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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. FLOYD JEAN DAVIS
Filed: 2 October 2007
1. Criminal Law--motion for mistrial--defendant's absence from courtroom during
trial--voluntary and unexplained absence--waiver of right
The trial court did not abuse its discretion in a felony possession of methamphetamine,
misdemeanor possession of drug paraphernalia, and habitual felon case by denying defendant's
motion for a mistrial based on his absence from the courtroom during his trial, because: (1) a
defendant's voluntary and unexplained absence from court subsequent to the commencement of
trial constitutes a waiver of his right to confront his accuser, and waiver is inferred unless
defendant meets his burden to explain his absence; and (2) the facts support the determination
that defendant waived his right to appear.
2. Drugs--felony possession of methamphetamine--misdemeanor possession of drug
paraphernalia--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motions to dismiss the charges of
felony possession of methamphetamine and misdemeanor possession of drug paraphernalia
because the evidence was sufficient as a matter of law to withstand the motions.
3. Sentencing--habitual felon--defendant not present in courtroom
The trial court did not err by arraigning defendant as an habitual felon under N.C.G.S. §
15A-928 in open court, and by moving forward immediately with habitual felon proceedings
following defendant's convictions while he was still not present in the courtroom, because: (1)
even assuming defendant is correct in his argument that he was required to be present for the
habitual felon proceedings since they concerned a sentence enhancement, he failed to show any
prejudicial effect resulting from his absence; (2) defendant was informed of the previous
convictions the State intended to use and was given a fair opportunity to either admit or deny
them or remain silent; and (3) the Court of Appeals has previously found no error when a trial
court moved forward with habitual felon proceedings after they had already begun and a
defendant failed to return to court following a five-minute recess.
Appeal by defendant from judgment entered 14 July 2006 by
Judge Richard L. Doughton in Superior Court, Mitchell County.
Heard in the Court of Appeals 21 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Laura J. Gendy, for the State.
William D. Spence, for defendant-appellant.
A defendant may waive the general right to be present at his
trial through his voluntary and unexplained absence from court.
(See footnote 1)
Here, Defendant Floyd Jean Davis contends the trial court erred by
allowing his trial to proceed in absentia. Because the record
shows that Defendant had knowledge of the date and time that his
trial reconvened and failed to appear or provide any reasonable
excuse for his absence, we affirm the trial court's decision to
move forward with the proceedings without Defendant.
On 26 January 2006, Mitchell County Deputy Sheriff Frank
Catalano went to Defendant's home to serve an arrest warrant on
him. Pursuant to a consent search of Defendant's home, Deputy
Catalano found a pen barrel, scale, and piece of folded-up aluminum
foil inside a plastic grocery bag in a kitchen drawer. A charred
residue on the aluminum foil was later determined to be a legal
substance often converted into methamphetamine; additionally, the
inside of the pen barrel was found to be coated with
methamphetamine hydrochloride, a controlled substance. After being
advised of his legal rights, Defendant stated that the
methamphetamine found was his and that he used the drug to relieve
Defendant's trial for felony possession of methamphetamine,
misdemeanor possession of drug paraphernalia, and habitual felon
status began on 20 June 2006; he and his defense counsel were both
present, and the jury was selected that day. When court reconvenedthe following morning, on 21 June 2006, Defendant was absent
because he had gone to Spruce Pine Community Hospital with heart
problems and was subsequently transferred by ambulance to Mission
Memorial Hospital in Asheville due to chest pains and to have an
appropriate workup by the cardiologist. Following testimony by
a doctor who had treated Defendant, the trial court continued the
case until 30 June 2006.
When court reconvened again on 30 June 2006, Defendant was not
present. Defense counsel informed the trial court that he did not
know where his client was, and that he had spoken to Defendant the
previous afternoon and instructed him to be at court that morning.
Additionally, defense counsel told the trial court that he had no
medical records showing that Defendant was unable to be present at
court that morning. The clerk likewise stated that Defendant had
been informed and was aware of his court date and time. Neither
defense counsel nor the clerk's office had received any message
from Defendant as to why he was not present in court on 30 June
After denying defense counsel's motion for mistrial based on
Defendant's absence, the trial court instructed the State to move
forward with presentation of its evidence to the jury. The State
offered testimony from two witnesses: a Special Agent Senior
Forensic Chemist with the North Carolina State Bureau of
Investigation (SBI), as to the residues on the aluminum foil and
the inside of the pen barrel, respectively; and Deputy Catalano, as
to his search of Defendant's home and Defendant's voluntarystatement after his arrest. Defendant did not offer any evidence,
and defense counsel moved for a dismissal of the two charges for
insufficiency of evidence at both the close of the State's evidence
and the close of all evidence. After denying the motions to
dismiss, the trial court moved forward with the charge conference,
the prosecutor and defense counsel offered closing arguments, and
the trial court gave his jury charge.
According to the transcript, the jury returned guilty verdicts
on both charges after ten minutes of deliberation. With Defendant
still absent from the courtroom, the trial court moved forward with
the habitual felon phase of the trial. The State then offered an
additional witness, a legal assistant with the district attorney's
office, who testified as to Defendant's criminal record and prior
felony convictions. Defendant offered no evidence. After an
additional ten minutes of deliberation, the jury returned with a
verdict of guilty of habitual felon status.
The trial court had previously entered an order of arrest
against Defendant because he was not present when his trial
reconvened on 30 June 2006. At the conclusion of the trial, the
trial court ordered that, after Defendant had been located and
arrested, he be held without bond until sentencing could occur. On
14 July 2006, the trial court entered judgment on the jury verdicts
against Defendant and sentenced him as an habitual felon in the
presumptive range of 116 to 149 months' imprisonment on the
consolidated charges of felony possession of methamphetamine and
misdemeanor possession of drug paraphernalia. At sentencing,Defendant informed the trial court that he had been back in the
hospital for his heart on 30 June 2006, the date of his trial, and
his wife had failed to telephone defense counsel as she had
promised. Defendant offered no written documentation in support of
his statement that he had been in the hospital.
Defendant now appeals, arguing that the trial court erred by
(I) denying his motion for a mistrial; (II) denying his motion to
dismiss both charges at the close of evidence; (III) arraigning him
as an habitual felon in open court and allowing the State to move
forward immediately with habitual felon proceedings.
 Defendant first argues that the trial court erred by
denying his motion for a mistrial based on his absence from the
courtroom during his trial. We disagree.
Under North Carolina law, a trial court is required to declare
a mistrial upon a defendant's motion if there occurs during the
trial an error or legal defect in the proceedings, . . . ,
resulting in substantial and irreparable prejudice to the
defendant's case. N.C. Gen. Stat. § 15A-1061 (2005).
Nevertheless, the decision to grant a mistrial is within the sound
discretion of the trial court, and a mistrial is appropriate only
when there are such serious improprieties as would make it
impossible to achieve a fair and impartial verdict under the law.
State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 403 (1991)
(citation omitted). The trial court's decision will be given
great deference since he is in a far better position than anappellate court to determine whether the degree of influence on the
jury was irreparable. State v. Williamson, 333 N.C. 128, 138, 423
S.E.2d 766, 772 (1992) (citation omitted). This Court will find an
abuse of discretion only where a trial court's ruling is
manifestly unsupported by reason or is so arbitrary that it could
not have been the result of a reasoned decision. State v.
Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005), cert. denied,
547 U.S. 1073, 164 L. Ed. 2d 523 (2006).
Although our state Constitution provides that, [i]n all
criminal prosecutions, every person charged with crime has the
right . . . to confront the accusers and witnesses with other
testimony, N.C. Const. art. I, § 23, the right of a defendant to
be present at his own trial is not absolute. See State v.
Richardson, 330 N.C. 174, 178, 410 S.E.2d 61, 63 (1991) (In
noncapital felony trials, this right to confrontation is purely
personal in nature and may be waived by a defendant.).
Significantly, [a] defendant's voluntary and unexplained absence
from court subsequent to the commencement of trial constitutes such
a waiver. Once trial has commenced, the burden is on the defendant
to explain his or her absence; if this burden is not met, waiver is
to be inferred. Id. (internal citations omitted).
Here, Defendant's trial commenced on 20 June 2006, when a jury
was impaneled and opening arguments were made. Defendant was not
present when his trial resumed on 21 June; after hearing an
explanation from defense counsel and testimony from a doctor who
had treated Defendant, the trial court continued the case until 30June, to give Defendant an opportunity for further treatment and
recovery. Nevertheless, on 30 June, Defendant was not present at
the time his trial was scheduled to resume.
After waiting for over forty-five minutes, the trial court
ascertained that Defendant was aware of the date and time that his
trial was scheduled to resume, and that he had failed to provide
any reason or notice to defense counsel or the clerk's office as to
his failure to appear. The trial court then offered a full
restatement of the facts related to the earlier session of the
trial, Defendant's medically excused absence on 21 June 2006, and
the continuance, and concluded:
Based on that, the Court concludes that
the Court has a right to go forward with the
trial of this case having been shown no good
reason as to why the defendant has not
appeared and based on the foregoing findings
and conclusions the Court is going to proceed
with the trial of this matter in the absence
of the defendant . . . . So [defense counsel]
will be proceeding on behalf of his client in
his client's absence in the defense of this
These facts support the trial court's determination that Defendant
waived his right to appear, and we see no abuse of discretion in
the trial court's decision to deny defense counsel's motion for a
mistrial. Accordingly, we find no merit in these assignments of
 Next, Defendant contends the trial court erred by denying
his motions to dismiss the charges of felony possession of
methamphetamine and misdemeanor possession of drug paraphernalia atthe close of the State's evidence and again at the close of all
evidence on the grounds that the evidence was insufficient to
establish each element of the crimes and Defendant's identity as
the perpetrator. We disagree.
To survive a motion to dismiss, the State must have presented
substantial evidence of each essential element of the offense
charged and of the defendant being the perpetrator of the offense.
State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004)
(citation and quotations omitted), cert. denied, 543 U.S. 1156, 161
L. Ed. 2d 122 (2005). Substantial evidence is relevant evidence
that a reasonable person might accept as adequate, or would
consider necessary to support a particular conclusion. Id.
(citations omitted). In considering a motion to dismiss by the
defense, such evidence must be taken in the light most favorable
to the state. . . . [which] is entitled to all reasonable
inferences that may be drawn from the evidence. State v. Sumpter,
318 N.C. 102, 107, 347 S.E.2d 396, 399 (1986).
North Carolina law makes it illegal for any person to possess
a controlled substance. N.C. Gen. Stat. § 90-95(a)(3) (2005).
Felonious possession of a controlled substance has two essential
elements. The substance must be possessed, and the substance must
be 'knowingly' possessed. State v. Rogers, 32 N.C. App. 274, 278,
231 S.E.2d 919, 922 (1977). Moreover, [w]hen such materials are
found on the premises under the control of the accused, this fact,
in and of itself, gives rise to an inference of knowledge and
possession which may be sufficient to carry the case to the jury ona charge of unlawful possession. State v. Harvey, 281 N.C. 1, 12,
187 S.E.2d 706, 714 (1972). Even a residue quantity of a
controlled substance is sufficient to convict a defendant of
felonious possession of the controlled substance. State v.
Williams, 149 N.C. App. 795, 798-99, 561 S.E.2d 925, 927, disc.
review denied, 355 N.C. 757, 566 S.E.2d 481, cert. denied, 537 U.S.
1035, 154 L. Ed. 2d 455 (2002).
Likewise, under North Carolina law, [i]t is unlawful for any
person to knowingly use, or to possess with intent to use, drug
paraphernalia . . . to inject, ingest, inhale, or otherwise
introduce into the body a controlled substance which it would be
unlawful to possess. N.C. Gen. Stat. § 90-113.22(a) (2005); see
also State v. Hedgecoe, 106 N.C. App. 157, 164, 415 S.E.2d 777, 781
(1992) (holding that, to sustain a conviction under N.C. Gen. Stat.
§ 90-113.22, the State must prove that the defendant possessed drug
paraphernalia with the intent to use [it] in connection with
In the instant case, the State offered testimony from an SBI
agent that the residue inside the pen barrel found at Defendant's
home was methamphetamine, and that the residue on the aluminum foil
was a legal, uncontrolled substance that is often converted into
methamphetamine. Deputy Catalano also testified that he found the
aluminum foil and the pen barrel inside a kitchen drawer in
Defendant's home. Additionally, Deputy Catalano recounted
Defendant's voluntary statement to police that:
On today's date officer came to serve his
warrant on me. I come out on my own. Theyfound meth in my house. I told them it was
mine. I use it _ I use for my _ for my pain
because my back it was broke at work. The
pain med they give me don't work. The meth
does. . . . They found it in my kitchen
(Emphasis added). We find this evidence to be sufficient as a
matter of law to withstand a motion to dismiss the charges of
felony possession of methamphetamine and misdemeanor possession of
drug paraphernalia. This assignment of error is rejected.
 Finally, Defendant argues that the trial court erred by
arraigning him as an habitual felon pursuant to North Carolina
General Statutes § 15A-928 in open court, and by moving forward
immediately with habitual felon proceedings following Defendant's
convictions, while he was still not present in the courtroom.
Defendant essentially contends the trial court was without subject
matter jurisdiction to proceed with the habitual felon proceedings.
Habitual felon status is acquired when any person has been
convicted of or pled guilty to three felony offenses in any federal
or state court or combination thereof. N.C. Gen. Stat. § 14-7.1
(2005). Under longstanding precedent of our courts, being an
habitual felon is not a substantive offense and is instead used
only to enhance the sentence of an underlying felony committed
while the defendant was an habitual felon. See State v. Allen
N.C. 431, 435, 233 S.E.2d 585, 588 (1977) (The only reason for
establishing that an accused is an habitual felon is to enhance the
punishment which would otherwise be appropriate for the substantivefelony which he has allegedly committed while in such a status.)
Thus, [b]eing an habitual felon is not a crime but is a status the
attaining of which subjects a person thereafter convicted of a
crime to an increased punishment for that crime. The status
itself, standing alone, will not support a criminal sentence. Id.
A trial court must arraign a defendant for habitual felon
status [a]fter commencement of the trial and before the close of
the State's case, . . . in the absence of the jury[.] N.C. Gen.
Stat. § 15A-928(c) (2005). If the defendant remains silent in the
face of the allegations, the State may prove that element of the
offense charged before the jury as a part of its case. Id.
15A-928(c)(2). The purpose of Section 15A-928 is to insure that
the defendant is informed of the previous convictions the State
intends to use and is given a fair opportunity to either admit or
deny them or remain silent. State v. Jernigan
, 118 N.C. App. 240,
244, 455 S.E.2d 163, 166 (1995).
As noted earlier, a defendant may waive his right to be
present at his noncapital felony trial through his voluntary and
unexplained absence from court subsequent to the commencement of
, 330 N.C. at 178, 410 S.E.2d at 63. However,
our state Supreme Court has also held that a defendant should be
present when evidence is introduced for the purpose of determining
the amount of punishment to be imposed. State v. Pope
, 257 N.C.
326, 330, 126 S.E.2d 126, 129 (1962). Likewise, [t]he accused has
the undeniable right to be personally present when sentence is
imposed. Oral testimony, as such, relating to punishment is not tobe heard in his absence. Id.
at 334, 126 S.E.2d at 132-33.
Nevertheless, [a] judgment will not be disturbed because of
sentencing procedures unless there is a showing of abuse of
discretion, procedural conduct prejudicial to defendant,
circumstances which manifest inherent unfairness and injustice, or
conduct which offends the public sense of fair play. Id.
126 S.E.2d at 133.
Defendant argues that the habitual felon proceedings fall
between trial and sentencing, such that he could have waived his
right to be present at his trial for the substantive offenses of
felony possession of methamphetamine and misdemeanor possession of
drug paraphernalia, but he was constitutionally required to be
present for the habitual felon proceedings because they concerned
a sentence enhancement. Nevertheless, even assuming arguendo
Defendant is correct in this assertion, we find that he has failed
to show any prejudicial effect resulting from his absence. On 20
June 2006, at the outset of Defendant's trial, and in Defendant's
presence but before a jury had been seated, the trial court stated
that there were three charges, namely, one possession of Schedule
II controlled substances, one possession of drug paraphernalia and
there's a third indictment of habitual felon.
Moreover, in an
indictment dated 8 February 2006, over four months before
Defendant's trial, the State listed the prior felonies committed by
Defendant and used by the State as the basis for the charge of
habitual felon status.
In light of these facts, as well as Defendant's waiver of hisright to be present at trial, we find that Defendant was informed
of the previous convictions the State intend[ed] to use and was
given a fair opportunity to either admit or deny them or remain
, 118 N.C. App. at 244, 455 S.E.2d at 166.
Moreover, we note that this Court has previously found no error
when a trial court moved forward with habitual felon proceedings
after they had already begun and a defendant failed to return to
court following a five-minute recess. State v. Skipper
, 146 N.C.
App. 532, 535-36, 553 S.E.2d 690, 692-93 (2001). This assignment
of error is without merit.
Judges HUNTER and BRYANT concur.
State v. Richardson
, 330 N.C. 174, 178, 410 S.E.2d 61, 63
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