An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1731


Filed: 20 April 2004


v .                         Guilford County
                            No. 01 CRS 81913

    Appeal by defendant from judgment entered 14 March 2002 by Judge Richard L. Doughton in Guilford County Superior Court. Heard in the Court of Appeals 17 March 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Teresa L. White, for the State.

    James P. Hill, Jr. for defendant-appellant

    MARTIN, Chief Judge.

    Defendant was charged in a two count bill of indictment with trafficking in more than ten pounds, but less than fifty pounds, of marijuana by possession and by transportation. He appeals from judgments imposing consecutive active terms of imprisonment entered upon jury verdicts finding him guilty of both offenses.
    The evidence at trial tended to show that on 10 March 2001, members of the High Point Police Department were maintaining surveillance of defendant's home at 906 Bridges Drive, High Point, North Carolina. While other officers observed the house, Detectives Marty Ferrell (Ferrell) and Kyle Pratt (Pratt) left to obtain a search warrant. Before they returned, a man, later determined to be Jimmy Lee Shue (Shue), rode up to the house on abicycle, went to the back door, pounded on it, and demanded to be let in. Believing Shue had warned the occupants of the house, and that evidence would be destroyed, the officers went in and secured the residence until the search warrant arrived.
    When Ferrell and Pratt returned with the warrant, they read the occupants their rights and began searching the house. Ferrell also searched a 1986 Chevrolet Suburban with Texas license plates which was parked in the backyard of the residence. After finding a gas can in the back seat and noticing that the fuel gauge had been severed and reattached, Ferrell crawled under the vehicle looking for hidden compartments. He found that the front part of the gas tank had new bolts holding it in place while those in the back were rusty. When he removed the gas tank it felt heavy but without a lot of “sloshing.”
    Ferrell went back inside the house and asked defendant who owned the vehicle. When defendant responded that he owned it, Ferrell took defendant to another room to question him more thoroughly. Ferrell testified that when he asked defendant for a second time to whom the Suburban belonged, defendant responded that he had purchased the vehicle while in Texas and had “patched it together” to get it back to North Carolina. Defendant told Ferrell there was nothing in the gas tank.
    After removing the gas tank, Ferrell took it to Guil-Rand Wrecker to determine whether the tank had a hidden compartment. The officers left defendant at his residence. Ferrell and the owner of Guil-Rand Wrecker drained the gas tank and found a hiddencompartment containing large packages of plant material wrapped in cellophane. The contents of the packages were later analyzed and were determined to be 41.8 pounds of marijuana.
    Ferrell, along with two other detectives returned to defendant's house, but were unable to locate defendant. On 15 May 2001, defendant was arrested in South Carolina.
    Defendant offered evidence and testified that his mechanic loaned the Suburban to him while his car was being worked on and that he had never been to Texas. Defendant's mother, niece and hair dresser each testified that they had seen and spoken with defendant in the days preceding 10 March 2001.

    Defendant first argues that the trial court erred by striking a juror from the panel after both the State and the defense had accepted and passed him as an acceptable juror. During jury selection, the State passed Douglas Kivett as an acceptable juror. When questioned by defendant, Mr. Kivett stated he would have difficulty sending someone to jail for five years on a marijuana charge. The State then moved to reopen examination of Mr. Kivett as a prospective juror. The trial court denied the motion, ruling that the State had fair and adequate opportunity to examine Mr. Kivett. Following acceptance of Mr. Kivett as a juror by both parties, the trial court, on its own motion and over defendant's objection, struck him as a juror for cause.
    Our Supreme Court has stated:        A trial judge, in the exercise of his duty to see that a competent, impartial jury is impaneled, may in his discretion excuse a prospective juror even without challenge by either party. Decision as to a prospective juror's competency to serve is a matter resting in the trial judge's sound discretion and is not subject to review unless accompanied by some imputed error of law. The fact that a juror has been passed by both parties to the cause does not affect the court's control of jury selection.

State v. Carson, 296 N.C. 31, 40, 249 S.E.2d 417, 423 (1978). On appeal, the decision may be reversed only if the trial judge abused his discretion by making a ruling that was not the result of a reasoned decision. State v. Burrus, 344 N.C. 79, 88, 472 S.E.2d 867, 874 (1996). Even if no grounds existed for a challenge for cause, defendant is not entitled to a new trial unless he can show that the impaneled jury consisted of jurors who were not “competent and qualified to serve.” Carson at 40, 249 S.E.2d at 423.
    Defendant argues that Mr. Kivette's statement was not relevant because a prospective juror's views on punishment are only relevant in capital cases. However, “a prospective juror's bias may, in some instances, not be proven with unmistakable clarity.” State v. Gray, 347 N.C. 143, 165, 491 S.E.2d 538, 545 (1997), cert. denied, 523 U.S. 1031, 140 L. Ed. 2d 486 (1998). Thus, we must rely on the trial judge's determination as to whether the prospective juror would be competent to serve. Id. The trial judge was in the best position to determine whether the juror's statement indicated his inability or unwillingness to be impartial and follow the law. Moreover, there is no evidence that the impaneled jury consisted of any persons who were not competent and qualified to serve. Thisassignment of error is overruled.
    Next defendant contends the trial court committed error by permitting the State to cross-examine defendant's alibi witness, Christina Morris, regarding her criminal history.     Defendant argues that there was no factual basis in the record for the question since the witness had apparently been found not guilty. However, defendant did not object at trial and has not asserted plain error. Therefore, the issue is not preserved and we decline to consider it. N. C. R. App. P. 10(c)(4) (2003).
    Defendant also argues that the trial court erred in failing to sustain objections to the introduction of statements made by defendant while he was in custody but had not been read his rights as required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966). However, at trial, defendant objected to the introduction of the statements based on “hearsay,” but did not challenge the admission of the statement on constitutional grounds. “[A] constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal.” State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). N.C. R. App. P. 10(b)(1) (2003). A “[d]efendant may not swap horses after trial in order to obtain a thoroughbred upon appeal.” State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988). Because the constitutional issue was not brought before the trial court, we decline to address this assignment of error.
    Defendant next assigns error to the trial court's instruction to the jury that evidence had been presented tending to show that defendant had admitted a fact relating to a crime charged. Defendant, in violation of N. C. R. App. P. 10(b)(2), failed to object to the jury instructions when they were proposed as well as when the trial court gave the instruction to the jury. “A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict.” N. C. R. App. P. 10(b)(2) (2003). In criminal cases, where no objection was made at trial, a question “may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.” N. C. R. App. P. 10(c)(4) (2003). Here, defendant contends that the instruction to the jury was plain error.
    Defendant argues that the instruction violated G.S. § 15A-1232 (2003) which prohibits any expression of opinion by the trial judge as to whether a fact has been proved. In this case, the trial court instructed, “There's evidence which tends to show that the defendant has admitted a fact relating to the crime charged in this case.” Our Supreme Court has determined that “[t]he use of the words 'tending to show' or 'tends to show' in reviewing the evidence does not constitute an expression of the trial court's opinion on the evidence.” State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989). However, there must be evidence actuallytending to show that defendant admitted the fact. Id. In this case, Detective Ferrell testified that defendant admitted to purchasing the vehicle in Texas and then driving it back to North Carolina, having to “patch it back together” to do so. The jury could infer from defendant's admission that he had driven the vehicle for such a distance knowing the marijuana was in the gas tank during the time he drove the vehicle.
    Furthermore, “[u]nder the plain error rule, a new trial will be granted for an error to which no objection was made at trial only if a defendant meets a heavy burden of convincing the Court that, absent the error, the jury probably would have returned a different verdict.” State v. Shuford, 337 N.C. 641, 646, 447 S.E.2d 742, 745 (1994) (citations omitted). Defendant has not shown that the outcome of the trial would have been different had the trial judge not given the challenged instruction to the jury. This assignment of error is overruled.
    Defendant next contends the evidence presented at trial was insufficient to support the guilty verdicts. Defendant's motion to dismiss the charges at the close of the State's evidence was denied. He neglected to renew the motion at the close of all the evidence and, therefore, has not preserved the denial of the motion for appellate review. See N. C. R. App. P. 10(b)(3) (2003) (a defendant who neglects to make a motion to dismiss at the close of all of the evidence may not assign as error on appeal the insufficiency of the evidence); State v. Stocks, 319 N.C. 437, 439,355 S.E.2d 492, 493 (1987) (“[t]o the extent that N.C.G.S. 15A-1446(d)(5) is inconsistent with N.C.R. App. P. 10(b)(3), the statute must fail.”). Since the defendant did not move to dismiss at the close of all the evidence, the assignment of error is not properly before the Court. However, we exercise our discretion to address the merits of defendant's argument pursuant to N. C. R. App. P. 2 (2003).
    In ruling on a motion to dismiss, the trial court, after considering the evidence in the light most favorable to the State, must determine if there is “substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id. “The trial court need only satisfy itself that the evidence is sufficient to take the case to the jury; it need not be concerned with the weight of that evidence.” State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990).
    Trafficking in marijuana by possession and trafficking in marijuana by transportation in violation of G.S. § 90-95(h)(1)(a) require the State to prove (1) that defendant knowingly possessed and transported the marijuana, and (2) that the marijuana weighed more than 10 pounds, but less than 50 pounds. N.C. Gen. Stat. § 90-95(h)(1)(a) (2003). Actual possession is not required; when a defendant has “the power and intent to control the use or disposition of the substance, he is said to have constructivepossession.” State v. Baldwin, ___ N. C. App. ____, 588 S.E.2d 497, 504-505 (2003). “Where such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.” State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).
    Considering the evidence in the light most favorable to the State, defendant's admission to Detective Ferrell that he purchased the vehicle in Texas and drove it to North Carolina is sufficient evidence to establish control over the automobile in which the marijuana was found. Although defendant contended at trial that he did not own the car, and evidence showed that the car was actually registered to another owner, where the evidence establishes a reasonable inference of defendant's guilt, the motion to dismiss must be denied and the case must go to the jury. State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979). This rule applies even where a reasonable inference of defendant's innocence can also be drawn from the evidence. Id. A reasonable inference could be drawn that defendant had the power and intent to control the use and disposition of the marijuana; thus, substantial evidence exists that defendant had constructive possession of the marijuana.
    The word “transport” is defined as “any real carrying about or movement from one place to another.” State v. Greenidge, 102 N.C. App. 447, 449, 402 S.E.2d 639, 640 (1991)(citation omitted). Defendant argues that there is no proof that he operated thevehicle with marijuana in it or that he did so knowingly. He presented several witnesses to demonstrate that he had never been to Texas and he testified that he had not driven the automobile more than 50 miles. On the other hand, Detective Ferrell testified that defendant told him he had driven the car back from Texas. In addition, two of the bolts on the gas tank where the marijuana was found had been changed and were new. “Where the State bases a portion of its case on circumstantial evidence, the sufficiency of the State's evidence may be determined by drawing inferences from inferences.” State v. Williams, 90 N.C. App. 120, 122, 367 S.E.2d 345, 346 (1988). Furthermore, the role of the trial judge is to determine if there is substantial evidence of each element of the crime, Olson at 564, 411 S.E.2d at 595; it is up to the jury to resolve any “contradictions or discrepancies in the evidence.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The State presented substantial evidence of the element of transportation of marijuana sufficient to allow the case to go to the jury.
    SBI Agent Raney, an expert witness, testified that the item found in the gas tank of the vehicle was 41.8 pounds of marijuana. Therefore, the State presented substantial evidence on all elements of trafficking in marijuana by possession and by transportation. The trial court properly denied defendant's motion to dismiss and the assignment of error is overruled.
    In his last argument, defendant asserts he did not receiveeffective assistance of counsel because his trial counsel committed a series of errors including failure to file several pre- trial motions, failure to object on numerous occasions, and failure to make a motion to dismiss at the close of all the evidence.
    To establish ineffective assistance of counsel, defendant must meet a two-prong test using “an objective standard of reasonableness.” State v. Braswell, 312 N.C. 553, 561-63, 324 S.E.2d 241, 248 (1985) (citations omitted). The test, as set out by the United States Supreme Court in Strickland v. Washington, is as follows:
        First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). “The fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings.” State v. Wade, 155 N.C. App. 1, 18, 573 S.E.2d 643, 655 (2002), disc. review denied, 357 N.C. 169, 581 S.E.2d 444 (2003)(citation omitted). “This determination must be based on the totality of the evidence before the finder of fact.” Id.
We cannot determine from the record before us whether defensecounsel's performance was so deficient as to deprive defendant of a reliable result at trial. Therefore, we must conclude that defendant's assertion of ineffective assistance of counsel is premature and cannot be determined without further development of the record. Accordingly, we must dismiss this assignment of error, but we do so without prejudice to defendant's right to raise the issue by a motion for appropriate relief in the trial court. See State v. Long, 354 N.C. 534, 539-40, 557 S.E. 2d 89, 93 (2001); State v. Davis, 158 N.C. App. 1, 15, 582 S.E.2d 289, 298-99 (2003).
    Defendant's remaining assignment of error was not addressed in the brief and is considered abandoned. N.C. R. App. P. 28(a) (2003).
    We conclude defendant received a fair trial free of prejudicial error.
    No error.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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