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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-410


Filed: 15 May 2007


v .                         Forsyth County
                            Nos. 05 CRS 1456;
                                05 CRS 55800-01

    Appeal by defendant from judgment entered 4 November 2005 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 6 February 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State.

    Gilda C. Rodriguez, for the defendant-appellant.

    STEELMAN, Judge.

    A defendant who fails to object to the use of shackles before the trial court and further fails to properly petition this Court for writ of certiorari waives his right to appellate review. Further, possession of a stolen motor vehicle and possession of cocaine may be established through constructive possession, including incriminating circumstances.
    On 12 May 2005, Pamela Bailey (“Bailey”) went outside of her house in the early morning hours to begin her newspaper delivery route. She discovered that her motor vehicle, a 1990 white Ford Tempo, was missing. Bailey called the Winston-Salem Police Department (“WSPD”) and reported the vehicle stolen. Due to thenature of her job, she often kept an extra set of keys in the vehicle on a leather key fob.
    On the evening of 15 May 2005, to the early morning hours of 16 May 2005, Corporal S.W. Grinnel was patrolling the New Hope Initiative area of Winston-Salem. This area had been identified by the City of Winston-Salem as a high crime, zero tolerance area. While on patrol, Officer Grinnel observed a parked vehicle with the engine running and containing a male driver and a female passenger. As Officer Grinnel approached, the parked vehicle was driven into the driveway of an adjacent house and the occupants got out of the vehicle. They began knocking on the door of the house. Officer Grinnel ran the license plate number from the vehicle through his WSPD computer, and it was shown to be a stolen vehicle. He then called for back-up and detained both the male and female. The male was defendant, Eddie Evans, Jr. Defendant had a set of keys to the vehicle, which were on a leather key fob, in his pants pocket. The female was released.
    The WSPD contacted Bailey and brought her to the vehicle. She proceeded to look over the vehicle for damage, missing items, and for items that did not belong to her. Bailey found a brown pill bottle with defendant's name on it in the vehicle. She placed the bottle, male clothing, and the other various items in a brown paper bag that a member of the WSPD was holding as she removed them from the vehicle.
    Nancy Gregory, a special agent with the North Carolina State Bureau of Investigation, conducted a series of laboratory tests onthe contents of the brown pill bottle retrieved from Bailey's vehicle. She testified that the contents of the bottle contained 1.9 grams of crack cocaine.
    On 27 June 2005, defendant was indicted for possession of a stolen motor vehicle, possession of cocaine, and for being an habitual felon. On 4 November 2005, a jury found defendant guilty of possession of a stolen motor vehicle and possession of cocaine. Following the return of the jury's verdict, defendant pled guilty to being an habitual felon under Article 2A of Chapter 14 of the North Carolina General Statutes. Defendant was sentenced to two consecutive terms of 107-138 months imprisonment. Defendant appeals.
    In his first argument, defendant contends that the trial court erroneously permitted him to be shackled during trial. We disagree.
    N.C. Gen. Stat. § 15A-1031 permits the trial court to restrain the defendant in the courtroom when reasonably necessary. Whether or not physical restraint of the defendant was permissible is within the trial court's discretion based upon the totality of the circumstances. State v. Tolley, 290 N.C. 349, 367-68, 226 S.E.2d 353, 367-68 (1976). Although the use of shackles on a defendant in the courtroom has been codified in our general statutes, the failure to object to the shackles while in the courtroom waives any error that may have been committed. Tolley, at 371, 226 S.E.2d at 370; State v. Thomas, 134 N.C. App. 560, 568, 518 S.E.2d 222, 228(1999). We note that Thomas was decided after the enactment of N.C. Gen. Stat. § 15A-1031.
    In the instant case, the record reveals a discussion of defendant's shackles prior to the commencement of jury selection. At that time, the trial court directed that handcuffs be removed from defendant but elected to leave the shackles on him. No objection was made to the shackles by defendant. Therefore, any error as to the shackles has been waived.
    Even if this assignment of error had been properly preserved for appellate review, we are convinced that the trial court did not abuse its discretion in restraining defendant with shackles during trial. The trial court's brief discussion with the bailiff, defense attorney, and defendant indicates that some discretion was exercised in making the decision to leave defendant's shackles on during trial. This argument is without merit.
    Defendant, in a footnote in his brief, requests that we issue a writ of certiorari to hear this issue, if it was not preserved with a valid objection at trial. We reject this request for two reasons. First, “[t]he footnote contained in appellant's brief clearly does not meet the requirements set forth in Rule 21(c)” of the Rules of Appellate Procedure. State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 321 (2005). Second, Rule 21 is a mechanism that allows for a matter to be heard by an appellate court “when the right to prosecute an appeal has been lost by failure to take timely action....” N.C. R. App. P. 21(a)(1) (2007). Defendant's appeal is presently before us and Rule 21 hasno application to this issue. We thus decline defendant's invitation to grant writ of certiorari on this issue.
    In his second argument, defendant contends that the trial court erred in denying his motions to dismiss the charges at the close of the State's evidence and at the close of all the evidence. We disagree.
     On a motion to dismiss, it is the duty of the trial court to determine whether there is sufficient evidence of each essential element of the offenses charged or lesser included offenses, and whether the defendant was in fact the perpetrator. State v. Mercer, 317 N.C. 87, 96, 343 S.E.2d 885, 890-91 (1986). The motion to dismiss must be denied if sufficient evidence exists to submit the case to the jury . Id. If sufficient for the jury to draw a reasonable inference of the defendant's guilt, circumstantial evidence should also be submitted for determination of actual guilt. State v. Cutler, 271 N.C. 379, 383, 156 S.E.2d 679, 682 (1967).
    Defendant contends that there was insufficient evidence of the charges of possession of a stolen motor vehicle and possession of cocaine to submit the charges to the jury.
    The elements of the crime of possession of a stolen motor vehicle are that the defendant possessed the motor vehicle knowing or having reason to believe it was stolen or taken. State v. Bailey, 157 N.C. App. 80, 83-4, 577 S.E.2d 683, 686 (2003). Circumstantial evidence is sufficient to satisfy the element thata defendant knew or had reason to believe a motor vehicle was stolen. Id. at 84, 577 S.E.2d at 686.
    In the instant case, the evidence presented was sufficient to submit the charge of possession of a stolen motor vehicle to the jury. Bailey testified that her car was missing. Three days later, defendant was arrested after getting out of the stolen vehicle. Defendant had the keys Bailey reported missing in his possession. The registration of the vehicle was in Bailey's name. Bailey did not know defendant and did not give him permission to drive her vehicle. Based on the evidence presented at trial, we hold that there was sufficient evidence of the elements of the crime of possession of a stolen motor vehicle to submit the charge to the jury. See Id. at 84, 577 S.E.2d at 686-87. The trial court properly denied defendant's motion to dismiss the charge of possession of a stolen motor vehicle.
    This Court has recently discussed the elements of possession of a controlled substance, including cocaine:
        Possession of a controlled substance may be actual or constructive. A person has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use. Constructive possession, on the other hand, exists when the defendant, while not having actual possession, has the intent and capability to maintain control and dominion over the narcotics. When the defendant does not have exclusive possession of the location where the drugs were found, the State must make a showing of other incriminating circumstances in order to establish constructive possession.
State v. Boyd, __ N.C. App. __, __, 628 S.E.2d 796, 805 (2006) (internal citations and quotation marks omitted). Constructive possession has been established where evidence was found in close proximity to where the defendant was apprehended. Id. Incriminating circumstances have been held to include evidence with a defendant's name on it found inside a vehicle the defendant owned or occupied which was the subject of a valid search. State v. Nettles, 170 N.C. App. 100, 104, 612 S.E.2d 172, 175 (2005).
    In the instant case, the State's evidence tended to show that defendant had constructive possession of the cocaine. The WSPD arrested defendant after he got out of the vehicle where the cocaine was found. The car had been stolen for three days and was littered with male clothing. Further, the State offered evidence of incriminating circumstances, including the bottle in which the cocaine was located which had defendant's name on it. Because the jury could draw a reasonable inference of defendant's constructive possession of the cocaine from this evidence, it was proper for the trial court to deny defendant's motion to dismiss and submit the charge of possession of cocaine to the jury. See Boyd, at __, 628 S.E.2d at 805. This assignment of error is without merit.
    Assignments of error listed in the record but not argued in defendant's brief are deemed abandoned. N.C. R. App. P. 28(b)(6) (2006).
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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