STATE OF NORTH CAROLINA
v. Greene County
No. 04 CRS 51282
RONALD A. HAITH
Attorney General Roy Cooper, by Assistant Attorney General
Brian C. Wilks, for the State.
Jeffrey Evan Noecker for defendant-appellant.
ELMORE, Judge.
On 8 November 2005, defendant was found guilty of possessing
a controlled substance in a penal institution, and was sentenced to
a presumptive range sentence of ten to twelve months' imprisonment.
Defendant appeals.
The State's evidence at trial tended to show the following:
On 5 February 2004, Sergeant John Bradford Hendricks was working at
Eastern Correctional Institution, where defendant was an inmate.
Sergeant Hendricks testified that as he was going down a stairwell
at the institution, he observed defendant standing on the
stairwell's landing talking to another inmate. Sergeant Hendricks
also observed defendant pass an item to the other inmate. Theother inmate then continued down the stairs and left the area.
Sergeant Hendricks proceeded down the stairs, approached
defendant, and asked him what was in his hand. Defendant's right
hand was closed and he put an object in his mouth. Sergeant
Hendricks ordered defendant to give him what defendant had put in
his mouth and defendant refused. Sergeant Hendricks then noticed
a piece of plastic hanging out of defendant's right hand and he
took the item from defendant. The item was a green, leafy
substance wrapped in cellophane. Sergeant Hendricks sealed the
substance in an envelope, placed a chain of evidence form on the
envelope, and turned it in to the contraband locker. At trial,
Sergeant Hendricks identified the substance contained in State's
Exhibit 2A1 as the green, leafy substance he took from defendant's
hand.
Chris Stark, a forensic chemist with the North Carolina State
Bureau of Investigation, testified that he analyzed the substance
contained in State's Exhibit 2A1 and determined it was 0.1 grams of
marijuana.
Defendant testified that on 5 February 2004 as another inmate
came down a stairwell, he saw something fall out of that inmate's
pocket. When defendant picked up the item, Sergeant Hendricks
approached him and asked him what was in his hand. Defendant
raised his hand to his mouth to swallow it, but decided not to do
so. Sergeant Hendricks then took the item from him.
Tony Joines testified that he was incarcerated at Eastern
Correctional Institution on 5 February 2004. On that day, he wasin the stairwell with defendant and observed defendant pick up
marijuana that was dropped by another inmate.
Defendant moved to dismiss the charge, both at the close of
the State's evidence and at the close of all the evidence, based on
insufficiency of the evidence. The trial court denied defendant's
motion and the jury found defendant guilty of possessing a
controlled substance in a penal institution.
Defendant presents two arguments on appeal. First, defendant
argues that the trial court erred by denying his motion to dismiss
based on insufficiency of the evidence. Second, defendant argues
that the trial court erred by considering improper factors in
sentencing defendant. We conclude that the trial court did not
err.
Defendant first contends the trial court erred by denying his
motions to dismiss based on insufficiency of the evidence. A
motion to dismiss should be denied if there is substantial evidence
“(1) of each essential element of the offense charged . . ., and
(2) of defendant's being the perpetrator of such offense.” State
v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)(citation
omitted). When reviewing a motion to dismiss based on
insufficiency of the evidence, this Court must:
view the evidence in the light most favorable
to the State, giving the State the benefit of
all reasonable inferences. Contradictions and
discrepancies do not warrant dismissal of the
case but are for the jury to resolve. . . .
Once the court decides that a reasonable
inference of defendant's guilt may be drawn
from the circumstances, then it is for the
jury to decide whether the facts, taken singly
or in combination, satisfy [it] beyond areasonable doubt that the defendant is
actually guilty.
Id. at 75-76, 430 S.E.2d at 918-19 (internal citations and
quotations omitted)(emphasis and alteration in original). The test
for sufficiency of the evidence is the same whether the evidence is
direct, circumstantial, or both. Id. at 75, 430 S.E.2d at 918-19.
Section 90-95(e)(9) of the North Carolina General Statutes
provides that “any person who [possesses a controlled substance] on
the premises of a penal institution or local confinement facility
shall be guilty of a Class H felony.” N.C. Gen. Stat. § 90-
95(e)(9) (2006). “[A]n accused has possession of marijuana within
the meaning of the Controlled Subtances [sic] Act, G.S. Chapter 90,
Art. V, when he has both the power and the intent to control its
disposition or use[.]” State v. Baxter, 285 N.C. 735, 737-38, 208
S.E.2d 696, 698 (1974).
Here, defendant contends that the State failed to present
substantial evidence that he possessed marijuana because he did not
knowingly possess marijuana for a sufficient amount of time such
that he had the power and intent to control its disposition or use.
In particular, defendant asserts that he did not have the marijuana
in his hand for any longer than one minute before Sergeant
Hendricks took it from him. Citing State v. Wheeler, 138 N.C. App.
163, 530 S.E.2d 311 (2000), defendant further argues that he was
handling the marijuana for inspection purposes only when it was
either handed to him or he picked it up. See id. at 165, 530
S.E.2d at 313 (holding that the “handling of [drugs] for inspection
purposes does not constitute possession within the meaning ofsection 90-95(h)(3)”). Accordingly, defendant contends his
possession of the marijuana was for the sole purpose of inspection
and, thus, was insufficient to support his conviction. We
disagree.
Wheeler is not controlling here because the facts in Wheeler
are distinguishable from those in the present case. In Wheeler, an
undercover officer sat next to the defendant in the back seat of an
informant's vehicle and handed the defendant a package containing
cocaine. Id. at 165, 530 S.E.2d at 312. The defendant in Wheeler
then gave the package to another passenger who was sitting in the
front seat. Id. After the front seat passenger tested the cocaine
by tasting it, he handed the package back to the undercover officer
and stated that they did not want to purchase the cocaine because
the quality was not good. Id. On appeal from defendant's
conviction of possession of cocaine, this Court held that the
defendant's handling of the cocaine for inspection purposes did not
constitute possession within the meaning of N.C. Gen. Stat. § 90-95
because he did not have the power and intent to control its
disposition or use. Id. at 165, 530 S.E.2d at 313.
Considered in the light most favorable to the State, and
giving the State the benefit of every reasonable inference, the
evidence here shows defendant gave another inmate an item when they
passed in the stairwell. Thereafter, the other inmate left the
area and Sergeant Hendricks detained defendant. When Sergeant
Hendricks asked to see what was in defendant's closed hand,
defendant refused and instead raised his hand to his mouth. Defendant also refused to remove the item he placed in his mouth
when ordered to do so. Sergeant Hendricks then noticed a piece of
plastic hanging out of defendant's hand and took it from defendant.
The item was subsequently determined to be marijuana. We conclude
that there was substantial evidence to show that defendant
knowingly possessed marijuana on the premises of a penal
institution.
The testimony of the defense witnesses, to the extent that it
contradicts that of Sergeant Hendricks, goes to the weight of the
evidence, and to not the sufficiency of the evidence on a motion to
dismiss. See State v. Haynesworth, 146 N.C. App. 523, 527, 553
S.E.2d 103, 107 (2001)(“When considering a motion to dismiss, the
trial court is concerned only with the sufficiency of the evidence
to carry the case to the jury and not with its weight. Any
contradictions or discrepancies in the evidence are for resolution
by the jury and do not warrant dismissal.” (internal quotations
omitted)) As such, we conclude that the trial court did not err by
denying defendant's motion to dismiss.
Next, defendant contends that the trial court erred by
sentencing him to an active term of imprisonment based on the
consideration of improper matters. A sentence within the statutory
limit is presumed regular and valid. State v. Boone, 293 N.C. 702,
712, 239 S.E.2d 459, 465 (1977). This presumption, however, is not
conclusive. Indeed, “[i]f the record discloses that the court
considered irrelevant and improper matter in determining the
severity of the sentence, the presumption of regularity isovercome, and the sentence is in violation of defendant's rights.”
Id. (citing State v. Swinney, 271 N.C. 130, 155 S.E.2d 545 (1967)).
Here, the trial court was permitted to impose either an active
sentence or an intermediate sentence. See N.C. Gen. Stat. § 15A-
1340.17 (2005). The trial court, in its discretion, sentenced
defendant to an active prison term in the presumptive range.
Defendant contends, however, that the trial court impermissibly
considered improper matters in making its determination. Defendant
cites to the following statement made by the trial court to support
this contention:
The Court: Okay. Mr. Haith, anything you want
to say on your own behalf? You don't have to
say anything. But convince me that you should
not go back to prison since you were in prison
for a violent felony, armed robbery, plus
assault with a deadly weapon with intent to
kill inflicting serious injury, which
evidently happened during the robbery.
(Emphasis added). Defendant argues thatthe trial court made two
errors in making the above statement. First, defendant asserts
that the trial court improperly shifted the burden to defendant to
“convince” the trial court not to send him to prison. Second,
defendant asserts the trial court erred by using defendant's prior
conviction to justify imposing an active sentence rather than a
probationary sentence. We disagree.
There is no indication that the trial court shifted the burden
to defendant to convince the trial court not to send him to prison.
Rather, after hearing the arguments of counsel, it appears that the
trial court was inclined to impose an active sentence and simply
gave defendant the opportunity to make a statement on his ownbehalf as to why he should not receive an active sentence.
Further, defendant has failed to cite to any authority supporting
his position that it is impermissible for the trial court to
consider a defendant's criminal history and the nature of the
defendant's prior crimes in determining a defendant's sentence.
Thus, we conclude that these arguments are without merit.
Defendant further contends that the trial court “appeared to
be perturbed by [defendant's] decision to exercise his right to a
jury trial” when the trial court denied defendant's motion for a
continuance. Citing State v. Peterson, 154 N.C. App. 515, 571
S.E.2d 883 (2002), defendant argues that he is entitled to a new
sentencing hearing. Id. at 518, 571 S.E.2d at 885 (holding that
the defendant was entitled to a new sentencing hearing where it
could reasonably be inferred from the record that the trial court
based the sentences imposed on the defendant's insistence on a jury
trial). Here, unlike in Peterson, there is no evidence in the
record showing that the trial court based defendant's sentence on
defendant's insistence on a jury trial. Therefore, this assignment
of error is without merit.
No error.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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