An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1481

NORTH CAROLINA COURT OF APPEALS

Filed: 7 December 2004

STATE OF NORTH CAROLINA

    v .                             Mecklenburg County
                                Nos. 03 CRS 4667-69
ANTOINE D. STEELE

    Appeal by defendant from judgment filed 28 July 2003 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 1 September 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State.

    James N. Freeman, Jr. for defendant-appellant.

    BRYANT, Judge.

    Antoine Steele   (See footnote 1)  (defendant) appeals from a jury verdict dated 29 July 2003 finding him guilty of habitual felon status as a result of a jury verdict dated 28 July 2003 finding him guilty of resisting a public officer and possession of a stolen vehicle.
    On 14 September 2002, at about 10:55 p.m., Mohammed Amin (Amin) was robbed at gunpoint, and the car he was driving was stolen. The car belonged to Amin's sister. Amin testifieddefendant, Antoine Steele (Steele), was not the man who stole the car.
    At about 1:16 a.m. on 15 September 2002, Charlotte-Mecklenburg Police Officer A.J. Mullis (Officer Mullis) saw the stolen vehicle and followed it for about two miles. Officer Mullis confirmed that the vehicle he was following was indeed the vehicle stolen from Amin.
    Officer Mullis followed the car as it turned into a driveway, at which point he turned on his blue lights. He saw three individuals in the car and approached the car with his gun drawn. Officer Mullis attempted to take the driver of the vehicle, defendant, into custody. Defendant resisted arrest by trying to run and by striking the officer multiple times. Officer Mullis eventually took defendant into custody, where he was then placed under arrest. The other two unidentified individuals in the car escaped during Officer Mullis' struggle with defendant.
    On 21 January 2003, defendant was indicted for resisting a public officer, possession of a stolen vehicle, and habitual felon. At a jury trial on 28 July 2003, defendant was found guilty of resisting a public officer and possession of a stolen vehicle. On 29 July 2003, the same jury found defendant guilty of being a habitual felon. Defendant's sentences for the possession of a stolen vehicle and resisting an officer convictions were consolidated. He was sentenced in the presumptive range, with a Prior Record Level of II and having four points, to a minimum of 100 months and a maximum of 129 months. His prior record level didnot include the felony convictions which served as the underlying felonies for his habitual felon indictment. Defendant appeals.

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    Defendant raises three issues: whether the trial court erred in (I) failing to dismiss the indictment for habitual felon when it included possession of cocaine as one of the predicate felony convictions resulting in defendant's habitual felon status; (II) committing plain error by failing to dismiss the habitual felon indictment thereby subjecting defendant to double punishment for the same crime committed in violation of his federal and state constitutional rights; and (III) failing to grant defendant's motion to dismiss at the close of all the evidence for insufficiency of evidence.
I
    Defendant first contends the trial court committed reversible error in failing to dismiss the indictment for habitual felon as it was deficient on its face for having included possession of cocaine as one of the predicate felony convictions resulting in defendant's habitual felon status.
    Defendant argues the trial court erred by not dismissing the charge of habitual felon, and by enhancing his sentence as a result of the habitual felon conviction, because the habitual felon indictment was insufficient to grant jurisdiction to the trial court. Defendant's habitual felon indictment listed three prior convictions, including a felony conviction for possession of cocaine on 23 January 1995. Defendant argues, based on thisCourt's holding in State v. Jones, 161 N.C. App. 60, 588 S.E.2d 5 (2003), rev'd in part and remanded, 358 N.C. 473, 598 S.E.2d 125 (2004), that possession of cocaine in violation of N.C. Gen. Stat. § 90-95(d)(2) is a misdemeanor and not a felony.
    Defendant's argument must fail based on the North Carolina Supreme Court's recent reversal in part and remand of the case on which defendant relies. In State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004), the North Carolina Supreme Court held that “possession of cocaine is a felony and therefore can serve as an underlying felony to an habitual felony indictment.” Id. at 476, 598 S.E.2d at 127. The Court stated further:
        The language of N.C.G.S. § 90-95(d)(2), the statute's legislative history, and the terminology used in other criminal statutes all indicate the General Assembly's intent to classify possession of cocaine as a felony offense. Moreover, for nearly twenty-five years, our criminal justice system has treated possession of cocaine as a felony pursuant to N.C.G.S. § 90-95(d)(2). If the General Assembly had not intended such an interpretation of section 90-95(d)(2) to continue, it could have amended the statute to end this long-standing practice.

Id.
    Based on the Supreme Court's holding in Jones, we hold the defendant's previous conviction for possession of cocaine was indeed a felony conviction that was sufficient to serve as an
underlying felony to his habitual felon indictment. This assignment of error is overruled.
II
    Defendant next argues the trial court committed plain error in failing to dismiss the habitual felon indictment against him which subjected defendant to double punishment for the same crime committed in violation of his federal and state constitutional rights.
    Although not objected to at trial, pursuant to N.C.R. App. P. 10(c)(4), we will review this issue for plain error. State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983); See N.C.R. App. P. 10(c)(4) (2004). Defendant requests this Court to re-examine its holding in State v. Brown, 146 N.C. App. 299, 552 S.E.2d 234 (2001), which found “the Habitual Felons Act used in conjunction with structured sentencing did not violate the defendant's double jeopardy protections.” Id. at 302, 552 S.E.2d at 236. The holding in Brown has been followed in numerous opinions since it was published. The facts in the instant case are very similar to other cases that have unsuccessfully attempted to challenge the Court's holding in Brown. See State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 31 (2000) (citing State v. Todd, 313 N.C. 110, 118, 326 S.E.2d 249, 253 (1985) (holding the Habitual Felons Act alone did not violate double jeopardy)); and State v. Hodge, 112 N.C. App. 462, 468, 436 S.E.2d 251, 255 (1993) (upholding Habitual Felons Act against due process, equal protection, and double jeopardy challenges). Defendant does not present any new legal arguments that would persuade this Court to re-examine this issue. This assignment of error is overruled.
III
    In defendant's last argument, he contends the trial court committed reversible error in failing to grant his motion to dismiss at the close of all the evidence as the State's evidence was insufficient for a conviction.
    Defendant argues the evidence presented by the State was insufficient to support a conviction on the charges of possession of a stolen vehicle and resisting a public officer. Upon defendant's motion to dismiss, the trial court must determine “after viewing the evidence in the light most favorable to the prosecution, [whether] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Casey, 59 N.C. App. 99, 116, 296 S.E.2d 473, 483 (1982) (citations omitted).
    To support a conviction of possession of a stolen vehicle, under N.C. Gen. Stat. § 20-106, the State must prove that the defendant was in possession of a stolen vehicle and that he knew or had reason to know the vehicle was stolen. N.C. Gen. Stat. § 20- 106 (2003); State v. Bailey, 157 N.C. App. 80, 84, 577 S.E.2d 683, 686 (2003). The evidence presented at trial showed: defendant was found driving the stolen vehicle within hours of the vehicle having been stolen; defendant was unknown to both the vehicle's owner and her brother who had the car when it was stolen; defendant was wearing socks on his hands when he was driving the car; defendant attempted to flee upon being stopped by a police officer; and defendant made incriminating statements indicating that he knew whohad stolen the car. Based on the evidence presented, when taken in the light most favorable to the State, there was sufficient evidence that defendant knew or should have known the vehicle he was driving was stolen.
    To support a conviction of resisting a public officer, under N.C. Gen. Stat. § 14-223, the State must prove: the victim was a public officer; the defendant knew or had reasonable grounds to believe that the victim was a public officer; the victim was attempting to make a lawful arrest; the defendant resisted the victim in attempting to make the lawful arrest; and the defendant acted willfully and unlawfully. N.C.G.S. § 14-233 (2003). The evidence presented at trial showed A.J. Mullis was a Charlotte-Mecklenburg police officer. On the day in question, he was wearing his police uniform and was driving a marked patrol car with blue lights and a siren when he pulled behind the vehicle driven by defendant and turned on his lights. The officer had already confirmed the vehicle was a stolen vehicle prior to approaching the car and attempting to arrest defendant. When the officer attempted to take defendant into custody defendant attempted to run from the officer, then hit, kicked and pushed the officer, and refused to follow the officer's commands. The officer's testimony indicated that defendant acted willfully. Based on the evidence presented, when taken in the light most favorable to the State, there was sufficient evidence that would allow the jury to find that defendant unlawfully resisted a public officer. This assignment of error is overruled.    No error.
    Judges HUDSON and TYSON concur.
    Report per Rule 30(e).


Footnote: 1
    Note that the indictments refer to defendant as “Antoine Dipree Steele AKA Antoine Dupree Steele AKA Antoine Steele AKA David Headen.” The Judgment and Commitment Order refers to defendant as “Steele, Antoine D.” He is referred to by all of these names throughout the record on appeal. For consistency, we refer to him as Antoine Steele.

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