Appeal by defendant from judgment entered 25 September 2002 by
Judge Jay D. Hockenbury in New Hanover County Superior Court.
Heard in the Court of Appeals 24 August 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Lisa Bradley Dawson, for the State.
BRANNON LAW FIRM, PLLC, by Anthony M. Brannon, Esq., for
defendant-appellant.
TIMMONS-GOODSON, Judge.
Rassoul Omar Scarborough (“defendant”) appeals his conviction
for possession of cocaine. For the reasons stated herein, we hold
that defendant received a trial free of prejudicial error, but we
remand the case to the trial court for the correction of a clerical
error on the judgment form.
The State's evidence presented at trial tends to show the
following: On 24 May 2002, Wilmington Police Department Officers
Kelvin Hargrove (“Officer Hargrove”) and Joseph McPherson (“Officer
McPherson”) were patrolling an area of Wilmington well-known for
drug activity when they observed defendant standing on a street
corner. When defendant noticed the officers' vehicle approaching,
he turned and walked toward a residence located on Church Street. Officer McPherson noted that defendant kept his left hand open and
his right hand closed as he approached the residence. When
defendant reached the residence, he sat down on the front porch of
the residence, where two other men were also sitting. As defendant
sat down, Officer McPherson noticed that defendant placed an object
beside his right thigh. Officers McPherson and Hargrove exited
their vehicle and approached the front porch of the residence. As
the officers walked toward the residence, Officer McPherson noticed
that defendant leaned over and pushed the object beneath his right
thigh.
The officers continued to approach the front porch of the
residence. As the officers moved closer to the porch, defendant
stood up and began walking toward the officers. Officer McPherson
examined the area where defendant was sitting and saw what appeared
to be a brown piece of paper lying on the front porch of the
residence. Officer McPherson retrieved the brown paper, which was
twisted into a knot that contained several different sized pieces
of a substance that Officer McPherson believed to be cocaine.
Officer McPherson placed the cocaine in a manilla envelope and the
officers arrested defendant. Subsequent laboratory tests of the
substance identified it as 1.1 grams of crack cocaine.
Defendant was indicted for possession with intent to sell and
deliver cocaine. At defendant's trial, Eric Eugene Huff (“Huff”)
testified on defendant's behalf and stated that the cocaine found
on the front porch of the residence belonged to him, not to
defendant. On 25 September 2002, the jury found defendant guiltyof the lesser-included offense of possession of cocaine. Defendant
subsequently pled guilty to habitual felon status and was sentenced
to 121 to 155 months incarceration. Defendant appeals.
The issues on appeal are whether the trial court erred by (I)
denying defendant's motion to dismiss the charge of possession with
intent to sell and deliver cocaine; and (II) entering judgment in
the case.
Defendant first argues that the trial court erred by denying
his motion to dismiss the charge of possession with intent to sell
and deliver cocaine. Defendant moved the trial court to dismiss
the charge at the close of the State's evidence, asserting that the
State presented insufficient evidence regarding each element of the
offense. However, defendant failed to renew the motion to dismiss
after presenting his own evidence in the case. N.C.R. App. P.
10(b)(3) (2004) provides that
If a defendant makes [a motion to dismiss]
after the State has presented all its evidence
and has rested its case and that motion is
denied and the defendant then introduces
evidence, his motion for dismissal or judgment
in case of nonsuit made at the close of
State's evidence is waived. Such a waiver
precludes defendant from urging the denial of
such motion as a ground for appeal.
Therefore, we hold that defendant has failed to preserve this issue
for appeal.
Defendant next argues that the trial court committed plain
error in entering judgment against defendant. Defendant contends
that the evidence was insufficient to support his indictment andconviction.
The plain error rule authorizes appellate courts to address
and remedy those errors committed by the trial court which,
although not objected to at trial, are nevertheless so fundamental
that they prevent justice in a particular case, deny an appellant
a fundamental right or the right to a fair trial, or have a
probable impact on the jury's conclusion.
State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983). However, the plain error
rule does not authorize indiscriminate plain error assignment by
appellants. Our appellate courts have applied plain error analysis
only to jury instructions and questions involving the admissibility
of evidence.
State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-
10 (1998),
cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 997 (2001).
In the instant case, defendant provided the following two
assignments of error:
2. The court's entry of judgment and
commitment constituted plain error on the
ground that the evidence was insufficient to
support the indictment as a matter of law.
3. The court's entry of judgment and
commitment constituted plain error on the
ground that the evidence was insufficient to
show actual or constructive possession to
support the judgment as a matter of law.
Neither of defendant's plain error assignments reference either the
jury instructions or admission of evidence in the case. Although
in his brief defendant attempts to argue plain error with regard to
the trial court's jury instructions, we note that appellate review
is limited to those issues raised by the specific assignments oferror set out in the record on appeal. N.C.R. App. P. 10(a)
(2004). Furthermore, where an appellant assigns plain error,
N.C.R. App. P. 10(c)(4) (2004) requires that the “judicial action
questioned [be] specifically and distinctly contended to amount to
plain error.” Thus, defendant has failed to preserve his plain
error assignments for appeal.
Nevertheless, we note that defendant argues in his brief that
the indictment was fatally defective because it failed to allege
“either the identity of the person to whom [defendant] was
allegedly selling drugs or that the person was unknown.” As
defendant correctly states, “[t]he purpose of an indictment is to
give a defendant sufficient notice of the charge against him [and]
enable him to prepare his defense[.]”
State v. Ingram, 20 N.C.
App. 464, 466, 201 S.E.2d 532, 534 (1974). However, in the instant
case, the record reflects that defendant was indicted for
possession with intent to sell or deliver cocaine rather than the
sale or delivery of cocaine. “'It is the
intent of the defendant
that is the gravamen of the offense' of possession with intent to
sell or deliver.”
State v. Wall, 96 N.C. App. 45, 51, 384 S.E.2d
581, 584 (1989) (quoting
State v. Creason, 313 N.C. 122, 129, 326
S.E.2d 24, 28 (1985)) (emphasis in original). “Therefore, a
completed sale or delivery of controlled substances need not be
shown in order to convict defendant of possession with intent to
sell or deliver.”
Wall, 96 N.C. App. at 51, 384 S.E.2d at 584.
Applying the reasoning of
Wall to the instant case, we conclude
that the indictment was not defective because it failed to statethe identity of the person or persons to whom defendant intended to
sell or deliver the cocaine. Defendant was given sufficient notice
of the charge against him to enable him to prepare his defense.
Accordingly, we hold that the trial court did not err in entering
judgment against defendant.
Ex mero motu we note that the judgment form in the instant
case contains a clerical error. As reflected in the trial
transcript, defendant pled guilty to habitual felon status after
the jury returned its guilty verdict for possession of cocaine.
However, although the sentence imposed by the trial court is
consistent with the sentencing guidelines for Class C felons under
N.C. Gen. Stat. § 15A-1340.17 (2003), the box on the judgment form
indicating that defendant was adjudicated as an habitual felon is
not marked, while the box indicating that defendant provided
substantial assistance pursuant to N.C. Gen. Stat. § 90-95(h)(5)
(2003) is marked. Therefore, we remand the case for correction of
any error on the judgment form.
No error. Remanded for correction of judgment form.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).
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