An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1046


Filed: 5 April 2005


         v.                        New Hanover County
                                No. 03 CRS 5727-29

    Appeal by defendant from judgments entered 4 February 2004 by Judge W. Allen Cobb, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 14 March 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State.

    Sofie W. Hosford, for defendant-appellant.

    CALABRIA, Judge.

    Anderson Cooper (“ defendant”) was found guilty of trafficking heroin by transportation, trafficking heroin by possession, and possession of heroin with intent to sell and deliver. We find no error.
    During the week of 17 March 2003, an informant identified as Alice Patrick (“Ms. Patrick”) called Captain Gene Pulley (“Capt. Pulley”) of the New Hanover County Sheriff's Department and told him that defendant asked her to drive him to New York City to purchase heroin. On 21 March 2003, Ms. Patrick advised Capt. Pulley that she and defendant were leaving in her automobile that day for New York City. The next day, Ms. Patrick informed Capt. Pulley that they had arrived in New York City and on 23 Marchreported that she and defendant were in Virginia or Maryland traveling back to Wilmington with a package of heroin under the right-front seat.
    Based upon Ms. Patrick 's information, Capt. Pulley and other officers of the New Hanover County Sheriff's Department commenced surveillance of Ms. Patrick's vehicle when it reached the sixty- mile rest stop on Interstate 40. After Ms. Patrick's vehicle entered New Hanover County, the officers conducted a stop. The officers detained defendant and Ms. Patrick, the driver of the vehicle. The officers found a package wrapped in black electrical tape underneath the front-passenger seat where defendant had been seated. The package contained 13.4 grams of heroin divided into 193 smaller packages.
    Ms. Patrick testified that after she and defendant arrived in New York City, she remained in the automobile and watched defendant meet a man at a street corner. Defendant returned to the car and handed her a package wrapped in black electrical tape. She placed the package underneath the front-passenger seat. Defendant made a motion to dismiss the three charges against him at the close of the State's evidence and renewed the motion at the close of all the evidence.
    Defendant first asserts the trial court erred by denying his motion to dismiss because the State's evidence failed to establish that he had constructive possession of the heroin found in Ms. Patrick's car. A motion to dismiss requires the trial court “to determine whether there is substantial evidence (a) of eachessential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense.” State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). “The trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged.” State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991). In ruling upon the motion, the court must consider the evidence “in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
    To withstand a motion to dismiss a charge of trafficking in heroin, the State must present substantial evidence showing that the defendant sold, manufactured, delivered, transported, or possessed “four grams or more of . . . heroin, or any mixture containing such substance . . . .” N.C. Gen. Stat. § 90-95(h)(4) (2003); State v. Perry, 316 N.C. 87, 99, 340 S.E.2d 450, 458 (1986). To withstand a motion to dismiss a charge of possession with intent to sell and deliver, “the State must present substantial evidence of (1) the defendant's possession of the controlled substance, and (2) his intent to sell or distribute it.” State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 72-73 (1996).     “Possession of a controlled substance may be . . . actual or constructive.” State v. Hamilton, 145 N.C. App. 152, 155, 549 S.E.2d 233, 235 (2001). “Constructive possession exists when a person, while not having actual possession, has the intent andcapability to maintain control and dominion over a controlled substance.” State v. Williams, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983). Proof of constructive possession is ordinarily by circumstantial evidence. State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). For example, the state's evidence is sufficient to “overcome a motion to dismiss . . . [when the evidence] places the [defendant] 'within such close juxtaposition to the [controlled substance] as to justify the jury concluding that the same was in his possession.'” State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972) (citation omitted). In the instant case, the evidence showed: (1) defendant recruited Ms. Patrick to drive him to New York City for the purpose of purchasing heroin; (2) Ms. Patrick saw him return to the vehicle carrying a package; (3) the package contained heroin; (4) defendant handed the package to Ms. Patrick for safekeeping; and (5) the package was found underneath the vehicle seat in which defendant was sitting . Therefore, the State produced substantial evidence supporting an inference that defendant had the intent and capability to maintain control over the controlled substance. Accordingly, the trial court did not err by denying defendant's motion to dismiss.
    Defendant next asserts he received ineffective assistance of counsel in violation of his rights under the sixth amendment to the United States Constitution . Specifically, defendant argues his counsel attempted to present a defense of entrapment that was unavailable as a matter of law based on defendant's evidence. “To successfully assert an ineffective assistance of counsel claim,defendant . . . must show that [(1)] [his] counsel's performance fell below an objective standard of reasonableness [and] . . . [(2)] the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error.” State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000). In reviewing the transcript, we note defendant's counsel based his argument for an entrapment instruction on, State v. Sanders, 95 N.C. App. 56, 61, 381 S.E.2d 827, 830 (1989), in which this Court stated that, although not available “when a defendant denies the commission of the acts underlying the offense charged, . . . an entrapment defense may be employed by a defendant who denies having the intent required for the commission of a crime.” (Citation omitted). We further note defendant testified he was aware the heroin was in the vehicle but that it was not his. Although, the trial court denied the entrapment instruction, the counsel's attempt to introduce this defense did not constitute “performance . . . below an objective standard of reasonableness[,]” Blakeney, 352 N.C. at 307, 531 S.E.2d at 814-15, because he made a colorable argument that defendant's testimony only denied intent and, under Sanders, left available the defense of entrapment. Moreover, we find no indication in the record that defendant received ineffective assistance of counsel at any point during the trial. Accordingly, defendant's sixth amendment right to effective assistance of counsel was not violated.    Defendant also asserts the trial court abused its discretion by denying his pretrial motion to discharge his attorney. Defendant's motion was based on the contention that his counsel had only visited him one time during an eleven-month period. “Absent a showing of a sixth amendment violation, the decision of whether appointed counsel shall be replaced is a matter committed to the sound discretion of the trial court.” State v. Hutchins, 303 N.C. 321, 336, 279 S.E.2d 788, 798 (1981). In addressing a defendant's motion to dismiss his counsel, the court need only make sufficient inquiry to satisfy itself “that the original counsel is reasonably competent to present [the] defendant's case and the nature of the conflict between defendant and counsel is not such as would render [the] counsel incompetent or ineffective to represent [the] defendant . . . .” State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980). “[T]he amount of time counsel spends with the accused . . . is but one consideration to be weighed in the balance.” Hutchins, 303 N.C. at 335, 279 S.E.2d at 797.
    Upon questioning from the trial court concerning defendant's contention , defendant's counsel referred to his time sheet and stated that he: (1) called and spoke to defendant for approximately ten minutes two days after he opened the file on 26 March 2003; (2) visited defendant in jail five days later for a period of forty minutes; (3) visited defendant in jail on 21 April 2003 and interviewed him for fifty minutes; (4) talked to defendant by telephone on 19 June 2003 after defendant had been sent to another county; and (5) accepted calls from defendant. Defendant's counselfurther indicated that he and defendant had agreed upon a defense and that he was prepared to proceed to trial. Therefore, we hold the trial court made sufficient inquiry and did not abuse its discretion in determining that defendant's counsel was “reasonably competent to present defendant's case.” Thacker, 301 N.C. at 352, 271 S.E.2d at 255. Moreover, assuming arguendo the level of contact between the counsel and defendant was comparatively low, there is nothing in the record to indicate that the frequency of contact adversely affected his preparation for trial or “resulted in defendant being misinformed about the progress of the case.” See Hutchins, 303 N.C. at 337, 279 S.E.2d at 798 (upholding the denial of a defendant's motion to discharge his counsel because nothing in the record indicated the counsel's level of contact with defendant adversely affected the counsel's trial preparations or “resulted in defendant being misinformed . . .”). Accordingly, the trial court did not err by denying defendant's pretrial motion to discharge his counsel.
    Defendant's final assertion is that the court committed plain error by permitting the State to amend the two trafficking indictments to reduce the amount of heroin from “more than 14 but less than 28 grams” to “more than 4 but less than 14 grams.” An amendment that does not materially alter the burden of proof or prejudice the defendant in the preparation of his defense is permissible. State v. Joyce, 104 N.C. App. 558, 573, 410 S.E.2d 516, 525 (1991). As noted above, the offense of trafficking is established by proof of the defendant's possession ortransportation of a minimum amount of four grams of heroin. N.C. Gen. Stat. § 90-95(h)(4); Perry, 316 N.C. at 99, 340 S.E.2d at 458. Therefore, by changing the amount of heroin to “more than 4 but less than 14 grams[,]” the amendment neither materially altered the burden of proof nor prejudiced the defendant in the preparation of his defense against the offense charged. Moreover, we note that when asked by the court, defendant did not oppose the amendment. For the foregoing reasons, we hold defendant received a fair trial free from error.
    No error.
    Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

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