STATE OF NORTH CAROLINA
v. Catawba County
Nos. 03 CRS 15242-43
TIMOTHY JUNIOR SCOTT
Attorney General Roy Cooper, by Assistant Attorney General
Kimberly D. Potter, for the State.
Michael E. Casterline for defendant-appellant.
CALABRIA, Judge.
A jury found defendant guilty of possession of cocaine,
possession of marijuana, driving while license revoked, and
habitual felon status. The trial court consolidated the offenses
for judgment and sentenced defendant as a habitual felon to 104-134
months imprisonment.
The State presented evidence showing that at approximately
8:15 p.m. on 7 June 2002, Hickory Police Officers Chad Davis and
Mike Crisp were patrolling the 900 block of First Street Southwest
when they observed defendant driving southbound in a black Dodge
Shadow. Knowing defendant “did not have a valid North Carolina
driver's license[,]” the officers pursued defendant and stopped hisvehicle in the 200 block of Eighth Avenue Drive. Defendant exited
his car with his hands raised in the air and was approached by
Davis. Davis noticed that defendant's “speech was slurred.” Asked
by the officers to open his mouth, defendant spat onto the ground
a plastic bag containing what appeared to be marijuana. Davis
placed defendant under arrest.
In searching defendant incident to the arrest, Davis asked him
to remove his tennis shoes. When defendant removed his shoes,
Davis saw “a small wad of tissue paper” fall from one of the shoes
to the ground. Inside the tissue were “four little small rocks of
what appeared to be crack cocaine.” Subsequent lab tests confirmed
the rocks consisted of six-tenths of a gram of cocaine base. On
cross-examination, Davis reiterated that he saw the wad of tissue
“fall out of [defendant]'s shoe when his shoes were searched.”
Davis could not recall if the tissue fell while defendant was
holding the shoe or when Davis picked up the shoe and turned it
upside down.
While admitting that he possessed marijuana, defendant claimed
that Davis found the crack cocaine on the ground and threatened to
charge him with possession of cocaine if he did not assist the
police in making additional drug arrests.
After the jury returned its guilty verdict on the substantive
offenses, the trial court held a trial on the habitual felon
charge. Assistant Clerk of Catawba County Superior Court Sybil
Hughey, whose duties were to “oversee the records” and “[k]eep the
records[,]” identified three certified judgments reflectingdefendant's convictions of (1) felonious larceny on 26 September
1986 in 86 CRS 9653-55, (2) common law robbery on 26 July 1989 in
89 CRS 926-27, 3966-67, and (3) common law robbery on 19 September
1995 in 94 CRS 4619. Although the judgment in 86 CRS 9653-54
recorded defendant's date of birth as 3 March 1968, in contrast to
the birth date of 4 March 1968 found on the remaining two
judgments, Hughey confirmed that the three judgments were certified
by Deputy Clerk of Court Lisa Haithcock as pertaining to defendant.
Defendant moved to strike the evidence based on the discrepancy in
the recorded birth date. The trial court denied the motion. The
jury found defendant to be an habitual felon.
Defendant first argues the trial court erred in denying his
motion to dismiss the charge of possession of cocaine, since Davis'
testimony about the cocaine falling out of defendant's shoe was
“inconsistent” and uncorroborated. He notes that Davis equivocated
as to whether the wad of tissue containing the cocaine fell while
defendant was removing his shoe or when Davis turned the shoe
upside down.
In reviewing the denial of a motion to dismiss, we must view
the evidence in the light most beneficial to the State, ignoring
any unfavorable evidence or issues of witness credibility. State
v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001), cert.
denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). A motion to
dismiss is properly denied if the State has adduced substantial
evidence of each essential element of the charged offense and of
defendant's identity as the perpetrator. State v. Butler, 356 N.C.141, 145, 567 S.E.2d 137, 140 (2002). Our courts have defined
“substantial evidence” as relevant evidence sufficient to persuade
a reasonable mind of the existence of a contested fact. State v.
Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994).
Because defendant challenges only the evidence supporting the
possession of cocaine charge, we limit our inquiry to this offense.
“Felonious possession of a controlled substance has two
essential elements. The substance must be possessed, and the
substance must be 'knowingly' possessed.” See State v. Givens, 95
N.C. App. 72, 76, 381 S.E.2d 869, 871 (1989) (quoting State v.
Rogers, 32 N.C. App. 274, 278, 231 S.E.2d 919, 922 (1977)).
“[K]nowing possession” may be shown by proving that the defendant
was in actual or constructive possession of the drug. State v.
Diaz, 155 N.C. App. 307, 313, 575 S.E.2d 523, 528 (2002) (citing
State v. Garcia, 111 N.C. App. 636, 639-40, 433 S.E.2d 187, 189
(1993)). “A defendant has actual possession of a substance if it
is on his person, he is aware of its presence, and . . . he has the
power and intent to control its disposition or use.” Id. at 314,
575 S.E.2d at 528 (citing State v. Crawford, 104 N.C. App. 591,
600, 410 S.E.2d 499, 504 (1991)).
We find defendant's claim to be without merit. The State
adduced substantial evidence that a wad of tissue containing four
rocks of crack cocaine fell from defendant's shoe after he removed
the shoe during a lawful search of his person. Police undertook the
search after discovering a bag of marijuana hidden in defendant's
mouth. Under these circumstances, we conclude the presence ofcrack cocaine in defendant's shoe was sufficient to support a
reasonable inference of his knowing, actual possession of the drug.
Although Officer Davis was unable to “remember exactly what
position and who was picking up the shoe when [the cocaine] fell
out[,]” any inconsistency or uncertainty as to this small detail
was for the jury to consider in assessing his credibility as a
witness. See State v. Rowsey, 343 N.C. 603, 617, 472 S.E.2d 903,
910 (1996) (asserting that “credibility of witnesses is a matter
for the jury rather than the court.”)
Assuming the trial court erred in denying his motion to
dismiss the possession of cocaine charge, defendant further asserts
that his sentence as an habitual felon is void, in the absence of
a valid conviction for a substantive felony. Having affirmed the
denial of the motion to dismiss, we also overrule this assignment
of error.
In his remaining argument, defendant challenges the denial of
his motion to strike the evidence of his prior felony convictions
at the habitual felon proceeding. Defendant has failed to cite any
statute, case, rule, or other authority in support of his argument,
as required by N.C.R. App. P. 28(b)(6). Therefore, this assignment
of error is not properly before this Court, and we deem it
abandoned. See State v. Stevenson, 136 N.C. App. 235, 244, 523
S.E.2d 734, 739 (1999).
The record on appeal contains additional assignments of error
not addressed by defendant in his appellant's brief. Pursuant to
Rule 28(b)(6), we deem them abandoned.
No error.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
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