STATE OF NORTH CAROLINA
v. Onslow County
No. 05 CRS 52873
DARIN ANDREW DUNCAN,
Attorney General Roy Cooper, by Assistant Attorney General
Lisa Y. Harper, for the State.
Sue Genrich Berry for defendant-appellant.
Darin Andrew Duncan (defendant) appeals from his convictions
for possession of cocaine and possession of a controlled substance
(cocaine) on the premises of a local confinement facility. For the
reasons stated below, we arrest the conviction for possession of
cocaine and remand for entry of a new judgment on the remaining
On 14 March 2006, the Onslow County grand jury indicted defendant on charges of possession of a controlled substance (cocaine) on the premises of a local confinement facility, possession of cocaine, and attaining the status of an habitual felon. At trial, the State introduced evidence tending to show the following: On 30 March 2005, Officer John Ervin arrested defendanton an outstanding warrant and transported him to the police department for booking. Officer Ervin then transported defendant to the Onslow County Jail, and Officer John Bojack took custody of defendant and patted him down.
After being processed at the jail, defendant was permitted to use a telephone. Officer Bojack observed that while defendant was on the telephone, he was shaking his leg like his trousers were full of fire ants or something . . . . Officer Bojack walked over to defendant and found a little plastic package between defendant's feet. The substance in the plastic package was submitted for chemical analysis. A forensic chemist with the North Carolina State Bureau of Investigation testified that she had examined the contents of the package and had determined that it contained 1.4 grams of cocaine base.
At the trial on 7 May 2006, defendant presented no evidence, and the trial court instructed the jury as to both possession offenses. The jury subsequently found defendant to be guilty of both possession offenses on 8 May 2006, and defendant then admitted his habitual felon status. The trial court consolidated the two convictions for judgment and sentenced defendant as an habitual felon to a term of 101 to 131 months imprisonment, which was the shortest possible mitigated-range sentence for defendant's prior record level. Pursuant to this Court's writ of certiorari entered 22 September 2006, defendant seeks review of the trial court's judgment.
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