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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1337


Filed: 17 July 2007


    v.                        Onslow County                                         No. 04 CRS 61104

    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.

    GEER, Judge.

    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 cocaine.


    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. 2565 (1995).
    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, 354 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 v. Neal, 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 aside." Id. 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. at 331, 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 threats.

Id. The Williams 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 abandoned.").
    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 this statute.
    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, 138 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.

    No error.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).

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