An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-179


Filed: 15 November 2005


         v.                        Catawba County
                                Nos. 03 CRS 15242-43

    Appeal by defendant from judgment entered 2 September 2004 by Judge J. Gentry Caudill in Catawba County Superior Court. Heard in the Court of Appeals 31 October 2005.

    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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