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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-255


Filed: 06 November 2007


    v.                        Iredell County                                         No. 05 CRS 14444
                             05 CRS 53798-99

    Appeal by defendant from judgment entered 7 September 2006 by Judge Mark E. Klass in Iredell County Superior Court. Heard in the Court of Appeals 13 September 2007.

    Attorney General Roy Cooper, by Assistant Attorney General J. Joy Strickland, for the State.

    Daniel F. Read, for defendant-appellant.

    STEELMAN, Judge.

    When defendant does not object to evidence presented at trial that was the subject of a motion to suppress, he has failed to preserve any alleged error for appellate review. The court did not err in allowing a detective to testify regarding the denominations of currency found on defendant and its relevance to the crime charged. When the evidence presented on each element of the charges was sufficient to submit the charges to the jury, the trial court's denial of defendant's motion to dismiss was proper. Defendant's 1982 conviction could be one of the three underlying felonies to establish defendant's status as a habitual felon, there being no time limitation contained in the habitual felon statute.

I. Factual Background
    On 28 April 2005, Detective R. C. Dyson (“Dyson”) received an anonymous phone call from an older sounding gentleman (“informant”) concerning drug activity in the Glory Road area. In a second call that same day from informant, he stated that Ralph Wilson (“defendant”) was sitting in a blue car and selling crack cocaine. A tip from a reliable source two weeks previously had also advised that defendant was selling drugs. After receiving the second call from informant, Dyson called Lieutenant Frank Falzone (“Falzone”) for assistance in investigating the matter.
    The two officers traveled to Glory Road where they spotted a blue Oldsmobile parked along the side of the road. Upon the arrival of the officers, a black male, who had been standing next to the passenger-side window of the car, promptly walked away. The officers approached the car, and Dyson recognized the passenger as defendant. As they approached, Dyson saw the driver of the car shove something down her pants. Dyson ordered both the driver and defendant to place their hands on the dashboard. Defendant stated that he had a handgun in the glove box belonging to his son-in-law. Dyson removed defendant from the car and conducted a pat-down search which revealed seven rounds of .40-caliber ammunition. Dyson then searched defendant more thoroughly and found what appeared to be crack cocaine hidden in defendant's hat. Defendant was placed under arrest. Five hundred eighty-three dollars were found on defendant's person at the police station, including twenty-seven twenty-dollar bills. The driver of the carvoluntarily gave Falzone what appeared to be crack cocaine, in a cigar tube, which was hidden in her pants. A .40-caliber Smith & Wesson handgun, a magazine containing five rounds of ammunition, and a cloth holster were found in the glove box. The ammunition in the magazine was of the same make and caliber as the ammunition found in defendant's pocket. The State Bureau of Investigation (“SBI”) determined the substance taken from defendant was .27 grams of cocaine, and the contents of the cigar tube taken from the driver was 1.25 grams of cocaine. The car was registered to the driver.
    Defendant was indicted for possession with the intent to sell and deliver cocaine, possession of a firearm by a convicted felon, and being an habitual felon. Defendant's pretrial motion to suppress evidence was heard and denied on 6 April 2006. The jury returned guilty verdicts for the charges of possession with the intent to sell and deliver cocaine and possession of a firearm by a convicted felon. Defendant plead guilty to being an habitual felon. The court consolidated the three convictions into a single judgment and imposed a presumptive range sentence of 140-177 months imprisonment. Defendant appeals.
I. Trial Court's Admission of Evidence
    In defendant's first argument, he contends that the trial court erred in making a finding in its order denying defendant's motion to suppress. We do not reach the merits of this issue since defendant failed to properly preserve it for appellate review.     “In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make. . .” N.C.R. App. P. 10(b)(1) (2007). In State v. Tutt, 171 N.C. App. 518, 615 S.E.2d 688 (2005), this Court held that the 2003 amendments to N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2004), which purported to eliminate the requirement that the objection be renewed at trial in order to preserve the issue for appellate review, were unconstitutional. The rationale of Tutt was confirmed and cited with approval by the Supreme Court in State v. Oglesby, ___ N.C. ___, ___ S.E.2d ___ (2007).
    In this case, the trial court denied defendant's pretrial motion to suppress. The defendant failed to renew the objection at trial. Under the provision of N.C.R. App. P. 10(b)(1), this issue is not properly preserved for appellate review and is dismissed.
II. Dyson's Testimony Regarding Informant's Tip    
    In his second argument, defendant contends that the trial court erred by allowing hearsay testimony from Dyson. Defendant contends that the statements of the informant in the two telephone calls were inadmissible hearsay. We disagree.
    Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-8, Rule 801(c) (2005). Statements offered for purposes other than to show the truth of the matter are not hearsay and are therefore allowed. State v. Merrill, 138 N.C. App. 215, 224, 530 S.E.2d 608,614 (2000). “Specifically, statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made.” State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990) (citation omitted) (internal quotes omitted).
    We hold that the statements of informant were admissible to explain why Dyson went to the Glory Road area on the date in question, not to show the truth of the statements that the defendant was selling drugs and carrying a firearm. See Id. This assignment of error is without merit.
III. Motion to Suppress
    In his third argument, defendant contends that the trial court erred by admitting defendant's statements and other items obtained from the search into evidence, and that the trial court erred by denying his motion to suppress. We disagree.
    We do not reach this issue on its merits because defendant did not properly preserve the issue for appellate review. N.C.R. App. P. 10(b)(1); Oglesby, __ N.C. __, __ S.E.2d __. This argument is dismissed.
IV. Dyson's Testimony Concerning Denominations of Currency
    In his fourth argument, defendant contends that the trial court erred by allowing Dyson to testify about the significance of the denominations of currency found on defendant. We disagree.
    In a criminal prosecution, evidence that is helpful to the State is necessarily prejudicial to the defendant, and only that which rises to the level of unfair prejudice, as determined by the trial court judge, will not be admitted. State v. Mercer, 317 N.C.87, 93-94, 343 S.E.2d 885, 889 (1986) (citing N.C. Gen. Stat. § 8C- 1, Rules 402 and 403 (1985)). Whether to exclude evidence on this ground is a matter best left to the sound discretion of the trial court, and the court's determination will not be disturbed absent a finding of an abuse of discretion. State v. Hoffman, 349 N.C. 167, 184, 505 S.E.2d 80, 91 (1998) (citation omitted).
    At trial, Dyson testified, based on his training and experience, that the amount of cocaine seized from defendant was more than is typical for personal use. Dyson further testified that crack cocaine is typically sold in twenty-dollar increments.
    We hold that the trial court did not abuse its discretion in admitting Dyson's testimony concerning the typical cost of crack cocaine, as this testimony was not unfairly prejudicial.
    Defendant cites State v. Weldon, 314 N.C. 401, 333 S.E.2d 701 (1985) for the proposition that evidence of the reputation of a neighborhood is inadmissible hearsay, and contends that Dyson's testimony concerning the typical sale price and increments of crack cocaine is analogous and likewise inadmissible. However, Dyson's testimony did not concern the reputation of the neighborhood, but rather deals with the manner in which illegal drugs are sold. This type of testimony has been specifically allowed by our courts. See State v. Smith, 99 N.C. App. 67, 71-2, 392 S.E.2d 642, 644-45 (1990) (testimony about firearms found in defendant's room along with narcotics, in a possession with intent to sell and deliver cocaine and marijuana case, allowed as illustrative ofcircumstances surrounding defendant's arrest and due to frequent use of guns in the illegal drug trade).
    The testimony of Dyson was used to show the circumstances surrounding the arrest of defendant, as well as to provide facts from which the intent to sell and deliver cocaine could be inferred. Accordingly, the testimony of Dyson was admissible. This argument is without merit.
V. Motion to Dismiss
    In his fifth argument, defendant contends that the trial court erred in denying his motions to dismiss the charges of possession with intent to sell and distribute cocaine and possession of a firearm by a felon for insufficiency of the evidence. We disagree.
    Upon defendant's motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, and the State must be given every reasonable inference drawn therefrom. State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002). The court need only determine that substantial evidence for each element of the offense charged exists for the case to survive a motion to dismiss. Id.
    The elements of possession with intent to sell and distribute cocaine are: (1) the possession of cocaine; (2) with the intent to sell and deliver it. N.C. Gen. Stat. § 90-95(a)(1) (2005).
    Defendant was found in actual possession of .27 grams of crack cocaine, located in defendant's hat, thus satisfying the first element. There was also sufficient circumstantial evidence presented at trial to support an inference of intent to sell anddeliver, including: the discovery of $583 on defendant composed primarily of twenty-dollar bills, the hasty exit of the unidentified individual from the passenger-side car window upon arrival of the officers, the discovery of an additional 1.25 grams of crack cocaine in the possession of the driver, and Dyson's testimony concerning the normal cost and consumption of crack cocaine.
    We find the evidence presented at trial on the charge of possession with intent to sell and distribute cocaine sufficient to submit the charge to the jury.
    The elements of possession of a firearm by a felon are: (1) the purchase, owning, possession, custody, care, or control; (2) of a handgun or other firearm. . .; (3) by any person that has been convicted of a felony. N.C. Gen. Stat. § 14-415.1 (2005).
    Defendant only disputes the evidence relating to the first element of the offense, i.e., his ownership, possession, etc. of the firearm, and we therefore only address that issue. Defendant argues that the handgun was in the unlocked glove compartment, and that he did not have actual possession of the firearm.
    “Possession of any item may be actual or constructive.” State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). Actual possession requires defendant to have physical or personal custody of the item. Id. Constructive possession requires only “the power and intent to control its disposition or use.” State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). Constructive possession can be found in situations in which an item is not inthe exclusive control of one individual, but in the shared possession of multiple individuals. State v. Allen, 279 N.C. 406, 412, 183 S.E.2d 680, 684 (1971). “[J]oint or shared possession exists only upon a showing of some independent and incriminating circumstance, beyond mere association or presence, linking the person(s) to the item[.]” Alston, 131 N.C. App. at 519, 508 S.E.2d at 318 (citations omitted). In Alston, we held that incriminating circumstances were not shown where a gun was located on the console between the driver and the passenger and no additional evidence was presented that the passenger had the power and intent to control the gun.
    The facts in the instant case are distinguishable from Alston. The following facts are incriminating circumstances, from which the jury may find constructive possession: defendant volunteered that the firearm was located in the glove box, the firearm was located in the unlocked glove box in front of where defendant was seated, defendant was carrying ammunition of the same make and caliber of the ammunition found in the magazine of the firearm, and the driver did not appear to be aware of the firearm's location or existence. Although defendant argues that his voluntary statement concerning the location and ownership of the firearm contradicts his constructive possession of the firearm, it is for the jury, as the finder of fact, to evaluate such evidence accordingly and view the statement either as supportive of or unsupportive of constructive possession. See Gainey v. Rockingham R. Co., 235 N.C. 114, 68 S.E.2d 780 (1952).         We find that there were sufficient incriminating circumstances shown to support submission of defendant's constructive possession of the firearm to the jury. This argument is without merit.
VI. Habitual Felon
    In his final argument, defendant contends that the trial court erred in sentencing him as an habitual felon where one of the underlying felonies was a 1982 conviction. We disagree.
    Defendant concedes that this issue has already been decided against him. State v. Creason, 123 N.C. App. 495, 501, 473 S.E.2d 771, 774 (1996). We are bound by this decision. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Defendant's further argument that the federal sentencing guidelines assign lower values to older convictions is irrelevant. This is a North Carolina state court proceeding and not a federal proceeding. This argument is without merit.
    Assignment of error number seven not addressed in defendant's brief is deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).
    DISMISSED as to the assignments of error pertaining to the dismissal of defendant's motion to suppress.
    NO ERROR as to the trial.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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