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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. SHAWN DENEIL LEACH, Defendant
Filed: 2 November 2004
1. Search and Seizure-_motion to suppress--probable cause--reasonable suspicion--
The trial court did not commit plain error in a trafficking in cocaine by possession and
transportation, possession of a firearm by a felon, and felony speeding to elude arrest case by
denying defendant's motion to suppress evidence of cocaine that defendant abandoned while
running from the police after a high speed chase, because: (1) the police were alerted to a drug
sale by an informant who had previously given information that led to an arrest and the
confiscation of multiple kilograms of cocaine, and the officers reasonably relied on information
provided by the informant which provided probable cause to stop and search defendant; and (2)
the officers did not seize defendant until they actually detained him at the conclusion of a high
speed chase since no seizure occurs until defendant is physically restrained.
2. Evidence--prior crimes or bad acts--cocaine trafficking
The trial court did not err in a trafficking in cocaine by possession and transportation,
possession of a firearm by a felon, and felony speeding to elude arrest case by admitting
evidence of defendant's prior convictions of cocaine trafficking, because N.C.G.S. § 14-415.1b
provides that when a person is charged under the possession of a firearm by a felon statute,
records of prior convictions of any offense shall be admissible in evidence for proving a
violation of that section.
3. Firearms and Other Weapons--possession of firearm by felon--cocaine possession a
The trial court did not err by using defendant's prior cocaine possession convictions to
charge him with possession of a firearm by a felon, because cocaine possession is a felony
despite statutory references under N.C.G.S. § 90-95(d)(2) to it as a misdemeanor.
4. Firearms and Other Weapons--possession of firearm by felon--sufficiency of
The trial court did not err in a possession of a firearm by a felon case by concluding that
the evidence was sufficient to show that defendant possessed a firearm, because: (1) the State's
evidence tended to show that an officer saw an object coming out of the van which was
controlled solely by defendant, and that sparks flew when the object hit the ground; and (2) a
firearm was recovered within minutes from a nearby roadside.
5. Drugs--trafficking in cocaine--failure to instruct on lesser-included offense
The trial court did not err in a trafficking in cocaine by possession and by transportation
case by failing to instruct the jury on the lesser-included offense of trafficking in 200-400 grams
of cocaine, because the only forensic expert testified that 438.1 grams of cocaine was recovered
by officers and there is no reasonable inference from this evidence that the quantity was as
6. Criminal Law--instruction--reasonable doubt
The trial court did not commit plain error in a trafficking in cocaine by possession and by
transportation, possession of a firearm by a felon, and felony speeding to elude arrest case by its
instruction on reasonable doubt, because the record reflected that the instruction accurately
defined reasonable doubt.
7. Constitutional Law--cruel and unusual punishment--consecutive sentences
The trial court did not violate the Eighth Amendment prohibition against cruel and
unusual punishment in a trafficking in cocaine by possession and by transportation, possession of
a firearm by a felon, and felony speeding to elude arrest case by imposing consecutive sentences,
because imposition of consecutive sentences standing alone does not constitute cruel and unusual
punishment when all punishments were within the General Assembly's prescribed limits.
Appeal by defendant from judgment entered 21 November 2002 by
Judge Peter M. McHugh in the Superior Court in Guilford County.
Heard in the Court of Appeals 10 June 2004.
Attorney General Roy Cooper, by Assistant Attorney General
David N. Kirkman, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defenders Daniel R. Pollitt and Matthew D. Wunsche, for the
On 3 September 2002, the Grand Jury indicted the defendant on
one count each of trafficking in cocaine by possession and by
transportation, possession of a firearm by a felon, and felony
speeding to elude arrest. Before trial, defendant moved to
suppress evidence seized by police officers, which motion the trial
court denied. The jury found defendant guilty on all charges. The
trial court sentenced defendant to 17 to 21 months imprisonment on
the firearm conviction, 12 to 15 months imprisonment on the eluding
arrest conviction, and 175 to 219 months imprisonment on each of
the trafficking convictions. Defendant appeals, and for the
reasons set forth below, we find no error.
On 8 July 2002, High Point Police Officers arrested a man
(the informant) on drug charges. The informant provided
information about a drug deal that was to take place that evening,
involving defendant. Based on this information, Greensboro and
High Point police officers devised a plan to arrest defendant at
one of two possible locations. The informant had previously given
information to High Point police, which led to the seizure of
multiple kilograms of cocaine.
After several telephone conversations between defendant and
the informant, it was finally determined that the delivery of the
cocaine would take place at 9:30 p.m. in the parking lot of
Coliseum Billiards in Greensboro. The informant used both a wire
and a cell phone to signal the police when defendant drove into the
parking lot. Police officers quickly surrounded defendant's
minivan, which the informant identified as one of three possible
cars that defendant used, and identified themselves as police
Defendant immediately backed away over a curb and led the
police on a high speed chase for nearly thirty miles into Randolph
County. While pursuing the defendant, police officers recovered a
firearm in a residential neighborhood in the same area where an
unknown object was thrown from the minivan that produced sparks
when it hit the pavement.
Defendant attempted to flee on foot after he drove into a
ditch at a rural intersection. Nearing a pond, defendant fell and
threw a white plastic bag toward the water. Police apprehendedthe defendant and recovered the plastic bag, which was determined
to contain cocaine.
 Defendant first argues that the trial court erred by
denying his motion to suppress certain evidence, contending that
the items were seized without probable cause or reasonable
suspicion, and thus in violation of his Fourth
For the following reasons, we disagree and overrule this assignment
Our Courts have consistently held that [a] motion in limine
is insufficient to preserve for appeal the question of the
admissibility of evidence if the defendant fails to further object
to that evidence at the time it is offered at trial. State v.
, 339 N.C. 487, 521, 453 S.E.2d 824, 845, cert. denied
U.S. 884, 133 L. Ed. 2d 153 (1995)).
(See footnote 1)
Rulings on motions in limine
are preliminary in nature and subject to change at trial, depending
on the evidence offered, and thus an objection to an order
granting or denying the motion 'is insufficient to preserve for
appeal the question of the admissibility of evidence.' T&T
Development Co. v. Southern Nat. Bank of S.C.
, 125 N.C. App. 600,
602, 481 S.E.2d 347, 349, disc. review denied
, 346 N.C. 185, 486S.E.2d 219 (1997) (quoting Conaway
, 339 N.C. at 521, 453 S.E.2d at
Here, defendant assigned error and plain error to the denial
of his motion to suppress, but failed to object to the admission of
any of the items of evidence when offered at trial. Thus, we
review only for plain error.
Our Courts have consistently held that:
[T]he plain error rule . . . is always to be applied
cautiously and only in the exceptional case where, after
reviewing the entire record, it can be said the claimed
error is a fundamental
error, something so basic, so
prejudicial, so lacking in its elements that justice
cannot have been done, or where [the error] is grave
error which amounts to a denial of a fundamental right of
the accused, or the error has 'resulted in a
miscarriage of justice or in the denial to appellant of
a fair trial' or where the error is such as to
seriously affect the fairness, integrity or public
reputation of judicial proceedings or where it can be
fairly said the instructional mistake had a probable
impact on the jury's finding that the defendant was
State v. Odom
, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting United States v. McCaskill
, 676 F.2d 995, 1002 (4th
Our standard of review in evaluating a trial court's ruling on
a suppression motion is well settled:
the trial court's findings of fact 'are conclusive on
appeal if supported by competent evidence, even if the
evidence is conflicting.' This Court must not disturb the
trial court's conclusions if they are supported by the
court's factual findings. However, the trial court's
conclusions of law are fully reviewable on appeal. At a
suppression hearing, conflicts in the evidence are to be
resolved by the trial court. The trial court must make
findings of fact resolving any material conflict in the
State v. McArn
, 159 N.C. App. 209, 211-212, 582 S.E.2d 371 373-374
(2003)(internal citations omitted). However, where there is nomaterial conflict in the evidence presented at the suppression
hearing, specific findings of fact are not required. State v.
, 77 N.C. App. 778, 336 S.E.2d 424 (1985). In that event, the
necessary findings are implied from the admission of the challenged
evidence. State v. Norman
, 100 N.C. App. 660, 397 S.E.2d 647
Here, the trial court found that the evidence at the hearing
was uncontroverted, and thus made no findings of fact. Based upon
the evidence at the suppression hearing, the trial court ruled: (1)
that police officers had reasonable suspicion based upon
information obtained from a confidential informant to conduct an
investigatory stop of defendant, and, alternatively,(2) that
despite attempts, police officers did not stop, seize, arrest or
search defendant or his property until defendant attempted to
elude attempts of law enforcement officers to approach him, by
committing in the presence of the officers at least one felony
Probable cause exists when there is a reasonable ground of
suspicion, supported by circumstances sufficiently strong in
themselves to warrant a cautious man in believing the accused to be
guilty. State v. Joyner
, 301 N.C. 18, 21, 269 S.E.2d 125, 128
(1980) (quotations omitted). In cases involving confidential
informants, probable cause is determined using a totality-of-the-
circumstances analysis which permits a balanced assessment of the
relative weights of all the various indicia of reliability . . .
attending an informant's tip. State v. Holmes
, 142 N.C. App. 614,
621, 544 S.E.2d 18, 22 (2001) (quotations omitted). A knowninformant's information may establish probable cause based upon a
reliable track record in assisting the police. Alabama v. White
496 U.S. 325, 332, 110 L. Ed. 2d 301, 310 (1990); see also State v.
, 328 N.C. 213, 219, 400 S.E.2d 429, 433 (1991).
Here, the police were alerted to a drug sale by an informant
who had previously given information that led to an arrest and the
confiscation of multiple kilograms of cocaine. The drug sale was
to be between the informant and defendant. The informant described
the defendant and his vehicle, accurately described when and where
the defendant would arrive to deliver the cocaine to the informant,
and made a contemporaneous identification as defendant pulled into
the parking lot. The police officers reasonably relied on
information provided them by the informant, which provided probable
cause to stop and search defendant.
The trial court also concluded that officers did not seize
defendant until they actually detained him at the conclusion of the
high speed chase. Defendant, on the other hand, contends that the
officers seized him in the Coliseum Billiards parking lot. Both
rely on the United States Supreme Court's decision in California v.
, 499 U.S. 621, 113 L. Ed. 2d 690 (1991).
, the defendant fled as officers approached him, and
warned him to stop. The officers chased the defendant on foot for
several blocks, during which time he tossed away a substance later
determined to be cocaine. The defendant was not physically
detained until police officers ultimately caught and tackled him.
The United States Supreme Court, in affirming the denial of the
defendant's motion to suppress evidence, held that assuming that[the officer's] pursuit in the present case constituted a 'show of
authority' enjoining [the defendant] to halt, since [the defendant]
did not comply with that injunction he was not seized until he was
tackled. The cocaine abandoned while he was running was in this
case not the fruit of a seizure . . . . Id.
at, 629, 113 L. Ed.
2d at 699.
Here, the facts are very similar to those in Hodari
. When the
defendant arrived for the drug sale, police officers, properly
identifying themselves, attempted to stop him while he was in his
vehicle. Seeing the police surround his vehicle, defendant drove
backwards over a curb and fled, leading police on a high speed
police chase for over twenty-eight miles before he was ultimately
detained. Here, as in Hodari
, we conclude that [t]he cocaine
abandoned while [defendant] was running was in this case not the
fruit of a seizure, and his motion to exclude evidence of it was
properly denied. Id
. The police had probable cause to initiate
a stop but no seizure occurred until defendant was physically
restrained. The trial court did not err in denying defendant's
motion to suppress this evidence.
 Defendant next contends that the trial court erred in
admitting evidence of defendant's prior convictions of cocaine
trafficking. We disagree.
N.C. Gen. Stat. . 14-415.1b provides that [w]hen a person is
charged under this section, records of prior convictions of any
offense, whether in the courts of this State, or in the courts of
any other state of the United States, shall be admissible inevidence for the purpose of proving a violation of this section.
Here, the plain language of the statute controls and the trial
court properly admitted the prior convictions for proving
possession of a firearm by a felon.
 Defendant next argues that his prior cocaine possession
convictions could not be used to charge him with possession of a
firearm by a felon. Defendant contends that possession of cocaine
is a misdemeanor under N.C. Gen. Stat. . 90-95(d)(2), and thus does
not support a conviction under N.C. Gen. Stat. 14-415.1(a).
However, our Supreme Court has held that cocaine possession is a
felony despite statutory references to it as a misdemeanor. See
State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004). Thus,
defendant's prior possession convictions are sufficient to support
his conviction, and we overrule this assignment of error.
 Defendant also contends that the evidence was insufficient
to show that he possessed a firearm. However, the State's evidence
did tend to show that one officer saw an object coming out of the
van which was controlled solely by defendant, and that sparks flew
when the object hit the ground. A firearm was recovered within
minutes from a nearby roadside. In the light most favorable to the
State, this evidence supports an inference that defendant possessed
the firearm. State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d
578, 585 (1994). This assignment of error has no merit.
 Defendant next argues that the trial court erred by not
instructing the jury on the lesser included offense of trafficking
in 200-400 grams of cocaine. We disagree.
A defendant is entitled to an instruction on a lesser
included offenses if the evidence would permit a jury rationally to
find him guilty of the lesser offense and acquit him of the
greater. State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924
(2000) (internal quotation marks and citations omitted). However,
a lesser offense should not be submitted to the jury if the
evidence is sufficient to support a finding of all the elements of
the greater offense, and there is no evidence to support a finding
of the lesser offense. State v. Nelson, 341 N.C. 695, 697, 462
S.E.2d 225, 226 (1995).
Here, defendant contends that the bag containing the cocaine
seized by police officers could have contained dirt or other
debris, thus lessening the amount of actual cocaine in the bag and
warranting the requested instruction. However, the only forensic
expert testified that 438.1 grams of cocaine was recovered by
police officers; we see no reasonable inference from this evidence
that the quantity was as defendant argues. Thus, the trial court
did not err in refusing to give the requested instruction. We
overrule this assignment of error.
 Defendant also contends that the trial court committed
plain error in its instruction to the jury defining reasonable
doubt. Although shorter and approved definitions are encouraged,
Supreme Court has held that a judge did not mislead or confuse the
jury by giving instructions that began with ten things reasonable
doubt was not, since he gave equal time to what did constitute
reasonable doubt. State v. Ward, 286 N.C. 304, 310, 210 S.E.2d
407, 412 (1974), death penalty vacated, Ward v. North Carolina, 428
U.S. 903, 49 L. Ed. 2d 1207 (1976). Here, the record reflects that
the instruction accurately defined reasonable doubt, if not in the
clearest terms. We hold that there was no error.
 Finally, defendant argues that the consecutive sentences
imposed here constitute cruel and unusual punishment despite the
precedents indicating otherwise. We are bound to follow the case
law which specifically states the following:
We first note our Supreme Court has held
that the [Eighth Amendment's] prohibition
against cruel and unusual punishment 'does not
require strict proportionality between the
crime and sentence . . . [but] forbids only
extreme sentences that are 'grossly
disproportionate' to the crime.' Indeed, the
sentences imposed upon defendant, albeit
consecutive, were within the presumptive
statutory range authorized for her drug
trafficking offenses under the Structured
State v. Parker
, 137 N.C. App. 590, 603-604, 530 S.E.2d 297, 306
(2000) (internal citations omitted). See also State v. Barts
N.C. 666, 697, 343 S.E.2d 828, 848 (1986)(concluding thatimposition of consecutive sentences, standing alone, does not
constitute cruel and unusual punishment as all punishments were
within the General Assembly's prescribed limits). The trial judge,
therefore, did not err or violate the Eighth Amendment in imposing
these consecutive sentences.
Judges GEER and THORNBURG concur.
This rule was changed by the legislature in 2003: Once
the court makes a definitive ruling on the record admitting or
excluding evidence, either at or before trial, a party need not
renew an objection or offer of proof to preserve a claim of error
for appeal. N.C. Gen. Stat. § 8C-1, Rule 103 (2) (2003).
However, the amendment applies only to rulings on evidence made
on or after 1 October 2003. Session Laws 2003-101, s.1. Thus,
it does not apply to this case.
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