Appeal by defendant from Judgment entered 8 August 2006 by
Judge Robert P. Johnston in Mecklenburg County Superior Court.
Heard in the Court of Appeals 24 May 2007.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Mabel Y. Bullock, for the State.
William D. Auman for defendant-appellant.
STROUD, Judge.
Defendant Emmanuel Jervey Memminger appeals from judgment
entered upon jury verdicts finding him guilty of possession with
intent to sell or deliver cocaine and guilty of possession of drug
paraphernalia. Defendant contends that the trial court erred by:
(1) failing to dismiss the charge of possession with intent to sell
or deliver cocaine ex mero motu on the basis of a facially invalid
indictment, (2) admitting evidence regarding a confidential
informant who was neither identified nor called as a witness, (3)
failing to dismiss both charges on the basis of insufficientevidence, and (4) sentencing defendant as a prior record level IV
offender.
We conclude that the indictment was not facially invalid, and
that the trial court did not err in failing to dismiss the charge
of possession with intent to sell or deliver cocaine on that basis.
We conclude that defendant did not properly preserve the error
assigned to the admission of evidence regarding a confidential
informant who was neither identified nor called as a witness. We
further conclude that the State presented sufficient evidence to
support a jury verdict on both charges; therefore the trial court
did not err in failing to dismiss the charges for insufficiency of
the evidence. Defendant received a fair trial, free of reversible
error, for possession with intent to sell or deliver cocaine and
for possession of drug paraphernalia. Judgment is affirmed as to
defendant's convictions for those offenses.
However, we hold that the trial court committed reversible
error by sentencing defendant as a prior record level IV offender.
Therefore, we remand to the trial court for resentencing.
I. Background
At around 1:00 PM on 13 October 2004, defendant stopped at
Southside Mini Mart on South Tryon Street in Charlotte, Mecklenburg
County, to have his gold PT Cruiser washed. Around the same time,
Officer McKinney of the Charlotte-Mecklenburg Police Department,
who was off-duty at the time, received a tip from an unidentified
informant that a person named “Probe” was in possession of two
ounces of crack cocaine and that “Probe” could be found in a goldPT Cruiser at the South Side Grocery Store, near the intersection
of South Tryon Street and Remount Road. Officer McKinney contacted
Officer Selogy, a drug investigator, to relay the information he
had received from the informant. As Officer Selogy responded to
the South Tryon location, he encountered and stopped the gold PT
Cruiser at the intersection of South Tryon and Remount Road.
The driver and sole occupant of the vehicle was later
identified as defendant. Officer Selogy ordered defendant out of
the vehicle, placed him under arrest, and searched the vehicle. A
small black handbag was found under the driver's seat. The handbag
contained four separate packages totaling twenty-three grams of
crack cocaine (“the crack”), scales, a small cutting tool, and
plastic bags used to package crack cocaine (collectively “the crack
paraphernalia”), and a utility bill bearing the name of defendant's
wife, Annie P. Memminger.
On 14 November 2005, the Mecklenburg County Grand Jury
indicted defendant for possession with intent to sell or deliver
cocaine and for possession of drug paraphernalia. Defendant was
tried before a jury in Mecklenburg County Superior Court on 7
August 2006, Judge Robert P. Johnston presiding. Defendant was
found guilty of both crimes. Thereafter, the trial court sentenced
defendant to 10 to 12 months. Defendant appeals.
II. Discussion
A. Validity of the indictment
Defendant contends that omission of the word “knowing” from
the indictment alleging that he violated N.C. Gen. Stat. § 90-95(a)(1) rendered the indictment facially invalid; therefore the
trial court erred by failing to dismiss the charge. Defendant
raises this issue for the first time on appeal. After reviewing
the record, we disagree with defendant.
A facially invalid indictment deprives the trial court of its
subject matter jurisdiction over the case, and can therefore be
raised for the first time on appeal.
State v. Call, 353 N.C. 400,
428-29, 545 S.E.2d 190, 208,
cert. denied, 534 U.S. 1046, 151 L.
Ed. 2d 548 (2001). “[W]hether a trial court has subject matter
jurisdiction is a question of law, which is reviewable on appeal
de
novo.”
Ales v. T.A. Loving Co., 163 N.C. App. 350, 352, 593 S.E.2d
453, 455 (2004). “When the record shows a lack of jurisdiction in
the lower court, the appropriate action on the part of the
appellate court is to arrest judgment or vacate any order entered
without authority.”
State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d
708, 711 (1981).
The primary purpose of an indictment is to notify an accused
of the charges against him in order to allow him to prepare an
adequate defense.
State v. Young, 120 N.C. App. 456, 461, 462
S.E.2d 683, 686 (1995). In order to properly notify an accused of
the charges against him, “an indictment need only allege the
essential elements of [the] offense.”
State v. Birdsong, 325 N.C.
418, 423, 384 S.E.2d 5, 7 (1989). If “the act or omission
[alleged] is clearly set forth so that a person of common
understanding may know what is intended[,]” the indictment is not
facially invalid.
State v. Coker, 312 N.C. 432, 435, 323 S.E.2d343, 346 (1984). “In general, an indictment couched in the
language of the statute is sufficient to charge the statutory
offense.”
State v. Blackmon, 130 N.C. App. 692, 699, 507 S.E.2d
42, 46,
cert. denied, 349 N.C. 531, 526 S.E.2d 470 (1998).
Defendant cites no authority, and we find none, for the
proposition that a charge of violating N.C. Gen. Stat. § 90-
95(a)(1)
(See footnote 1)
is an exception to the general rule and that an
indictment alleging violation of that statute is facially invalid
if it is couched in the language of the statute but does not
include the word “knowing.” Furthermore, in the case
sub judice,
the indictment alleged that defendant “did . . . willfully . . .
possess [cocaine] with intent to sell or deliver . . . .” Our
Supreme Court has held that “[t]he term
willfully implies that the
act is done knowingly . . . .”
State v. Falkner, 182 N.C. 793,
798, 108 S.E. 756, 758 (1921) (emphasis in original) (quoted in
Clayton v. Clayton, 54 N.C. App. 612, 615, 284 S.E.2d 125, 127
(1981)). Therefore, we conclude that the indictment charging
defendant with violation of N.C. Gen. Stat. § 90-95(a)(1), which
alleged unlawful, willful, and felonious possession of cocaine with
intent to sell or deliver, clearly set forth the charge and was
sufficient to notify defendant of the charges against him and
allowed him to prepare his defense. Accordingly, this assignment
of error is overruled.B. Evidentiary issues
Defendant's second contention is that the trial court erred by
allowing the admission of evidence regarding a confidential
informant who was neither identified nor called as a witness.
Specifically, defendant argues that the trial court erred when it
allowed defendant's witness, Officer McKinney, to testify that: (1)
the informant had provided valuable information since 1997, adduced
by the State on cross-examination; and (2) the informant was the
best that Officer McKinney had ever had, adduced by defendant on
re-direct examination.
A party who fails to “present[] to the trial court a timely
request, objection or motion” waives appellate review of the issue.
N.C.R. App. P. 10(b)(1). Defendant did not object at trial to
Officer McKinney's testimony regarding how long the informant had
provided valuable information, and defendant did not move to strike
as nonresponsive Officer McKinney's testimony as to the quality of
the informant's work. Defendant has therefore waived appellate
review of this testimony, and his assignment of error is
accordingly dismissed.
C. Motion to dismiss
Defendant's third contention is that the trial court erred in
failing to dismiss for insufficient evidence the charges of
possession with intent to sell or deliver cocaine and possession of
drug paraphernalia. We disagree.
Defendant argues that even though the crack and the crack
paraphernalia which defendant was alleged to possess were foundunderneath the driver's seat in the vehicle driven by and occupied
solely by defendant, the State could not survive a motion to
dismiss because the State presented no evidence that defendant was
in possession of the crack and the crack paraphernalia.
Specifically, defendant contends that the State failed to present
evidence: (1) that the vehicle was registered to defendant, (2)
that defendant put the crack and the crack paraphernalia in the
vehicle, or (3) that defendant was aware that the crack and the
crack paraphernalia were underneath the driver's seat of the
vehicle that he was driving.
When ruling on a motion to dismiss for insufficiency of the
evidence, the trial court must consider evidence in the light most
favorable to the State, drawing all reasonable inferences in its
favor.
State v. McCullers, 341 N.C. 19, 28-29, 460 S.E.2d 163, 168
(1995). Whether evidence is sufficient is determined by
demonstrating that substantial evidence exists as to each essential
element of the offense charged and of the defendant being the
perpetrator of that offense.
State v. McAvoy, 331 N.C. 583, 589,
417 S.E.2d 489, 493 (1992).
“Proof of nonexclusive, constructive possession is sufficient”
to survive a motion to dismiss for insufficient evidence of
possession of controlled substances or contraband.
State v.
Tisdale, 153 N.C. App. 294, 297-99, 569 S.E.2d 680, 682 (2002)
(citation and quotation omitted). “[C]onstructive possession
depends on the totality of circumstances in each case.”
State v.
James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986). “Aninference of constructive possession can . . . arise from evidence
which tends to show that a defendant was the custodian of the
vehicle where the controlled substance was found.”
State v. Dow,
70 N.C. App. 82, 85, 318 S.E.2d 883, 886 (1984) (finding
constructive possession of marijuana discovered under rear seat
floormat where defendant had custody of a borrowed car for only
three days and had two passengers in the rear seat when the
marijuana was discovered);
see also Tisdale, 153 N.C. App. at 298,
569 S.E.2d 680, 682-83 (finding constructive possession of cocaine
under the driver's seat where defendant was arrested driving a
borrowed car that had been recently washed by an admitted cocaine
addict who testified that he had placed cocaine in the car).
In the case
sub judice, the crack and the crack paraphernalia
were found under the driver's seat of the vehicle being driven by
defendant. Defendant was the only person in the car at the time of
his arrest. No evidence was produced regarding the name of the
registered owner. The utility bill found with the crack and the
crack paraphernalia inside the handbag under the driver's seat bore
the name of defendant's wife. The only evidence that supports an
inference that defendant did not control the vehicle was evidence
that defendant had been seen outside the car, waiting to get it
washed, shortly before his arrest. Under our precedents, viewing
the evidence in the light most favorable to the State, the totality
of the circumstances in the case
sub judice is substantial evidence
to support a finding of constructive possession of the crack andthe crack paraphernalia sufficient to survive the motion to
dismiss. Defendant's assignment of error is therefore overruled.
D. Sentencing
Defendant's final contention is that the trial court committed
plain error by sentencing him as a prior record level IV offender,
and this error entitles him to a new sentencing hearing. We agree.
Defendant argues that two of the felonies on the sentencing
worksheet were disposed of in the same court on the same date, and
if the worksheet had added only the highest point felony, as
required by N.C. Gen. Stat. § 15A-1340.14(d) (2005), defendant
would have been sentenced as a level III offender, rather than as
a level IV offender. The State argues that a clerical error caused
the two convictions in question to appear to have occurred on the
same date, when in fact, this was not the case.
(See footnote 2)
Defendant did not raise before the trial court the issue that
the two felonies occurred on the same date in the same court, which
ordinarily would result in waiver of the issue on appeal. N.C.R.
App. P. 10(b)(1). “However, where an error appears on the face of
the record, this Court can deal with it whether it was raised by
the parties or not.”
State v. Wilson, 338 N.C. 244, 258, 449
S.E.2d 391, 400 (1994) (remanding for resentencing where
duplicitous aggravating factors were not raised by either party).
In the case
sub judice, an obvious error - adding bothfelonies which were disposed of in the same court on the same day
to the point total - appears on the face of the sentencing
worksheet. Accordingly, we remand for resentencing, at which time
the trial court may consider any motions which may be filed by the
State or defendant regarding correction of the sentencing
worksheet.
III. Conclusion
For reasons stated above, we conclude that the indictment
charging defendant with violating N.C. Gen. Stat. § 90-95(a)(1) was
not fatally defective, (2) defendant waived appellate review of the
error assigned to testimony regarding the police informant, and (3)
the evidence for both charges was sufficient to survive a motion to
dismiss. Accordingly, we hold that defendant received a fair
trial, free of reversible error, as to his guilt. However, we
conclude that the error on the face of the sentencing worksheet
requires remand for resentencing.
REMANDED FOR RESENTENCING.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
Footnote: 1