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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 20 February 2007
STATE OF NORTH CAROLINA
Nos. 04 CRS 050805
ERVIN SHERROD POLLARD 05 CRS 002097
Appeal by defendant from judgment entered 19 January 2006 by
Judge William C. Griffin, Jr., in Pitt County Superior Court.
Heard in the Court of Appeals 24 January 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Sueanna P. Sumpter, for the State.
Jeffrey Evan Noecker, for defendant-appellant.
Ervin Sherrod Pollard (defendant) appeals from judgment
entered after a jury found him to be guilty of felonious possession
of cocaine and after he had entered a guilty plea to having
attained the status of being an habitual felon. We find no error.
A. State's Evidence
On 2 December 2003 at approximately 11:30 p.m., Pitt County
Sheriff's Department Sergeant Vance Head (Sergeant Head) was
driving home from his shift when he observed defendant driving a
minivan. Sergeant Head knew outstanding felony arrest warrants had
been issued charging defendant with the sell of cocaine.
Sergeant Head called for backup. Defendant turned into a Taco Bell parking lot and drove to the
drive-through window. Sergeant Head stopped his truck in front of
and perpendicular to defendant's vehicle and activated his blue
lights. Deputy Daughtry drove his vehicle behind defendant's
vehicle, blocked defendant's vehicle, and activated his blue
Sergeant Head approached the passenger side of defendant's
vehicle and told him to exit the vehicle. Defendant complied.
Sergeant Head handcuffed defendant, patted him down for weapons,
and escorted him to his truck. Defendant sat down in the passenger
seat of Sergeant Head's truck. Sergeant Head looked down and saw
a small, clear, plastic bag located on the pavement by his truck
door. The bag contained crack cocaine packaged in four smaller
green bags. Sergeant Head testified he did not see or hear the bag
fall to the ground. Defendant denied being in possession of the
Latisha Barfield, a Taco Bell employee and defendant's friend,
testified she had just swept the Taco Bell parking lot, and the
clear, plastic bag was not present in the parking lot. Sergeant
Head testified nothing fell out of his truck when he opened the
passenger side door.
Sergeant Head drove defendant to the magistrate's office.
During the drive, Sergeant Head informed defendant of his Miranda
rights. Defendant stated he understood his rights. Sergeant Head
and defendant discussed the bag found on the ground. Defendant
initially denied ownership of the bag. Sergeant Head stated thebag contained two smaller bags, and defendant corrected him and
stated it contained four smaller bags.
At the magistrate's office, defendant asked whether he could
assist law enforcement officers, and whether they were building a
case against someone else. Sergeant Head said he would accept any
information about a drug dealer, but added they did not target a
At approximately 12:45 a.m. the night of the arrest, defendant
gave Sergeant Head a written statement wherein he admitted
ownership of the cocaine found in the parking lot of Taco Bell.
Sergeant Head testified defendant gave the statement voluntarily
and agreed to write it down. Defendant wrote and signed the
statement as follows, [W]hen I got out of the van, the dope fell
out of it, and it was mine. I take full responsibility of it.
B. Defendant's Evidence
Defendant testified at trial and corroborated most of the
State's evidence, except he denied being in possession of the bag.
Defendant admitted he wrote and signed his confession, but
explained he wrote and signed the statement to take responsibility
for any other contraband found in and around his vehicle, not the
bag actually found and its contents. He stated he gave the written
statement to Sergeant Head because he was afraid Sergeant Head
would harass his brother. Defendant testified Sergeant Head told
him that if he would do something for him, then he would do
something in return. On 14 February 2005, a grand jury indicted defendant on one
count of possession with intent to sell and deliver cocaine, one
count of possession of drug paraphernalia, and attaining the status
of an habitual felon. The jury found defendant to be guilty of the
lesser included offense of felonious possession of cocaine. On 19
January 2006, defendant pled guilty to having attained the status
of being an habitual felon. The trial court sentenced defendant to
an active term of 133 months minimum to 169 months maximum.
Defendant argues the trial court erred by: (1) allowing the
State to introduce his hand-written signed admission; (2) failing
to grant his motion to dismiss the possession of cocaine charge;
and (3) admitting his prior conviction that was older than ten
years. Defendant also contends his constitutional rights were
violated by the ineffective assistance of counsel.
III. Defendant's Admission
Defendant argues the trial court improperly allowed the State
to introduce his hand-written signed admission. We disagree.
A. Standard of Review
Defendant failed to object to the introduction of his hand-
written signed admission. Our review is limited to plain error.
N.C.R. App. P. 10(b)(2) (2006); State v. Allen, 339 N.C. 545, 554-
56, 453 S.E.2d 150, 154-55 (1995), overruled on other grounds by,
State v. Gaines, 345 N.C. 647, 483 S.E.2d 396 (1997). Plain error
is: fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done, or where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,
or the error has resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(internal quotations omitted). To be awarded a new trial due to
plain error, a defendant must show the error complained of was so
fundamental that a different result would have probably occurred
without the error. State v. Parker, 350 N.C. 411, 444, 516 S.E.2d
106, 127 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681
Defendant argues for the first time on appeal that law
enforcement officers coerced his written statement. The North
Carolina rule and the Federal rule are identical to determine the
admissibility of a confession. The totality of the circumstances
are reviewed to determine whether the confession was voluntary.
Schneckloth v. Bustamonte, 412 U.S. 218, 223, 36 L. Ed. 2d 854, 860
(1973); State v. Schneider, 306 N.C. 351, 355, 293 S.E.2d 157, 160
At 12:45 a.m., approximately one and one-half hour after
Sergeant Head approached defendant at Taco Bell, defendant hand
wrote and signed a statement that, [w]hen I got out of the van,the dope fell out of it, and it was mine. I take full
responsibility of it. Defendant wrote and signed this statement
at the magistrate's office after Sergeant Head advised him of his
Miranda rights. Defendant admitted at trial he wrote and signed
Defendant failed to show his signed admission was not obtained
voluntarily. Under plain error review in light of the other
evidence presented, defendant failed to show a different outcome
would have probably occurred, if his hand-written signed admission
had not been allowed into evidence. This assignment of error is
IV. Defendant's Motion to Dismiss
Defendant argues the trial court should have granted his
motion to dismiss the possession of cocaine charge. We disagree.
A. Standard of Review
The standard for ruling on a motion to dismiss
is whether there is substantial evidence (1)
of each essential element of the offense
charged and (2) that defendant is the
perpetrator of the offense. Substantial
evidence is relevant evidence which a
reasonable mind might accept as adequate to
support a conclusion. In ruling on a motion
to dismiss, the trial court must consider all
of the evidence in the light most favorable to
the State, and the State is entitled to all
reasonable inferences which may be drawn from
the evidence. Any contradictions or
discrepancies arising from the evidence are
properly left for the jury to resolve and do
not warrant dismissal.
State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005)
(internal quotations omitted). When a defendant moves for
dismissal, the trial court is to determine whether there issubstantial evidence (a) of each essential element of the offense
charged, or of a lesser offense included therein, and (b) of
defendant's being the perpetrator of the offense. State v.
Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982).
Defendant was charged with possession with intent to sell and
deliver cocaine. Under N.C. Gen. Stat. § 90-95(a) (2005), it is
unlawful for any person:
(1) To manufacture, sell or deliver, or
possess with intent to manufacture, sell or
deliver, a controlled substance;
(2) To create, sell or deliver, or possess
with intent to sell or deliver, a counterfeit
(3) To possess a controlled substance.
Cocaine is a controlled substance under N.C. Gen. Stat. § 90-
Possession may either be actual or constructive. When the
defendant, while not having actual possession, . . . has the intent
and capability to maintain control and dominion over the property,
he has constructive possession of the item. State v. Glasco, 160
N.C. App. 150, 156, 585 S.E.2d 257, 262 (internal quotation
omitted), disc. rev. denied, 357 N.C. 580, 589 S.E.2d 356 (2003).
This Court has previously emphasized that constructive possession
depends on the totality of the circumstances in each case. No
single factor controls, but ordinarily the questions will be for
the jury. Id. at 156-57, 585 S.E.2d at 262 (quotations and
citations omitted). As with other questions of intent, proof of constructive
possession usually involves proof by circumstantial evidence.
State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 479 (1986). In
testing the sufficiency of the evidence, the test to be used is
the same whether the evidence is direct, circumstantial or both.
Earnhardt, 307 N.C. at 68, 296 S.E.2d at 653. Evidence favorable
to the State is to be considered as a whole in determining its
sufficiency. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117
Both the State and defendant presented evidence that: (1)
Sergeant Head found a bag of cocaine on the ground next to his
truck door after defendant had climbed into the passenger seat; (2)
nothing fell out of Sergeant Head's truck when he opened the door;
(3) nothing was on the ground before Sergeant Head opened the truck
door; (4) defendant corrected Sergeant Head that the bag contained
four smaller bags of cocaine, not two; and (5) defendant wrote and
signed a statement that he possessed the cocaine. The State
presented sufficient evidence that defendant had both actual and
constructive possession of the cocaine. The trial court properly
denied defendant's motion to dismiss. This assignment of error is
V. Defendant's Convictions
Defendant argues the trial court committed plain error by
admitting his prior conviction for felony larceny that occurred
outside the preceding ten years. We disagree. During the State's cross-examination of defendant, defendant
admitted prior convictions within the preceding ten years for: (1)
felonious possession of cocaine in December 2000; (2) violation of
a domestic violence order in December 1998; (3) two counts of
possession with intent to sell and deliver cocaine, and one count
of felonious possession of stolen goods in December 2000; and (4)
misdemeanor larceny in July 2004. Defendant also admitted a prior
conviction outside of the preceding ten years for felony larceny on
8 August 1991.
Defendant failed to object at trial. Our review is limited to
plain error. N.C.R. App. P. 10(b)(2); see Allen, 339 N.C. at 554-
56, 453 S.E.2d at 154-55. As noted above, under plain error
review, this Court reviews the entire record and determines whether
the alleged error is so fundamental and prejudicial that justice
could not have been done. State v. Haselden, 357 N.C. 1, 13, 577
S.E.2d 594, 602, cert. denied, 540 U.S. 988, 157 L. Ed. 2d 382
(2003). To prevail on plain error, a defendant must not only
convince this Court that there was error, he must also convince us
that absent the error, the jury probably would have reached a
different result. Id. [P]lain error analysis applies only to
instructions to the jury and evidentiary matters. State v.
Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578, cert. denied, 531
U.S. 1041, 148 L. Ed. 2d 543 (2000).
Under N.C. Gen. Stat. § 8C-1, Rule 609 (2005):
(b) Time limit. -- Evidence of a conviction
under this rule is not admissible if a period
of more than 10 years has elapsed since the
date of the conviction or of the release ofthe witness from the confinement imposed for
that conviction, whichever is the later date,
unless the court determines, in the interests
of justice, that the probative value of the
conviction supported by specific facts and
circumstances substantially outweighs its
prejudicial effect. However, evidence of a
conviction more than 10 years old as
calculated herein is not admissible unless the
proponent gives to the adverse party
sufficient advance written notice of intent to
use such evidence to provide the adverse party
with a fair opportunity to contest the use of
Rule 609 . . . permits the introduction of convictions more
than ten years old for the limited purpose of impeachment if two
requirements are first met. State v. Porter, 326 N.C. 489, 509,
391 S.E.2d 144, 157 (1990). First, the court must determine that
the probative value of the convictions, supported by specific facts
and circumstances, outweighs the prejudicial effect of
introduction. Id. Second, the State must give sufficient
advance written notice of intent to use such evidence to provide
the adverse party with a fair opportunity to contest the use of
such evidence. Id. (quotation omitted).
Here, the record on appeal does not indicate whether the
district attorney gave the required notice. Nonetheless, defendant
failed to meet his burden of proving plain error. Sergeant Head
testified that he arrested defendant and drove him to the
magistrate's office. During the drive, defendant initially denied
ownership of the bag of cocaine, but subsequently corrected
Sergeant Head that the bag of cocaine contained four smaller bags.
A Taco Bell employee also testified that she had just swept the
Taco Bell parking lot and the clear, plastic bag of cocaine was notpresent in the parking lot. The trial court admitted defendant's
signed hand-written admission which stated, [w]hen I got out of
the van, the dope fell out of it, and it was mine. I take full
responsibility of it.
Under plain error review and in light of this evidence,
defendant has failed to show that another result would have probably
occurred at trial had the trial court not allowed his testimony he
was convicted of felony larceny in 1991. This assignment of error
VI. Ineffective Assistance of Counsel
Defendant contends his constitutional right to effective
assistance of counsel was violated when defense counsel: (1) failed
to move to suppress his hand-written signed statement; (2)
stipulated to the cocaine's admission or the admission of the
laboratory report; and (3) failed to object to cross-examination on
his conviction that was over ten years old. We disagree.
Defendant asserts he was denied effective assistance of counsel
under the Sixth and Fourteenth Amendments to the United States
Constitution and under Article I, Sections 19 and 23 of the North
Carolina Constitution and argues defense counsel failed to file a
motion to suppress his hand-written and signed admission that, when
[defendant] got out of the van, the dope fell out of it, and it was
[defendant's] and [defendant] take[s] full responsibility of it.
The test for determining whether a defendant in a criminal case
has received effective assistance of counsel is set forth in
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984). The test is identical under both the Federal and State
Constitutions. State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d
241, 248 (1985). When a defendant attacks his conviction on the
basis that counsel was ineffective, he must show that his counsel's
conduct fell below an objective standard of reasonableness. Id.
(citing Strickland, 466 U.S. 668, 80 L. Ed. 2d 674). To establish
that there was ineffective assistance of counsel, a defendant must
meet the two-prong test of Strickland:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
counsel guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show
that the deficient performance prejudiced the
defense. This requires showing that counsel's
errors were so serious as to deprive the
defendant of a fair trial, a trial whose result
Id. at 562, 324 S.E.2d at 248. The burden of showing ineffective
assistance of counsel rests upon the defendant. State v. Dockery,
78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985).
During the State's cross-examination of defendant, defendant
admitted he wrote and signed the statement and admitted being in
possession of the cocaine. Presuming defense counsel erred by his
failure to file a motion to suppress, defendant has failed to show
his counsel's errors were so serious as to deprive defendant of a
fair trial, a trial whose result is reliable. Braswell, 312 N.C.
at 562, 324 S.E.2d at 248. Here, the record on appeal also reveals
no ground upon which an objection to introduction into evidence of
the cocaine or the laboratory report could or should have been made,and defendant failed to proffer any ground for an objection. Under
plain error review, we held no error in the defendant's admission
of a prior conviction that occurred more than ten years ago.
Porter, 326 N.C. at 509, 391 S.E.2d at 157. Since we find no error
in the admission of defendant's prior conviction, defense counsel's
failure to object did not constitute ineffective assistance of
Defendant failed to meet his burden of proving ineffective
assistance of counsel. This assignment of error is overruled.
The trial court did not commit plain error when it admitted
defendant's hand written and signed admission. The trial court
properly denied defendant's motion to dismiss.
Defendant's assignment of error that the trial court erred in
admitting his conviction that was older than ten years does not
mandate a new trial under plain error review.
The record on appeal does not show defendant received
ineffective assistance of counsel as a result of defense counsel's
failure to move to suppress his hand-written signed admission,
stipulation to the cocaine's admission or the failure to object to
the admission of the laboratory report, and failure to object to
defendant's cross-examination concerning a previous conviction more
than ten years old.
Defendant received a fair trial, free from prejudicial errors
he preserved, assigned, and argued.
Judges STEPHENS and STROUD concur.
Report per Rule 30(e).
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