Appeal by defendant from judgment entered 26 February 2002 by
Judge Richard D. Boner in Cleveland County Superior Court. Heard
in the Court of Appeals 7 June 2004.
James P. Hill, Jr. for defendant-appellant.
Roy Cooper, Attorney General, by Kathryn J. Thomas, Assistant
Attorney General, for the State.
MARTIN, Chief Judge.
Defendant appeals from a judgment imposing an active sentence
of imprisonment entered upon his conviction by a jury of possession
of cocaine with intent to sell and deliver in violation of N.C.
Gen. Stat. § 90-95(a)(1)(2003).
At trial, the State offered evidence tending to show that on
7 April 2001, Shelby Police Department Sergeant Michael Ballen
arrived at 1005 Buffalo Street, responding to a call from a woman
in the neighborhood reporting that three men armed with guns were
in a parked car outside her apartment. Through his undercover
experience with drug deals, Sergeant Ballen was trained to look for
and recognize odd mannerisms in suspected drug dealers. As
Sergeant Ballen was approaching the vehicle, the back seatpassenger ducked out of sight. Sergeant Ballen saw no movement
coming from the front seat, which was high and designed in such a
way that anyone reaching from the front seat into the back would
have been noticed. As Sergeant Ballen was looking in the car, he
spotted a plastic bag, appearing to contain crack cocaine,
partially covered with a pair of pants, on the floor beside
defendant's right foot and within his arm's reach.
Shelby Police Department Officers Walter Currier and Ernest
Godfrey also responded to the call. As Officer Currier approached
the vehicle, he saw one person, defendant, sitting just off center
in the back seat. Officer Currier also saw the package on the
floor and, based on his observations and experience, he believed it
contained contraband. Brian Lee Mellon was in the driver's seat.
The package would not have been accessible from the front seat
because of the way the seat was designed.
No drugs were found on the persons of any of the passengers
and only Larry Wilkie, the front seat passenger, had any cash in
his possession. Sergeant Ballen seized the package that was on the
floor in the back seat as well as another bag of drugs, containing
what appeared to be powder cocaine, that he found hidden in a pile
of clothes in the back seat. After separating and questioning all
three passengers, defendant was arrested and Mellon and Wilkie were
released. Special Agent Joseph D. Revis, in charge of the Western
Regional Lab for the State Bureau of Investigation, analyzed the
two bags taken from the car, finding 2.5 grams of powder cocaine
and a crack cocaine “cookie.” Brian Lee Mellon testified that he paged defendant, who
provided cocaine for him “like every weekend,” to see if he could
get some cocaine for his uncle, Wilkie. Mellon and Wilkie received
a phone call back from defendant telling them to meet him at 1005
Buffalo Street. When Mellon and Wilkie arrived, defendant got into
the back seat of the car with two bags of cocaine and handed some
to Wilkie. Before Wilkie could give defendant any money, the
police arrived and Wilkie swallowed the cocaine. Mellon saw
defendant moving around in the back seat when the police arrived
and did not see him get out of the car with any cocaine.
Defendant offered evidence and testified in his own behalf.
According to defendant, Mellon, from whom he had bought cocaine in
the past, had come to bring him some cocaine, rather than as
testified by Mellon. Defendant's former girlfriend, Waukesha
Rankin, testified that she was home on the day in question and
heard defendant make a phone call to someone to get some cocaine.
She had also heard defendant call Mellon in the past for cocaine.
_______________
Defendant's first argument is that he received ineffective
assistance of counsel at his trial. Defendant contends his trial
counsel: (1) failed to file a motion to suppress to challenge
Sergeant Ballen's initial seizure of defendant, (2) failed to
object to the prosecutor's improper and leading questions of the
State's witnesses, and (3) failed to move to dismiss the charges,
resulting in a failure to preserve the sufficiency of the evidence
for appellate review. According to N.C.R. App. P. 10(c)(1):
An assignment of error is sufficient if it directs the
attention of the appellate court to the particular error
about which the question is made, with clear and specific
record or transcript references. Questions made as to
several issues or findings relating to one ground of
recovery or defense may be combined in one assignment of
error, if separate record or transcript references are
made.
N.C.R. App. P. 10(c)(1). Appellate review is limited to the
questions raised in the assignments of error contained in the
record on appeal; if the issue in the brief does not correspond to
the assignment of error, it cannot be considered.
State v. Thomas,
332 N.C. 544, 554, 423 S.E.2d 75, 80 (1992).
Neither defendant's first or second contentions are referred
to in his assignments of error contained in the record on appeal
and, therefore, cannot be argued now. N.C.R. App. P. 10 (a),
10(b)(1). Defendant's assignment of error regarding his claim of
ineffective assistance of counsel refers only to that part of the
record and transcript at which his trial counsel failed to renew
defendant's motion to dismiss at the close of all of the evidence.
Since this is the only “clear and specific” reference to the record
or transcript, this is the only contention properly before us.
The Sixth
Amendment guarantees reasonably effective, not
perfect, assistance of counsel. In order to prove ineffective
assistance of counsel, defendant must prove both that the
representation fell below an objective standard of reasonableness
and that he was prejudiced by the ineffective assistance.
State v.
Moorman, 320 N.C. 387, 399, 358 S.E.2d 502, 510 (1987). Looking atthe totality of the evidence, there must be a reasonable
probability that, but for counsel's errors, whether they are
reasonable or unreasonable, the result of the proceeding would have
been different.
State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d
241, 248 (1985). If counsel's errors do not affect the result of
the proceeding, it does not matter whether such errors were
reasonable or unreasonable because the defendant is not prejudiced.
In order for defendant's ineffective assistance of counsel claim to
be successful in this case, he must first show that he was
prejudiced by counsel's failure to renew his motion to dismiss at
the close of all of the evidence by showing that the trial court
should have granted the motion had it been properly raised.
When reviewing a motion to dismiss, both the trial and
appellate courts must view all of the evidence in the light most
favorable to the State and draw every reasonable inference that can
be drawn, in the State's favor.
State v. Stephens, 244 N.C. 380,
383, 93 S.E.2d 431, 433 (1956). Any contradictions or
discrepancies are for the jury to resolve and should not result in
dismissal.
State v. Griffin, 136 N.C. App.
531, 544, 525 S.E.2d
793, 803 (2000). All of the defendant's evidence is disregarded
except to the extent that it substantiates the State's evidence.
State v. James, 81 N.C. App. 91, 93-94, 344 S.E.2d 77, 80 (1986).
There must be substantial evidence against the accused regarding
every essential element of the crime.
Stephens, 244 N.C. at 383,
93 S.E.2d at 433. Substantial evidence is that which a reasonable
person would find to be sufficient to support a conclusion that theelement exists.
State v. Harris, 145 N.C. App. 570, 578, 551
S.E.2d 499, 504 (2001). The evidence must be sufficient to draw a
reasonable inference of the defendant's guilt; it cannot simply
raise a suspicion or conjecture, no matter how strong that
suspicion might be.
State v. Thomas, 329 N.C. 423, 433, 407 S.E.2d
141, 148 (1991).
If the court determines there is enough evidence to support a
reasonable inference of the defendant's guilt, the motion to
dismiss should be denied, even if the evidence may also support a
reasonable inference of innocence.
State v. Grigsby, 351 N.C. 454,
456-457, 526 S.E.2d 460, 462 (2000). In this case, if there is
enough evidence to support a reasonable inference that defendant is
guilty of violating N.C. Gen. Stat. §90-95(a), the motion to
dismiss would have been denied and counsel's failure to raise the
motion does not amount to ineffective assistance of counsel because
the outcome of the case would not have been affected.
Under N.C. Gen. Stat. §90-95(a):
It is unlawful for any person: (1) To manufacture, sell
or deliver, or possess with the intent to manufacture,
sell or deliver, a controlled substance; (2) To create,
sell or deliver, or possess with the intent to sell or
deliver, a counterfeit controlled substance; (3) To
possess a controlled substance.
N.C. Gen. Stat. §90-95(a)(2003). In this case, defendant denies
that he “possessed” the drugs. Possession can be either actual or
constructive.
State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714
(1972). Constructive possession exists when, looking at the
totality of the circumstances, a person has both the intent and thecapability to maintain dominion and control over the item even
though he does not physically possess it.
State v. Jackson, 103
N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991),
aff'd, 331 N.C.
113, 413 S.E.2d 798 (1992). Intent generally has to be inferred.
State v. Autry, 101 N.C. App. 245, 252, 399 S.E.2d 357, 362 (1991).
A person must be aware the item exists in order to be convicted of
constructive possession.
State v. Davis, 20 N.C. App. 191, 192,
201 S.E.2d 61, 62 (1973).
Mere presence in a car in which drugs are found, without more,
has been found to be insufficient to convict on constructive
possession.
State v. Weems, 31 N.C. App. 569, 230 S.E.2d 193
(1976) (Proximity not enough to support a conviction when drugs are
found in a car in which defendant is a passenger because there is
no evidence that he knew they existed). The State may, however,
overcome a motion to dismiss simply by presenting evidence that
places the accused so close to the drugs that the jury may
reasonably conclude they were his.
State v. Perry, 316 N.C. 87,
97, 340 S.E.2d 450, 457 (1986) (citing
Harvey, 281 N.C. at 12-13,
187 S.E.2d at 714). In
State v. Matias, 354 N.C. 549, 556 S.E.2d
269 (2001), a case very similar to the present case, the defendant
was found to have had constructive possession of cocaine found in
a car in which he was a passenger. The police smelled marijuana
and found marijuana seeds and rolling papers when they stopped the
car, supporting an inference that defendant knew there were drugs
in the car. Defendant was the only person who could have hidden
the cocaine where it was found. Here, defendant was in the back seat of Mellon's car when the
police arrived. When defendant saw the police, he ducked out of
sight. Through the back window, two of the officers saw a package
containing a white substance in plain view at defendant's feet,
within arm's reach. Applying the principles in
Perry, the close
proximity of the drugs to defendant would be enough on its own to
survive a motion to dismiss. Even without following
Perry, it is
reasonable to assume that defendant saw the package laying right
next to his feet, since two officers were able to see it from
outside of the car. This supports an inference that defendant was
aware of the drugs. The other package of drugs was found hidden in
a pile of clothes next to where the defendant was sitting.
Sergeant Ballen testified that “the [front] seats were pretty
high...I wouldn't never have missed if someone had reached
back...,” giving rise to the inference that defendant was the only
one who could have hidden the drugs in the back seat. Viewing all
of the evidence in the light most favorable to the State, a jury
would be able to reasonably conclude that the drugs were
defendant's. Since the trial court would have denied a motion to
dismiss, even if it had been properly raised, the outcome of the
trial would not have been any different. Therefore, defendant was
not deprived of the effective assistance of counsel.
Our determination of this issue does not prejudice the
defendant's right to file a motion for appropriate relief pursuant
to N.C. Gen. Stat. §15A-1415 (2003), regarding his first and second
contentions. Defendant is essentially claiming that his convictionwas obtained in violation of his Constitutional right to the
effective assistance of counsel as guaranteed by the Sixth
Amendment. Motions for appropriate relief based on these grounds
may be filed any time after the verdict is announced. N.C. Gen.
Stat. §15A-1415 (b)(3) (2003). Most ineffective assistance of
counsel claims are better suited to motions for appropriate relief
than to direct appeals because the appellate court can only look to
the record, whereas in a motion for appropriate relief, the trial
court can conduct an evidentiary hearing to explore any information
provided to counsel by defendant as well as defendant's and
counsel's inner thoughts and concerns during trial.
State v.
Stroud, 147 N.C. App. 549, 554-555, 557 S.E.2d. 544, 547 (2001).
Defendant's second argument is that there was insufficient
evidence presented during trial to support his conviction. “A
defendant in a criminal case may not assign as error the
insufficiency of the evidence to prove the crime charged unless he”
makes a motion to dismiss at the close of all of the evidence.
N.C.R. App. P. 10(b)(3). As has occurred in this case, if a
defendant moves to dismiss at the close of the State's evidence,
but then puts on his own evidence, his motion to dismiss is waived
unless he renews it at the close of all of the evidence.
State v.
Davis, 101 N.C. App. 409, 411, 399 S.E.2d 371, 372 (1991).
Though defendant's failure to renew the motion to dismiss
results in waiver, we exercise our discretion under N.C.R. App. P.
2 and address his argument. As we have noted, a trial court's
ruling on a motion to dismiss for insufficiency of the evidence tosupport a conviction is subject to reversal only if evidence of one
of the elements of the crime is completely lacking.
See, e.g.,
State v. Pfeifer, 266 N.C. 790, 147 S.E.2d 190 (1966);
State v.
Jackson, __ N.C. App. __, 592 S.E.2d 575 (2004);
State v. Bennett,
132 N.C. App. 187, 510 S.E.2d 698 (1999)
; State v. Williams, 98
N.C. App. 274, 390 S.E.2d 746 (1990). We have already determined
that there is sufficient evidence in this case to withstand a
motion to dismiss; thus, we have determined there is substantial
evidence of every element of the crime.
Defendant's remaining assignments of error are deemed
abandoned. N.C.R. App. P. 28(a). Defendant received a fair trial,
free from prejudicial error.
No error.
Judges TIMMONS-GOODSON and HUNTER concur.
Report per Rule 30(e).
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