Appeal by defendant from judgment entered 30 October 2002 by
Judge Paul L. Jones in Lenoir County Superior Court. Heard in the
Court of Appeals 5 February 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Margaret P. Eagles, for the State.
Duncan B. McCormick for defendant-appellant.
TIMMONS-GOODSON, Judge.
Patrick Campbell (“defendant”) appeals his convictions for
possession with intent to sell and deliver a controlled substance,
keeping and maintaining a dwelling for the use of a controlled
substance, trafficking in marijuana by possession, and felony
conspiracy to possess a controlled substance with intent to sell
and deliver and to keep and maintain a dwelling for the use of a
controlled substance. For the reasons stated herein, we conclude
defendant received a trial free of prejudicial error, but we vacate
and remand defendant's convictions for resentencing.
The evidence presented by the State at trial tends to show the
following: On 27 September 1999, defendant asked his next-door
neighbor, Marcella Clark (“Clark”), to store a large quantity ofmarijuana in her residence in exchange for one hundred dollars and
a small amount of marijuana. Clark agreed, and one of defendant's
associates delivered the marijuana to Clark's residence later that
afternoon.
Acting on a tip from a confidential informant, several
officers from the Kinston Police Department Narcotics Squad
executed a search warrant at Clark's residence on 29 September
1999. While searching Clark's residence, the officers located and
seized approximately thirty-two pounds of marijuana and drug
paraphernalia. Clark explained her agreement with defendant and
informed the officers that the marijuana belonged to defendant, who
lived next-door. Clark also informed the officers that she had
previously seen a large amount of marijuana in defendant's
residence. At least four of the officers then proceeded to
defendant's residence in order to verify Clark's statement.
As the officers approached defendant's residence, Detective
Ken Barnes (“Detective Barnes”) heard voices emanating from the
rear of the residence and smelled what he believed to be burning
marijuana. Detective Barnes and the other officers proceeded to
the rear of the residence in the direction of the voices and smell
of marijuana. Upon reaching the rear of the residence, the
officers looked through a screen door and observed defendant and
three other men smoking marijuana inside. When the officers
announced their presence, defendant and the other three individuals
inside the residence “jumped up” and “all started to get out of
their chairs.” The officers entered the residence and secured defendant and
the other three individuals. Lieutenant Steve Hossfeld
(“Lieutenant Hossfeld”) and Sergeant Roger Harrell (“Sergeant
Harrell”) then left the residence in order to obtain a search
warrant. When Lieutenant Hossfeld and Sergeant Harrell returned,
the four officers searched the residence and seized various items
of drug paraphernalia, an SKS assault weapon, a nine millimeter
handgun, and approximately one-quarter pound of marijuana and
$4,500 in cash.
On 10 January 2000, defendant was indicted for possession with
intent to sell and deliver a controlled substance and keeping and
maintaining a dwelling for the use of a controlled substance. On
7 August 2000, a superceding indictment charged defendant with
possession with intent to sell and deliver a controlled substance,
keeping and maintaining a dwelling for the use of a controlled
substance
(See footnote 1)
, trafficking in marijuana by possession, and felony
conspiracy to possess marijuana with intent to sell and deliver and
to keep and maintain a dwelling for the use of a controlled
substance. Defendant completed an affidavit of indigency on 7
August 2000 and was appointed counsel by the trial court. Prior to
trial, defendant twice moved the trial court for continuance of hiscase. On 18 September 2000 and 19 September 2000, the trial court
denied defendant's motions for continuance. Defendant was
arraigned on 19 September 2000 and his trial began the same day.
Although defendant subsequently absconded, defendant's trial
continued, and on 20 September 2000, the jury returned a guilty
verdict on each charge. Judgment was continued until defendant
could be located.
Defendant was located in New York in the fall of 2000 and
extradited to North Carolina for sentencing. At sentencing,
defendant stipulated that he had a prior conviction in New York for
felonious assault with intent to cause serious injury. Based upon
this stipulation, the trial court found defendant to have a prior
record level III, and on 30 October 2002, the trial court sentenced
defendant to a total of thirty-four to thirty-nine months
incarceration and thirty-six months supervised probation.
Defendant appeals.
As an initial matter, we note that defendant's brief contains
arguments supporting only ten of his original twenty-three
assignments of error. Pursuant to North Carolina Rule of Appellate
Procedure 28(b)(6) (2004), the thirteen omitted assignments of
error are deemed abandoned. Therefore, we limit our present review
to those assignments of error properly preserved by defendant for
appeal.
The issues on appeal are whether the trial court erred by (I)
arraigning and trying defendant in the same week; (II) denyingdefendant's motions for continuance; (III) denying defendant's
motion to dismiss the charge of trafficking in marijuana by
possession; (IV) denying defendant's motion to suppress the
evidence obtained through the search of defendant's home; (V)
denying defendant's motion to dismiss the charge of keeping and
maintaining a dwelling for the use of a controlled substance; (VI)
denying defendant's motion to dismiss the charge of possession with
intent to sell and deliver a controlled substance; and (VII)
finding that defendant was a prior record level III for sentencing
purposes.
Defendant first argues that the trial court erred by
arraigning and trying defendant in the same week. Defendant
asserts the trial court violated N.C. Gen. Stat. § 15A-943 when it
chose to arraign defendant and begin defendant's trial on the same
date.
N.C. Gen. Stat. § 15A-943 (2003) sets forth the following
rules with respect to calendaring trials and formal arraignments:
(a) In counties in which there are regularly
scheduled 20 or more weeks of trial sessions
of superior court at which criminal cases are
heard, and in other counties the Chief Justice
designates, the prosecutor must calendar
arraignments in the superior court on at least
the first day of every other week in which
criminal cases are heard. No cases in which
the presence of a jury is required may be
calendared for the day or portion of a day
during which arraignments are calendared.
(b) When 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.
Failure to follow the requirements of N.C. Gen. Stat. § 15A-943(a)“is not necessarily reversible error; a defendant must still show
prejudice.”
State v. Cates, 140 N.C. App. 548, 551, 537 S.E.2d
508, 510 (2000).
However, “[u]nless a defendant has waived the
statutory protection[,]” violation of the requirements of N.C. Gen.
Stat. § 15A-943(b) “constitutes automatic reversible error; no
prejudice need be shown.”
Id.
In
Cates, we concluded that a defendant does not waive the
protection of N.C. Gen. Stat. § 15A-943(b) simply by failing to
cite the statute in a motion to continue.
Id. Instead, we
determined “the proper focus is not upon whether a defendant
explicitly cites section 15A-943 but upon whether his need for a
continuance is based upon the same purposes for which the statute
was enacted.”
Id. “Thus, when a defendant . . . has made a motion
for a week's continuance based upon the same purposes for which the
statute was designed, making an explicit 'section 15A-943'
objection would be redundant and is not required to invoke the
statutory protections.”
Id. at 552, 537 S.E.2d at 511.
We take judicial notice that Lenoir County is a county that
regularly schedules twenty or more weeks of criminal trial sessions
a year, and therefore we conclude that N.C. Gen. Stat. § 15A-943 is
applicable to the instant case.
Id. at 550, 537 S.E.2d at 510.
Both parties agree and the record evidences that defendant was
arraigned on the same day that his trial began. Thus, there is no
question that the trial court violated N.C. Gen. Stat. § 15A-
943(b). However, the State contends defendant waived the statutory
protection of N.C. Gen. Stat. § 15A-943(b) by failing to assert hisright in his pre-trial motions. We agree.
Defendant twice moved the trial court to continue his case
prior to arraignment, claiming his trial had not been put on the
administrative calendar pursuant to local rules and that he
preferred to be tried concurrently with co-defendants. However,
neither of these reasons relate to the purposes of N.C. Gen. Stat.
§ 15A-943(b). As we stated in
Cates, “the purpose of section 15A-
943(b) is to allow both sides a sufficient interlude in order to
prepare for trial.” 140 N.C. App. at 551, 537 S.E.2d at 510
;
State
v. Shook, 293 N.C. 315, 318, 237 S.E.2d 843, 846 (1977).
In the instant case, we conclude that the State's
discretionary decision to try co-defendants separately is wholly
unrelated to the sufficiency of defendant's trial preparation.
Furthermore, as the record evidences, defendant's case was not
placed on the local administrative calendar because defendant was
not being offered a plea by the State. Defendant was indicted upon
the charges on 7 August 2000, and the State informed defendant
there would be no plea in his case. Defendant indicated he would
be ready to try the case on 28 August 2000, three weeks prior to
his motions for continuance. Thus, we conclude defendant's motions
for continuance were not based upon the same purposes for which
N.C. Gen. Stat. § 15A-943 was enacted. Therefore, we hold the
trial court did not err in arraigning and trying defendant within
the same week.
Defendant next argues the trial court erred by denying his
motions for continuance. Defendant asserts that the trial courtabused its discretion in denying the motions. We disagree.
A trial court's decision regarding a motion for continuance is
discretionary, and the decision will not be disturbed on appeal
absent a showing of abuse of discretion.
State v. Barnard, 346
N.C. 95, 104, 484 S.E.2d 382, 387 (1997). For an abuse of
discretion to have occurred, the trial court's decision must have
been manifestly unsupported by reason.
State v. Brown, 350 N.C.
193, 209, 513 S.E.2d 57, 67 (1999). Thus, denial of a motion for
continuance “is grounds for a new trial only upon a showing by the
defendant that the denial was erroneous and also that his case was
prejudiced as a result of the error.”
State v. Branch, 306 N.C.
101, 104, 291 S.E.2d 653, 656 (1982).
Defendant contends that the trial court abused its discretion
in the instant case because the decisions to deny defendant's
motions for continuance resulted in a violation of Judicial
District 8-A Local Rule 2.6, which requires that cases in that
district be calendared for trial no less than thirty days after
their final administrative setting. N.C. Jud. Dist. 8-A Local R.
2.6, Docket Management System For Criminal Superior Court (14 Jan
2000). However, as discussed above, there was no need for an
administrative setting or calendaring in the instant case because
the State was not offering a plea to defendant. Furthermore,
defendant had previously received court-appointed counsel and
indicated that he would be prepared for trial on 28 August 2000.
Judicial District 8-A Local Rule 1.3 states that “[t]hese
rules shall be construed in such a way as to avoid technicaldelay.” N.C. Jud. Dist. 8-A Local R. 1.3, Docket Management System
For Criminal Superior Court (14 Jan 2000). The rules require the
“orderly, prompt and just disposition” of cases in the district
while “protect[ing] the interests of [the district] and the victims
of crime as well as . . . ensur[ing] that the rights of criminal
defendants are preserved.” N.C. Jud. Dist. 8-A Local R. 1.1,
Docket Management System For Criminal Superior Court (14 Jan 2000).
In the instant case, we conclude the trial court followed the
purpose of the local rules and did not abuse its discretion.
Therefore, we hold that the trial court did not err in denying
defendant's motions for continuance.
Defendant next argues that the trial court erred by denying
defendant's motion to dismiss the charge of trafficking in
marijuana. Defendant asserts that the State presented insufficient
evidence to establish defendant possessed the marijuana. We
disagree.
When ruling on a motion to dismiss, “[t]he trial court's
inquiry is limited to a determination of '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. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 139
(2002) (quoting
State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920,
925 (1996)). “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).
“[A]ll of the evidence should be considered in the light mostfavorable to the State, and the State is entitled to all reasonable
inferences which may be drawn from the evidence.”
State v. Davis,
130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).
To prove a defendant guilty of trafficking in marijuana by
possession, the State must establish that the defendant knowingly
possessed in excess of ten pounds of marijuana. N.C. Gen. Stat. §
90-95(h)(1) (2003). “Possession of a controlled substance may be
either actual or constructive.”
State v. Hamilton, 145 N.C. App.
152, 155, 549 S.E.2d 233, 235 (2001). “Constructive possession of
[a controlled substance] exists when there is no actual personal
dominion over the [controlled substance], but there is an intent
and capability to maintain control and dominion over it.”
State v.
Brown, 310 N.C. 563, 568, 313 S.E.2d 585, 588 (1984). “[I]n order
to show constructive possession by a defendant not present when a
controlled substance was discovered, the State must present
evidence that the defendant had exclusive use of the premises,
maintained the premises as a residence, or had some apparent
proprietary interest in the premises or the controlled substance.”
Hamilton, 145 N.C. App. at 156, 549 S.E.2d at 235. Evidence
placing the accused within close proximity to the controlled
substance may support a conclusion that the controlled substance
was in the accused's possession.
See State v. Harvey, 281 N.C. 1,
12-13, 187 S.E.2d 706, 714 (1972). Thus, where sufficient
incriminating circumstances exist, constructive possession of a
controlled substance may be inferred even where possession of the
premises is nonexclusive.
See Brown, 310 N.C. at 569, 313 S.E.2dat 588-89.
In the instant case, defendant did not maintain exclusive
possession of the residence where the thirty-two pounds of
marijuana was found, nor was he at the residence when the officers
seized the marijuana. However, evidence presented at trial
established that defendant lived next-door to the residence and had
previous contact with the residence's owner. Clark testified that
she and defendant entered into an agreement whereby he would store
a shipment of marijuana at her residence in exchange for one
hundred dollars and a small portion of marijuana. Shortly
thereafter, one of defendant's associates delivered the marijuana
to Clark's residence. Clark testified that she and defendant had
previously made similar agreements, and that defendant had entered
her residence in the days prior to the search in order to retrieve
a portion of the marijuana stored there. Lieutenant Hossfeld,
Sergeant Harrell, and Detective Barnes testified that when they
searched Clark's residence, they located approximately thirty-two
pounds of marijuana that Clark told them belonged to defendant.
The confidential informant whose tip served as the basis for the
search of Clark's residence notified the Kinston Police Department
that there was a significant amount of drugs in Clark's residence
that belonged to defendant. We conclude that this evidence
establishes sufficient incriminating circumstances to allow a jury
to infer that defendant had the intent and capability to maintain
control and dominion over the marijuana, as well as a propriety
interest in the marijuana. Therefore, we hold that the trial courtdid not err in denying defendant's motion to dismiss the
trafficking in marijuana charge.
Defendant next argues that the trial court erred by denying
defendant's motion to suppress the evidence obtained from the
search of his residence. Defendant asserts that the trial court's
findings of fact are not supported by competent evidence and that
its conclusion of law is not supported by adequate findings of
fact. We disagree.
This Court's review of a denial of a motion to suppress is
“strictly limited to determining whether the trial judge's
underlying findings of fact are supported by competent evidence, in
which event they are conclusively binding on appeal, and whether
those factual findings in turn support the judge's ultimate
conclusions of law.”
State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d
618, 619 (1982). “Indeed, an appellate court accords great
deference to the trial court in this respect because [the trial
court] is entrusted with the duty to hear testimony, weigh and
resolve any conflicts in the evidence, find the facts, and, then
based upon those findings, render a legal decision, in the first
instance, as to whether or not a constitutional violation of some
kind has occurred.”
Id. at 134, 291 S.E.2d at 619-20.
In the instant case, defendant has failed to assign error to
any particular finding of fact and has failed to specify in what
respect the trial court's findings are inadequate. Therefore, this
Court's review of defendant's argument is limited to whether the
trial court's findings of fact support its conclusions of law.
State v. Steen, 352 N.C. 227, 238, 536 S.E.2d 1, 8 (2000). After
reviewing the record, we conclude that the trial court's
determination that “no illegal search occurred of [defendant's]
residence or the persons found inside the residence” was properly
supported by its findings of fact.
In the order denying defendant's motion to suppress the
evidence obtained from the search of defendant's residence, the
trial court made the following findings of fact:
1. That on the 29th day of September, 1999
officers of the Kinston Police Department
executed a search warrant for a residence []
in Kinston, North Carolina. Upon entry in the
residence contact was made with the resident,
Marcella Clark. Marcella Clark adviced [sic]
the officers where to find a large quantity of
marijuana in the closet of her bedroom.
Detective Dilday of the Kinston Police
Department went to this closet and located the
marijuana in plastic bags inside the closet.
2. Marcella Clark told the officers the
marijuana that was located in her residence
belonged to a person she knew as “Hollywood”
and that he lived [next-door]. Clark stated
“Hollywood” (who was later identified by Clark
as being the above named defendant Patrick
Campbell) would pay her to keep large amounts
of marijuana in her house. Clark also told
the officers that she had been to this
residence on September 28, 1999 and had
observed a large amount of [m]arijuana.
“Hollywood” had just arrived from New York
with two other black males. [sic] when Clark
was at [defendant's residence] on September
28, 1999.
3. That officers of the Kinston Police
Department went next door to [defendant's
residence] in an attempt to verify the
information which Marcella Clark had given
them. As the officers walked around the back
door of this residence they noticed the smell
of marijuana coming from an open window at
this residence. The officers went to the backdoor of this residence. At the back door of
the residence the officers observed through a
screen door that four black males were sitting
at a table in the kitchen smoking marijuana.
4. At this time the officers made entry into
the residence to ensure the marijuana that was
observed on the table was not destroyed.
Entry was made and the four black males were
secured. A search warrant was then obtained
authorizing the officers to conduct a search
of [defendant's residence].
Based upon these findings of fact, the trial court denied
defendant's motion to suppress the evidence seized during the
search.
The Fourth Amendment to the United States Constitution and
Article I of the Constitution of the State of North Carolina
protect citizens against unreasonable searches and seizures by
requiring that police officers have a warrant obtained with
judicial approval before searching a citizen's residence.
State v.
Graves, 135 N.C. App. 216, 218-19, 519 S.E.2d 770, 772 (1999). “A
warrantless search unaccompanied by such judicial approval is
per
se unreasonable unless the search falls within a well-delineated
exception to the warrant requirement.”
Id. at 219, 519 S.E.2d at
772 (emphasis in original). “The State bears a heavy burden to
demonstrate how the warrantless intrusion was exempted from the
warrant requirement.”
Id.
In the instant case, the State offered evidence tending to
show that police officers approached defendant's residence and
smelled burning marijuana. Through a screen door, the officers
observed in plain view defendant and three other males smoking
marijuana inside the residence. It is well-established that “plainview of objects inside a house will furnish probable cause but will
not, without exigent circumstances, authorize entry to seize
without a warrant.”
State v. Prevette, 43 N.C. App. 450, 456, 259
S.E.2d 595, 600 (1979),
disc. review denied and appeal dismissed,
299 N.C. 124, 261 S.E.2d. 925,
cert. denied, 447 U.S. 906 (1980).
However, as the trial court noted in finding of fact number four,
the officers entered defendant's residence in order to prevent the
destruction of evidence. “[A] suspect's fleeing or seeking to
escape, [or the] possible destruction of a controlled substance”
are exigent circumstances that justify a warrantless entry into a
residence.
State v. Frazier, 142 N.C. App. 361, 368-69, 542 S.E.2d
682, 688 (2001). In the instant case, the evidence tended to show
that the officers smelled burning marijuana and observed defendant
and three other individuals inside smoking marijuana. When
defendant and the other individuals realized that law enforcement
officers were present, they rose from their chairs as if to flee
the residence. Therefore, we conclude that sufficient exigent
circumstances existed to justify the police officers' entry into
defendant's residence and the trial court's conclusion that the
entry was legal.
Defendant maintains that the officers' entry into his
residence was illegal because the officers did not have the
authority to enter his back yard and look through the screen door.
We disagree.
In
Prevette, this Court held that when law enforcement
officers enter private property for the purpose of a generalinquiry or interview of the property's occupants, the officers'
presence is proper and lawful. 43 N.C. App. at 455, 259 S.E.2d at
599-600. As in
Prevette, the officers in the instant case entered
the curtilage of defendant's residence after receiving a tip that
defendant was storing marijuana inside the residence. Defendant
offers no legal authority to support his contention that the
officers were required to approach and knock upon the front door of
his residence before proceeding to the rear of the residence.
Furthermore, in
Prevette we stated that law enforcement officers
“are entitled to go to a door to inquire about a matter” and that
the officers “are not trespassers under these circumstances.”
Id.
Our holding in
Prevette did not limit the location of the officers'
inquiry to any particular door of the suspect's residence
, and we
perceive no reason to do so in the instant case.
We note that the touchstone of the Fourth Amendment is
reasonableness,
State v. Robinson, 148 N.C. App. 422, 428, 560
S.E.2d 154, 158 (2002), and that the conclusions of law enforcement
officers during a warrantless search should be considered “'not in
terms of library analysis by scholars, but as understood by those
versed in the field of law enforcement.'”
State v. Scott, 343 N.C.
313, 328, 471 S.E.2d 605, 614 (1996) (quoting
United States v.
Cortez, 449 U.S. 411, 418 (1981)). In the instant case, the
officers approached the rear door of defendant's residence after
hearing voices and smelling burning marijuana emanating from the
rear of the residence. We conclude that the officers' decision was
reasonable and did not result in an infringement upon defendant'sconstitutional rights. Therefore, we hold that the trial court did
not err by denying the motion to suppress the evidence obtained
during the search of defendant's residence.
Defendant next argues that the trial court erred by denying
defendant's motion to dismiss the charge of keeping and maintaining
a dwelling for the use of a controlled substance. Defendant
contends that the State offered insufficient evidence to support
the charge. We disagree.
To convict a defendant for knowingly and intentionally
maintaining a place for the use of a controlled substance, the
State must prove the defendant: (1) knowingly or intentionally
kept or maintained; (2) a building or other place; (3) that was
either resorted to by persons using controlled substances or was
being used for keeping or selling controlled substances. N.C. Gen.
Stat. § 90-108(a)(7) (2003);
Frazier, 142 N.C. App. at 365, 542
S.E.2d at 686.
Defendant asserts that the State offered insufficient evidence
that defendant “kept or maintained” the residence. Whether a
person “keeps or maintains” a residence within the meaning of N.C.
Gen. Stat. § 90-108(a)(7) “requires consideration of several
factors, none of which are dispositive.”
Fraizer, 142 N.C. App. at
365, 542 S.E.2d at 686. Those factors include, but are not limited
to: occupancy of the property; payment of rent; possession over a
duration of time; possession of a key used to enter or exit the
property; and payment of utility or repair expenses.
Id. In the
instant case, Clark testified that defendant lived at the residencefor at least a year. Law enforcement officers testified that
defendant was sitting at the kitchen table of the residence when
they entered it. When the officers presented defendant with a
search warrant to search the residence, defendant accepted it.
Viewed in the light most favorable to the State, we conclude this
evidence is sufficient to support a determination that defendant
kept and maintained the residence within the meaning of N.C. Gen.
Stat. § 90-108(a)(7).
Defendant also asserts that the State offered insufficient
evidence that the residence was “resorted to by persons using
controlled substances.” The determination of whether a residence
is used for keeping or selling or using a controlled substance
depends on the totality of the circumstances.
Id. at 366, 542
S.E.2d at 686. Factors to be considered include, but are not
limited to: a large amount of cash being found in the residence;
a defendant admitting to selling controlled substances; and the
residence containing numerous amounts of drug paraphernalia.
Id.
In the instant case, Clark testified that she informed the officers
that she had seen drugs in defendant's residence prior to the
search of her residence. The officers testified that defendant and
three other individuals were smoking marijuana in defendant's
residence prior to the officers' entry into the residence. The
officers also testified that 128 grams of marijuana and various
forms of drug paraphernalia were seized during the search of
defendant's residence, along with $4500 in cash and weapons
commonly associated with drug dealing. Viewed in the light mostfavorable to the State, we conclude this evidence is sufficient to
support a determination that the residence was kept and maintained
for the use of a controlled substance within the meaning of N.C.
Gen. Stat. § 90-108(a)(7). Therefore, we hold that the trial court
did not err in denying defendant's motion to dismiss the charge of
keeping and maintaining a dwelling for the use of a controlled
substance.
Defendant next argues that the trial court erred by denying
his motion to dismiss the charge of possession with intent to sell
and deliver a controlled substance. Defendant contends that the
State offered insufficient evidence to support the charge. We
disagree.
To convict a defendant for possession with intent to sell and
deliver a controlled substance, the State must prove: (1) the
defendant possessed the substance; (2) the substance was a
controlled substance; (3) the defendant intended to sell or
distribute the controlled substance. N.C. Gen. Stat. § 90-95(a)(1)
(2003);
State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 902
(2001).
Defendant asserts the State offered insufficient evidence that
he was in possession of marijuana. However, we concluded above
that the State offered sufficient evidence to establish that
defendant had constructive possession of the marijuana at Clark's
residence. Furthermore, at trial the officers testified that they
observed defendant smoking marijuana at the kitchen table of his
own residence, and that during a search of defendant's residence,the officers recovered marijuana from the kitchen table, the
refrigerator, a closet, a couch, and the bedroom. “Giving the
State the benefit of all reasonable inferences that may be drawn
from the circumstances,” we conclude that the evidence was
sufficient to allow a reasonable juror to conclude that defendant
had the power and intent to exercise control over the marijuana.
State v. Kraus, 147 N.C. App. 766, 770, 557 S.E.2d 144, 148 (2001).
Moreover, we also conclude that evidence of defendant's possession
of approximately $4500 in cash and thirty-two pounds of marijuana
-- stored at various locations in both his residence and his next-
door neighbor's residence -- is sufficient to establish that
defendant intended to sell or distribute the marijuana.
See State
v. Casey, 59 N.C. App. 99, 118, 296 S.E.2d 473, 484 (1982)
(“Although the State has the burden of proving that the defendant
intended to sell or deliver the controlled substance, it may rely
upon ordinary circumstantial evidence such as the amount of the
controlled substance possessed and the nature of its packaging and
labeling to carry the burden.”).
Therefore, we hold that the trial
court did not err in denying defendant's motion to dismiss the
charge of possession with intent to sell and deliver a controlled
substance.
Defendant finally argues and the State concedes that the trial
court erred by finding that defendant had a prior record level III
for sentencing purposes. We conclude that the trial court
improperly assigned six points to defendant's prior conviction in
New York for felonious assault with intent to cause serious injury. While we note that defendant's sentence in the instant case for
trafficking in marijuana falls within the mandate of our
legislature in N.C. Gen. Stat. § 90-95(h)(1) (2003) and that the
probationary sentences imposed by the trial court fall within the
presumptive range for prior record level II offenders, we
nevertheless vacate defendant's sentence and remand the case to the
trial court for resentencing. On remand, the trial court is to
determine: (1) the correct classification of the prior New York
felony; and (2) the appropriate sentence with respect to each of
defendant's instant felonies.
Vacated and remanded.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
Footnote: 1