STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 04 CRS 251205-08
CARLOS SANTANA WINCHESTER
Attorney General Roy Cooper, by Special Deputy Attorney
General Kay Linn Miller Hobart, for the State.
Anne Bleyman for Defendant-Appellant.
McGEE, Judge.
Carlos Santana Winchester (Defendant) was indicted on charges
of trafficking in drugs, possession of drug paraphernalia,
maintaining a place to keep controlled substances, and possession
with intent to sell or deliver a controlled substance on 29
November 2004
.
The facts relevant to Defendant's appeal are as
follows:
the Charlotte-Mecklenburg Police Department executed a
search warrant on an apartment in Charlotte, North Carolina on 10
November 2004. Earlier in the day, undercover officers had
purchased narcotics at the apartment. Upon entering the apartment,
Officer Owen Lester found Defendant alone in a bedroom. Officer
Lester frisked Defendant and found a large wad of money in hisleft-front pocket. Among the bills found in Defendant's possession
were two marked bills that had been used by undercover officers
when they purchased narcotics at the apartment. Officer Lester
then searched the room in which Defendant was found. Officer
Lester found a scale, baggies, razor blades, a compact disc case
with residue on it, mail addressed to Defendant, a freezer bag full
of marijuana, and crack cocaine. The drugs were found in a white
Blockbuster bag in Defendant's closet.
After the search, and while in police custody, Defendant made
the following statement:
I have lived at my apartment since March of
2002. I have been selling cocaine from the
apartment since November of 2003. I have sold
1.5 ounces of cocaine a week at that time.
I use marijuana, and my roommate, Bernard
Geary, sells cocaine and marijuana also. I
had a package of cocaine and marijuana in my
bedroom closet. The package was a big chunk
of cocaine, a package of dimes, and a quarter
pound of weed.
The packages were in a white Blockbuster bag
in the left corner of my closet. I put it
there, and it was what I was selling out of my
apartment.
My aunt, Marianne Winchester, has done
transactions for me and Bernard, but she does
not profit from it at all.
Defendant was convicted of trafficking in cocaine, possession
of drug paraphernalia, misdemeanor maintaining a dwelling for
keeping or selling controlled substances, and possession of
marijuana. The convictions were consolidated for judgment and
Defendant was sentenced to a term of thirty-five to forty-two
months in prison.
Defendant appeals.
Defendant first argues that the trial court erred by failing
to instruct the jury on the lesser-included offense of possession
of cocaine.
Defendant contends that there was conflicting evidence
regarding the weight of the cocaine seized by police. Thus,
because the jury could have concluded that Defendant possessed less
than the amount required to convict him of trafficking, Defendant
asserts that the trial court should have instructed the jury on the
lesser included offense of possession of cocaine.
In State v. Wilder, 124 N.C. App. 136, 141
, 476 S.E.2d 394,
398 (1996), this Court found that the trial court did not err by
declining to instruct the jury on the lesser included offense of
possession of cocaine where there was uncontradicted evidence that
the defendant possessed more than 28 grams of cocaine. Similarly,
in this case, the State presented uncontradicted evidence that the
cocaine seized by police weighed more than 28 grams. Officers
reported that the cocaine weighed approximately 62 grams in the
field. Jennifer Price-Mills, a forensic chemist with the
Charlotte-Mecklenburg Police Department, testified that she
calculated the net weight without packaging of the cocaine to be
47.65 grams. Although there was conflicting evidence regarding the
weight of the cocaine, all of the evidence was that the total
amount
of the cocaine seized by police weighed more than 28 grams.
Accordingly, we conclude that the trial court did not err.
Defendant next argues that the trial court erred by failing to
dismiss the charge of possession with intent to sell or deliver
marijuana because the State purportedly conceded during closingargument that the evidence was insufficient.
However, we decline
to review Defendant's argument. None of Defendant's assignments of
error concern the State's purported concession that it lacked
evidence to convict him.
Thus, Defendant failed to properly
preserve this issue for appellate review because his assignment of
error sets forth a different ground for review than that argued on
appeal. See N.C.R. App. P. 10(a), 10(c)(1), 28(b)(6).
Defendant finally argues that the trial court committed plain
error by instructing the jury on possession with intent to sell or
deliver marijuana and the lesser included offense of possession of
marijuana.
Defendant again argues that the State conceded there
was insufficient evidence to support the charge, and thus the jury
should not have been instructed on the greater offense. Defendant
claims that submission of the greater charge may have resulted in
a compromise verdict.
We are not persuaded.
"A plain error is one 'so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have
reached.'" State v. Carroll, 356 N.C. 526, 539, 573 S.E.2d 899,
908 (2002) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d
244, 251 (1987), cert. denied, Bagley v. North Carolina, 485 U.S.
1036, 99 L. Ed. 2d 912 (1988)), cert. denied, Carroll v. North
Carolina, 539 U.S. 949, 156 L. Ed. 2d 640 (2003). The plain error
rule should be applied cautiously and only in the exceptional case
where the error is so prejudicial that justice cannot have been
done. State v. Baldwin, 161 N.C. App. 382, 388, 588 S.E.2d 497,503 (2003). Furthermore, "even when the 'plain error' rule is
applied, '[i]t is the rare case in which an improper instruction
will justify reversal of a criminal conviction when no objection
has been made in the trial court.'"
State v. Odom, 307 N.C. 655,
660-61, 300 S.E.2d 375, 378 (1983)
(quoting Henderson v. Kibbe, 431
U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977)).
"In deciding whether
a defect in the jury instruction constitutes 'plain error,' the
appellate court must examine the entire record and determine if the
instructional error had a probable impact on the jury's finding of
guilt." Id.
In this case,
Defendant was acquitted of the instructed
charge. Defendant's claim that instruction on the greater charge
affected the other verdicts, or led to a compromise verdict, is
purely speculative, and falls short of "fundamental" error. We
find no error.
No error.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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