STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 04 CRS 62573-74
05 CRS 20112
ANTWONE DENNARD ARCHIE,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Elizabeth Leonard McKay, for the State.
Richard G. Roose, for defendant-appellant.
HUDSON, Judge.
After a jury found defendant guilty of possession of cocaine,
conspiracy to sell cocaine, and sale of cocaine, he pled guilty to
habitual felon status. The court consolidated the convictions and
imposed an active sentence of 130 - 165 months. Defendant appeals.
We conclude that there was no error.
The evidence tends to show that on 23 September 2004,
defendant sold crack cocaine to an undercover officer of the
Winston-Salem Police Department. The substance defendant sold to
the detective was identified by the State Bureau of Investigation
laboratory as 0.23 grams of cocaine.
Defendant first contends that the court committed plain error
by submitting a jury verdict form which did not include an optionof finding defendant not guilty. Specifically, the verdict form
for the possession of cocaine charge states: “As to the charge of
possession of cocaine, we, the jury, find the defendant
as charged.” The form contains a blank space for filling in the
date and blank lines for the printed name and signature of the jury
foreperson. The other two verdict forms are identical, except for
the charges.
Review for plain error is limited to review of jury
instructions and evidentiary matters. State v. Greene, 351 N.C.
562, 566, 528 S.E.2d 575, 578, cert. denied, 531 U.S. 1041, 148 L.
Ed. 2d 543 (2000). Because defendant does not assign error to a
jury instruction or evidentiary matter, this assignment of error is
not properly before us. Id. Furthermore, even if this matter were
properly before us, we cannot conclude 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, 83-84 (1986).
In State v. Hicks, 86 N.C. App. 36, 42-43, 356 S.E.2d 595,
598-599 (1987), the defendant contended that he was entitled to a
new trial because the verdict form did not list the possible
verdict of not guilty. This Court found no prejudicial error
because the trial court instructed the jury (1) to find the
defendant not guilty if the jury had a reasonable doubt of the
defendant's guilt and (2) to write in either “guilty” or “not
guilty” after the word “answer” on the form. Id. at 43, 356 S.E.2d
at 599. Here, the court instructed the jury to find defendant
guilty of the charged offenses if it found beyond a reasonabledoubt that he committed the offenses but that if it did not so
find, then it was the jury's “duty to return a verdict of not
guilty.” As it prepared to deliver the verdict sheets, the court
instructed the jury:
I'm going to hand the foreperson three sheets
of paper or hand one of you three sheets of
paper. One reads as to charge of possession of
cocaine with intent to sell, we the jury find
the defendant, there's a blank space, as
charged. Your foreman shall write in guilty
or not guilty, depending entirely on how you
find the facts to be, date it, sign it and
return it in open Court.
Same thing would apply as to sale of cocaine
to Detective Cardwell and the conspiracy to
sell cocaine. The foreman will write in
guilty or not guilty, date it, sign it and
return it in open court.
Given these clear instructions, we conclude that defendant was not
prejudiced by the alleged error.
Defendant next contends that the court erred by failing to
consider uncontroverted evidence in support of findings of
statutory mitigating factors. When a court imposes a sentence
within the presumptive range, as here, the failure to make such
findings is not error. State v. Dammons, 159 N.C. App. 284, 299,
583 S.E.2d 606, 615, disc. review denied, 357 N.C. 579, 589 S.E.2d
133 (2003), cert. denied, 541 U.S. 951, 158 L. Ed. 2d 382 (2004).
We overrule this assignment of error.
No error.
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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