Appeal by defendant from judgments dated 6 September 2002 by
Judge Thomas D. Haigwood in New Hanover County Superior Court. Heard in the Court of Appeals 26 February 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Newton Pritchett, for the State.
Robert T. Newman, Sr. for defendant-appellant.
BRYANT, Judge.
Tyrone Anthony Lane (defendant) appeals judgments dated 6
September 2002 entered consistent with a jury verdict finding him
guilty of possession of cocaine with intent to sell or deliver,
assault on a law enforcement officer, resisting, delaying or
obstructing a public officer, driving while license revoked (01 CRS
29254), intentionally keeping or maintaining a vehicle for the
purpose of keeping or selling controlled substances (01 CRS 29255),
and having attained the status of habitual felon (02 CRS 1919).
At trial, Deputy Michael Howe testified he was in uniform but
driving an unmarked patrol car on 5 December 2001. He was on the
lookout for two brothers for whom arrest warrants had been issued
when he spotted defendant driving a vehicle “at a low rate of
speed.” Defendant was driving in an area Deputy Howe often
frequented when “attempting to locate subjects” with outstanding
arrest warrants. Deputy Howe observed that defendant was not
wearing a seatbelt. His suspicion aroused, Deputy Howe pulled in
behind defendant's vehicle to follow it. Defendant operated his
right turn signal but, after making “a few jerky motions with his
head,” turned left while the right turn signal was still blinking.
Deputy Howe thought defendant might have recognized the licenseplates on his vehicle and become nervous. The officer was about to
conduct a stop of defendant's vehicle when defendant made “a sharp,
last-minute” turn onto another street. After following defendant
to a parking lot, Deputy Howe next saw defendant standing on the
driver's side of his vehicle and then observed his walking away.
In fear that defendant “was going to take off running,” Deputy Howe
continued to follow defendant in his patrol car. No other person
was in the vicinity.
Deputy Howe finally approached defendant and explained he had
observed defendant driving without his seatbelt. Defendant nodded
in response and stopped walking. When Deputy Howe asked to see
defendant's driver's license, defendant replied he did not have
one. After Deputy Howe had written down defendant's name,
defendant started to walk away. Deputy Howe requested defendant to
“step back towards [him].” Instead of complying, defendant pointed
between two buildings, stating his intention to walk toward them,
and continued in that direction. Deputy Howe warned defendant that
he was conducting an investigation and would detain defendant if he
did not stop walking. Deputy Howe spoke in a calm voice because
defendant “appeared to be very nervous about something.” Deputy
Howe asked defendant to step over to his patrol car where he
conducted a pat-down search of defendant to check for weapons.
During the frisk, Deputy Howe came across an object in defendant's
left jeans pocket. When Deputy Howe squeezed the item from the
outside of defendant's clothing, defendant “jerked around,” almost
hitting the officer's face with his elbow. During the strugglethat ensued, defendant “was able to throw something [in]to his
mouth.” Deputy Howe did not get a chance to see what that
“something” was but noted that it came from defendant's pocket. As
Deputy Howe “attempted to take [defendant] down to the ground” to
place him under arrest for resisting an officer, defendant
“repeatedly struck [him] in the face.” Deputy Howe tried to get to
his radio to call for assistance, but defendant struck “the mike”
with his hand foiling the officer's attempt. Defendant then
started running. Deputy Howe initially gave chase. After a short
distance, however, Deputy Howe returned to his vehicle, which was
still running, and radioed for assistance in setting up a perimeter
to detain defendant. Defendant was eventually found hiding
underneath a pickup truck.
Following defendant's arrest, Deputy Howe returned to the
parking lot to check on defendant's vehicle. Deputy Howe walked
around the vehicle, noting that all the doors were locked and
windows closed. Unable to find the keys to the vehicle, Deputy
Howe ran its tags to contact the owner but was unsuccessful. A
“wrecker service” was called to unlock the vehicle doors. After
unlocking the doors, a canine unit conducted an exterior and
interior sniff of the vehicle. On the exterior, the police dog
alerted to the driver's door handle; and in the interior, it
alerted “to the area of the front seat in between the front driver
seat and the front passenger seat.” When the canine officer
checked the area between the front seats, he found a white envelope
containing eight small Ziploc bags of cocaine. The partiesstipulated that the envelope contained 4.4 grams of cocaine.
________________________
The issues are whether the trial court erred in: (I) denying
defendant's motion to dismiss the charges of maintaining a vehicle
for the purpose of keeping or selling controlled substances and
possession of cocaine with intent to sell or deliver; (II) failing
to dismiss the habitual felon indictment based on double jeopardy;
and (III) overruling defendant's objection to being tried on the
habitual felon charge during the same week as his arraignment on
that charge.
I
Maintaining a Vehicle
[1] Defendant first argues the trial court committed plain
error by failing to dismiss the charge of maintaining a vehicle for
the purpose of keeping or selling controlled substances based on
our Supreme Court's holding in
State v. Best, 292 N.C. 294, 233
S.E.2d 544 (1977). We disagree. In
Best, our Supreme Court
analyzed the North Carolina Controlled Substances Act and
determined that a medical doctor could not be convicted for the
sale and delivery of a controlled substance pursuant to N.C. Gen.
Stat. § 90-95.
Id. Instead, any violation by a medical
professional would be governed by N.C. Gen. Stat. § 90-108.
Id. at
310, 233 S.E.2d at 554. In this case, defendant appears to be
basing his argument on the proposition that the holding in
Best
extends to laymen and therefore precludes a conviction of
maintaining a vehicle for the purpose of keeping or sellingcontrolled substances under N.C. Gen. Stat. § 90-108(a)(7). As the
decision in
Best focused solely on the role of medical
practitioners, there is no indication that it applies to laymen.
Accordingly, this assignment of error is overruled.
[2] Alternatively, defendant assigns as error the trial
court's denial of his motion to dismiss the charge due to
insufficiency of the evidence. Specifically, defendant contends
that evidence of drugs found in a vehicle on one occasion, without
more, is insufficient to support the conclusion he maintained a
vehicle for the purpose of keeping or selling controlled
substances.
Upon review of a motion to dismiss, the court determines
whether there is substantial evidence, viewed in the light most
favorable to the State, of each essential element of the offense
charged and of the defendant being the perpetrator of the offense.
State v. Stancil, 146 N.C. App. 234, 244, 552 S.E.2d 212, 218
(2001),
aff'd as modified, 355 N.C. 266, 559 S.E.2d 788 (2002) (per
curiam);
State v. Compton, 90 N.C. App. 101, 103, 367 S.E.2d 353,
355 (1988). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990).
In
State v. Dickerson, this Court held that one isolated
incident of a defendant having been seated in a motor vehicle while
selling a controlled substance is insufficient to warrant a charge
to the jury of keeping or maintaining a motor vehicle for the sale
and/or delivery of that substance.
State v. Dickerson, 152 N.C.App. 714, 716, 568 S.E.2d 281, 282 (2002). This Court reasoned:
Pursuant to N.C. Gen. Stat. §
90-108(a)(7), it is illegal to “knowingly keep
or maintain any . . . vehicle . . . which is
used for the keeping or selling of [controlled
substances].” The statute thus prohibits the
keeping or maintaining of a vehicle only when
it is used for “keeping or selling” controlled
substances. As stated by our Supreme Court in
State v. Mitchell, the word “'[k]eep' . . .
denotes not just possession, but possession
that occurs over a duration of time.” Thus,
the fact “[t]hat an individual within a
vehicle possesses marijuana on one occasion
cannot establish . . . the vehicle is 'used
for keeping' marijuana; nor can one marijuana
cigarette found within the car establish that
element.” Likewise, the fact that a defendant
was in his vehicle on one occasion when he
sold a controlled substance does not by itself
demonstrate the vehicle was kept or maintained
to sell a controlled substance.
Id. (quoting N.C.G.S. § 90-108(a)(7) (2001) and
State v. Mitchell,
336 N.C. 22, 32-33, 442 S.E.2d 24, 30 (1994)) (alteration in
original). The evidence in the case before us does not indicate
possession of cocaine in the vehicle that occurred over a duration
of time, nor is there evidence that defendant had used the vehicle
on a prior occasion to sell cocaine. We therefore agree with
defendant that his motion to dismiss should have been granted.
Possession of Cocaine
[3] Defendant next contends the trial court erred in denying
his motion to dismiss the charge of possession of cocaine with
intent to sell or deliver because the evidence was insufficient on
the element of constructive possession.
An accused has possession of [a
controlled substance] within the meaning of
the [North Carolina] Controlled Substances Actwhen he has both the power and intent to
control its disposition. The possession may
be either actual or constructive.
Constructive possession of [a controlled
substance] exists when the accused is without
actual personal dominion over the material,
but has the intent and capability to maintain
control and dominion over it.
State v. Wiggins, 33 N.C. App. 291, 292-93, 235 S.E.2d 265, 267
(1977). Naturally, “power and intent to control [a] controlled
substance can exist only when one is aware of its presence.”
State
v. Matias, 143 N.C. App. 445, 448, 550 S.E.2d 1, 3,
aff'd, 354 N.C.
549, 556 S.E.2d 269 (2001). This Court has previously emphasized
that “'constructive possession depends on the totality of the
circumstances in each case. No single factor controls, but
ordinarily the questions will be for the jury.'”
State v. Butler,
147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001) (citation omitted)
(emphasis omitted),
aff'd, 356 N.C. 141, 567 S.E.2d 137 (2002).
“The State is not required to prove that the defendant . . . was
the only person with access to [the controlled substance],”
State
v. Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987);
however, if control of the area in which the controlled substance
is found is not exclusive, “constructive possession of the
contraband materials may not be inferred without other
incriminating circumstances.”
State v. Brown, 310 N.C. 563, 569,
313 S.E.2d 585, 589 (1984).
Here, defendant contends his control over the vehicle he was
driving was not exclusive because he was not the vehicle's owner
and he had left it unattended after Deputy Howe approached him. Assuch, defendant argues the State's evidence of his presence in the
vehicle was insufficient to support the charge in the absence of
additional incriminating circumstances. Concluding that this case
presents sufficient additional incriminating circumstances, we
disagree.
The evidence showed Deputy Howe observed defendant driving “at
a low rate of speed” in a vehicle containing an envelope with eight
small Ziploc bags of cocaine apparently prepackaged for sale.
Defendant's driving became evasive after Deputy Howe's patrol car
approached defendant's vehicle from behind. When Deputy Howe
finally confronted defendant in the parking lot, “[i]t was apparent
[to Deputy Howe] that [defendant] was attempting to . . . get away
from [him].” The subsequent weapon's frisk resulted in forceful
resistance by defendant after Deputy Howe began inspecting an
object in defendant's jeans pocket. During the struggle that
followed, defendant appeared to be destroying evidence by placing
an object in his mouth. Ultimately, defendant fled.
See, e.g.,
State v. Neal, 109 N.C. App. 684, 687-88, 428 S.E.2d 287, 290
(1993) (sufficient incriminating circumstances supporting an
inference of constructive possession where a large amount of cash
was found on the defendant's person at the time of arrest and there
was evidence from which a jury might infer an attempt to flee from
the area where illegal drugs were found);
see also State v. Weems,
31 N.C. App. 569, 571, 230 S.E.2d 193, 194 (1976) (“evidence which
places an accused within close juxtaposition to a narcotic drug
under circumstances giving rise to a reasonable inference that heknew of its presence may be sufficient to justify the jury in
concluding that it was in his possession”). We further note that
during the officer's investigation of defendant, their later
struggle, and the subsequent police search for defendant, the
vehicle defendant had driven remained locked. Based on these
“other incriminating circumstances,” defendant's argument
notwithstanding, a juror could reasonably infer defendant had the
power and intent to control the cocaine found next to the driver's
seat in the vehicle and therefore constructively possessed the
cocaine. The trial court thus did not err in denying defendant's
motion to dismiss the possession charge.
II
[4] Defendant also assigns as error the trial court's failure
to dismiss the habitual felon indictment based on double jeopardy.
In his brief to this Court, defendant states he was served with the
substantive felony warrants, arrested, and later released on bond.
Approximately two months later, defendant was served with a warrant
for his arrest on the habitual felon indictment, whereupon he spent
four days in jail until he could post an additional bond.
Defendant now argues the four days he was imprisoned on the
habitual felon warrant amounted to multiple punishments for the
same offense in violation of double jeopardy. The record, however,
reflects that the trial court, in sentencing defendant on the
substantive felonies, gave defendant credit for those four days.
Defendant's argument is therefore without merit.
III
[5] Finally, defendant asserts the trial court erred in
proceeding to trial, over his objection, on the habitual felon
indictment in the same week as his arraignment on the charge.
Defendant relies on N.C. Gen. Stat. § 15A-943, which provides in
subsection (a) that in counties where there are twenty or more
weeks per year of trial sessions of superior court at which
criminal cases are heard, arraignments must be scheduled “on at
least the first day of every other week in which criminal cases are
heard,” and in subsection (b) that “[w]hen a defendant pleads not
guilty at an arraignment required by subsection (a), he may not be
tried without his consent in the week in which he is arraigned.”
(See footnote 1)
N.C.G.S. § 15A-943 (2003). Defendant argues that no arraignment was
scheduled according to section 15A-943(a) and, when the trial court
did arraign him on 3 September 2002 on the habitual felon charge,
he objected to proceeding to trial on the same day he was arraigned
but was denied the one-week interval between arraignment and trial
to which he was entitled under section 15A-943(b).
Our Supreme Court has held that it is reversible error to
proceed with trial on the same day as arraignment without the
defendant's consent.
State v. Shook, 293 N.C. 315, 319-20, 237S.E.2d 843, 847 (1977). Where, however, a defendant fails to file
“a written request with the clerk of superior court for an
arraignment not later than 21 days after service of the bill of
indictment . . . [or, if applicable,] not later than 21 days from
the date of the return of the indictment as a true bill,”
(See footnote 2)
N.C.G.S.
§ 15A-941(d) (2003), he has waived his right to arraignment and
cannot raise violations of section 15A-943 as grounds for a new
trial,
see State v. Trull, 153 N.C. App. 630, 633-34, 571 S.E.2d
592, 595 (2002) (rejecting the defendant's claim of section 15A-943
violations in the absence of a written arraignment request in the
record),
disc. review denied and appeal dismissed, 356 N.C. 691,
578 S.E.2d 597 (2003). As previously held by this Court, “it would
be illogical to require the State to schedule an arraignment
pursuant to one statute where the right to such has been waived
pursuant to another.”
Id. at 634, 571 S.E.2d at 595. As the
record in this case contains no written request by defendant for an
arraignment on the habitual felon charge, this assignment of error
is overruled.
Defendant's conviction of maintaining a vehicle for the
purpose of keeping or selling controlled substances is vacated and
this case remanded for resentencing.
Vacated in part and remanded.
Judges TIMMONS-GOODSON and ELMORE concur.
Footnote: 1