An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-716


Filed: 7 March 2006


v .                         Gaston County
                            Nos. 04 CRS 8587
ALVIN BARRY COLEMAN,             04 CRS 52339
    Defendant.                 04 CRS 52341
                             04 CRS 52344
                             04 CRS 52345

    Appeal by defendant from judgment entered 3 February 2005 by Judge David S. Cayer in Gaston County Superior Court. Heard in the Court of Appeals 11 January 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Alvin W. Keller, Jr. for the State.

    Hall & Hall, Attorneys at Law, P.C., by Douglas L. Hall for defendant.

    SMITH, Judge.

    Alvin Barry Coleman (“defendant”) appeals his convictions for possession with intent to sell or deliver cocaine, possession of marijuana, and for attaining habitual felon status. For the reasons discussed herein, we hold that defendant received a trial free of prejudicial error.
    The pertinent factual and procedural history is as follows: On 14 February 2004, at approximately 11:21 a.m., Officer Mike Watts (“Officer Watts”), a patrol officer with the Gastonia Police Department, was cruising through a motel parking lot in Gastonia when he saw Kyle Lucas (“Lucas”) in a motel room through the opendoor. Officer Watts observed Lucas put something under the bed. Officer Watts approached Lucas who admitted he had crack cocaine and a crack pipe under the bed. Lucas indicated he wanted to cooperate with the police.
    Lucas told Officer Watts that he had been taken by a black male named Lamar to defendant's residence at 1024 W. Seventh Avenue in Gastonia to purchase crack cocaine at approximately 3:00 a.m. Lucas described the residence as a single story dwelling with blue wood siding and a front porch with the numbers 1024 attached to the left of the front door. Lucas also informed Officer Watts that as he and Lamar approached defendant's residence, he observed defendant on the front porch. Lucas described defendant as a heavyset black male with a goatee and braids, about 5'10" tall, and about 250 pounds. Lucas sought to purchase $50.00 worth of crack but defendant stated he did not have change for $100.00 so Lucas then agreed to purchase $80.00 worth of crack. Defendant went inside his residence, retrieved the crack cocaine, and handed it to Lamar. After the sale, Lucas and Lamar went their separate ways. Lucas stated he did not know Lamar's last name. Officer Watts had not met Lucas prior to this incident.
    Using the information provided by Lucas, Officer Watts confirmed the description and location of defendant's residence. Officer Watts then obtained a warrant to search defendant's residence. At approximately 7:15 p.m. on 14 February 2004, the warrant was executed. Police found defendant and his juvenile son on the front porch of the residence and arrested both of them inaddition to another adult male found in the living room. Police found crack cocaine on the porch within arm's reach of defendant and in the kitchen of the residence. The officers found marijuana on the porch within two feet of defendant and his juvenile son.
    On 19 April 2004, the Gaston County Grand Jury returned true bills of indictment against defendant for the offenses of contributing to the delinquency of a juvenile, maintaining a vehicle, dwelling or place for controlled substances, possession of drug paraphernalia, possession with intent to sell or deliver cocaine, misdemeanor possession of marijuana, and having attained habitual felon status.
    Following a voir dire hearing on defendant's motion to suppress the results of the search of defendant's residence, the trial court denied the motion on 31 January 2005.
    The trial commenced 1 February 2005. At the close of the State's evidence, the charges of contributing to the delinquency of a juvenile, maintaining a vehicle, dwelling or place for controlled substances, and possession of drug paraphernalia were dismissed. The jury found defendant guilty of attaining habitual felon status, possession with intent to sell or deliver cocaine, and possession of marijuana. Defendant was sentenced to no less than 120 nor more than 153 months incarceration. Defendant appeals.

    Initially we note that defendant's brief contains arguments supporting only seven of his original ten assignments of error in the record on appeal. The assignments of error for which noarguments are made are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6). Therefore, we limit our review to the assignments of error properly preserved by defendant on appeal.
    The issues on appeal are: (I) whether the trial court erred in failing to suppress the results of the search warrant; (II) whether the trial court erred in denying defendant's motion to dismiss the possession charges; (III) whether the trial court erred in admitting controlled substances into evidence; (IV) whether defendant was denied his right to discovery by failure of the State to disclose information supporting the lab analysis and conclusions concerning the controlled substances; (V) whether the trial court committed plain error in bringing only the jury foreperson into the courtroom to answer a question from the jury; (VI) whether the trial court committed plain error by failing to arraign defendant as to habitual felon status prior to the close of the State's evidence; and (VII) whether the trial court committed plain error in sentencing defendant as an habitual felon.
    Defendant contends that the trial court erred in failing to suppress the results of the search warrant as the warrant was not supported by probable cause. We disagree.
    “Statutory and constitutional provisions relating to search warrants prohibit their issuance except upon a finding of probable cause for the search.” State v. Campbell, 282 N.C. 125, 128-29, 191 S.E.2d 752, 755 (1972)(citing U.S. Const. amend. IV; G.S. 15-25(a)). “Probable cause means reasonable grounds to believe that the proposed search will reveal the presence of the objectssought upon the premises to be searched and that those objects will aid in the apprehension or conviction of the offender.” State v. Marshall, 94 N.C. App. 20, 26, 380 S.E.2d 360, 364, appeal dismissed and disc. review denied, 325 N.C. 275, 384 S.E.2d 526 (1989).
        The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

Illinois v. Gates, 462 U.S. 213, 238-9, 76 L. Ed. 2d 527, 548-9 (1983) (quotation and citation omitted). An informant's reliability and basis of knowledge are relevant considerations in the overall analysis. Id.
    Under the totality of circumstances analysis required by Gates, we hold there was a substantial basis for the magistrate's finding of probable cause in the instant case. The information supplied by Lucas establishes, against his penal interest, that he possessed crack and had purchased crack from the defendant. “Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility -- sufficient at least to support a finding of probable cause to search.” United States v. Harris, 403 U.S. 573, 583-4, 29 L. Ed. 2d 723, 734 (1971). The description of defendant and defendant's residencealso support Lucas' credibility. See State v. Smothers, 108 N.C. App. 315, 318, 423 S.E.2d 824, 826 (1992) (firsthand observation by informant and explicit and detailed description of alleged wrongdoing entitles informant's tip to greater weight than might otherwise be the case). Officer Watts corroborated Lucas' description of defendant and defendant's residence and such corroboration is important in evaluating the informant's reliability. See State v. Earhart, 134 N.C. App. 130, 134, 516 S.E.2d 883, 886, appeal dismissed, 351 N.C. 112, 540 S.E.2d 372 (1999). Applying the totality of the circumstances test and giving proper deference to the decision of the magistrate to issue the search warrant as proscribed by Gates, we hold that there was a substantial basis for the finding of probable cause and the trial court did not err by failing to suppress the results of the search warrant.
    Defendant next argues the trial court erred in denying defendant's motion to dismiss the possession charges as there was insufficient evidence of constructive possession of any controlled substances by defendant, and there was testimony identifying the owner of the controlled substances that were found. We do not agree.
    In ruling upon a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, which is entitled to every reasonable inference to be drawn therefrom. State v. Hyatt, 355 N.C. 642, 666, 566 S.E.2d 61, 77 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003). “If there is'substantial evidence' of each element of the charged offense and of defendant being the perpetrator of the offense, the motion should be denied.” State v. Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987). “Substantial evidence is that amount of evidence which a reasonable mind might accept as adequate to support a conclusion.” Id.
    To convict an individual of possession with intent to sell and deliver a controlled substance, the State must prove that (1) defendant possessed the controlled substance, and (2) intended to sell or distribute it. N.C. Gen. Stat. § 90-95(a)(1) (2005); State v. Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985). Possession may be actual or constructive. State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). A person constructively possesses a substance “when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing.” State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). “As with other questions of intent, proof of constructive possession usually involves proof by circumstantial evidence.” Id. “Where [controlled substances] are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.” State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). This Court has held the State may show a defendant had constructive possession by producing evidence that a defendant “maintained the premises as a residence, or had someapparent proprietary interest in the premises or the controlled substance.” State v. Hamilton, 145 N.C. App. 152, 156, 549 S.E.2d 233, 235 (2001). “However, unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.” State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989).
    In the instant case, officers seized a court document indicating defendant resided at the house where the contraband was found. The evidence also indicates defendant was on the porch of the residence with his juvenile son. As an officer was taking defendant into custody, the officer observed crack cocaine within arm's reach of defendant and marijuana within two feet of defendant on the porch of the residence. Officers also discovered crack cocaine in the kitchen of the residence. Based on the foregoing, we conclude the trial court did not err in denying defendant's motion to dismiss.
    Defendant next asserts the trial court erred by allowing controlled substances into evidence because the chain of custody was not established. We disagree.
    It is well established that a two-prong test must be satisfied before real evidence is properly admitted. “The item offered must be identified as being the same object involved in the incident and it must be shown that the object has undergone no material change.” State v. Campbell, 311 N.C. 386, 388, 317 S.E.2d 391, 392 (1984). “Determining the standard of certainty required to show that theitem offered is the same as the item involved in the incident and that it is in an unchanged condition lies within the trial court's sound discretion.” State v. Fleming, 350 N.C. 109, 131, 512 S.E.2d 720, 736 (1999). “A detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered.” Campbell, 311 N.C. at 389, 317 S.E.2d at 392. Weak links in the chain of custody go to the weight to be given the evidence and not its admissibility. Id.
In the case sub judice, the officers identified the items at issue as the same items seized and in the same condition. Defendant has not alleged the evidence has been altered and the evidence was admitted at trial without objection. We conclude the trial court did not err in admitting the controlled substances in evidence.
    Defendant next contends he was denied his constitutional and statutory right to discovery by the failure of the State to disclose information supporting the SBI lab analysis and conclusions. We decline to consider this argument because defendant did not preserve this issue for appellate review. N.C.R. App. P. 10(b)(1) requires a party to have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent in order to preserve the issue for appellate review. There is nothing in the record before us which indicates the trial court had anything before it concerning the State's alleged failureto disclose information supporting the SBI laboratory analysis. “This Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal.” State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991).
    Defendant next argues the trial court erred in “bringing just the jury foreperson into the courtroom during deliberations to answer a question sent from the jury room.” We are not persuaded that any error occurred or, if there was error, that the error was so fundamental that the jury would have reached a different verdict absent the error.
    The jury sent a message to the judge that there had been a mistake in filling out the verdict sheet. The following colloquy occurred:
        THE COURT: The deputy indicated that the jury had reached a verdict but I guess it was the foreperson told the deputy that they had made a mistake in filling the verdict form sheet out. Is that correct?

        DEPUTY: That's correct, Your Honor.

        THE COURT: And I didn't want to act on that without coming in and doing it on the record. I would be inclined to just tell them to correct the verdict sheet to reflect whatever their unanimous verdict is. Does the State want to be heard on that?

        MS. MILLER: That's fine, Your Honor. I think that would be sufficient. Just make sure they did it right.

        MR. HUNN: And I guess they would be required to probably scratch out and initial the mistake if they marked it incorrectly.

        THE COURT: That's right. Now I can bring them all back in here or I can bring the foreperson back in.
        MS. MILLER: I think the foreperson would be sufficient.

        MR. HUNN: That would be fine with me, Your Honor.

Thus, defendant, through counsel, agreed that only the foreperson return to the courtroom for instructions on how to correct the verdict form. On appeal, however, defendant argues the trial court's action constitutes plain error and is thereby subject to review by this Court.
    “A plain error is one so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” State v. Fowler, 157 N.C. App. 564, 566, 579 S.E.2d 499, 501 (2003) (quotation and citations omitted). “A prerequisite to our engaging in a 'plain error' analysis is the determination that the [evidence] complained of constitutes 'error' at all.” State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986). “Before deciding that an error by the trial court amounts to 'plain error,' the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). We are not so convinced in this case. Defendant has failed to meet the heavy burden of plain error review by showing that the jury probably would have reached a different verdict absent the alleged error. The assignment of error is overruled.    Next, defendant argues the trial court committed plain error in failing to arraign defendant as to habitual felon status prior to the close of the State's evidence requiring that this court vacate the habitual felon sentence. We disagree.
     N.C. Gen. Stat. § 15A-928(c)(2005) provides, in pertinent part:
        After commencement of the trial and before the close of the State's case, the judge in the absence of the jury must arraign the defendant upon the special indictment or information, and must advise him that he may admit the previous conviction alleged, deny it, or remain silent.

“The purpose of section 15A-928 is to insure that the defendant is informed of the previous convictions the State intends to use and is given a fair opportunity to either admit or deny them or remain silent.” State v. Jernigan, 118 N.C. App. 240, 244, 455 S.E.2d 163, 166 (1995). “'Where there is no doubt that a defendant is fully aware of the charge against him, or is in no way prejudiced by the omission of a formal arraignment, it is not reversible error for the trial court to fail to conduct a formal arraignment proceeding.'” Id. (quoting State v. Smith, 300 N.C. 71, 73, 265 S.E.2d 164, 166 (1980)).
    In the instant case, defendant was formally arraigned on the habitual felon charge on February 3, 2005, after the verdicts were entered. Defendant waived reading of the indictment and entered a plea of not guilty. Defendant did not object to the lack of notice of the State's intention to charge him as an habitual felon, or the validity of the underlying previous convictions. Through counsel,defendant acknowledged that he knowingly waived reading of the indictments, understood the charges against him, and understood his right to have the jury determine the issues. Under the facts of the instant case, we hold the trial court did not commit plain error in failing to arraign defendant prior to the close of the State's evidence.
    Lastly, defendant contends the trial court committed plain error in sentencing him as an habitual felon because the sentence violates his state and federal rights not to be subject to cruel and unusual punishment. We disagree.
    “Our Supreme Court has rejected Eighth Amendment challenges to 'legislation which is designed to identify habitual criminals and which authorizes enhanced punishment.'” State v. Quick, 170 N.C. App. 166, 170, 611 S.E.2d 864, 866 (2005)(quoting State v. Todd, 313 N.C. 110, 119, 326 S.E.2d 249, 254 (1985). “Only in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment.” State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983). This Court has upheld the statutory scheme of the Habitual Felon Act numerous times. See, e.g. State v. McDonald, 165 N.C. App. 237, 599 S.E.2d 50, disc. review denied, 359 N.C. 195, 608 S.E.2d 60 (2004), cert. denied, ___ U.S. ___, 161 L. Ed. 2d 748 (2005); State v. Clifton, 158 N.C. App. 88, 580 S.E.2d 40, cert. denied, 357 N.C. 463, 586 S.E.2d 266 (2003); State v. Hensley, 156 N.C. App. 634, 577 S.E.2d 417, disc. review denied, 357 N.C. 167, 581 S.E.2d 64 (2003). “[O]ur Court must continue to apply the grossly disproportionate principle, remembering that only in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment.” Clifton, 158 N.C. App. at 94, 580 S.E.2d at 45 (quotations and citations omitted).
    Under the facts of the case sub judice, “the standard of an 'exceedingly rare' and 'extreme' case, in which the 'grossly disproportionate' principle would be violated” is not met. Id. The underlying convictions for the habitual felon charge included: (1) possession with intent to sell and/or deliver cocaine; (2) breaking and entering a motor vehicle; and (3) larceny. Defendant received a sentence of 120-153 months as an habitual felon. In light of the nature of defendant's offense and his lengthy criminal history, we conclude the sentence imposed on defendant for attaining habitual felon status is not so “grossly disproportionate” as to constitute cruel and unusual punishment.
    No error.
    Judges BRYANT and CALABRIA concur.
    Report per Rule 30(e).

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