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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 February 2007
STATE OF NORTH CAROLINA
Nos. 04 CRS 58213
04 CRS 35976
JEREMY A. SMART
Appeal by Defendant from judgments entered 25 August 2005 by
Judge Vance B. Long in Forsyth County Superior Court. Heard in the
Court of Appeals 14 November 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Rebecca E. Lem, for the State.
Daniel F. Read for Defendant-Appellant.
On 1 July 2004, Officer D.J. Hege, of the Winston-Salem Police
Department, observed Defendant leaning against the railing on the
second floor breezeway of the Rolling Hills apartment complex.
Officer Hege recognized Defendant as a nonresident because he had
arrested Defendant at the same building two weeks earlier and had
advised Defendant that he was not allowed on the property.
Upon recognizing Defendant, Officer Hege walked up the stairs
to approach Defendant, and as Officer Hege approached the top of
the stairs, Defendant began walking toward the apartment nearest
him. At this point, Officer Hege noticed a bag with green leafy
material in Defendant's right hand. As Defendant walked toward the
slightly ajar door of the nearest apartment, Officer Hege grabbedDefendant's left arm to stop him from entering the apartment. As
he attempted to pull Defendant from the doorway, Officer Hege saw
Defendant throw a bag of green leafy matter into the apartment.
Another bag of green leafy material remained in Defendant's right
Officer Hege and another police officer secured and handcuffed
Defendant and, upon searching him, found a third bag of this green
leafy substance in his left pocket. After the officers obtained
permission from the owner, they searched the apartment, where they
found a similar bag of the green leafy matter with a set of silver
pocket scales attached to it that were the type of scales commonly
used to weigh illicit narcotics. There was only one door leading
into the apartment and there was no one else present inside. Based
on their observations and the evidence that they collected, the
officers arrested Defendant. The green matter in the bags was
later verified to be marijuana by a special agent at the State
Bureau of Investigation. The confiscated bags contained a combined
weight of 60.1 grams of marijuana.
At trial, Defendant stipulated to his habitual felon status
and was convicted by a jury of possession with intent to sell and
deliver, possession of drug paraphernalia, and second degree
trespass. Upon those verdicts, the trial court entered judgments
on 25 August 2005, sentencing Defendant to a minimum term of 80
months and a maximum term of 105 months for possession with intent
to sell or distribute. Defendant was also sentenced to 120 days
for possession of drug paraphernalia and to 20 days for seconddegree trespass, to be served concurrently with the other sentence.
From this judgment, Defendant appeals. For the reasons set forth
below, we find that Defendant received a fair trial, free of error.
Defendant brings forward seven arguments on appeal, each of
which we address in turn.
Defendant first contends that the trial court erred in
admitting into evidence testimony of how marijuana is typically
packaged in the Rolling Hills area of Winston-Salem because it was
hearsay, inadmissible opinion evidence, and irrelevant. In support
of his argument that the evidence was inadmissible hearsay,
Defendant cites language from our Supreme Court, holding that the
reputation of a place is not admissible to show the intent or
guilty knowledge of one charged with illicit possession of
contraband in that place. See State v. Weldon, 314 N.C. 401, 333
S.E.2d 701 (1985); see also State v. Williams, 164 N.C. App. 638,
596 S.E.2d 313, disc. review denied, 358 N.C. 738, 600 S.E.2d 857
(2004). However, the evidence in the present case about how
marijuana is typically packaged in a neighborhood, while it may
reflect on the reputation of the neighborhood, is not the same as
testimony about the reputation for crime or drug activity in a
neighborhood. Therefore, we hold the testimony was not
Defendant further argues that Officer Hege's testimony was
inadmissible opinion evidence because his testimony was not in the
nature of an expert opinion. However, to the extent the lawrequires that the testimony be given by an expert, Officer Hege's
testimony qualified as expert testimony. We note that, under the
Rules of Evidence, an expert may present an opinion based upon his
or her specialized knowledge if that opinion assists the trier of
fact. N.C. Gen. Stat. § 8C-1, Rule 702(a) (2005). The trial court
is given a 'wide latitude of discretion when making a
determination about the admissibility of expert testimony.' State
v. White, 154 N.C. App. 598, 604, 572 S.E.2d 825, 830 (2002)
(quoting State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376
(1984)). To qualify as an expert, the witness only needs to be
better qualified than the jury as to the subject at hand. State
v. Davis, 106 N.C. App. 596, 601, 418 S.E.2d 263, 267 (1992), disc.
review denied, 333 N.C. 347, 426 S.E.2d 710 (1993). In this case,
Officer Hege's testimony provided specialized knowledge, based on
his experience and training, that assisted the jury, and thus, it
was properly admitted.
Defendant makes no argument on his assignment of error that
the evidence was irrelevant. Therefore, the assignment of error as
to this contention is deemed abandoned pursuant to N.C. R. App. P.
28(b)(6). As for Defendant's argument that the evidence
constituted inadmissible hearsay or opinion testimony, the
assignment of error is overruled.
Defendant next argues that the trial court erred in denying
Defendant's motion for a mistrial where the State asked Defendant's
only witness what he was charged with. Defendant relies on Statev. Williams,
279 N.C. 663, 672,
185 S.E.2d 174, 180 (1971), for its
that for purposes of impeachment, a witness, including the
defendant in a criminal case, may not be cross-examined as to
whether he has been indicted or is under indictment for a criminal
offense other than that for which he is then on trial. We,
however, are guided by a case decided after Williams which more
closely addresses the issue raised herein. In State v. Pruitt, 301
N.C. 683, 686-87,
273 S.E.2d 264, 267 (1981),
our Supreme Court
held that where defendant opened the door to further inquiry by
the prosecution by cross-examining [the witness] . . . the
state . . . was entitled to explore the matter fully in its attempt
to rehabilitate its witness.
Although the facts of the present
case vary somewhat from the facts of Pruitt, the same overall
concept applies here. In the present case, as in Pruitt, Defendant
opened the door for the State to ask the witness about the same
accusations or indictments that Defendant had already raised with
the witness in Defendant's direct examination. Here, the State's
questioning proceeded as follows:
Q: [Defense counsel] asked you a minute ago
what you had been to court for in the last ten
years. You said there was a possession of
marijuana. Is that correct?
A: Misdemeanor possession and loitering, yes.
. . . .
Q: . . . Do you recall if you were charged
with what's called loitering for drug
Because the State's cross-examination was confined to an inquiry
into the testimony elicited from the witness during
Defendant'sdirect examination of him, we find no error in the admission of
In his third argument, Defendant contends that the trial court
erred in allowing Officer G.A. Dorn to testify in rebuttal, as the
evidence he presented did not in fact rebut any evidence and there
was no showing that the State could not have reasonably secured him
to testify during its case in chief. We note that the time allowed
for rebuttal is not necessarily limited to rebuttal testimony. On
the contrary, N.C. Gen. Stat. § 15A-1226 provides that [t]he judge
may permit a party to offer new evidence during rebuttal which
could have been offered in the party's case in chief or during a
previous rebuttal . . . . N.C. Gen. Stat. § 15A-1226 (2005).
Because it is within the trial court's discretion to allow new
evidence during rebuttal and Defendant has failed to show an abuse
of discretion here, it was not error for the court to permit
Officer Dorn to testify.
Defendant further contends that the trial court erred in
allowing Officer Dorn to offer Rule 404(b) evidence because such
evidence was too remote in time, established no facts relevant to
the present prosecution, and therefore served solely to prejudice
and inflame the jury. Rule of Evidence 404(b) prohibits the
admission of [e]vidence of other crimes, wrongs, or acts . . . to
prove the character of a person in order to show that he acted in
conformity therewith. N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005). However, the rule allows the admission of such evidence
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake,
entrapment or accident
. Id. Defendant also cites State v.
Wilkerson, 356 N.C. 418, 418, 571 S.E.2d 583, 583 (2002) (per
curiam), as prohibiting introduction of evidence of a bare fact
of a prior conviction. In the present case, Officer Dorn testified
to much more than the fact of Defendant's prior conviction. Thus,
Wilkerson is inapplicable here. Accordingly, we consider whether
the State had a purpose other than showing Defendant's character or
showing that Defendant acted in conformity with his prior conduct.
If another purpose exists, then the evidence is admissible under
Rule 404(b). See State v. Irby, 113 N.C. App. 427, 439 S.E.2d 226
In this case, Officer Dorn testified about a prior incident,
which happened less than two years earlier, in which Defendant was
spotted by a police officer, Defendant ran away from the officer,
Defendant threw a bag of marijuana to the ground as he was being
chased, and Defendant tried to hide in an apartment in Rolling
Hills to avoid being apprehended. The State offered this evidence
to show a common plan or scheme, and the court gave a limiting
instruction to the jury, instructing them to consider the evidence
only for its tendency to show a plan or scheme. We note that
[w]hen the incidents are offered for a proper purpose, the
ultimate test of admissibility is 'whether the incidents are
sufficiently similar and not so remote in time as to be moreprobative than prejudicial under the balancing test of N.C.G.S. §
8C-1, Rule 403.' State v. Pruitt, 94 N.C. App. 261, 266, 380
S.E.2d 383, 385 (quoting State v. Boyd, 321 N.C. 574, 577, 364
S.E.2d 118, 119 (1988)), disc. review denied, 325 N.C. 435, 384
S.E.2d 545 (1989). Due to the similarities of Defendant's
possession of marijuana, his attempt to dispose of the marijuana
while being chased, his escape tactic, and the location of the
arrest, we hold that the prior incident described by Officer Dorn's
testimony was sufficiently similar to the facts of the present case
as to be more probative than prejudicial.
We next consider Defendant's argument that the almost two
years separating the first incident from the current case made the
first incident too remote in time to be admissible. We find
Defendant's argument without merit. Our Supreme Court has held
that even ten years separation between sufficiently similar events
is not so remote as to make evidence inadmissible. See State v.
Stager, 329 N.C. 278, 406 S.E.2d 876 (1991). Thus, we conclude
that the time frame of almost two years is not so remote that the
risk of prejudice outweighs the probative value of the evidence.
Having examined all of the aspects of Defendant's argument, we find
no error in the trial court's admission of Officer Dorn's
Defendant next contends that the trial court erred in denying
Defendant's motion to dismiss, particularly as it related to the
charge of possession with intent to sell and deliver. Whenpresented with a motion to dismiss by a criminal defendant, the
evidence before the court is examined in the light most favorable
to the State, giving the State the benefit of all reasonable
inferences. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756,
761 (1992) (citation omitted). The evidence is to be viewed in the
same manner whether it is direct or circumstantial or both.
Bullard, 312 N.C. at 160, 322 S.E.2d at 388. The question posed to
the court, when reviewing a motion to dismiss criminal charges, is
whether there is substantial evidence (1) of each essential
element of the offense charged, or of a lesser offense included
therein, and (2) of defendant's being the perpetrator of such
offense. If so, the motion is properly denied. State v. Powell,
299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted).
While substantial evidence is required to survive a motion to
dismiss, our Supreme Court defines substantial evidence as
'relevant evidence that a reasonable mind might accept as adequate
to support a conclusion.' State v. Laws, 345 N.C. 585, 592, 481
S.E.2d 641, 644 (1997) (quoting State v. Olson, 330 N.C. 557, 564,
411 S.E.2d 592, 595 (1992)).
Defendant contends that the trial court erred in denying his
motion to dismiss the charge of possession with intent to sell or
deliver. There are only two elements for the crime of possession
with intent to sell or deliver. First, the defendant must
knowingly possess marijuana, and second, the defendant must intend
to sell or deliver the marijuana. N.C. Gen. Stat. § 90-95(a)(1)
(2005). Defendant argues that no evidence was presented of hisintent to sell or deliver the marijuana he possessed. However, the
evidence showed that the total amount of marijuana confiscated
exceeded 60 grams, and one of the bags of marijuana had attached to
it a set of silver pocket scales of the type often used to weigh
illicit drugs for sale and distribution. This evidence was
sufficient for a reasonable mind to accept as adequate to support
the conclusion that Defendant had the requisite intent to sell or
deliver. As such, the State presented substantial evidence
sufficient to withstand the motion to dismiss. This assignment of
error is overruled.
Defendant also argues that the trial court erred in
instructing the jury on felonious possession of marijuana as the
indictment failed to allege a specific weight. It is incumbent
upon a defendant not only to show error, but to show that the error
of which he complains constituted prejudice sufficient to warrant
a new trial. State v. Partin, 48 N.C. App. 274, 283, 269 S.E.2d
250, 255-56, appeal dismissed and disc. review denied, 301 N.C.
404, 273 S.E.2d 449 (1980). To prove prejudicial error, 'an
appellant must show that there is a reasonable possibility that,
had the error not been committed, a different result would have
been reached at trial.' State v. Teague, 134 N.C. App. 702, 707,
518 S.E.2d 573, 577 (1999) (quoting State v. Martin, 322 N.C. 229,
238-39, 367 S.E.2d 618, 623-24 (1988)), appeal dismissed and cert.
denied, 351 N.C. 368, 542 S.E.2d 655 (2000). In the present case,
regardless of whether the court properly or improperly instructedthe jury on the lesser included offense of felonious possession,
such instruction could not have been prejudicial because the jury
did not convict Defendant of the lesser included offense, but
instead convicted him of the charged offense of possession with
intent to sell or deliver. This assignment of error has no merit
and is overruled.
As his seventh and final argument, Defendant contends that the
trial court erred in sentencing him to 80 to 105 months
imprisonment for possessing marijuana, in that the sentence was
sufficiently disproportionate to the charge so as to result in an
unconstitutional application of the statute and infliction of cruel
and unusual punishment.
The Eighth Amendment does not require
strict proportionality between crime and sentence. Rather, it
forbids only extreme sentences that are grossly disproportionate to
the crime. Harmelin v. Michigan
, 501 U.S. 957, 1001, 115 L. Ed.
2d 836, 869 (1991) (internal quotations and citations omitted).
Defendant presents no argument that a sentence of 80 to 105 months
of imprisonment is grossly disproportionate to a crime of
possession with intent to sell or deliver 60.1 grams of marijuana
where the defendant is an habitual felon. Furthermore, the United
States Supreme Court upheld a sentence of 40 years of imprisonment
for a conviction of possession with intent to distribute and
distribution of nine ounces of marijuana where the defendant was
not an habitual offender. Hutto v. Davis
, 454 U.S. 370, 70 L. Ed.
2d 556, reh'g denied
, 455 U.S. 1038, 72 L. Ed. 2d 156 (1982). Thus, we conclude that Defendant's sentence in the present case
does not violate the Eighth Amendment's prohibition against cruel
and unusual punishment.
For the foregoing reasons, we hold that Defendant received a
fair trial, free of error.
Judges WYNN and HUDSON concur.
Report per Rule 30(e).
The judges concurred prior to 31 December 2006.
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