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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. PRINCE MCBRIDE
Filed: 6 September 2005
1. Evidence_character_drug use and drug dealing_no prejudice
There was no prejudice in a prosecution for cocaine related charges from the erroneous
admission of evidence that two people found at the motel room where defendant was arrested had
a reputation for dealing or using illegal drugs. One person was found with a crack pipe in her
hand and there was ample evidence to convict defendant without the reputation of the other.
N.C.G.S. § 8C-1, Rule 404(a).
2. Drugs_constructive possession_effort to hide contraband
Evidence that defendant scuffled with officers outside his motel room permitted an
inference that defendant sought to get inside the room to hide or dispose of his contraband, and
was sufficient evidence of constructive possession to deny defendant's motion to dismiss.
3. Sentencing_habitual felon_sufficiency of evidence
The essential question in a habitual felon indictment is whether a felony was committed.
There was enough evidence here to deny a motion to dismiss an habitual felon charge, although
the deputy clerk of court did not testify to the date of the third offense.
4. Sentencing_case number_habitual felon
There was a clerical error, remanded for correction, where the trial court entered a
judgment and commitment under the case number assigned to the habitual felon indictment as
opposed to the case numbers for the underlying offenses. The face of the commitment form
shows that defendant was being sentenced for possession of cocaine and drug paraphernalia and
that his habitual felon status merely increased his sentence.
5. Drugs_possession of cocaine_felony
Possession of cocaine is a felony which provides the superior court with jurisdiction and
which can support an habitual felon sentence.
6. Sentencing_aggravating factors_Blakely error
Sentences in the aggravated range based upon an aggravating factor found by a judge
rather than a jury were remanded for resentencing.
Appeal by defendant from judgment entered 8 July 2002 by Judge
Michael E. Beale in Richmond County Superior Court. Heard in the
Court of Appeals 24 August 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Emery E. Milliken, for the State.
James P. Hill, Jr., for defendant appellant.
Defendant was indicted for possession of drug paraphernalia,
possession of cocaine, maintaining a place to keep controlled
substances, and being an habitual felon. After a jury trial,
defendant was convicted on all charges but that of maintaining a
place to keep controlled substances. He now appeals.
At trial, the State's evidence tended to show the following:
On 18 May 2001, Officer Freeman, Chief Sweatt, and Major Harrelson,
all of the Richmond County Sheriff's Department, were traveling in
an unmarked vehicle on Carolina Street in Richmond County, in the
direction of U.S. Highway 74. The officers went to the Chek-Inn
Motel to investigate reports of illegal drug activity.
Officer Freeman testified that when the officers pulled into
the Chek-Inn Motel parking lot, he saw defendant and defendant's
brother Robert McBride (Mr. McBride) outside and on either side
of the door of Room 124. Evidence is disputed as to whether or not
the door was open. It appeared to the officers that defendant and
Mr. McBride were engaged in a drug transaction.
When the officers approached defendant, he remained standing
outside of Room 124 at the motel. Defendant admitted that Room 124
was his room. The manager of the motel, Mr. Patel, testified that
defendant's name and address were on the motel documentation as theperson who had rented the room for the time in question. The
evidence showed that as the officers approached, Mr. McBride ran
into the room and away from the table inside the room. Officer
Freeman was able to see Mr. McBride the entire time. Officer
Freeman immediately followed Mr. McBride into Room 124.
Inside the room, seated at the table, was Martha Chavis (Ms.
Chavis). In her hand was a crack cocaine pipe, entered into
evidence at trial as State's Exhibit #2. Across the table from her
was yet another crack cocaine pipe, entered into evidence as
State's Exhibit #3. The pipes were visible to one of the officers
as soon as he reached the doorway.
As the officers approached the room door, defendant was
standing within three to four steps of the crack pipe. Defendant
smelled of crack cocaine and had the characteristics of someone who
had used crack or cocaine. Initially, defendant tried to get into
the room and a scuffle with one of the officers ensued, with
defendant cursing. The crack pipes were tested and David Nicholas,
forensic drug chemist with the State Bureau of Investigation
(SBI), testified that State's exhibits 2 and 3 contained a
substance that he positively identified as cocaine base.
Defendant did not present any evidence.
At the close of all evidence the court allowed defendant's
motion to dismiss the State's charge of maintaining a place for
controlled substances. The jury found defendant guilty of
possession of drug paraphernalia and possession of cocaine.
Subsequently, during the habitual felon stage of the trial, thesame jury entered a verdict against defendant as being an habitual
felon. The trial court imposed a sentence for defendant's
convictions for possession of drug paraphernalia and possession of
cocaine based upon his attainment of habitual felon status;
however, the court erroneously entered the consolidated judgment
under the file number assigned to the habitual felon indictment.
In addition, because the court found that a non-statutory
aggravating factor existed, obstruction of justice, based on the
fact that defendant did not appear at his trial, defendant received
a sentence in the aggravated range of punishments.
On appeal, defendant contends that the trial court erred by:
(I) allowing reputation evidence that Ms. Chavis was a drug user
and Mr. McBride was a drug dealer; (II) failing to dismiss the
charges of possession of drug paraphernalia and possession of
cocaine; (III) failing to dismiss the habitual felon charge; (IV)
imposing a sentence based on the habitual indictment and not the
indictment for the underlying charges; (V) sentencing defendant as
an habitual felon when the underlying charges were misdemeanors;
(VI) failing to dismiss this case where jurisdiction was only
proper in district court; and (VII) imposing an aggravated sentence
in the absence of a jury finding, beyond a reasonable doubt, that
an aggravating factor existed.
 Defendant first contends that the court erred in admitting
evidence, through the testimony of Officer Freeman and Chief
Sweatt, that Ms. Chavis had the reputation for being a user ofillegal drugs such as crack cocaine and Mr. McBride had the
reputation for being a dealer of drugs such as cocaine and crack
cocaine. Specifically, defendant contends that this was
inadmissable character evidence under N.C. Gen. Stat. § 8C-1, Rule
404(a) (2003) of third parties to this matter.
Rule 404(a) states in relevant part:
(a) Character evidence generally
. -- Evidence of a
person's character or a trait of his character is not
admissible for the purpose of proving that he acted in
conformity therewith on a particular occasion, except:
(1) Character of accused
. -- Evidence of a
pertinent trait of his character offered
by an accused, or by the prosecution to
rebut the same;
(2) Character of victim
. -- Evidence of a
pertinent trait of character of the
victim of the crime offered by an
accused, or by the prosecution to rebut
the same, or evidence of a character
trait of peacefulness of the victim
offered by the prosecution in a homicide
case to rebut evidence that the victim
was the first aggressor;
(3) Character of witness
. -- Evidence of the
character of a witness, as provided in
Rules 607, 608, and 609.
The general rule is that evidence of the character of a third
person who is not a witness or a party to an action is
inadmissible. State v. Winfrey
, 298 N.C. 260, 262, 258 S.E.2d
346, 347 (1979); State v. Barbour
, 295 N.C. 66, 74, 243 S.E.2d 380,
385 (1978). While there are some exceptions to this general rule,
we find none are invoked on the facts before us. See, e.g.,
, 298 N.C. at 262, 258 S.E.2d at 347 (where there is a pleaof self-defense and there is evidence of a deceased's violent or
We agree with defendant that admitting the reputation evidence
of Ms. Chavis and Mr. McBride violated Rule 404(a) and was error.
In the instant case, the only logical relevance of admitting their
reputation for drug use and drug dealing respectively, was to show
that on the day in question, they were acting in conformity with
their reputation in the company of defendant. The State contends
this evidence is relevant to show the circumstantial evidence
relevant to its theory of constructive possession of the drugs and
paraphernalia by defendant. However, the intent of Rule 404(a) is
to limit such circumstantial use of character evidence for only its
provided exceptions, none of which are invoked on these facts. See
N.C. Gen. Stat. § 8C-1, Rule 404(a)(1), (2) & (3).
(See footnote 1)
However, defendant has not shown prejudice such that a
different result likely would have ensued had the evidence been
excluded. State v. Gappins
, 320 N.C. 64, 68, 357 S.E.2d 654, 657
(1987); State v. Allen
, 162 N.C. App. 587, 598, 592 S.E.2d 31, 40
(2004), appeal dismissed
, 358 N.C. 546, 599 S.E.2d 557 (2005); see
N.C. Gen. Stat. § 15A-1443(a) (2003). There was already
evidence before the jury that Ms. Chavis had a crack cocaine pipe
in her hand when the officers entered the room. Therefore, evidenceof her reputation as a drug user was patently harmless. Further, as
in Section II, there was ample evidence to convict
defendant without evidence of Mr. McBride's reputation for drug use
and drug sales. Thus, defendant was not prejudiced by the
improperly admitted testimony.
This assignment of error is overruled.
 Defendant next contends the court erred in failing to deny
his motion to dismiss the charges of possession of drug
paraphernalia and possession of cocaine. We do not agree.
(See footnote 2)
Upon review of a motion to dismiss, this Court determines
whether there is substantial evidence, viewed in the light most
favorable to the State, of each essential element of the offense
charged and of defendant being the perpetrator of the offense.
State v. Stancil
, 146 N.C. App. 234, 244, 552 S.E.2d 212, 218
(2001), modified and aff'd
, 355 N.C. 266, 559 S.E.2d 788 (2002)
(per curiam); State v. Compton
, 90 N.C. App. 101, 103, 367 S.E.2d
353, 355 (1988). Substantial evidence is such relevant evidence
that a reasonable mind might accept as adequate to support a
conclusion. State v. Morgan,
111 N.C. App. 662, 665, 432 S.E.2d
877, 879 (1993).
The State's theory for both of the possession charges in this
case was constructive possession. The State is not required to
prove actual physical possession of the controlled substance orparaphernalia; proof of constructive possession by the defendant is
sufficient to carry the issue to the jury and such possession need
not be exclusive. State v. Perry,
316 N.C. 87, 96, 340 S.E.2d 450,
456 (1986). Constructive possession exists when a person, while not
having actual possession of the controlled substance or
paraphernalia, has the intent and capability to maintain control
and dominion over a controlled substance or paraphernalia. State v.
, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983). Where a
controlled substance is found on premises under the defendant's
control, this fact alone may be sufficient to overcome a motion to
dismiss and to take the case to the jury. State v. Harvey
, 281 N.C.
1, 12, 187 S.E.2d 706, 714 (1972). If a defendant does not maintain
control of the premises, however, other incriminating
circumstances must be established for constructive possession to
be inferred. State v. Alston
, 91 N.C. App. 707, 710, 373 S.E.2d
306, 309 (1988). Our determination then 'depends on the totality
of the circumstances in each case. No single factor controls, but
ordinarily the questions will be for the jury
.' State v. Butler
147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001)(quoting State v.
, 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)), aff'd
, 356 N.C. 141, 567
S.E.2d 137 (2002).
Defendant was not in exclusive control of the premises at the
time the drugs and paraphernalia were seized, and therefore other
incriminating circumstances were necessary to support the
constructive possession theory. In the instant case, the evidenceof other incriminating circumstances was as follows: the officers
approached the Chek-Inn Motel in an unmarked vehicle observing what
appeared to be a drug transaction between defendant and his
brother; officers were responding to reported drug activity at the
motel; the supposed transaction was taking place outside of Room
124 with the door open; defendant admitted that Room 124 was his
room; a business record from the motel shows that defendant's
identification information was given to the desk clerk at
registration; defendant had stayed in the Chek-Inn Motel on four or
five previous occasions and was known to the proprietor; defendant
smelled of crack cocaine and had the characteristics of someone
under the influence of the drug; when defendant observed the
officer approaching the room, he tried to get inside the motel and
a scuffle with one of the officers ensued keeping him outside of
the room and detained; one of the two crack pipes was visible as
soon as the officers reached the doorway; and Ms. Chavis was inside
holding one crack pipe in her hand, with the other before her on a
This evidence was sufficient for a reasonable mind to infer
that defendant constructively possessed at least one of the two
crack pipes in which the crack cocaine was found. In particular,
defendant's scuffle with the officers outside the motel room
permitted an inference that defendant sought to get inside the
motel room and hide or dispose of his contraband before the
officers could seize it. See State v. Neal
, 109 N.C. App. 684, 685,
428 S.E.2d 287, 288 (1993) (holding that incriminatingcircumstances supported an inference of constructive possession
when defendant was seen in an apartment bathroom where cocaine was
later discovered, but fled the bathroom when the officers entered
the apartment); contra State v. Acolatse
, 158 N.C. App. 485, 486-
87, 581 S.E.2d 807, 807 (2003) (holding that there was insufficient
evidence of the defendant's constructive possession of controlled
substances when officers lost sight of the defendant for a few
seconds, and upon seeing him again, saw the defendant make a
throwing motion towards a location where the drugs were not
This assignment of error is overruled.
 Defendant next contends that the trial court erred in
denying his motion to dismiss the habitual felon charge, because
the State lacked any evidence that defendant had been found guilty
of the predicate felonies. We do not agree.
At the outset, we note that on 29 April 2004, this Court
granted the State's motion to amend the record on appeal to include
the State's trial exhibit S-16, which contained court files for
87 CRS 6559, exhibit S-17, which contained court files for
92 CRS 7845, and exhibit S-18, which contained court files for
99 CRS 9612. These three exhibits were introduced at the trial as
evidence of defendant's conviction of the prior felonies for the
purpose of proving his habitual felon status.
In addition, the State elicited testimony from Jane Carriker
(Ms. Carriker), Deputy Clerk in the Richmond County Clerk's Office
for 12 years. Ms. Carriker testified to the dates of the felonyoffenses committed by defendant and the convictions for those
offenses, as set out in exhibits S-16 and S-17. As to exhibit
S-18, Ms. Carriker testified this exhibit included a bill of
information which revealed defendant was charged with felony
larceny from the person and that this exhibit also contained a
transcript of plea and a judgment and commitment that showed
defendant was found guilty of larceny from the person on 6 March
2000. However, she did not testify regarding the date the offense
was committed. These exhibits were not published to the jury, but
they were entered into evidence and were available to the jury upon
For purposes of the habitual felon statute, the evidence to be
used to prove prior convictions is set out in N.C. Gen. Stat. § 14-
7.4 (2003), which states:
[T]he record or records of prior convictions
of felony offenses shall be admissible in
evidence, but only for the purpose of proving
that said person has been convicted of former
felony offenses. A prior conviction may be
proved by stipulation of the parties or by the
original or a certified copy of the court
record of the prior conviction.
In the instant case, exhibits containing both the dates of
defendant's prior offenses and resulting convictions for three
felonies were properly admitted into evidence. With the exception
of the date of the third offense, all of the offense and conviction
dates were testified to by the Deputy Clerk of Court for Richmond
County. We hold that the testimony of the third conviction date
was substantial evidence that defendant committed a third felonyoffense and is sufficient to survive defendant's motion to dismiss
the habitual charge. See, e.g., State v. Locklear
, 117 N.C. App.
255, 260, 450 S.E.2d 516, 519 (1994) (holding that the fact that
another felony was committed, as opposed to its specific date, is
the essential question in the habitual felon indictment). We are
comfortable in this conclusion in light of the fact that the jury
could have requested to see exhibit S-18, which contained the date
of the third offense.
(See footnote 3)
This assignment of error is overruled.
 Defendant next contends, and the State concedes, that the
trial court erred in entering a Judgment and Commitment for
defendant under the case number assigned to the Habitual Felon
Indictment as opposed to the case numbers for the underlying
offenses. We conclude that this error was a clerical error, and
remand for correction.
When indicting a defendant as an habitual felon, N.C. Gen.
Stat. § 14-7.5 (2003) requires:
The indictment that the person is an habitual
felon shall not be revealed to the jury unless
the jury shall find that the defendant is
guilty of the principal felony or other felony
with which he is charged. If the jury findsthe defendant guilty of a felony, the bill of
indictment charging the defendant as an
habitual felon may be presented to the same
jury. Except that the same jury may be used,
the proceedings shall be as if the issue of
habitual felon were a principal charge
Therefore, defendant should be sentenced under the principal charge
to ensure that his habitual status is not itself being used to
determine the conviction.
Defendant was found guilty of the principal charges of
possession of cocaine and possession of drug paraphernalia, case
numbers 01 CRS 51293-94. Based on these convictions, the jury was
presented with the indictment of defendant as an habitual felon for
that phase of the trial, case number 01 CRS 04184. He was then
determined by the same jury to have attained habitual felon status
pursuant to Article 2A of N.C. Gen. Stat. § 14. The judgment and
commitment form was filed under the habitual felon case number, and
the form also listed all of the charges for which defendant was
found guilty. Defendant was then given one active sentence, as a
Class C felon pursuant to the habitual felon statute. See
Stat. § 14-7.6 (2003)(sentencing of habitual felon).
Defendant argues this issue is controlled by State v. Taylor
156 N.C. App. 172, 576 S.E.2d 114 (2003). In Taylor
, the defendant
pled guilty to ten counts of obtaining property by false pretenses,
six counts of felonious breaking and entering, six counts of
larceny after breaking and entering, three counts of felonious
possession of stolen goods and six counts of misdemeanor possession
of stolen goods. Id.
at 173, 576 S.E.2d at 115. Additionally,the State indicted defendant on twenty counts of being an habitual
felon to which he also pled guilty. Id.
This Court noted that it
is better practice for the State to only indict a defendant once as
an habitual felon for the underlying substantive crimes, no matter
how many are being charged. Id.; see also State v. Patton
, 342 N.C.
633, 636, 466 S.E.2d 708, 710 (1996) (holding that one habitual
indictment is sufficient to put a defendant on notice he is being
prosecuted for his substantive offense as a recidivist). In
, we vacated the sentences based solely on the basis of
defendant's attainment of habitual felon status, and held that one
who acquires habitual felon status subjects himself only to having
the sentences of his current convictions enhanced. Taylor
, 156 N.C.
App. at 173, 576 S.E.2d at 115.
The instant case presents a different situation. The only
error in this case was that the judgment and commitment form
entered by the trial court was filed under the habitual felon
indictment case number. Defendant insists that the use of the wrong
case number demonstrates that his sentence was imposed solely upon
his habitual felon status. However, the face of the commitment
form shows that defendant was being sentenced for his charges of
possession of cocaine and drug paraphernalia, and that his status
as an habitual felon merely increased his sentence on the
substantive offenses to that of a Class C felony. This is in
accord with the habitual felon statute.
Therefore, we remand this case to the Richmond County Superior
Court and direct the court to file the judgment and commitment formunder the substantive case numbers, 01 CRS 51293-94. See, e.g.
State v. Hammond,
307 N.C. 662, 300 S.E.2d 361 (1983)(holding that
clerical error existed in the felony judgment and commitment form
listing the crime of robbery with a deadly weapon as a Class C
felony, whereas in fact it was a Class D felony); State v. Jarman
140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) ('[A] court of
record has the inherent power to make its records speak the truth
and, to that end, to amend its records to correct clerical mistakes
or supply defects or omissions therein[.]'). (citation omitted).
 In a Motion for Appropriate Relief defendant contends that
the trial court erred by sentencing him as an habitual felon when
the jury failed to find him guilty of a felony. Specifically,
defendant contends that possession of cocaine cannot support an
habitual felon sentence as either a substantive or predicate
felony. This argument has recently been rejected by our Supreme
Court in State v. Jones
, 358 N.C. 473, 478-79, 598 S.E.2d 125,
In the same Motion for Appropriate Relief, defendant contends
that, because possession of cocaine is a misdemeanor, as opposed to
a felony, the superior court lacked jurisdiction to try him. This
is so, defendant contends, because N.C. Gen. Stat. § 7A-272 (2003)
imbues district courts with the exclusive jurisdiction to try
criminal actions below the grade of felony. However, as
indicated in part V, supra
, possession of cocaine is a felony. Therefore, the superior court had jurisdiction to try defendant in
the instant case.
 Defendant also contends that he was unconstitutionally
sentenced to a term in the aggravated range based on judicial
findings that an aggravating factor existed and warranted enhanced
punishment. Specifically, defendant contends that his sentence
could not be aggravated in the absence of a jury finding beyond a
reasonable doubt that the alleged aggravating factor existed. We
agree and remand for defendant to be sentenced in accordance with
the principles set forth in Blakely v. Washington
, 542 U.S. 296,
159 L. Ed. 2d 403, reh'g denied
, ___ U.S. ___, 159 L. Ed. 2d 851
(2004), and State v. Allen
, 359 N.C. 425, 615 S.E.2d 256 (2005).
No prejudicial error in part; remanded for clerical changes
Judges TIMMONS-GOODSON and HUNTER concur.
We note that, by providing evidence that other drug users
and dealers were in the proximity of the drugs and paraphernalia
which were found, such evidence actually creates a stronger
inference against the State's theory of constructive possession
by defendant. This is especially true in light of the trace
amounts which were found.
When analyzing this issue, we have not considered the
improperly admitted testimony discussed in Section I.
We note that the habitual indictment contained all three
dates on which the prior offenses were committed, and the dates
of conviction for those offenses. This was in accord with N.C.
Gen. Stat. § 14-7.3 (2003).
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