the warrantless stop was reasonable. We disagree.
    In order to conduct an investigatory warrantless stop and detention of an individual, a police officer must have a reasonable suspicion, grounded in articulable and objective facts, that the individual is engaged in criminal activity. State v. Thompson, 296 N.C. 703, 252 S.E.2d 776, cert. denied, 444 U.S. 907, 62 L. Ed. 2d 143 (1979); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968). If a police officer has an articulable and reasonable suspicion that criminal activity is afoot, then a brief stop of the suspicious individual does not violate his Fourth Amendment rights. Thompson, 296 N.C. at 706, 252 S.E.2d at 779. In determining whether reasonable suspicion to make an investigatory stop exists, we must consider the totality of the circumstances. State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69-70 (1994) (quoting United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981), cert. denied, 455 U.S. 923, 71 L. Ed. 2d 464, reh'g denied, 455 U.S. 1008, 71 L. Ed. 2d 877 (1982)).
    In the instant case, Agent Bradley relied on information provided by a confidential informant when he went to look for defendant. An informant's tip may provide the reasonable suspicion necessary for an investigative stop. State v. Sanchez, 147 N.C. App. 619, 623, 556 S.E.2d 602, 606 (2001), rev. denied, 355 N.C. 220, 560 S.E.2d 358 (2002). In weighing the reliability of an informant's tip, the informant's veracity, reliability, and basis of knowledge must be considered. Illinois v. Gates, 462 U.S. 213, 230, 76 L. Ed. 2d 527, 543, reh'g denied, 463 U.S. 1237, 77 L. Ed. 2d 1453 (1983). “There must also exist sufficient police corroboration of the tip before the stop is made. If reasonable suspicion exists before the stop is made, there is no violation of the Fourth Amendment.” Sanchez, 147 N.C. at 624, 556 S.E.2d at 607 (citing State v. Hughes, 353 N.C. 200, 207, 539 S.E.2d 625, 630 (2000)).
    In the instant case, Captain Billy Wade received a telephone call on 16 August 2001 from a confidential informant, who told him about a black male, nicknamed “Manny,” who drove a black Buick with chrome wheels and had been selling cocaine that morning. The informant had worked with Captain Wade for approximately fifteenyears and had provided information that led to fifteen to twenty arrests. The informant further told Captain Wade that Manny could be found in the Dunn area.
    Captain Wade told Agent Bradley about the call and asked him if he knew Manny. Agent Bradley stated that he knew Manny and left to look for him. Agent Bradley drove to the Dunn area and saw defendant cleaning a black Buick with chrome wheels. Agent Bradley had seen defendant in that car “numerous times.” At the time that Agent Bradley saw and stopped defendant, the informant's information had been corroborated. Defendant, a black male, was found in the Dunn area, driving a black Buick with chrome wheels. Defendant was also known as “Manny.” Thus, the informant provided not only the name of the perpetrator, but where he could be found, what type of vehicle he would be driving and what he was doing. In addition, there was no evidence that the informant had previously provided unreliable information. See State v. Holmes, 142 N.C. App. 614, 544 S.E.2d 18, cert. denied, 353 N.C. 731, 551 S.E.2d 116 (2001).
    Based on the totality of the circumstances as perceived by Agent Bradley, we hold that he possessed an articulable and reasonable suspicion that would justify the investigatory stop of defendant in this case. This assignment of error is without merit.
    In his second assignment of error, defendant argues that thetrial court erred in denying his motion to dismiss the two charges. We agree as to the felony maintaining a vehicle for the purpose of keeping and selling cocaine charge, but disagree as to the possession with intent to sell or deliver cocaine charge.
    In considering a motion to dismiss, the only issue for the trial court is whether there is substantial evidence of each essential element of the charged offense and of the defendant being the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). The court must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from that evidence. State v. Jaynes, 342 N.C. 249, 274, 464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). Contradictions and discrepancies in the evidence are resolved in favor of the State. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995).
    The elements of felony maintaining a vehicle for the purpose of keeping or selling a controlled substance are found in section 90-108. “(a) It shall be unlawful for any person . . .to knowingly keep or maintain any . . . vehicle . . . which is used for the keeping or selling of the same in violation of this Article[.]”N.C. Gen. Stat. § 90-108(a)(7) (2003). Subsection (b) provides that if this violation were committed intentionally, then the offense shall be a felony. N.C. Gen. Stat. § 90-108(b) (2003). In State v. Mitchell, 336 N.C. 22, 32-33, 442 S.E.2d 24, 30-31 (1994), our Supreme Court held that section 90-108(a)(7) “does not prohibit the mere temporary possession of [drugs] within a vehicle.” It denotes possession that occurs over time. Id.
    The evidence, taken in the light most favorable to the State, shows that defendant possessed cocaine while in the car on 16 August 2001. No drugs were found on defendant's person or in his car. This barely raises a suspicion that defendant kept drugs in the car, which belonged to his father. “That an individual within a vehicle possesses [drugs] on one occasion cannot establish that the vehicle is 'used for keeping' [the illegal substances.]” Id. at 33, 442 S.E.2d at 30. Likewise, there is no evidence that defendant used the car for selling crack cocaine. We therefore reverse the trial court's denial of defendant's motion to dismiss the charges of maintaining a vehicle for the keeping and selling of cocaine.
    As to the charge of possession of cocaine with intent to sell or deliver, the State must show that defendant: (1) had either actual or constructive possession of the cocaine; and (2) possessed the cocaine with the intent to sell or deliver. State v. Williams,307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983).
    Agent Bradley testified that he saw defendant throw the bag of cocaine out of the window of the vehicle. Thus, there was evidence of actual possession of the cocaine by defendant. See State v. Wilder, 124 N.C. App. 136, 140, 476 S.E.2d 394, 397 (1996).
    “The method of packaging a controlled substance, as well as the amount of the substance, may constitute evidence from which a jury can infer an intent to distribute.” State v. Williams, 71 N.C. App. 136, 140, 321 S.E.2d 561, 564 (1984). See also State v. Alston, 91 N.C. App. 707, 373 S.E.2d 306 (1988).
    In the instant case, the bag held approximately nineteen grams of crack cocaine. Within the bag, each gram was individually wrapped. This evidence creates an inference of an intent to sell. See State v. Roseboro, 55 N.C. App. 205, 284 S.E.2d 725 (1981), appeal dismissed, 305 N.C. 155, 289 S.E.2d 566 (1982). “The cash found on defendant's person also supports such an inference.” Alston, 91 N.C. App. at 711, 373 S.E.2d at 310. Officers found over $1,500.00 in defendant's pants pocket. There was sufficient evidence of defendant's intent to sell or deliver the cocaine. We therefore hold that the trial court did not err in denying defendant's motion to dismiss the charge of possession with intent to sell or deliver.
    In his third assignment of error, defendant argues that thetrial court abused its discretion by sustaining the State's objections to his opening statement. We disagree.
    Section 15A-1221 provides that in a criminal jury trial, “[e]ach party must be given the opportunity to make a brief opening statement[.]” N.C. Gen. Stat. § 15A-1221(a)(4) (2003). “An opening statement is for the purpose of making a general forecast of the evidence, not for arguing the case, instructing on the law, or contradicting the other party's witnesses.” State v. Mash, 328 N.C. 61, 65, 399 S.E.2d 307, 310 (1991) (citing 23A C.J.S. Criminal Law § 1239 (1989). The control of opening statements rests in the discretion of the trial court. State v. Gibbs, 335 N.C. 1, 40, 436 S.E.2d 321, 343 (1993), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994).
    During defendant's opening statement, defense counsel stated what the officers would testify to, saying “His own testimony from the officers is that 'We came up watching the car wash.'” Thus, defense counsel attempted to argue what the State's witnesses would say and how the defense would contradict that testimony. As an argument, this may be properly prohibited by the trial court. Mash, 328 N.C. at 65, 399 S.E.2d at 310. See also State v. Paige, 316 N.C. 630, 343 S.E.2d 848 (1986). These objections were properly sustained by the trial court. Further, defendant has shown no prejudice, particularly when, after rephrasing thestatement, there was no objection to the same argument. This assignment of error is without merit.
    In his fourth assignment of error, defendant argues that the trial court erred in ruling that defendant's statements were self- serving declarations and inadmissible during the cross-examination of Agent Bradley. We disagree.
    “Testimony of a self-serving declaration made by a defendant following an alleged crime is incompetent as substantive evidence.” State v. Stanton, 319 N.C. 180, 191, 353 S.E.2d 385, 392 (1987) (citing State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976), reh'g denied, 293 N.C. 259, 243 S.E.2d 143 (1977)). Therefore, defendant telling Agent Bradley that the crack cocaine did not belong to him was properly excluded. See also State v. Cobbins, 66 N.C. App. 616, 311 S.E.2d 653 (1984); State v. Stubbs, 108 N.C. 774, 775, 13 S.E. 90 (1891). This assignment of error is without merit.
    In his fifth and final assignment of error, defendant argues that the trial court committed plain error in sentencing him to a minimum of 10 months and a maximum of 12 months. We disagree.
    Defendant was sentenced for committing one Class H felony and one Class I felony as a Level III offender. Defendant contends that the trial court's sentence of 10 to 12 months was a sentence from the aggravated range and was improper because the trial courtmade no findings of aggravating or mitigating factors as required by N.C. Gen. Stat. § 15A-1340.16(c). The State erroneously agrees that this is an aggravated range sentence. Both defendant and the State have misread the sentencing grid in N.C. Gen. Stat. § 15A- 1340.17.
    For a Level III offender of a Class H felony, the presumptive range minimum is a sentence of 8, 9, or 10 months. N.C. Gen. Stat. § 15A-1340.17(c) (2003). Once the minimum sentence is determined, the trial judge then ascertains the maximum corresponding sentence under section 15A-1340.17(d). For this offense, the maximum sentence corresponding with a minimum 10-month sentence is 12 months. Consequently, the trial court's imposition of a 10 to 12 months sentence was a proper and correct sentence from the presumptive range. This assignment of error is without merit.
    In conclusion, as to the charge of possession with intent to sell or deliver, we find no error. As to the charge of felony maintaining, we reverse the conviction. Since this conviction is reversed, we remand this case to the trial court for re-sentencing.
    Judges MARTIN and LEVINSON concur.
    Report per Rule 30(e).

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