Appeal by defendant from judgment entered 19 October 2005 by
Judge Catherine C. Eagles in Guilford County Superior Court. Heard
in the Court of Appeals 2 November 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Lisa C. Glover, for the State.
Daniel F. Read for defendant-appellant.
Defendant Devon Lamont Legrand was sentenced as a habitual
felon to 107 to 138 months imprisonment for possession of cocaine
and misdemeanor fleeing to elude arrest. The jury convicted
defendant of felony fleeing to elude arrest, but the trial court,
based upon defendant's double jeopardy argument, reduced the
conviction to a misdemeanor. On appeal, despite the reduction in
the level of the offense, defendant primarily argues that the trial
court erred in submitting the felony charge to the jury because the
evidence submitted in support of that charge prejudiced him with
respect to the possession of cocaine charge. We disagree.
Based upon our review of the record, it is apparent that the
evidence offered in support of the felony fleeing to elude arrestcharge would have been equally admissible to prove the misdemeanor
level of the offense. As a result, any error in failing to dismiss
the felony charge was harmless beyond a reasonable doubt. We find
defendant's remaining arguments unpersuasive and, therefore, hold
that defendant received a trial free of prejudicial error.
The State's evidence tended to show the following facts. At
about 2:50 a.m. on 13 January 2004, Officer D.A. Pulliam of the
Greensboro Police Department was driving in his patrol car when he
noticed a car with a burned-out license plate light traveling
approximately 50 miles per hour in a 35-mile-per-hour zone. The
officer turned on his blue lights and subsequently his siren, but
the car did not slow down. The car ran through a red light, made
several turns, and failed to heed stop signs. On certain stretches
of road, the chase reached speeds of 80 miles per hour.
Officer Pulliam radioed that he was involved in a vehicle
pursuit and continued to follow the car. At one point, as the car
attempted to negotiate a corner, the driver lost control and
collided with a parked car, but still did not stop. The driver,
who was the sole occupant of the car, instead drove into a
residential front yard, hopped out of the car while it was still
rolling, and began to run away on foot. The driver, subsequently
identified as defendant, was then caught and arrested by the
Following the arrest, other officers who had arrived at the
scene found the car doors locked. After a locksmith unlocked thedoors, Officer Pulliam looked inside the car and observed a bag of
crack cocaine in plain view between the center console and the
driver's seat. The cocaine inside the bag weighed 8.7 grams.
On 3 May 2004, defendant was indicted for possession with
intent to sell and deliver cocaine, felony fleeing to elude arrest,
and attaining the status of habitual felon. Defendant was also
indicted on misdemeanor charges of possession of drug
paraphernalia, resisting a public officer, hit and run, speeding,
reckless driving to endanger, driving while license revoked, and
failing to stop at a red light. Following a trial in April 2005,
in Guilford County Superior Court, the trial court dismissed the
charges of drug paraphernalia possession and driving while license
revoked. The jury found defendant guilty of the remaining
misdemeanor charges, but deadlocked on the charges of cocaine
possession and felony fleeing to elude arrest.
On 23 May 2005, the State obtained a superseding indictment on
the felony fleeing to elude arrest charge, alleging four
aggravating factors: (1) that defendant was traveling in excess of
15 miles per hour over the legal speed limit, (2) that defendant
operated the car when his driver's license was revoked, (3) that
defendant operated the car in a reckless manner, and (4) that
defendant was involved in an accident that caused more than
$1,000.00 in damage. Defendant was then retried in October 2005 on
the charges of felony fleeing to elude arrest and possession of
cocaine with intent to sell or deliver. The jury found defendant guilty of possession of cocaine, but
not of possession with intent to sell or deliver. The jury also
found defendant guilty of felony fleeing, specifically finding the
aggravating factors of speeding, license revoked, reckless driving,
and damage over $1,000.00. Defendant then pled guilty to being a
habitual felon. Prior to sentencing, the trial court, based upon
an earlier motion by defendant, reduced the felony fleeing
conviction to misdemeanor fleeing. The court entered a
consolidated judgment sentencing defendant to 107 to 138 months
imprisonment. Defendant timely appealed to this Court.
Defendant argues that his second trial on the felony fleeing
to elude arrest charge violated the constitutional prohibition
against double jeopardy because the aggravating factors _ arising
out of the same incident _ had previously been the subject of
criminal offenses upon which defendant was tried and sentenced.
Although defendant acknowledges that the trial court agreed with
his double jeopardy argument and reduced his conviction to
misdemeanor fleeing to elude arrest, defendant argues that he was
prejudiced by the submission of the charge to the jury. According
to defendant, "[t]he prejudicial effect of the error, however, was
not the additional charge, but rather placing before the jury a
body of inflammatory and ultimately irrelevant evidence about the
speed, license revocation, and damage done." Defendant argues this
evidence likely had an adverse effect upon the jury's deliberations
with respect to the possession of cocaine charge. Under N.C. Gen. Stat. § 20-141.5(a) (2005), the crime of
misdemeanor fleeing to elude arrest occurs when an individual
"operate[s] a motor vehicle on a street, highway, or public
vehicular area while fleeing or attempting to elude a law
enforcement officer who is in the lawful performance of his
duties." The crime becomes a felony "[i]f two or more . . .
aggravating factors are present at the time the violation occurs .
. . ." N.C. Gen. Stat. § 20-141.5(b).
Defendant argued at trial that he was subjected to double
jeopardy by submission of the felony charge because at least three
of the aggravating factors in the superseding indictment were
identical to the misdemeanor charges that were either tried to
conclusion or dismissed at the April 2005 trial. Even assuming
that defendant's trial for felony fleeing, based on the
challenged aggravating factors, constituted double jeopardy, the
State has established that any error was harmless beyond a
reasonable doubt. See
N.C. Gen. Stat. § 15A-1443(b) (2005) ("A
violation of the defendant's rights under the Constitution of the
United States is prejudicial unless the appellate court finds that
it was harmless beyond a reasonable doubt.").
Defendant's argument hinges on his assumption that the
evidence of the aggravating factors would not have been admissible
in the absence of the felony fleeing charge. We first observe that
this contention is contrary to the position taken by defense
counsel at trial. After moving to dismiss the felony fleeing
charge, defendant's counsel agreed with the trial judge'sobservation that "we would have the misdemeanor charge even in the
absence of [the felony charge]." When the judge explained that, in
that event, "I think the State is going to be allowed to put in
evidence of all the circumstances surrounding the driving," defense
counsel replied, "Sure."
Even if this argument had been preserved, we agree with the
trial court that the challenged evidence was admissible with
respect to the misdemeanor charge. For that charge, the State was
still obligated to prove that defendant was fleeing the police in
order to elude arrest. Evidence that defendant traveled as much as
45 miles per hour over the speed limit, drove recklessly, and
crashed into a car without stopping was relevant to whether
defendant was trying to elude the police. A reasonable juror could
find from this evidence that defendant was vigorously trying to
escape Officer Pulliam rather than just driving down the street
unaware that a police officer was trying to stop him.
With respect to any prejudice as to the possession of cocaine
charge, we note that defendant never moved to sever the offenses.
N.C. Gen. Stat. § 15A-927(b)(1) (2005) (motion for severance of
the offenses is appropriately granted where severance is necessary
to "a fair determination of the defendant's guilt or innocence of
each offense"). He instead acquiesced in a single trial on both
charges. Moreover, even in the absence of the fleeing charge, the
evidence would have been admissible with respect to the possession
of cocaine charge. See, e.g.
, State v. Lane
, 163 N.C. App. 495,
501, 594 S.E.2d 107, 112 (2004) (relying upon evidence thatdefendant fled from officer as evidence of additional incriminating
circumstances supporting a conviction for constructive possession
of cocaine). Accordingly, we overrule this assignment of error.
Defendant next argues that the trial court erred in denying
his motion to dismiss the cocaine possession charge for
insufficient evidence. In considering a motion to dismiss, "the
trial court must determine '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.'" State v. Squires
, 357 N.C. 529,
535, 591 S.E.2d 837, 841 (2003) (quoting State v. Powell
, 299 N.C.
95, 98, 261 S.E.2d 114, 117 (1980)), cert. denied
, 541 U.S. 1088,
159 L. Ed. 2d 252, 124 S. Ct. 2818 (2004). Substantial evidence is
such relevant evidence as a reasonable person would find adequate
to support a conclusion. State v. Blake
, 319 N.C. 599, 604, 356
S.E.2d 352, 355 (1987). "The trial court must examine the evidence
in the light most favorable to the State, granting the State every
reasonable inference to be drawn from the evidence." State v.
, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998).
Defendant contends that there was insufficient evidence of his
"possession" of the cocaine. The law regarding possession is well
An accused has possession of [a
controlled substance] within the meaning of
the Controlled Substances Act when he has both
the power and intent to control its
disposition. The possession may be either
actual or constructive. Constructivepossession of [a controlled substance] exists
when the accused is without actual personal
dominion over the material, but has the intent
and capability to maintain control and
dominion over it.
State v. Wiggins
, 33 N.C. App. 291, 292-93, 235 S.E.2d 265, 267
(internal citation omitted), cert. denied
, 293 N.C. 592, 241 S.E.2d
This Court has recognized that the "power to control the
automobile where a controlled substance was found is sufficient, in
and of itself, to give rise to the inference of knowledge and
possession sufficient to go to the jury." State v. Dow
, 70 N.C.
App. 82, 85, 318 S.E.2d 883, 886 (1984). Therefore, based on
Officer Pulliam's testimony that defendant was the only occupant of
the vehicle and that a bag of cocaine was found in plain view
between the driver's seat and center console, a jury could
reasonably infer that defendant was in possession of the cocaine.
Even if the evidence had suggested that defendant's control
over the car was nonexclusive, the State submitted sufficient
evidence of additional incriminating circumstances to withstand a
motion to dismiss. See Lane
, 163 N.C. App. at 501, 594 S.E.2d at
111 (when control of an area in which a controlled substance is
found is not exclusive, constructive possession will not be
inferred without evidence of other incriminating circumstances).
, this Court found evidence of incriminating circumstances
when the defendant was driving at a low rate of speed in a vehicle
in which cocaine was ultimately found; the defendant's driving
"became evasive" after an officer's patrol car approached thedefendant's vehicle from behind; when the officer confronted the
defendant in a parking lot, the defendant tried to get away from
the officer; during the following struggle, the defendant appeared
to be putting an object in his mouth; ultimately, the defendant
fled; and the defendant left the vehicle locked. Id.
594 S.E.2d at 111-12.
The evidence in this case is materially indistinguishable.
Here, defendant drove recklessly and evasively when Officer Pulliam
attempted to stop him; he abandoned his car by jumping out of it
while it was still moving; he further attempted to elude the police
by running away on foot; the doors of his vehicle remained locked;
and the bag of cocaine was readily visible to the police and _ the
inference may be drawn _ to defendant. See also State v. Weems
N.C. App. 569, 571, 230 S.E.2d 193, 194 (1976) ("[E]vidence which
places an accused within close juxtaposition to a narcotic drug
under circumstances giving rise to a reasonable inference that he
knew of its presence may be sufficient to justify the jury in
concluding that it was in his possession."). Viewing the evidence
in the light most favorable to the State, we conclude that the
trial court properly denied defendant's motion to dismiss.
Defendant's final contention is that his sentence as a
habitual felon violated the Eighth Amendment's prohibition against
cruel and unusual punishment. In support of this argument,
defendant asserts that he was merely an addicted user of cocaine,
there was no evidence that he was trafficking in cocaine, and thesentence "served no purpose with regard to treating his addiction
other than locking him away." His argument is one more properly
presented to the General Assembly.
"Habitual felon laws have withstood scrutiny under the Eighth
Amendment to the United States Constitution in our Supreme Court
and in the United States Supreme Court." State v. Cates
, 154 N.C.
App. 737, 741, 573 S.E.2d 208, 210 (2002) (citing Rummel v.
, 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980),
and State v. Todd
, 313 N.C. 110, 326 S.E.2d 249 (1985)), disc.
, 356 N.C. 682, 577 S.E.2d 897, cert. denied
, 540 U.S.
846, 157 L. Ed. 2d 84, 124 S. Ct. 121 (2003); see also State v.
, 170 N.C. App. 166, 170, 611 S.E.2d 864, 867 (2005)
("[N]othing in the Eighth Amendment prohibits our legislature from
enhancing punishment for habitual offenders."). Indeed, "[o]nly in
exceedingly unusual non-capital cases will the sentences imposed be
so grossly disproportionate as to violate the Eighth Amendment's
proscription of cruel and unusual punishment." State v. Ysaguire
309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983).
Defendant here fails to show that his sentence of 107 to 138
months is either "exceedingly unusual" or "grossly
disproportionate." Indeed, this Court has previously upheld a 14-
year sentence for possession of cocaine when the defendant was a
habitual felon. See State v. Hodge
, 112 N.C. App. 462, 468, 436
S.E.2d 251, 255 (1993). See also State v. Hensley
, 156 N.C. App.
634, 639, 577 S.E.2d 417, 421 (holding that sentence, under
habitual felon statute, of 90 to 117 months did not offend EighthAmendment even though triggering felony involved pawning a tool for
twenty dollars), disc. review denied
, 357 N.C. 167, 581 S.E.2d 64
(2003). Whether this is good public policy is a question for the
In a citation of additional authority, defendant directs our
attention to State v. Starkey
, __ N.C. App. __, 628 S.E.2d 424,
, __ N.C. __, 636 S.E.2d 196 (2006). In Starkey
State attempted to appeal a superior court's decision sua sponte
granting its own motion for appropriate relief and vacating,
pursuant to the Eighth Amendment, a defendant's sentence as a
habitual felon for possession of .004 ounces of cocaine. Because
this Court held that the State had no right to appeal the superior
court's decision and additionally refused to grant the State's
petition for writ of certiorari, the Court never addressed the
merits of the Eighth Amendment issue. Starkey
, therefore, provides
no authority for disturbing defendant's sentence as a habitual
felon. Accordingly, given Hodge
, we decline to find that
defendant's sentence violates the Eighth Amendment.
Judges LEVINSON and JACKSON concur.
Report per Rule 30(e).
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