STATE OF NORTH CAROLINA
v
.
Iredell County
No. 04 CRS 54434
JAMES FREDRICK SHUFORD
Attorney General Roy Cooper, by Assistant Attorney General
Jason T. Campbell, for the State.
J. Clark Fischer, for defendant-appellant.
CALABRIA, Judge.
James Fredrick Shuford (“defendant”) appeals from judgment
entered upon a jury verdict finding him guilty of trafficking in
cocaine consisting of possession of 28 grams or more, but less than
200 grams of cocaine and guilty of trafficking in cocaine
consisting of the transport of 28 grams or more, but less than 200
grams of cocaine. We find no error.
At trial, C.J. Barnett, a Patrol Officer with the Mooresville
Police Department (“Officer Barnett”) testified that on 12 May 2004
at 3:00 p.m. he observed four individuals near the rear of a car.
Once these four individuals noticed Officer Barnett, “one subject
took off running ... and the other three ... got into the car andstarted to proceed towards [him].” Officer Barnett blocked their
egress and “notic[ed] ... that the front right passenger was the
Defendant [upon whom] we held four failure to appear warrants[.]”
Officer Barnett observed the “[defendant] was ... fumbling around
a lot in the seat and appeared to be nervous.” Officer Barnett
arrested the defendant pursuant to the warrants. Officer Barnett
then asked the defendant “why he was so nervous and why he was
moving around in the seat and if he was hiding anything.”
Defendant admitted to possessing “a little bit of weed.” Officer
Barnett seized the marijuana and “placed [the defendant] in the
rear of [his] vehicle.” Officer Barnett also found $470.00 on
defendant. Officer Barnett arrested one of the remaining two
individuals on outstanding warrants. Officer Barnett subsequently
performed a “search incident to arrest [and found] a large baggie
of what appeared to be crack cocaine ... sitting in the floorboard
in the rear of the vehicle.” Adam Dillard, a Patrol Officer with
the Statesville Police Department, assisted Officer Barnett in
detaining the defendant and searching the vehicle. The State and
the defendant each stipulated that on 14 May 2005 “evidence was
submitted to the ... [State Bureau of Investigation] Lab[.] The
items submitted were the plastic bag containing all white solid
material. [The State] requested ... [an examination] ... for
controlled substances [and the] [r]esults of [the] examination ...
[measured] cocaine base ... [of] 42.1 grams.” The defendant did
not present any evidence. On 7 July 2005, the jury returned a verdict finding the
defendant guilty of trafficking in cocaine consisting of possession
of 28 grams or more, but less than 200 grams of cocaine and guilty
of trafficking in cocaine consisting of the transport of 28 grams
or more, but less than 200 grams of cocaine. Defendant was
sentenced to the North Carolina Department of Correction to a
minimum of 35 months to a maximum of 42 months for each charge.
Defendant appeals.
I. Motions to Dismiss:
Defendant argues the trial court erred in denying his motions
to dismiss. However, defendant failed to preserve this assignment
of error for appellate review. North Carolina Rule of Appellate
Procedure 10(c)(1) (2005) states, in pertinent part, “[e]ach
assignment of error ... shall state plainly, concisely and without
argumentation the legal basis upon which error is assigned.”
(emphasis added). However, defendant's third assignment of error
states “[t]he Trial Court's denial of Defendant's Motions to
Dismiss made at the close of the State's evidence and renewed at
the close of the evidence.” Thus, defendant's third assignment of
error violates Rule 10(c)(1) because no legal rationale is provided
upon which the alleged error is predicated. Failure to comply with
the North Carolina Rules of Appellate Procedure subjects the appeal
to dismissal. See State v. Buchanan, 170 N.C. App. 692, 613 S.E.2d
356 (2005).
II. Plain Error: Defendant argues the trial court committed plain error by twice
allowing the State to present evidence that the location of his
arrest was a high crime and drug infested neighborhood. We
disagree. “The plain error rule ... is always to be applied
cautiously and only in the exceptional case where, after reviewing
the entire record, it can be said the claimed error is a
'fundamental error, something so basic, so prejudicial, so lacking
in its elements that justice cannot have been done.'” State v.
Davis, __ N.C. App. __, __, 627 S.E.2d 474, 477 (2006) (emphasis in
original) (citing State v. Lemons, 352 N.C. 87, 96, 530 S.E.2d 542,
548 (2000) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983)). However, “[t]o constitute plain error, defendant
bears the burden of convincing the appellate court that absent the
error, the jury probably would have reached a different verdict.”
State v. Cromartie, __ N.C. App. __, __, 627 S.E.2d 677, 679 (2006).
In the instant case, defendant failed to meet his burden. Defendant
alleges “[g]iven the minimal evidence presented to link [himself]
with the cocaine at issue, there is a more than reasonable
possibility that the improper testimony from both officers tipped
the scales in favor of conviction.” This singular sentence fails
to amount to a credible argument that absent the officers'
testimony, the jury would have reached a different result.
Assignments of error numbers one and two are overruled.
III. Jury Instruction:
Defendant argues the trial court erred by instructing the jury
on acting in concert. Defendant contends the evidence does notsupport such an instruction. Defendant further argues the trial
court's instruction unconstitutionally lessened the State's burden
of proof. We disagree.
At trial, the defendant objected solely on the basis of
insufficient evidence. Nevertheless, on appeal he raises a
constitutional objection. However, “[w]e are not required to
respond to defendant's constitutional objections because they were
not raised at trial.” State v. Carroll, 356 N.C. 526, 541, 573
S.E.2d 899, 910 (2002) (emphasis added). Therefore, because
defendant failed to object at trial on the grounds that the jury
instruction unconstitutionally lessened the State's burden of proof,
he waived appellate review of that argument. See N.C. R. App. P.
10(b)(1) (2005) (stating “[i]n order to preserve a question for
appellate review, a party must have presented to the trial court a
timely ... objection[.]”)
“A trial court must give a requested instruction if it is a
correct statement of the law and is supported by the evidence.”
State v. Haywood, 144 N.C. App. 223, 234, 550 S.E.2d 38, 45 (2001).
Further, “[o]nly jury instructions based on a fact or facts
presented by a reasonable view of the evidence should be given.”
State v. Smart, 99 N.C. App. 730, 735, 394 S.E.2d 475, 477 (1990).
“To be convicted of a crime under the theory of acting in concert,
the defendant need not do any particular act constituting some part
of the crime.” State v. Lundy, 135 N.C. App. 13, 18, 519 S.E.2d 73,
78 (1999). In fact, “[a]ll that is necessary is that the defendant
be present at the scene of the crime and that he act[] together withanother who does the acts necessary to constitute the crime pursuant
to a common plan or purpose to commit the crime.” Id. (citation and
internal quotation marks omitted). In the instant case, four
individuals standing near the rear of a vehicle, where drugs were
later found, noticed Officer Barnett. At that moment, one person
fled and three persons, including defendant, “jumped” into the
vehicle. The vehicle, with defendant in the front right passenger
seat, attempted to leave the scene. Officer Barnett blocked the
vehicle and arrested defendant on four failure to appear warrants.
Following the arrest, Officer Barnett searched the vehicle and found
a large quantity of cocaine in the floorboard of the rear of the
vehicle where the four individuals were standing. Officer Barnett
searched the defendant and found $470.00. Pursuant to Lundy, supra,
the State presented sufficient evidence defendant was present at the
scene of the crime and acted with two others for a common purpose
or plan. Thus, a reasonable view of the evidence warranted
submission of the jury instructions. See Smart, supra. Therefore,
the trial court did not err in submitting to the jury an instruction
on acting in concert. This assignment of error is overruled.
No error.
Judge BRYANT concurs.
Judge HUNTER concurs in the result only.
Report per Rule 30(e).
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