State v Simon, (05-309) 01/17/2006

Appeal by defendant from judgment entered 1 October 2004 by Judge Henry E. Frye, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 9 January 2006.

Attorney General Roy Cooper, by Assistant Attorney General Edwin L. Gavin, II, for the State.

Parish & Cooke, by James R. Parish, for defendant-appellant.

    CALABRIA, Judge.


    Ronnie Lee Simon (“defendant”) appeals from a judgment entered upon a unanimous jury verdict finding him guilty of possession with the intent to sell and deliver cocaine. We remand for resentencing.
    Defendant was indicted for possession with intent to sell and deliver cocaine and attaining the status of an habitual felon. The case was tried in Forsyth County Superior Court. The evidence presented at trial showed the following: On 19 August 2002, Detectives Robert Williams, T.B. James, and Officer W.C. Dew of the Winston-Salem Police Department set up surveillance of an area around the entrance to Martin Luther King Park (“the park”). Thearea was a “hot spot” for illegal sale of narcotics. The officers hid but communicated by radio. Around 6 p.m., Detective James spotted defendant walking into a shelter in the park and leaning up against a picnic table. Detective James then observed defendant engage in five hand-to-hand transactions. Specifically, Detective James testified that he saw five individuals walk up to defendant, defendant handed them something, and the individuals handed defendant US currency or what appeared to be US currency. Once the transaction was completed, the individuals walked back in the same direction.
    After Detective Williams received this information from Detective James, he set up surveillance on the second floor of a vacant building across the park from Detective James's location. Detective Williams observed defendant go to a nearby tree, where he “squatted down.” Detective Williams testified that defendant then “lunged forward, extended his arm[,] and placed something on the ground at the base of the tree.” Defendant then stood up and walked back to the shelter. Detective Williams maintained surveillance on the tree after defendant left the park and relayed his observations by radio to Detective James and Officer Dew.
    Detective Williams then approached defendant and told him he was going to write him a ticket for drinking alcohol. A search of defendant revealed that he possessed $240 in cash located in his back pockets rather than in his wallet. Meanwhile, Officer Dew left his area of concealment and went to the park. Officer Dew went straight toward the shelter and confirmed that defendant hadnot placed any drugs in the shelter. Officer Dew then went to the tree where he found a small baggie containing crack cocaine. Officer Dew then contacted Detective Williams and confirmed that the tree with crack cocaine at its base was the same tree where Detective Williams observed defendant earlier.
    Based on this evidence, a jury found defendant guilty of possession with intent to sell and deliver cocaine. Subsequently, defendant pled guilty to attaining the status of an habitual felon, and the trial court sentenced him to a minimum of 108 months to a maximum of 139 months in the custody of the North Carolina Department of Correction. Defendant appeals.
    Defendant first argues that the trial court erred in denying his motion to dismiss the charge of possession with intent to sell and deliver cocaine. Specifically, defendant argues that there was no evidence that he either actually or constructively possessed the cocaine. After a careful review of the record, briefs, and contentions of the parties, we find no error.
    To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense and substantial evidence that the defendant is the perpetrator. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id., 345 N.C. at 717, 483 S.E.2d at 434 (citations omitted). When reviewing the sufficiency of the evidence, “[t]he trial court must consider such evidence in the light most favorable to the State,giving the State the benefit of every reasonable inference to be drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994) (citations omitted).
    “A person has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use.” State v. Reid, 151 N.C. App. 420, 428-29, 566 S.E.2d 186, 192 (2002) (citations omitted). Here, Detective Williams testified that he observed defendant bend over, extend his arm, and place something at the base of the tree. Shortly thereafter, Officer Dew discovered the crack cocaine at the base of the same tree. Both officers testified that it was common for drug dealers to place drugs near their location, and not on their person, so as to avoid actually possessing the drugs during a police search. This Court has held that “close proximity to the controlled substance and conduct indicating an awareness of the drugs, such as efforts at concealment or behavior suggesting a fear of discovery[] are sufficient to permit a jury to find constructive possession.” State v. Turner, __ N.C. App. __, __, 607 S.E.2d 19, 22-23 (2005) (emphasis added). See also State v. Harrison, 93 N.C. App. 496, 498, 378 S.E.2d 190, 192 (1989) (saying, “Proof of constructive possession sufficient to overcome a motion to dismiss or directed verdict is shown when the State places the defendant 'within such close juxtaposition to the narcotic drugs as to justify the jury in concluding that the same was in his possession.'”) (citations omitted). Additionally,Detective James testified that he observed defendant engage in hand-to-hand transactions, and defendant was found in possession of $240 in cash. Based on the officers' testimony, a jury could reasonably conclude that defendant possessed the drugs with the intent to sell or deliver them. Accordingly, this assignment of error is overruled.
    Defendant next argues that the trial court abused its discretion by denying his motion to allow the jury to view the crime scene. Because the officers testified that they needed binoculars to observe defendant and one officer could only see defendant's feet at one point, defendant argues that “it was incumbent for the jurors to make their own observations of location, distance and obstructed views[.]” We are not persuaded.
    Pursuant to N.C. Gen. Stat. § 15A-1229(a) (2003), “[t]he trial judge in his discretion may permit a jury view.” See also State v. Fleming, 350 N.C. 109, 134, 512 S.E.2d 720, 737 (1999) (saying, “[t]he decision to permit a jury view lies within the discretion of the trial court. The decision will not be disturbed absent an abuse of that discretion.”) “'A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.'” Id. (citations omitted).
    In the instant case, the trial court declined to permit a jury view because the conditions of the crime scene on the day of trial were not similar to those existing on the date of the offense. The conditions were not similar for two reasons. First, it was acloudy day on the date of trial as opposed to a clear day on the date of the offense. Second, the building where one of the officers conducted surveillance no longer existed. It is noteworthy that the trial court allowed photographs of the crime scene into evidence to aid the jury in understanding the officer's testimony. Accordingly, on these facts, we conclude the trial court did not abuse its discretion in denying defendant's motion for a jury viewing of the crime scene.
    Defendant next argues that the trial court erred by denying his motion for a mistrial at the end of the State's closing argument. Defendant argues that it was improper for the prosecutor to argue that defendant could have, but failed to, call a fingerprint expert or other witnesses in his defense. Our Supreme Court has held that such argument is permissible because the argument does not amount to commentary on defendant's failure to testify but instead “deal[s] with witnesses other than the defendant[].” State v. Taylor, 344 N.C. 31, 43, 473 S.E.2d 596, 603 (1996). As such, the motion for a mistrial was properly denied.
    Defendant also filed a motion for appropriate relief in this case. In his motion, defendant requests vacating his habitual felon conviction and sentence because he did not knowingly and voluntarily plead guilty to a felony in one of the underlying convictions the State used to indict him as an habitual felon. The conviction at issue is 93 CRS 2928, a 1993 conviction for felonious possession with intent to sell and deliver cocaine. The indictmentin 93 CRS 2928 stated, in pertinent part, that defendant “unlawfully, willfully, and feloniously did possess with intent to sell and deliver a controlled substance, to wit: cocaine[.]” The judgment sentencing worksheet, however, classified the offense as a misdemeanor, and the transcript of the 1993 plea stated, “Do you understand that you are pleading (guilty) to the misdemeanors of possession of a schedule II substance and assault on a law enforcement officer?” In an affidavit, defendant further attests that he was advised by counsel and the trial judge that he was pleading guilty to two misdemeanors and that he “did not knowingly or understandingly plead to a felony in 93 CRS 02928.”
    We note that under State v. Jones possession of cocaine is a felony that can support an habitual felon indictment. 358 N.C. 473, 476, 598 S.E.2d 125, 127 (2004). Defendant's motion for appropriate relief, however, deals with the separate and distinct due process issue of whether he knowingly and voluntarily pled guilty to a felony. See State v. Carter, 167 N.C. App. 582, 585, 605 S.E.2d 676, 679 (2004) (saying, “A court may accept a guilty plea only if it is made knowingly and voluntarily.”) We hold defendant did not knowingly and voluntarily plead guilty to a felony, but rather, he knowingly and voluntarily pled guilty to a misdemeanor. Accordingly, we vacate his habitual felon conviction and remand to the trial court for resentencing. See U.S. Const. amend. XIV; Bousley v. U.S., 523 U.S. 614, 618 (1998) (saying that a “[p]lea does not qualify as 'intelligent' unless a criminal defendant first receives real notice of the true nature of thecharge against him, the first and most universally recognized requirement of due process”).
    No error at trial; remanded for resentencing.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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