State v Person, (03-539) 05/18/2004

Appeal by defendant from judgment entered 23 May 2002 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 4 February 2004.

Roy Cooper, Attorney General, by Marvin R. Waters, Assistant Attorney General, for the State.

Brain Michael Aus for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Walter Francis Person, appeals convictions of trafficking in marijuana by possession and maintaining a dwelling to keep controlled substances. For the reasons discussed herein, we find no prejudicial error in part and reverse the trial court in part.
    The State's evidence tended to show that in February 2001, Todd Hopes and Mark Murski were in New York City. Hopes had marijuana delivered to New York, but was unable to sell it there. Hopes asked defendant to come to New York to transportapproximately 165 pounds of marijuana to Raleigh, North Carolina. The marijuana was placed in three large duffle bags and loaded into defendant's car. Defendant drove the marijuana to Raleigh with Murski following him in a truck. At defendant's home, defendant and Russell Johnson began to call customers and sell the marijuana. Defendant received five pounds of marijuana as payment for his services.
    Murski returned to his home in Houston, Texas, but since the marijuana was not being sold as fast as they desired, Murski returned to Raleigh to pick up the money from the sale of the marijuana and the marijuana that had not yet been sold. Instead of returning to Texas, Murski, a cocaine addict, began trading marijuana for crack cocaine in Raleigh.
    Murski arranged to sell ten pounds of marijuana to an informant of Detective Charles West, of the Wake County Sheriff's Department. The marijuana came from defendant's home. During the transaction, Murski was arrested. He told the police about defendant and the marijuana, after which Detective West went to defendant's home. An occupant of the house, Douglas Henderson, let Detective West inside and showed him to defendant's room. Upon entering defendant's home, Detective West detected a strong odor of marijuana. Detective West asked defendant about the marijuana. Defendant showed Detective West two large duffel bags containingmarijuana. Defendant told Detective West how he came to possess the marijuana.
    Defendant did not present any evidence.
    Defendant was indicted for trafficking in marijuana by possession and felony maintaining a dwelling for keeping or selling controlled substances on 17 April 2001. On 23 May 2001, a jury found defendant guilty of both charges. The jury found defendant not guilty of a related conspiracy charge. Defendant was sentenced to an active term of imprisonment of 35 months minimum, 42 months maximum, as a result of his trafficking conviction. Defendant was also sentenced to 6 months minimum, 8 months maximum for his maintaining a dwelling conviction. The sentences were to run consecutively. The maintaining a dwelling sentence was suspended. Defendant appeals.
    In his first assignment of error, defendant argues the trial court committed error by refusing to allow Murski to testify about the punishment he could have received absent his arrangement with the State. We disagree.
    We first note that “[t]his Court is not required to pass upon a constitutional issue unless it affirmatively appears that the issue was raised and determined in the trial court.” State v. Golphin, 352 N.C. 364, 403-04, 533 S.E.2d 168, 197 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001) (internal quotationsomitted) (citations omitted). In defendant's assignment of error and in his brief, he argues the trial court ruling violated his Sixth Amendment right to confront the witness testifying against him. After review of the transcripts regarding defendant's objection, we are unable to find one instance where defendant affirmatively stated his objection was based on constitutional grounds. As such, the trial court did not rule on any possible constitutional violations. Instead, it appears defense counsel's objection was an evidentiary one, that is that defendant had testified at a previous hearing under oath as to the possible prison term he faced, and that such testimony was admissible at this trial. A broad, general objection will not be enough to preserve a constitutional issue for appeal where the trial court is not given the opportunity to rule on the objection on those grounds. See e.g. State v. Cumber, 280 N.C. 127, 131-32, 185 S.E.2d 141, 144 (1971) (holding that where defendant's objection at trial went to the lack of proper identification of some of the stolen property and not that the search and seizure violated his constitutional rights under the Fourth Amendment, defendant failed to affirmatively raise the constitutional issue at trial). Since defendant first raised and discussed this constitutional violation on appeal, this issue is not properly before us.
    Defendant alleges, in the alternative, that the trial judge'sruling constitutes prejudicial error under N.C. Gen. Stat. § 15A- 1443(a) (2003). N.C. Gen. Stat. § 15A-1443(a) provides that a defendant is prejudiced by errors arising other than under the Constitution of the United States, where “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” While defense counsel was prohibited from questioning Murski during cross-examination regarding the sentence exposure Murski faced, the trial judge did afford defense counsel a full opportunity to show bias, interest, and prejudice of the witness to testify against defendant, including the terms of his plea arrangement with the State. The only thing Murski was not allowed to testify to was regarding the specific punishment he could receive, in terms of months in prison. In light of the overwhelming evidence of guilt against defendant, and in light of the wide latitude the defense was afforded in cross-examining Murski, it cannot be shown that, but for the alleged error a reasonable possibility exists that a different result would have been reached at trial had the judge allowed the jury to hear that information. For these reasons, this assignment of error is without merit.
In defendant's second assignment of error, he argues that he is entitled to a new trial because the trial judge erred when heprohibited defense counsel from informing the jury of the punishment defendant would receive if convicted of trafficking marijuana. We agree the trial court committed error however, we conclude the error fails to rise to the level requiring a new trial.
As we stated above, we will not rule on a constitutional issue unless it appears that the issue was raised and determined in the trial court. Golphin, 352 N.C. at 403-04, 533 S.E.2d at 197. Again, after review of the transcripts, we were unable to find any instance were defense council objected to the trial court's ruling based on any constitutional violations. Furthermore, while this assignment of error does cite the United States and North Carolina Constitutions as a basis for the error, nowhere in defendant's brief does he argue a constitutional violation. Therefore, we hold that defendant has abandoned any issues of constitutional violations. Thus, we address the issue of whether the trial court's actions violated N.C. Gen. Stat. § 7A-97 (2003).
During the charge conference, the trial judge prohibited defense counsel from informing the jury during closing arguments that defendant faced a mandatory term of imprisonment of 35 months minimum, 42 months maximum, if convicted of trafficking marijuana. Judge Jones based this decision on the fact this was not a capital jury in a capital case and the jury had nothing to do withpunishing defendant, therefore there was no point in arguing something to them in which they had no role. This ruling was without any foundation in the law.
It is well established in a jury trial, that a defendant's attorney is permitted to argue "the whole case as well of law as of fact[.]" N.C. Gen. Stat. § 7A-97 (2003). This section grants defense counsel the right to tell the jury of the possible punishment defendant faces if convicted of the crime for which he is being tried. State v. Walters, 33 N.C. App. 521, 524, 235 S.E.2d 906, 908-09 (1977), aff'd, 294 N.C. 311, 240 S.E.2d 628 (1978) (referring to N.C. Gen. Stat. § 84-14 which was recodified as N.C. Gen. Stat. § 7A-97). It is permissible for counsel, in any case, to exercise this right by reading the punishment provisions of the statute to the jury. Id. at 524, 235 S.E.2d at 908 (citations omitted) (emphasis added). The purpose of allowing counsel to advise the jury of the punishment defendant will receive is to “encourage the jury to give the matter its close attention and to decide it only after due and careful consideration.” State v. McMorris, 290 N.C. 286, 288, 225 S.E.2d 553, 554 (1976).
Here, it was error for the judge to deny defense counsel's request to inform the jury of the statutory punishment for a conviction of trafficking in marijuana. Regardless of whether this was a capital case, N.C. Gen. Stat. § 7A-97 gives defendant theright to inform the jury of the punishment he would receive if they returned a guilty verdict, no matter what the crime.
While it was error for the trial judge to deny defense counsel's request to inform the jury of the punishment defendant faced if convicted, this alone is not enough to award defendant a new trial. The issue becomes ”whether there is a reasonable possibility that a different result would have been reached by the jury had the error in question not been committed.” State v. Peoples, 141 N.C. App. 115, 120, 539 S.E.2d 25, 30 (2000). See also N.C. Gen. Stat. § 15A-1443(a) (2003). To determine whether the error was prejudicial or harmless, this court must view such error “in the context of the entire record." Id. at 120-21, 539 S.E.2d at 30 (citations omitted).
After viewing the entire record, we hold the error was harmless. Defendant has failed to meet his burden of showing that there was a reasonable possibility the jury would have reached a different result had counsel been permitted to argue punishment to the jury. See N.C. Gen. Stat. § 15A-1443(a). The evidence of defendant's guilt was overwhelming. This evidence included the testimony of numerous witnesses, several officers, and the co- defendant's testimony. In addition, defendant's attorney informed the jury of the possible sentence defendant would receive if convicted during his opening statement. Therefore, we hold theerror was harmless and defendant is not entitled to a new trial based on this issue.
    In his third assignment of error defendant argues the trial court erred when it sentenced defendant as a felon for maintaining a dwelling for keeping or selling controlled substances since the verdict form was deficient. We agree.
    The trial judge instructed the jury as to three possible verdicts regarding the charge of maintaining a dwelling for keeping or selling a controlled substance: the jury could find defendant guilty of: (1) intentionally maintaining a dwelling, a felony; (2) knowingly maintaining a dwelling, a misdemeanor; or (3) not guilty. The verdict sheet however, gave the jury only two options: guilty of maintaining a dwelling and not guilty. The verdict sheet submitted to the jury did not contain any language referring to the intent of defendant.

    The trial court sentenced defendant for intentionally maintaining a dwelling for keeping or selling a controlled substance, a felony. This was error. The jury found defendant guilty of “maintaining a dwelling” not “intentionally” maintaining a dwelling. In order for a defendant to be guilty of felony maintaining a dwelling for keeping or selling a controlled substance the jury must find the defendant acted intentionally. See N.C. Gen. Stat. § 90-108(b) (2003). The trial court shouldhave sentenced defendant as a misdemeanant. Therefore, we remand the charge of maintaining a dwelling for keeping or selling a controlled substance to the trial court for resentencing as a misdemeanor.
    In his fourth assignment of error, defendant argues the trial court erred in denying his motion to dismiss. We disagree.
    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 offense charged and of the defendant being the perpetrator of the offense.” State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995). 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, giving the State the benefit of every reasonable inference from that evidence. Gibson, 342 N.C. at 150, 463 S.E.2d at 199. Contradictions and discrepancies in the evidence are resolved in favor of the State. Id.
    N.C. Gen. Stat. § 90-95(h)(1) provides:
Any person who sells, manufactures, delivers, transports, or possesses in excess of 10 pounds (avoirdupois) of marijuana shall be guilty of a felony which felony shall be known as “trafficking in marijuana” and if the quantity of such substance involved: ... b. Is 50 pounds or more, but less than 2,000 pounds,such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 42 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($ 25,000)[.]

N.C. Gen. Stat. § 90-95(h)(1) (2003). There is no contention by defendant that the amount of marijuana was less than fifty pounds. The evidence shows: (1) the police found almost ninety pounds of marijuana in defendant's home; (2) defendant is the one who led the police to where the marijuana was located in his home; and (3) when asked if there was any more marijuana, defendant led the police to a coat closet in the living room which contained another duffle bag containing a block of marijuana. See State v. Chandler, 100 N.C. App. 706, 398 S.E.2d 337 (1990) (holding circumstantial evidence may be used to infer that an accused was in possession of narcotics). Based upon the above stated circumstances of defendant's arrest, and viewing all the evidence in the light most favorable to the State, the trial court did not err in submitting the charge of trafficking in marijuana by possession to the jury.
    As to the maintaining a dwelling charge, the State likewise presented sufficient evidence. N.C. Gen. Stat. § 90-108 states:
(a) It shall be unlawful for any person: ... (7) To knowingly keep or maintain any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by persons using controlled substances in violation ofthis Article for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this Article[.] ... (b) Any person who violates this section shall be guilty of a Class 1 misdemeanor.

N.C. Gen. Stat. § 90-108(a)(7), (b) (2003)
    Here, there was evidence that: (1) defendant and Murski delivered the marijuana to defendant's home; (2) there was marijuana in several places in defendant's home; (3) defendant sold the marijuana out of his home; and (4) drug paraphernalia such as scales and baggies were on the premises. We hold this evidence is sufficient to submit the charge of maintaining a dwelling for controlled substances to the jury. This assignment of error is without merit.
    In his fifth and final assignment of error, defendant argues the trial court erred in its sentencing for the trafficking in marijuana conviction. We disagree.
    N.C. Gen. Stat. § 90-95(h)(1)(b) provides that where the amount of marijuana is between 50 and 2000 pounds, “such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 42 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($ 25,000).” Defendant was sentenced to 35 to 42 months and fined $25,000.00.     Defendant argues that since the judgment on this charge indicates he was sentenced from the “presumptive range” that he should have received a minimum sentence of between 10 to 13 months under N.C. Gen. Stat. § 15A-1340.17(c). This is incorrect. The punishment for the offense of trafficking in marijuana under N.C. Gen. Stat. § 90-95(h)(1)(b) mandates an active sentence of 35 months minimum and 42 months maximum. Since this is a trafficking offense, there is no requirement that the court determine whether defendant is to be sentenced from the aggravated, presumptive, or mitigated range. The marking of the box on the judgment form showing that defendant was sentenced from the presumptive range was mere surplusage and is to be disregarded. This assignment of error is without merit.
    NO PREJUDICIAL ERROR IN PART, REVERSED AND REMANDED IN PART.
    Chief Judge MARTIN and Judge GEER concur.
    Report per Rule 30(e).

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