STATE OF NORTH CAROLINA
v. New Hanover County
Nos. 01 CRS 24436, 28995
ANTOINE NIXON
Attorney General Roy Cooper, by Assistant Attorney General Amy
Pickle, for the State.
Peter Wood for defendant-appellant.
LEVINSON, Judge.
On 3 December 2001, the New Hanover County grand jury indicted
defendant on charges of possession with intent to sell and deliver
cocaine, sale of cocaine, and delivery of cocaine. The grand jury
also charged defendant with being an habitual felon. On 24 October
2002, a jury found defendant guilty of the substantive offenses and
also found that he had attained the status of an habitual felon.
The trial court consolidated the substantive offenses for judgment
and sentenced defendant as an habitual felon to a term of 116 to
149 months imprisonment. From the trial court's judgment,
defendant appeals.
At trial, the State presented evidence tending to show thefollowing: As part of an undercover sting operation of the
City/County Vice and Narcotics Unit, Detective Mike Marlowe drove
into a reputed “open air” drug market at approximately 2:08 p.m. on
27 August 2001 in a vehicle equipped for audio and video
surveillance. A man in a white tank top shirt and red ball cap,
who was later identified as defendant, yelled for Marlowe to pull
over or stop. As the man approached Marlowe, “[h]e was sorting
through pieces of the material, substance that he subsequently sold
to [Marlowe]. He was sorting through it in his hand as he walked
toward[] [Marlowe's] vehicle.” Marlowe gave the man twenty dollars
for the substance, which testing later revealed was 0.1 gram of
crack cocaine. The jury viewed the videotape of the transaction.
Defendant made a motion to dismiss the charges for
insufficiency of the evidence, which the trial court denied. At
approximately 10:35 a.m. on 24 October 2002, the jury found
defendant to be guilty of possession with intent to sell and
deliver cocaine, sale of cocaine, and delivery of cocaine.
Defendant then moved to dismiss the habitual felon indictment at
the close of evidence during the habitual felon proceeding, and the
trial court denied the motion. During its charge to the jury, the
trial court stated that “the instructions I previously gave you
regarding the jury's function, reasonable doubt, credibility of
witnesses, and the weight of the evidence apply equally here.”
Neither the State nor defendant requested corrections to the jury
charge. At approximately 12:27 p.m., the jury found defendant
guilty of being an habitual felon. Defendant then gave notice ofappeal.
Defendant first contends the trial court erred by denying his
motion to dismiss the charges for insufficiency of the evidence.
He argues that “mere 'handling of drugs' is not enough to show
possession” and that the videotape of the transaction was not
competent evidence. We disagree.
In addressing defendant's motion to dismiss made at the close
of all the evidence, the trial court was to consider the evidence
in the light most favorable to the State. State v. Davis, 325 N.C.
693, 696-97, 386 S.E.2d 187, 189 (1989). The State is entitled to
every reasonable inference which can be drawn from the evidence
presented, and all contradictions and discrepancies are resolved in
the State's favor. Id. “If there is substantial evidence -
whether direct, circumstantial, or both - to support a finding that
the offense charged has been committed and that defendant committed
it, a case for the jury is made and nonsuit should be denied.”
State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 582 (1975).
Defendant was charged with three violations of N.C.G.S. § 90-
95(a)(1), which makes it unlawful for any person to “sell or
deliver, or possess with intent to . . . sell or deliver, a
controlled substance[.]” N.C.G.S. § 90-95(a)(1) (2001). The only
element of the offenses which defendant challenges is the
sufficiency of the evidence of possession.
An accused has possession of a controlled substance “within
the meaning of the law when he has both the power and intent to
control its disposition or use.” See State v. Harvey, 281 N.C. 1,12, 187 S.E.2d 706, 714 (1972). Here the State presented evidence
that defendant yelled for the undercover officer to stop, then
sorted through pieces of a substance in his hand as he approached
and subsequently sold crack cocaine to the undercover officer.
While this Court has held “handling of [drugs] for inspection
purposes does not constitute possession within the meaning of
section 90-95(h)(3), as [the defendant] did not have the power and
intent to control its disposition or use[,]” State v. Wheeler, 138
N.C. App. 163, 165, 530 S.E.2d 311, 313 (2000), that holding is
inapposite in the case sub judice. Defendant was not handling the
cocaine for inspection purposes; instead, he was preparing to sell
the cocaine. As for defendant's assertion that the videotape of
the transaction could not be used as substantive evidence, it is
without merit. “Videotapes are admissible in evidence for both
substantive and illustrative purposes under N.C. Gen. Stat. § 8-97
[].” State v. Mewborn, 131 N.C. App. 495, 498, 507 S.E.2d 906,
909 (1998). This assignment of error is overruled.
Defendant next contends the trial court committed plain error
by denying his motion to dismiss the habitual felon indictment. He
argues the indictment fails to allege an offense date. Defendant's
argument is without merit.
Being an habitual felon is not a crime, but rather a status
which subjects the individual who is subsequently convicted of a
crime to increased punishment for that crime. State v. Allen, 292
N.C. 431, 435, 233 S.E.2d 585, 588 (1977). Because N.C.G.S. § 14-
7.3 (2001) specifically outlines the requirements for charging aperson with having attained the status of an habitual felon, the
provisions of N.C.G.S. § 15A-924 (2001) as to the contents of a
criminal pleading are not applicable. See State v. Gardner, 84
N.C. App. 616, 620, 353 S.E.2d 662, 664 (1987) (a statute which
addresses a specific situation controls over a statute which
addresses a general situation). In order for an habitual felon
indictment to be proper, it must be separate from the indictment
for the principal underlying felony and must set forth the dates
that the three prior felonies were committed, the state or
government against which the felonies were committed, the dates of
convictions or guilty pleas for the felonies presented, and the
courts where the convictions or guilty pleas took place. See G.S.
§ 14-7.3 .
The separate indictment in this case conforms to these
statutory requirements by providing the offense dates, dates of the
convictions, the court where the convictions occurred, and the
government against which the offenses were committed for each of
defendant's three prior eligible felonies. Therefore, the language
of the indictment properly charges defendant with having attained
the status of an habitual felon. Defendant has not shown error and
therefore this assignment of error is overruled.
In his last argument, defendant contends the trial court
committed plain error during its jury instructions in the habitual
felon proceeding. He argues the trial court should have fully
instructed the jury during the habitual felon proceeding rather
than referencing a portion of the instructions from the principalfelony trial. We disagree.
When “'a charge fully instructs the jury on substantive
features of the case, defines and applies the law thereto, the
trial court is not required to instruct on a subordinate feature of
the case absent a special request.'” State v. Allen, 141 N.C. App.
610, 618, 541 S.E.2d 490, 496 (2000) (quoting State v. Blackstock,
314 N.C. 232, 245, 333 S.E.2d 245, 253 (1985)), appeal dismissed
and disc. review denied, 353 N.C. 382, 547 S.E.2d 816 (2001).
Because defendant failed to object to the trial court's jury
instructions during the habitual felon proceeding, this issue is
subject to review under the plain error standard. See N.C.R. App.
P. 10(c)(2) and (4). “Under the plain error rule, a new trial will
be granted for an error to which no objection was raised at trial
only if a defendant meets the heavy burden of convincing the
reviewing court that the jury would have returned a different
verdict but for the error.” State v. Harding, 110 N.C. App. 155,
161, 429 S.E.2d 416, 420 (1993).
“[I]nstructions as to the significance of evidence which do
not relate to the elements of the crime itself or defendant's
criminal responsibility therefor have been considered subordinate
features of the case.” State v. Hunt, 283 N.C. 617, 624, 197
S.E.2d 513, 518 (1973). Similarly, “[e]vidence relating to the
credibility of a witness is a subordinate, rather than a
substantive, feature of the case.” State v. Edwards, 37 N.C. App.
47, 50, 245 S.E.2d 527, 529 (1978). Less than two hours after the
jury found defendant to be guilty of the principal felonies, thetrial court, during the habitual felon proceeding, reminded the
jury that the instructions from the principal felonies trial
“regarding the jury's function, reasonable doubt, credibility of
witnesses, and the weight of the evidence apply equally here.”
Defendant has not shown that the trial court erred by referring the
jury to its earlier instructions on the subordinate features of the
case rather than by repeating its instructions on those subordinate
features. Accordingly, defendant has not shown plain error. The
assignment of error is overruled.
Defendant failed to set out his remaining assignments of error
in his brief. Because he has neither cited any authority nor
stated any reason or argument in support of those assignments of
error, they are deemed abandoned. N.C.R. App. P. 28(b)(6).
Defendant received a fair trial, free from prejudicial error.
No error.
Chief Judge EAGLES and Judge BRYANT concur.
Report per Rule 30(e).
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