STATE OF NORTH CAROLINA
Nos. 03 CRS 50040
03 CRS 51027
KEM BRANDON CORPENING
Attorney General Roy Cooper, by Special Deputy Attorney
General Daniel D. Addison, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale by John Keating Wiles for defendant-appellant.
Defendant, Kem Brandon Corpening, appeals his convictions for resist, obstruct, and delay a public officer and possession of cocaine. For the reasons discussed herein, we affirm in part and reverse in part.
The State's evidence tended to show the following: the Surry County Sheriff's Office had used Johnny Ward (Ward) as a paid informant for at least ten years, and he had provided reliable information in the past. On 3 January 2003, Ward informed Detective Matt Dareese that he knew someone in Winston-Salem with whom he could arrange to come to Surry County to sell Ward crackcocaine. Ward said he knew this man as B, but had heard others refer to him as Brandon. During the trial, Ward identified defendant as this person. Det. Dareese instructed Ward to set up a meeting with defendant at a service station near Pilot Mountain to buy $400.00 worth of crack cocaine. According to Ward, defendant agreed.
Det. Dareese and two other officers, Captain Graham Atkinson and Det. Tony Sardler, established surveillance at the service station. Ward told the officers there were several outstanding warrants on B, and the officers intended to arrest defendant upon his arrival at the drug buy to confirm his identity.
Defendant arrived at the service station at the agreed upon time in a green Mustang automobile driven by Tim Smith. On the officers' instructions, Ward was not at the meeting place. When the Mustang began to leave the service station, Det. Dareese called Ward and told him to call defendant and tell him to come back to the station.
During the phone conversation between defendant and Ward, the officers turned on their sirens and attempted to stop the Mustang. The Mustang pulled over, but then pulled back on the road and sped off. All three officers gave chase. During the chase, one of the occupants of the Mustang threw something out of the passenger side window.
The officers forced the Mustang to stop, and Detectives Sardler and Dareese arrested Smith. Capt. Atkinson went to the passenger-side of the car and ordered defendant to put his handsup. Defendant put his hands to his mouth, reached down, picked up a paper cup, and began to drink from the cup. Capt. Atkinson believed defendant was ingesting contraband. Defendant then dove between the front seats toward the back of the car and began kicking and pulling away from Capt. Atkinson as he removed him from the car and placed him under arrest.
The officers searched the car and found a burned marijuana cigarette in the ashtray and a crumpled cigarette pack between the passenger seat and the console that contained what was later confirmed as a residue amount of cocaine base. Defendant became agitated when Capt. Atkinson told the other officers he found what he thought was contraband. The defendant said, That's not fair. You got to catch me fair and square. That's not right. The officers were unable to find the item that had been thrown out of the car during the chase. Defendant told Det. Dareese that he threw out marijuana.
Defendant presented no evidence at trial.
The jury convicted defendant of each charge. The trial court sentenced defendant to consecutive presumptive range sentences, suspended those sentences, and placed defendant on probation. Defendant appeals.
In defendant's first argument, he contends the trial judge erred by denying his motion to dismiss the charge of resist, obstruct, and delay of a public officer for insufficiency of the evidence. In its brief, the State concedes error as to this argument. We agree. The warrant named Det. Sardler as the officer whom defendant resisted. The evidence presented at trial showed that defendant resisted Capt. Atkinson. In response to defendant's motion to dismiss, the State moved to amend the warrant to substitute Capt. Atkinson's name for that of Det. Sardler's. The trial judge allowed the State's motion to amend and then denied defendant's motion to dismiss. Defendant argues the trial court erred by allowing the State to amend a material deficiency of the charge rather than dismissing it.
Alternatively, defendant contends that even if there was no error in allowing the State to amend, the instrument itself was never amended and therefore, this Court is bound to construe the warrant as though no amendment had been allowed.
In moving to amend the warrant in superior court, the solicitor stated as follows: I would like to amend the warrant to refusing to submit to arrest. The motion was allowed, but the instrument itself was not amended. Defendant correctly contends that the allowance of a motion to amend a warrant is not self-executing. In 4 Strong, N.C. Index 2d, Indictment and Warrant, . 12, it is stated: An order allowing an amendment it [sic] not self-executing, and when the amendments are not actually made pursuant to the order, the defects are not cured.
State v. Powell, 10 N.C. App. 443, 447, 179 S.E.2d 153, 156 (1971).
In the instant case, the prosecutor stated, Judge, for the record I would make that motion to amend based on the evidence. To which the trial court answered, Okay. I'll allow that.
The record indicates the warrant itself was never amended. Although the decision in Powell appears to place form oversubstance, it is binding precedent on this Court. In the Matter of the Appeal from the Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Thus we must construe the warrant as if no amendment had been allowed. Powell, 10 N.C. App. at 447, 179 S.E.2d at 156. Therefore, we reverse and vacate defendant's conviction on the charge of resist, obstruct, and delay of Det. Sardler.
In defendant's second argument, he contends the trial court erred when it denied his motion to dismiss the charge of possession of cocaine for insufficiency of the evidence. We disagree.
The trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from it. . . . If there is substantial evidence _- whether direct, circumstantial, or both _- to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.
State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 415-16 (1991) (internal citations and quotation marks omitted). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Israel, 353 N.C. 211, 216, 539 S.E.2d 633, 636 (2000), quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
Defendant argues the evidence is insufficient to convict him for possession of cocaine even when viewed in the light most favorable to the State.
[I]n a prosecution for possession of contraband materials, the prosecution is not required toprove actual physical possession of the materials. Instead, possession of a controlled substance may be either actual or constructive. As long as the defendant has the intent and capability to maintain control and dominion over the controlled substance, he can be found to have constructive possession of the substance. Incriminating circumstances, such as evidence placing the accused within close proximity to the controlled substance, may support a conclusion that the substance was in the constructive possession of the accused. Thus, where sufficient incriminating circumstances exist, constructive possession of a controlled substance may be inferred even where possession of a premises is nonexclusive.
State v. McNeil, 165 N.C. App. 777, 781, 600 S.E.2d 31, 34 (2004) (internal citations and quotation marks omitted).
In this case, defendant did not have exclusive possession of the car in which the cocaine residue was found, requiring the State to provide evidence of other incriminating circumstances. State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986); State v. Weems, 31 N.C. App. 569, 571-2, 230 S.E.2d 193, 195 (1976). Three circumstances exist in this case that have previously been considered incriminating by the appellate courts of this State. First, the drugs were found nearest to the area of the car occupied by defendant immediately before he was apprehended. See State v. Matias, 143 N.C. App. 445, 449, 550 S.E.2d 1, 3-4 (2001); State v. Carr, 122 N.C. App. 369, 373, 470 S.E.2d 70, 73 (1996). Second, defendant acted suspiciously, tried to evade police, and tried to hide something when confronted by police. See State v. Butler, 356 N.C. 141, 147, 567 S.E.2d 137, 141 (2002); Carr, 122 N.C. App. at373, 470 S.E.2d at 73. Third, defendant conversed with a known drug user immediately before apprehension. Id. at 373, 470 S.E.2d at 73.
In addition, a finding of constructive possession depends on the totality of circumstances in each case. James, 81 N.C. App at 93, 344 S.E.2d at 79. No single factor is controlling and ordinarily the question will be for the jury to decide. Id.
The circumstances in the instant case clearly could allow a reasonable juror to determine defendant had the capability and intent to control the cocaine base found in the car. Defendant had agreed to sell cocaine to Ward, with whom he had done business previously, and defendant arrived at the agreed upon time and place for the drug sale. Defendant and Smith attempted to flee from the officers, and during the course of the chase someone threw an unconfirmed object out of the passenger side window. After the chase ended, defendant put his hand to his mouth, took a drink from a cup as though to swallow something, and then dove between the seats of the car. Defendant's comment that the officers had to catch him fair and square after the cocaine was found in the car also supports a reasonable conclusion that he had the intent and capability to control the cocaine.
Defendant argues this case is controlled by State v. Weems. In Weems, this Court overturned a conviction for possession with intent to sell and deliver heroin because there was no evidence of any circumstance connecting the defendant to the drugs in any manner whatsoever other than the showing of his mere presence for a briefperiod in the car as a passenger. Weems, 31 N.C. App. at 571-72, 230 S.E.2d at 195. In the instant case, as recited above, there are numerous circumstances which connect defendant to the cocaine that go well beyond his mere presence in the car as a passenger. This argument is without merit.
In defendant's third argument, he contends the trial court committed plain error by failing to take measures on its own initiative to cure what defendant argues were improper remarks by the prosecution during jury selection. Defendant concedes he did not object to the remarks when the prosecution made them. Our Supreme Court has declined to extend application of the plain error doctrine to situations where a party has failed to object to statements made by the other party during jury voir dire. Defendant's failure to raise this issue during his trial constitutes waiver . . . . State v. Cummings, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000). This argument is without merit.
In his fourth argument, defendant contends the trial court erred by admitting testimony by Det. Dareese regarding outstanding warrants for his arrest over defense counsel's objection. Defendant contends Det. Dareese's knowledge of the warrants was based on hearsay, the evidence was irrelevant to the charges filed, and he was prejudiced because the admission of the testimony regarding the outstanding warrants tended to put him in a bad light. Defendant asserts this error requires a new trial. We disagree. In order to be granted a new trial, a defendant must demonstrate there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. N.C. Gen. Stat. . 15A-1443(a) (2005). State v. Keys, 87 N.C. App. 349, 355- 56, 361 S.E.2d 286, 290 (1987).
Even assuming arguendo that the admission of Det. Dareese's testimony on the warrants was improper, when viewed in light of other testimony regarding the ongoing buyer/seller relationship between defendant and Ward, the prejudicial impact was negligible. Consequently, we are unconvinced that had the trial court excluded Det. Dareese's testimony regarding the warrants the jury would have returned a different verdict. State v. Smith, 99 N.C. App. 67, 72, 392 S.E.2d 642, 645 (1990). This argument is without merit.
In defendant's final argument, he contends the trial court committed plain error in its instructions to the jury. We disagree.
Since defendant did not object to the jury instructions at trial, we review this assignment of error under the plain error standard. Plain error is error 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. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999). [I]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made inthe trial court. State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378 (1983).
Defendant cites to several deviations the trial court made from the pattern jury instructions. However, defendant fails to explain specifically how these alterations constitute plain error other than to assert that as a whole the deviations prejudiced him. By failing to provide the requisite analysis, defendant has waived appellate review of this argument. Cummings, 352 N.C. at 637, 536 S.E.2d at 61. Even so, after careful review of the jury instructions as a whole, we do not believe defendant was prejudiced as the judge's charge was a substantially correct statement of the law. See State v. Singletary, 344 N.C. 95, 102, 472 S.E.2d 895, 899 (1996).
For the reasons discussed herein, we find no error as to defendant's conviction for possession of cocaine. We reverse defendant's conviction for resist, obstruct, and delay of a public officer.
NO ERROR AS TO THE CONVICTION FOR POSSESSION OF COCAINE (03 CRS 51027); REVERSED AS TO CONVICTION FOR RESIST, DELAY, AND OBSTRUCT (03 CRS 50040).
Judges LEVINSON and STEPHENS concur.
Report per Rule 30(e).
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