STATE OF NORTH CAROLINA
v
.
Tyrrell County
Nos. 04 CRS 50113
05 CRS 617
MARK EARL BELL
Attorney General Roy A. Cooper, III, by Assistant Attorney
General John F. Oates, Jr., for the State.
Thomas R. Sallenger, for defendant-appellant.
JACKSON, Judge.
On 6 March 2004, Deputy Leigh Ann Schreckengost
(“Schreckengost”) of the Tyrrell County Sheriff's Department
observed Mark Earl Bell (“defendant”) come out of a house and
approach a car parked on the street. Defendant handed the driver
of the car a carton of cigarettes and a bottle of soda, and then
went back into the house. Shortly thereafter defendant returned to
the car with a case of beer and got into the passenger seat.
Schreckengost followed the car as it drove away. After following
the car for a short distance, she observed the car slow down, at
which time defendant jumped out of the car before it came to a
complete stop. Schreckengost yelled for defendant to stop, but heran behind some houses. After stopping the car and talking briefly
with the driver, Schreckengost pursued defendant. She called for
defendant to come and speak to her, to which defendant responded by
initially turning and walking away from her. Schreckengost started
to run towards defendant, at which time defendant stopped walking
and spoke to her.
Deputy Saxon Baker (“Baker”) and Probation Officer Joey
Elliott (“Elliott”) arrived at the scene to assist Schreckengost.
Elliott recognized defendant as one of the individuals whom he
supervised on probation. Having visited defendant at his home
several times prior, Elliott knew where defendant lived, and
pursuant to the conditions of defendant's probation, Elliott
decided to conduct a warrantless search of defendant's home.
Elliott asked Baker and Schreckengost to assist him in the search
of defendant's home.
Defendant resided with another individual in a mobile home.
Upon entering defendant's home, Baker conducted a search of the
couch in the living room prior to letting defendant sit on it.
While searching the couch, Baker found three small bags of what
appeared to be crack cocaine under one of the cushions. Defendant
stated the cocaine did not belong to him. Elliott and Baker then
searched defendant's bedroom and the kitchen. In defendant's
bedroom, the officers searched a black duffle bag which defendant
said belonged to him. Inside the bag, the officers found a .25
caliber pistol and a knife, which defendant stated did not belong
to him. The officers also found a small metal “crack pipe” indefendant's bedroom. Upon searching the kitchen, the officers
found several plastic sandwich bags with the corners cut out of
them. At trial, Schreckengost testified that the bags of cocaine
found under the couch cushion looked like small pieces of sandwich
bags which had been knotted up.
Defendant was charged with knowingly and intentionally keeping
and maintaining a dwelling that was used for keeping and selling
cocaine, possession with the intent to sell or deliver cocaine,
possession of drug paraphernalia, and resisting, delaying and
obstructing a police officer. Defendant also was charged with
being a habitual felon. Defendant's case came on for trial before
a jury on 28 November 2005. The charge of resisting, delaying and
obstructing a police officer was dismissed following a motion to
dismiss made by defendant. On 29 November 2005, the jury found
defendant guilty of knowingly and intentionally keeping and
maintaining a dwelling that was used for keeping and selling
cocaine, possession with the intent to sell and deliver cocaine,
and possession of drug paraphernalia. At the close of evidence on
the habitual felon portion of defendant's case, defendant made a
motion to dismiss the habitual felon charge based upon a variance
between the indictment and the evidence presented. Defendant's
motion was denied, and the jury subsequently found him guilty of
being a habitual felon. Defendant then was sentenced to a term of
one hundred and sixteen months to one hundred and forty-nine months
imprisonment with the North Carolina Department of Correction.
Defendant appeals from his conviction. Defendant first contends the trial court erred in denying his
motion to dismiss the charge of habitual felon based upon a
variance between the indictment and the evidence presented at
trial. Defendant's habitual felon indictment listed three prior
convictions, one of which was his 4 September 1980 conviction for
felony robbery with a dangerous weapon. This conviction was in
criminal case number 80 CRS 1869 in Bertie County Superior Court.
Defendant's indictment listed the date of the underlying offense
for this conviction as occurring “on or about July 30, 1980.” At
trial, the Clerk of Court for Bertie County testified that the
records for defendant's prior conviction in case 80 CRS 1869,
including the indictment and judgment, listed the date of the
offense as 31 July 1980.
North Carolina General Statutes, section 15A-924(a)(5) (2005)
requires that an indictment must set forth “[a] plain and concise
factual statement in each count which, without allegations of an
evidentiary nature, asserts facts supporting every element of a
criminal offense and the defendant's commission thereof with
sufficient precision clearly to apprise the defendant or defendants
of the conduct which is the subject of the accusation.” Id. While
an indictment should give a defendant sufficient notice of the
charges against him, it should not be subjected to hyper technical
scrutiny with respect to form.
[I]t is not the function of an indictment to
bind the hands of the State with technical
rules of pleading; rather, its purposes are to
identify clearly the crime being charged,
thereby putting the accused on reasonable
notice to defend against it and prepare fortrial, and to protect the accused from being
jeopardized by the State more than once for
the same crime.
State v. Sturdivant, 304 N.C. 293, 311, 283 S.E.2d 719, 731 (1981).
This Court has held that
“Ordinarily, the date alleged in the
indictment is neither an essential nor a
substantial fact, and therefore the State may
prove that the offense was actually committed
on some date other than that alleged in the
indictment without the necessity of a motion
to change the bill. The failure to state
accurately the date or time an offense is
alleged to have occurred does not invalidate a
bill of indictment nor does it justify
reversal of a conviction obtained thereon.”
State v. Locklear, 117 N.C. App. 255, 260, 450 S.E.2d 516, 519
(1994) (quoting State v. Cameron, 83 N.C. App. 69, 72, 349 S.E.2d
327, 329 (1986)). With respect to a habitual felon indictment, the
primary issue is whether another felony was in fact committed, not
the specific date of the prior felony. Id.; State v. McBride, 173
N.C. App. 101, 108-09, 618 S.E.2d 754, 759-60, disc. review denied,
360 N.C. 179, __ S.E.2d __ (2005).
In the instant case, all of the evidence concerning
defendant's prior conviction for felony robbery with a dangerous
weapon, other than the specific date of the prior offense, was
consistent with the allegations in defendant's habitual felon
indictment. The indictment and evidence presented both listed the
same case number, name of the defendant, offense committed, statute
violated, date of conviction, and county in which the conviction
occurred. In addition, the indictment stated that the prior
offense occurred “on or about July 30, 1980.” (emphasis added). Defendant therefore was given sufficient notice of the prior
conviction which was to serve as an underlying offense for the
habitual felon charge. As the evidence at trial did not vary
substantially from the information presented in defendant's
indictment, we hold the trial court did not err in denying
defendant's motion to dismiss the habitual felon charge.
Defendant's assignment of error is overruled.
Defendant next contends the trial court erred in submitting a
verdict sheet to the jury which effectively prevented the jury from
being able to consider finding defendant guilty of the lesser-
included misdemeanor offense of keeping a dwelling for the purpose
of keeping and selling controlled substances.
Defendant's verdict sheet stated the following:
1. We the jury by unanimous verdict as to
the charge of knowingly and intentionally
keeping a dwelling for the keeping and
selling of controlled substances find the
defendant is:
____ guilty as charged
OR
____ not guilty of keeping a
dwelling for the purpose of
keeping and selling controlled
substances
OR
____ not guilty
(Emphasis added). The State, while conceding that defendant's
verdict sheet improperly listed the lesser-included misdemeanor
offense by stating “not guilty of keeping a dwelling for the
purpose of keeping and selling controlled substances,” argues thatdefendant failed to object to the verdict sheet at trial and
therefore our review of this issue should be for plain error only.
We agree. Defendant failed to object to the verdict sheet at
trial, and thus “where the defendant appeals based on the content
of the verdict sheet but failed to object when the verdict sheet
was submitted to the jury, any error will not be considered
prejudicial unless the error is fundamental.” State v. Wiggins,
161 N.C. App. 583, 592, 589 S.E.2d 402, 409 (2003) (citing State v.
Gilbert, 139 N.C. App. 657, 672-74, 535 S.E.2d 94, 103-04 (2000)),
disc. review denied, 358 N.C. 241, 594 S.E.2d 34 (2004). As
defendant failed to object to the verdict sheet at trial, our
review is limited to plain error. Gilbert, 139 N.C. App. at
672-74, 535 S.E.2d at 103-04.
Plain error
“is a 'fundamental error, something so basic,
so prejudicial, so lacking in its elements
that justice cannot have been done,' or 'where
[the error] is grave error which amounts to a
denial of a fundamental right of the accused,'
or the error has '“resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial”' or where the error is such as to
'seriously affect the fairness, integrity or
public reputation of judicial proceedings.'”
State v. Augustine, 359 N.C. 709, 717, 616 S.E.2d 515, 523 (2005)
(quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983)) (emphasis in original), cert. denied, __ U.S. __, 165 L.
Ed. 2d 988 (2006). Under a plain error standard of review, “a
'defendant is entitled to a new trial only if the error was so
fundamental that, absent the error, the jury probably would havereached a different result.'” Id. (quoting State v. Jones, 355
N.C. 117, 125, 558 S.E.2d 97, 103 (2002)).
In the instant case, the trial court properly instructed the
jury, without objection by defendant, on both the felony offense of
knowingly and intentionally keeping and maintaining a dwelling that
was used for keeping and selling a controlled substance, and the
lesser-included misdemeanor offense of keeping a dwelling for the
purpose of keeping and selling a controlled substance. The trial
court properly instructed the jury that if it did not find
defendant guilty of the felony offense, then it should consider his
guilt of the lesser-included misdemeanor offense. The jury, which
did not ask for clarification from the trial court on either the
instructions or the verdict sheet, found defendant guilty of the
felony offense as charged.
Following the jury's pronouncement of its verdict on
defendant's habitual felon charge, the jury was polled on all of
the verdicts. Each juror then assented to the guilty verdicts for
each charge as read by the foreman. “The purpose of polling the
jury is to ensure that the jurors unanimously agree with and
consent to the verdict at the time it is rendered.” State v.
Black, 328 N.C. 191, 198, 400 S.E.2d 398, 402 (1991); see also
State v. Tirado, 358 N.C. 551, 584, 599 S.E.2d 515, 537 (2004)
(jury polls “'enable the court and the parties to ascertain with
certainty that a unanimous verdict has been in fact reached and
that no juror has been coerced or induced to agree to a verdict to
which he has not fully assented”' (citation omitted) (emphasis inoriginal)), cert. denied, 544 U.S. 909, 161 L. Ed. 2d 285 (2005).
Therefore, each juror confirmed to the trial court that they
unanimously agreed with the guilty verdict for defendant on the
felony charge of knowingly and intentionally keeping and
maintaining a dwelling that was used for keeping and selling a
controlled substance.
After thorough review of the verdict sheet, as well as the
transcript of the trial court's jury instructions regarding the
charge of knowingly and intentionally keeping and maintaining a
dwelling that was used for keeping and selling a controlled
substance and the lesser-included misdemeanor offense, defendant
has failed to demonstrate that absent the perceived error, the jury
probably would have reached a different verdict. We hold the error
on defendant's verdict sheet, when coupled with the trial court's
proper instructions and the jury poll, does not amount to a
fundamental error and does not rise to the level of plain error.
Defendant's assignment of error is overruled.
Defendant's final arguments contend the trial court erred in
submitting three of defendant's four charges to the jury, as there
was an insufficiency of the evidence to prove the crimes charged.
At the close of evidence, defendant made a motion to dismiss only
the charge of resisting, delaying and obstructing a police officer.
The trial court granted defendant's motion as to this offense only.
At no time did defendant make a motion to dismiss the charges of
knowingly and intentionally maintaining a dwelling that was used
for keeping and selling of controlled substances, possession withthe intent to sell and deliver cocaine, or possession of drug
paraphernalia. We decline to address these assignments of error,
as defendant has failed to properly preserve the issues for
appellate review.
Rule 10(b)(3) of our appellate rules provides that “[a]
defendant in a criminal case may not assign as error the
insufficiency of the evidence to prove the crime charged unless he
moves to dismiss the action . . . at trial.” N.C. R. App. P.
10(b)(3) (2006). Defendant attempts to argue that a plain error
standard of review should apply to these assignments of error.
“Plain error, however, only applies to jury instructions and
evidentiary matters in criminal cases. While this is a criminal
case, defendant's failure to [move] to dismiss does not trigger a
plain error analysis.” State v. Freeman, 164 N.C. App. 673, 677,
596 S.E.2d 319, 322 (2004) (internal citation omitted); see also
State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504
(1995) (plain error analysis unavailable where the defendant failed
to properly preserve the issue of sufficiency of the evidence);
State v. Bartley, 156 N.C. App. 490, 494, 577 S.E.2d 319, 322
(2003) (“Defendant's attempt to invoke plain error review is
inappropriate as this assignment of error concerns the sufficiency
of the evidence, not an instructional error or an error concerning
the admissibility of evidence.”). Defendant's assignments of error
therefore were not properly preserved and are dismissed.
No error.
Judges GEER and LEVINSON concur.
Report per Rule 30(e).
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