STATE OF NORTH CAROLINA
v
.
Guilford County
Nos. 03-CRS-74319-20
MICHAEL ANTONIO DOUGLAS
Attorney General Roy Cooper, by Assistant Attorney General
Richard J. Votta,, for the State.
M. Alexander Charns for defendant-appellant.
CALABRIA, Judge.
Michael Antonio Douglas (“defendant”) appeals from judgment
entered upon jury verdicts finding him guilty of possession with
the intent to sell and/or deliver heroin, trafficking in heroin,
and knowingly maintaining a building for the unlawful keeping or
selling of a controlled substance. We find no error.
The State presented the following evidence at trial: Herb
Sampson, a detective in the vice and narcotics division of the
Guilford County Sheriff's Department (“Detective Sampson”),
testified that on 5 February 2003 he received information from a
confidential source that defendant was involved in the distribution
of heroin. Detective Sampson obtained a search warrant for 1017-BRichland Street, in High Point, North Carolina. Detective Sampson
gave the High Point Police Department's vice and narcotics unit
(“unit”) defendant's address and his photograph. Once at
defendant's residence, the confidential informant gave the police
“the signal” defendant was home. Detective Sampson then notified
the unit to execute the search warrant. Detective Sampson searched
the informant prior to his giving the signal and to confirm no
drugs, weapons or money were in his possession.
Scott Gordon, a detective with the High Point Police
Department (“Detective Gordon”), testified once defendant saw him
and other officers “[h]e turned, threw an object from his hand
which bounced off the house next door....” Detective Gordon and
Larry Michael, a detective in the High Point vice and narcotics
unit (“Detective Michael”), detained defendant at the back of his
residence. Detective Gordon searched the area where defendant
threw the object and recovered “several glassine baggies still
banded together, still in a square type of bundle.” Detective
Gordon testified this “packaging was consistent with...how heroin
is...packaged.” Detective Gordon further testified that packaging
materials found inside defendant's residence were consistent with
materials found outside the house with the discarded object.
Mackenzie DeHaan, a special agent with the North Carolina State
Bureau of Investigation, testified the object which police
recovered from defendant was 80 bindles of heroin, weighing 6
grams. Defendant testified on his behalf and denied possessing
heroin, selling heroin or using his residence to sell heroin.
Defendant also stated he never sold or displayed drugs to the
confidential informant. Defendant further testified he did not
“throw anything out of [his] hand toward the direction of the other
house.” On cross-examination, Detective Sampson stated “no
measuring devices [or] scales” were found at defendant's residence.
Defendant was found guilty and sentenced to the following
consecutive sentences in the North Carolina Department of
Correction: a minimum of 70 months to a maximum of 84 months for
trafficking in heroin; a minimum of 10 months to a maximum of 12
months for possession with the intent to sell and/or deliver
heroin; and 120 days for maintaining a building for the unlawful
keeping or selling of a controlled substance. Defendant appeals.
I. Hearsay:
Defendant first argues the trial court erred when it admitted
into evidence hearsay statements made by a non-testifying
confidential informant. Defendant further argues his trial
attorney's failure to object to these hearsay statements amounts to
ineffective assistance of counsel. We disagree. “In criminal
cases, a question...not preserved by objection noted at
trial...nevertheless may be made the basis of an assignment of
error where the judicial action questioned is specifically and
distinctly contended to amount to plain error.” N.C. R. App. P.
10(c)(4) (2005). Though defendant contends the error is plain
error, he must also argue why the alleged error is plain error. “Defendant's empty assertion of plain error, without supporting
argument or analysis of prejudicial impact, does not meet the
spirit or intent of the plain error rule.” State v. Cummings, 352
N.C. 600, 637, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S.
997, 149 L. Ed. 2d 641 (2001) (emphasis added). Specifically,
“[i]n meeting the heavy burden of plain error analysis, a defendant
must convince this Court...that the claimed error is so
fundamental, so basic, so prejudicial...that absent the error the
jury probably would have reached a different verdict.” Id. at 636.
Here, defendant presented no supporting argument as to why but for
this alleged trial court error, the result in the instant case
would have been any different. Therefore, the defendant has failed
to assert the prejudicial impact and the plain error rule does not
apply. Similarly, defendant's failure to demonstrate that the
admission of the evidence had an impact on the verdict also
requires that we reject defendant's claim of ineffective assistance
of counsel. This assignment of error is overruled.
II. Prior Conviction:
Defendant next argues the trial court erred in admitting
certain evidence of his prior drug conviction. We disagree.
Although defendant did not object at trial, he contends the error
is plain error or the result of ineffective assistance of counsel.
However, he failed, pursuant to Cummings, supra, to present any
argument as to why but for this asserted error, the result in the
instant case would have been any different. Moreover, defendant
volunteered the fact of this prior conviction on direct examinationby admitting “currently I'm serving a three-year sentence for
possession with intent.” Thus, this assignment of error is
overruled.
III. Continuance:
Defendant next argues the trial court abused its discretion by
not granting him a continuance. Defendant contends he was
prejudiced by not being in receipt of photographs until just prior
to trial. We disagree.
“The standard of review of a trial court's ruling on a motion
for a continuance is addressed to the discretion of the trial
court, and absent a gross abuse of that discretion, the trial
court's ruling is not subject to review.” State v. Stephens, __
N.C. App. __, __, 623 S.E.2d 610, 616 (2006) (citation omitted).
“Continuances should not be granted unless the reasons for the
delay are fully established.” State v. Beck, 346 N.C. 750, 756,
487 S.E.2d 751, 755 (1997). Moreover, “'a motion for a continuance
should be supported by an affidavit showing sufficient grounds for
the continuance.'” Id. (quoting State v. Kuplen, 316 N.C. 387,
403, 343 S.E.2d 793, 802 (1986)). “[A] postponement is proper if
there is a belief that material evidence will come to light and
such belief is reasonably grounded on known facts.” Id. 487 S.E.2d
at 755-56. (citations and internal quotation marks omitted)
(emphasis in original).
In the instant case, defendant failed to present any affidavit
illustrating sufficient grounds for the requested continuance.
Further, defendant made no showing that “material” evidence wouldcome to light. In fact, defense counsel conceded to the court he
had been “put on notice that photographs existed, and that but for
[his] being on vacation two weeks ago, [he] would have had access
to the file.” Thus, we discern no abuse of discretion by the trial
court in denying the continuance. This assignment of error is
overruled.
IV. Photographs:
Defendant next argues the trial court erred in admitting
certain photographs as it violated the rules of discovery. We
disagree. “Assignments of error...in support of which
no...authority [is] cited, will be taken as abandoned.” N.C. R.
App. P. 28(b)(6) (2005). Here, defendant fails to cite any
authority for his contention and consequently, his argument is
abandoned. This assignment of error is overruled.
V. Indictment:
Defendant next argues the indictment was defective. He
contends there is a fatal variance between the verdict sheet and
the indictment on the charge of “knowingly and intentionally
keep[ing] and maintain[ing] a dwelling house...used for keeping and
selling...heroin.” We disagree.
“An indictment must charge all the essential elements of the
alleged criminal offense.” State v. Stokes, __ N.C. App. __, __,
621 S.E.2d 311, 315 (2005). Further, “'[a]n indictment for a
statutory offense is sufficient, as a general rule, when it charges
the offense in the language of the statute.'” Id. (quoting State
v. Penley, 277 N.C. 704, 707, 178 S.E.2d 490, 492 (1971)). “Wherea statute sets forth disjunctively several means or ways by which
the offense may be committed, a warrant thereunder correctly
charges them conjunctively.” State v. Armstead, 149 N.C. App. 652,
654, 562 S.E.2d 450, 452 (2002) (citations and internal quotation
marks omitted) (emphasis added). Consequently,
[t]he indictment should not charge a party
disjunctively or alternatively, in such a
manner as to leave it uncertain what is relied
on as the accusation against him. The proper
way is to connect the various allegations in
the indictment with the conjunctive term
“and,” and not with the word “or.”
Id. 149 N.C. App. at 654-55 (citation omitted).
In the instant case, the indictment charged defendant
conjunctively with “knowingly and intentionally keep[ing] and
maintain[ing] a dwelling house...that was used for keeping and
selling...heroin.” N.C. Gen. Stat. §§ 90-108(A)(7) and (b) (2005)
provide that “knowingly maintaining” is a misdemeanor and
“intentionally maintaining” is a felony. Therefore, whether the
defendant is charged with a felony or misdemeanor pursuant to N.C.
Gen. Stat. §§ 90-108(A)(7) and (b) depends upon the defendant's
state of mind. However, pursuant to Armstead, supra, the
indictment properly charges a defendant in the conjunctive even if
the statute, such as 90-108(A)(7) and (b), furnishes violations in
the disjunctive. Here, defendant was found guilty of “knowingly
maintaining a building for the unlawful keeping or selling of a
controlled substance.” Consequently, a defendant is correctly
charged conjunctively even when the statute provides for criminal
actions in the disjunctive. Thus, in the instant case there was nofatal variance between the indictment and the verdict sheet. This
assignment of error is overruled.
VI. Recordation:
Defendant next argues the trial court erred in failing to
completely record jury selection and arguments of counsel. We
disagree. “In order to preserve a question for appellate review,
a party must have presented to the trial court a[n]...objection or
motion[.] It is also necessary for the complaining party to obtain
a ruling upon the party's...objection or motion.” N.C. R. App. P.
10(b)(1) (2005). Similarly, our Supreme Court determined “[we]
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). In the instant case, defendant
filed his motion for complete recordation on 8 January 2004.
However, defendant failed to request a hearing and a ruling on the
motion. Thus, defendant's failure to request a court ruling on his
motion waives appellate review. This assignment of error is
overruled.
VII. Motion to Dismiss:
Defendant next argues the trial court erred by not granting
his motion to dismiss the charges due to insufficiency of the
evidence. Defendant contends there was no direct evidence he sold
heroin or intended to sell heroin and, similarly, no direct
evidence his home was used to “keep” heroin. We disagree.
a. Trafficking: First, we note defendant failed to present any argument
regarding his conviction for “trafficking in heroin” and thus,
pursuant to N.C. R. App. P. 28(b)(6), this argument is abandoned.
b. Possession with Intent to Sell:
“In addressing a criminal defendant's motion to dismiss for
insufficiency of the evidence, the trial court must determine
whether there is substantial evidence: (1) of each essential
element of the offense charged; and (2) of defendant's being the
perpetrator of the offense.” State v. Yelton, __ N.C. App. __, __,
623 S.E.2d 594, 599 (2006). “The court must view the evidence in
the light most favorable to the State, giving the State the benefit
of all reasonable inferences [and further] [c]ontradictions and
discrepancies do not warrant dismissal, but are for the jury to
resolve.” Id. However, “[i]f the evidence is sufficient only to
raise a suspicion or conjecture as to either the commission of the
offense or the identity of the defendant as the perpetrator of it,
the motion should be allowed.” State v. Scott, 356 N.C. 591, 595,
573 S.E.2d 866, 868 (2002) (citation omitted).
Defendant was convicted of possession with intent to sell or
deliver heroin in violation of N.C. Gen. Stat. § 90-95(a)(1).
“Th[is]...charge has the following elements: (1) possession, (2) of
a controlled substance, (3) with the intent to sell or distribute
the controlled substance.” Yelton, __ N.C. App. at __, 623 S.E.2d
at 599. Heroin is a Schedule I controlled substance under N.C.
Gen. Stat. § 90-89(2)(j) (2005). “In order to withstand
defendant's motion [to dismiss], the State [is] required to presentsubstantial evidence...defendant (I) had either actual or
constructive possession of the [heroin] and (ii) possessed the
[heroin] with the intent to sell.” State v. Alston, 91 N.C. App.
707, 709-10, 373 S.E.2d 306, 309 (1988).
In the instant case, defendant presented no argument as to
either the element of possession or the element of a controlled
substance and thus, they are abandoned. See N.C. R. App. P.
28(b)(6) (2005). Regarding the intent to sell element, “[e]ven
where the amount of a controlled substance is small, the method of
packaging is evidence from which the jury may infer an intent to
sell.” Id. at 711 (emphasis added). Here, police recovered at
least 80 bindles of heroin from defendant, weighing six grams net
and with a street value of approximately $2,400 (T, p.119).
Further, these bindles of heroin were wrapped in glassine baggies,
a method of packaging indicative of an intent to sell the heroin.
In addition, other related packaging materials were found in
defendant's home including wrapping paper and a brown paper bag.
Consequently, because there was substantial evidence defendant
possessed and intended to sell heroin, defendant's motion to
dismiss was properly denied.
c. Knowingly Maintaining a Dwelling:
Defendant was also convicted of knowingly maintaining a
building for the unlawful keeping or selling of a controlled
substance in violation of N.C. Gen. Stat. § 90-108(A)(7). “The
statute...allows conviction upon evidence that the defendant
maintained the dwelling [and] us[ed] it for the keeping or sellingof controlled substances.” State v. Rich, 87 N.C. App. 380, 384,
361 S.E.2d 321, 324 (1987). Defendant admits in his argument the
dwelling was his home and consequently, he only disputes the
“keeping or selling” element. However, “[t]he[] facts [proving
maintenance of a dwelling], together with the circumstances
supporting defendant's conviction on the possession charge, are
clearly sufficient to sustain a conviction under G.S.
90-108(a)(7)....” Alston, 91 N.C. App. at 711, 373 S.E.2d at 310.
Here, pursuant to Alston, supra, defendant admitted the dwelling
was his home which, when coupled with the illustrated proof he
possessed heroin, demonstrated substantial evidence defendant
knowingly maintained a building for the unlawful keeping or selling
of a controlled substance. The trial court properly denied
defendant's motion to dismiss. This assignment of error is
overruled.
VIII. Brady Requirements:
Defendant lastly argues the trial court erred by misstating
the law as it applies to the Brady requirement. Defendant contends
the judge failed to order an examination of police files with
respect to the confidential informant thus constituting a Brady
violation. We disagree.
“[T]he suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady v. Maryland, 373
U.S. 83, 87, 10 L. Ed. 2d 215, 218 (1963) (emphasis added). OurSupreme Court has held, however, “under Brady a refusal to grant a
pretrial motion for discovery is not reversible error unless the
movant shows that evidence favorable to him was suppressed.” State
v. May, 292 N.C. 644, 658, 235 S.E.2d 178, 187 (1977) (citations
and internal quotation marks omitted) (emphasis added). Our
Supreme Court reasoned to establish a Brady violation the defendant
must illustrate “(a) suppression by the prosecution after a request
by the defense (b) of material evidence (c) favorable to the
defense.” Id. Defendant has made no showing of suppression. In
fact, defendant asked the court for “impeaching information” and
the court responded “I'll order the State to give you all testimony
_ all evidence they have in their possession that might be
beneficial to your client.” Defendant makes no attempt to
illustrate how the State “suppressed” this “impeaching
information.” Absent such a showing, there is no Brady violation.
This assignment of error is overruled.
No error.
Judges McGEE and GEER concur.
Report per Rule 30(e).
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