STATE OF NORTH CAROLINA
MICHAEL ANTONIO DOUGLAS
Attorney General Roy Cooper, by Assistant Attorney General
Richard J. Votta,, for the State.
M. Alexander Charns for defendant-appellant.
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.
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.
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.
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.
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.
Judges McGEE and GEER concur.
Report per Rule 30(e).
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