Appeal by defendant from judgment entered 8 February 2006 by
Judge Russell J. Lanier, Jr. in Onslow County Superior Court.
Heard in the Court of Appeals 25 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Jane L. Oliver, for the State.
Nora Henry Hargrove for defendant-appellant.
Defendant Michael Antonio Handy appeals from his conviction of
felony possession of cocaine and his subsequent sentencing as a
habitual felon. The primary issue on appeal is whether the State
presented sufficient evidence of "possession." We hold that a
reasonable jury could have found, based on the State's evidence,
that defendant had hidden himself in a small kitchen pantry in
response to the police's arrival and that he had orally ingested
cocaine, leaving only crumbs of cocaine remaining in the pantry.
This evidence, together with substantial cash found in his pocket
and the drug paraphernalia found immediately next to him in the
pantry, were sufficient incriminating circumstances to warrantdenial of defendant's motion to dismiss the charge of possession of
The State's evidence at trial tended to show the following
facts. In early November 2004, Sergeant Ashley Brown of the
Jacksonville Police Department used a confidential informant to
purchase narcotics from a residence on Eastwood Drive in
Jacksonville, North Carolina. Based on that purchase, a search
warrant for that residence was obtained on 7 November 2004.
At 3:10 p.m. on 9 November 2004, Detective Michael Muni
conducted "pre-surveillance" of the Eastwood Drive residence for
about an hour. During that time, Detective Muni observed several
individuals arrive and leave, by foot and by car, and one
individual attempted to enter the house, but apparently was not
admitted. Detective Muni believed that this behavior was
consistent with narcotics activity.
Following this pre-surveillance, Jacksonville police officers
executed the search warrant. As the first officer approached the
door and announced "police department, search warrant," Sergeant
Brown heard running inside the residence and someone yell,
"police." Because the officers believed those inside were
attempting to destroy evidence, the door was forced open.
Once inside, the officers found seven adults and three
children; they caught one individual as he was attempting to flee.
One of the children was defendant's daughter. Approximately 30
minutes later, officers discovered defendant crouching down in avery small kitchen pantry. Defendant was dripping with sweat, had
white froth and drool around his mouth, and was speaking with
slurred speech. It appeared to Detective Jason Holland, who knew
defendant, that defendant had eaten cocaine. He testified that
slurred speech is common for persons who have orally ingested
cocaine, in order to avoid being found with the drug, because the
cocaine numbs the lips and tongue. There was still a small amount
of crack cocaine on the pantry floor and on a pantry shelf. The
amount on the shelf was later determined to be one-tenth of a gram.
Defendant was also found to have $280.00 in his pocket. After he
was arrested, officers searched the pantry and found a small
digital scale, two razor blades, and $1,636.00 in cash. An officer
testified that, in the drug trade, razor blades are used to cut
crack cocaine and digital scales are used to weigh drugs. In
addition, marijuana was sitting in plain view on the kitchen table.
On 10 January 2006, defendant was indicted for (1) possession
with intent to manufacture, sell, and deliver both cocaine and
marijuana and (2) the maintenance of a dwelling for the keeping of
controlled substances. On the same day, defendant was indicted as
a habitual felon. The case was tried during the 6 February 2006
criminal session of Onslow County Superior Court. At the close of
all the evidence, the trial court allowed defendant's motion to
dismiss as to the charges of possession with intent to manufacture,
sell, and deliver, but sent to the jury the charges of possession
of cocaine, misdemeanor possession of marijuana, and maintenance of
a dwelling for the keeping of controlled substances. The jury returned verdicts finding defendant guilty of
possession of cocaine and misdemeanor possession of marijuana, but
not guilty as to maintaining a dwelling for the keeping of
controlled substances. The trial court arrested judgment on the
charge of misdemeanor possession of marijuana. Defendant pled
guilty to achieving habitual felon status, and the trial court
sentenced defendant for felony possession of cocaine as a habitual
felon to a term of 125 to 159 months imprisonment. Defendant now
appeals to this Court.
We first address defendant's argument that the trial court
erred by denying his motion to dismiss the charge of felony
possession of cocaine because, according to defendant, the State
failed to present sufficient evidence of possession. In ruling on
a defendant's motion to dismiss, the trial court must determine
whether the State presented substantial evidence (1) of each
essential element of the offense and (2) of the defendant's being
the perpetrator. State v. Robinson
, 355 N.C. 320, 336, 561 S.E.2d
245, 255, cert. denied
, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S.
Ct. 488 (2002). "Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion." State v. Brown
, 310 N.C. 563, 566, 313 S.E.2d 585,
587 (1984). When deciding a motion to dismiss, the trial court
must view all of the evidence presented "in the light most
favorable to the State, giving the State the benefit of every
reasonable inference and resolving any contradictions in itsfavor." State v. Rose
, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994), cert. denied
, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct.
Possession of a controlled substance may be actual or
constructive. State v. McLaurin
, 320 N.C. 143, 146, 357 S.E.2d
636, 638 (1987). "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." State v. Reid
, 151 N.C. App. 420,
428-29, 566 S.E.2d 186, 192 (2002). 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." State v. Matias
N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Beaver
317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)). When a defendant
does not have exclusive possession of the location where the drugs
are found, the State must make a showing of "other incriminating
circumstances" in order to establish constructive possession. Id.
556 S.E.2d at 271.
In this case, because the cocaine was found on a shelf in the
pantry where defendant was hiding, the State based its case on the
theory of constructive possession. Since defendant did not have
exclusive possession of the residence where the cocaine was found,
the State was required to present evidence of "other incriminating
circumstances" to establish constructive possession. We hold that
the State met this burden. The State's evidence indicated that after the police
announced themselves, there was running inside the house with
someone yelling out "police." A jury could reasonably find that
defendant, in response to the announcement, hid in the pantry.
When defendant was found, 30 minutes later, his physical state _
dripping with sweat, with a white froth around his mouth and
slurred speech _ was consistent with that of a person who had
orally ingested cocaine. Defendant also had $280.00 in cash in his
pocket and near him in the very small pantry were small amounts of
cocaine, paraphernalia commonly used to cut and weigh cocaine, and
an additional $1,636.00 in cash.
This Court has routinely held such evidence sufficient to
establish incriminating circumstances for purposes of constructive
possession. See, e.g.
, State v. Boyd
, 177 N.C. App. 165, 176, 628
S.E.2d 796, 805 (2006) (concluding sufficient incriminating
circumstances existed to establish constructive possession of
cocaine when defendant did not answer police officers' knock at
door, was apprehended trying to swallow plastic bags, and had "a
white substance around his mouth as he was being arrested"); State
, 109 N.C. App. 684, 687-88, 428 S.E.2d 287, 290 (1993)
(concluding sufficient incriminating circumstances existed to
establish constructive possession of cocaine when, as police
arrived, defendant ran from bathroom where drugs were later found);
State v. Alston
, 91 N.C. App. 707, 710-11, 373 S.E.2d 306, 309
(1988) (holding that evidence suggested incriminating circumstances
when defendant was in close proximity to the cocaine and had largeamount of cash on his person). Based on this precedent, we hold
the trial court properly denied defendant's motion to dismiss the
possession of cocaine charge.
We next turn to defendant's arguments pertaining to his
sentencing as a habitual felon. Defendant first contends that the
trial court erred by failing to advise him of the potential minimum
and maximum sentences he could receive by pleading guilty to being
a habitual felon. Under N.C. Gen. Stat. § 15A-1022(a)(6) (2005),
a superior court judge may not accept a plea of guilty without
addressing the defendant personally and "[i]nforming him of the
maximum possible sentence on the charge for the class of offense
for which the defendant is being sentenced, including that possible
from consecutive sentences, and of the mandatory minimum sentence,
if any, on the charge . . . ." This requirement applies to a plea
of guilty to attaining habitual felon status. State v. McNeill
158 N.C. App. 96, 103, 580 S.E.2d 27, 31 (2003).
N.C. Gen. Stat. § 15A-1022(a)(6) is based upon the
constitutional requirement that a defendant be made aware of all
"'direct consequences'" of his plea. McNeill
, 158 N.C. App. at
103, 580 S.E.2d at 31 (quoting State v. Bozeman
, 115 N.C. App. 658,
661, 446 S.E.2d 140, 142 (1994)). Nevertheless, "[e]ven when a
violation occurs, there must be prejudice before a plea will be set
Courts must "look to the totality of the
circumstances and determine whether non-compliance with the statute
either affected defendant's decision to plead or undermined theplea's validity." State v. Hendricks
, 138 N.C. App. 668, 670, 531
S.E.2d 896, 898 (2000).
State v. Williams
, 133 N.C. App. 326, 515 S.E.2d 80 (1999),
controls our disposition of this argument. In Williams
, this Court
"refus[ed] to apply a technical, ritualistic approach," id.
515 S.E.2d at 83, and pointed out that:
the trial court in establishing a record of
[the defendant's] guilty plea inquired whether
[the defendant] understood that as a
consequence of being an habitual felon she
would be sentenced as a Class C felon as
opposed to a Class G felon. [The defendant]
responded in the affirmative and indicated
that she had no questions about being an
habitual felon. Furthermore, she admitted
that she had committed each of the felonies
listed on the habitual felon indictment and
admitted that she was proceeding voluntarily
and without the inducement of deals or
Court concluded that, under these circumstances,
the defendant "was aware of the direct consequences of her guilty
plea" notwithstanding the trial court's failure to comply with N.C.
Gen. Stat. § 15A-1022(a)(6). Id.
The Court, therefore, concluded
that the trial court's failure to inform the defendant of the
minimum or maximum sentence did not invalidate her guilty plea to
having attained the status of habitual felon. Id.
at 330, 515
S.E.2d at 83.
The facts of this case are materially indistinguishable from
those in Williams
. Here, defendant was specifically informed that
as a result of pleading guilty to having achieved habitual felon
status, he would be "punished as a C felon." Defendant also, among
other things, specifically admitted to being convicted of the threepredicate felonies alleged by the State, informed the trial court
that he was agreeing to the plea without the inducement of deals or
threats, confirmed that he had discussed "all this" with his
counsel and "fully understood" what the court was addressing, and
stated that he had no questions about what the court had told him
or "anything else connected to" his habitual felon status. We see
no meaningful basis upon which to distinguish Williams
, and since
we are bound by that decision, we must uphold defendant's plea.
Defendant next challenges the judgment's failure to indicate
under the "Offense Description" portion of AOC form CR-601, Rev.
10/05, that defendant was a habitual felon. He also points to the
written plea transcript's failure to specify defendant's name, to
reference the underlying indictment or file number, or to indicate
what "he was pleading guilty to." Defendant cites no authority in
connection with his argument as to these omissions, but rather
limits the legal analysis in his brief to the trial court's
shortcomings under N.C. Gen. Stat. § 15A-1022(a)(6). We,
therefore, need not address these additional issues. N.C.R. App.
P. 28(b)(6) ("Assignments of error . . . in support of which no
reason or argument is stated or authority cited, will be taken as
In any event, on the judgment, the trial court checked the box
indicating that it "adjudges the defendant to be an habitual felon
to be sentenced as a Class C felon pursuant to Article 2A of G.S.
Chapter 14." Thus, contrary to defendant's contention, thejudgment does specifically indicate that defendant was being
sentenced as a habitual felon.
Further, as to the plea transcript, defendant points to no
authority _ and we have found none _ providing that a defendant is
entitled to a complete, written transcript of his habitual felon
plea. N.C. Gen. Stat. § 15A-1026 (2005), which addresses the
recordation of guilty pleas, provides:
If the plea arrangement has been reduced to
writing, it must be made a part of the record;
otherwise the judge must require that the
terms of the arrangement be stated for the
record and that the assent of the defendant,
his counsel, and the prosecutor be recorded.
This provision, by its terms, permits non-written guilty pleas.
Defendant does not argue that the trial court failed to comply with
Further, N.C. Gen. Stat. § 15A-1022(a), under which defendant
has brought his primary challenge to his plea arrangement, requires
only that a trial court address the defendant "personally." It
does not reference a written plea transcript. See Hendricks
N.C. App. at 670, 531 S.E.2d at 898 ("Although the transcript of
plea entered into between defendant and the prosecutor covered all
the areas omitted by the trial judge, our legislature's explicit
reference to the trial judge addressing the defendant personally
and informing him of his rights illustrates that reliance on the
transcript of plea alone (with which the judge has no involvement
in the first place) is insufficient to meet section 15A-1022's
procedural requirements."). In the absence of the citation of any authority requiring that
a transcript of plea be fully completed, we perceive no basis for
setting aside defendant's plea, especially since defendant has
pointed to nothing suggesting he was prejudiced by any omissions.
Accordingly, we overrule this assignment of error.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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