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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 18 December 2007
STATE OF NORTH CAROLINA Forsyth County
No. 06 CRS 53895
06 CRS 43083
v. 06 CRS 53957
DAMON ENRICO THOMAS
Appeal by Defendant from judgment entered 16 March 2007 by
Judge R. Stuart Albright in Forsyth County Superior Court. Heard
in the Court of Appeals 29 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General
James M. Stanley Jr., for the State.
Daniel F. Read, for Defendant.
Damon Enrico Thomas (Defendant) appeals from judgments entered
16 March 2007, convicting Defendant of driving while impaired,
resisting a public officer, possession of cocaine, and of being an
habitual felon. For the reasons discussed herein, we find no
The evidence tends to show, in pertinent part, the following:
On 25 March 2006, Officer Kevin Bell (Officer Bell) of the Winston-
Salem Police Department observed, at approximately 1:00 A.M., a car
with the right front headlight burned out. After he followed the
car for a short distance, Officer Bell signaled the car to pull
over for the infraction of driving without two working headlights. Officer Bell approached the car, occupied only by Defendant, and
noticed that Defendant was very nervous. His hands were
noticeably shaking and his lips were trembling and his eyes were
red and glassy[.] Officer Bell could smell the strong odor of
alcohol on Defendant's breath, and Defendant's speech was slow and
When Officer Bell asked Defendant how many alcoholic beverages
he had consumed, Defendant replied, one beer. When asked for
his license and registration, Defendant fumbl[ed] with papers in
his passenger seat. He could not locate his registration but
offered Officer Bell the same envelope, which did not contain his
registration, three different times.
Officer Bell then asked Defendant to get out of the car for a
sobriety test, and Defendant tr[ied] to turn the car off, [but] it
was already turned off[.] Defendant also tried to put the car in
park, again, [but] it was already in park from where he had stopped
the first time[.] At this point, Sergeant Brian Clarke (Sergeant
Clarke) arrived at the scene. Both Sergeant Clarke and Officer
Bell witnessed Defendant get out of the car and quickly stuff
his hands into his pocket, in a manner that Officer Bell
considered aggressive[.] Sergeant Clarke verified that as
Defendant exited the car, he initially put his hands up on top of
the car, and then almost immediately . . . his right hand. . .
[went] into his right pants pockets. Officer Bell grabbed
Defendant's arm, fearing that Defendant would obtain a weapon. Defendant pushed off the car and ran across the street and
Officer Bell ran after him.
When Officer Bell finally caught Defendant, he placed him in
custody and transported him to jail. Officer Peter Watkins
(Officer Watkins), who was also present at the scene, testified
that when policemen took Defendant into custody, [h]e appeared
very sluggish and he was vomiting. Officer Watkins stated that he
could smell an odor of alcohol on him[.]
Meanwhile, Sergeant Clarke found a bag of five or six pieces
of crack cocaine six inches from a driveway in the direct path of
Defendant's flight. Sergeant Clarke testified that the area where
the drugs were found was wet, and the grass was . . . probably
three to four inches long, so it gave the bag an opportunity to sit
on top. Clarke said, the grass was very wet, but that bag was
just, it was dry. The State Bureau of Investigation later
confirmed that the bag contained 1.8 grams of cocaine.
Officer Bell also searched Defendant's vehicle, finding an
open bottle [of] Heineken beer[.] Officer Bell stated that there
was still beer in the bottle, [and] it was still cold and . . .
lying in the driver's floorboard.
When Officer Bell talked to Defendant at the jail, Defendant
said that the room was spinning[.] [Defendant] kept swaying in
the chair and refused to answer any questions.
On 5 June 2006, Defendant was indicted for possession with
intent to sell and deliver cocaine in violation of N.C. Gen. Stat.
§ 90-95(a)(1), driving while impaired in violation of N.C. Gen.Stat. § 20-138.1, and resisting a public officer in violation of
N.C. Gen. Stat. § 14-223. Defendant was also indicted for having
attained the status of an habitual felon pursuant to N.C. Gen.
Stat. § 14-7.1.
These matters came to trial before a Forsyth County jury on 13
March 2007. The Defendant presented no evidence but made a motion
to dismiss at the close of the State's evidence, which the court
denied. The court declined to charge the jury on intent to sell
and deliver cocaine, but rather, instructed the jury on the lesser
offense, possession of cocaine. The jury found Defendant guilty of
driving while impaired, resisting a public officer, possession of
cocaine, and of having attained the status of an habitual felon.
On 16 March 2007, the trial court entered judgments on the
foregoing convictions and sentenced Defendant to 100 to 129 months
imprisonment for the convictions of felony possession of cocaine
and of attaining the status of an habitual felon. Defendant was
sentenced to 120 days incarceration and fined $500.00 on the
impaired driving conviction. Defendant was further sentenced to 60
days incarceration for the conviction of resisting a public officer
to be served at the expiration of the sentence for possession of
cocaine. From these judgments, Defendant appealed.
In his first argument, Defendant contends that the trial court
erred by instructing the jury that the close proximity of the
cocaine to Defendant was a circumstance from which the jury couldinfer that Defendant had the power and intent to control its
disposition or use. We disagree.
Our standard of review of Defendant's appeal requires us to
hold a jury instruction sufficient if it presents the law of the
case in such [a] manner as to leave no reasonable cause to believe
the jury was misled or misinformed. State v. Blizzard
, 169 N.C.
App. 285, 296-97, 610 S.E.2d 245, 253 (2005) (internal quotation
marks omitted). Moreover, this Court has held that:
[t]he party asserting error bears the burden
of showing that the jury was misled or that
the verdict was affected by [the] instruction.
Under such a standard of review, it is not
enough for the appealing party to show that
error occurred in the jury instructions;
rather, it must be demonstrated that such
error was likely, in light of the entire
charge, to mislead the jury.
(internal quotation marks omitted). To obtain relief, a
defendant must not only show error, but prejudice. N.C. Gen. Stat.
§ 15A-1443 (2005). A defendant is prejudiced by errors relating
to rights arising other than under the Constitution of the United
States when there is a reasonable possibility that, had the error
in question not been committed, a different result would have been
reached. N.C. Gen. Stat. § 15A-1443(a)(2005).
When reviewed as a whole, 'isolated portions of [a charge]
will not be held prejudicial when the charge as a whole is correct.
[T]he fact that isolated expressions, standing alone, might be
considered erroneous will afford no ground for a reversal.' State
, 178 N.C. App. 689, 693, 632 S.E.2d 551, 554, disc. review
, 360 N.C. 651, 637 S.E.2d 180 (2006) (quoting State v.McWilliams
, 277 N.C. 680, 684-85, 178 S.E.2d 476, 479 (1971)); see
also State v. Rich
, 351 N.C. 386, 393-94, 527 S.E.2d 299, 303
In the instant case, the court instructed the jury that:
If you find beyond a reasonable doubt that a
substance was found in close physical
proximity to the Defendant, that would be a
circumstance from which together with other
circumstances you may infer that the Defendant
was aware of the presence of the substance and
had the power and intent to control its
disposition or use.
Defendant argues that because the drugs were not found in close
proximity to him, but only near where he had [previously] been[,]
the court erred in giving this instruction. After reviewing the
whole charge, we find this argument unconvincing.
In addition to the close proximity instruction, the court
also instructed the jury on constructive possession:
A person has constructive possession of a
substance if he does not have it on his
person, but is aware of its presence, and has
both the power and intent to control its
disposition or use. A person's awareness of
the presence of the substance and his power
and intent to control the disposition or use
may be shown by direct evidence or may be
inferred from the circumstances.
Furthermore, the court explained that the Defendant's physical
proximity, if any, to the substance does not by itself permit an
inference that the Defendant was aware of its presence or had the
power or intent to control its disposition or use.
The evidence of Defendant's constructive possession of the
cocaine _ regardless of the jury's conclusion as to Defendant's
physical proximity to the drug _ is pronounced. When Officer Bellstopped Defendant, he acted nervous; his hands were shaking; and
his lips trembling. Defendant aggressively shoved his right hand
into his pocket when Officer Bell told him to put his hands on the
car; then, Defendant ran. Shortly thereafter, the drugs were found
in Defendant's direct path of flight. Although it had been raining
for the entire evening and the grass upon which the bag sat was
wet, the bag of cocaine itself was dry. Significantly, the
policeman saw no one besides Defendant in the area where the drugs
After reviewing the trial court's jury instructions as a
whole, and in light of the foregoing evidence, we conclude that
there was no prejudicial error in the trial court's instructions
regarding Defendant's physical proximity to the cocaine. See State
, 37 N.C. App. 628, 246 S.E.2d 827 (1978), aff'd
N.C. 703, 252 S.E.2d 776 (1979) (finding no prejudicial error after
considering the instruction in context and in light of the strong
evidence tending to show defendant's guilt of drug possession).
This assignment of error is overruled.
Motion to Dismiss
In his second argument, Defendant contends that the trial
court erred in denying Defendant's motions to dismiss and to set
aside the verdict as to possession of cocaine because of
insufficiency of the evidence to submit the case to the jury.
Defendant contends that he did not have actual or constructive
possession of the cocaine and that the evidence related to this
essential element of possession was insufficient. We disagree. 'When a defendant moves to dismiss a charge against him on
the ground of insufficiency of the evidence, the trial court must
determine whether there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of the offense.' State v. McNeil, 359 N.C. 800, 803,
617 S.E.2d 271, 273 (2005) (quoting State v. Garcia, 358 N.C. 382,
412, 597 S.E.2d 724, 746 (2004)) (internal quotation marks
omitted). 'Substantial evidence' is relevant evidence that a
reasonable person might accept as adequate, or would consider
necessary to support a particular conclusion[.] Garcia, 358 N.C.
at 412, 597 S.E.2d at 746 (quoting State v. Squires, 357 N.C. 529,
535, 591 S.E.2d 837, 841 (2003)) (citation omitted). 'If there is
substantial evidence - whether direct, circumstantial, or both - to
support a finding that the offense charged has been committed and
that the defendant committed it, the case is for the jury and the
motion to dismiss should be denied.' State v. Baublitz, 172 N.C.
App. 801, 809, 616 S.E.2d 615, 621 (2005) (quoting State v.
Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988)). The
reviewing court considers all evidence in the light most favorable
to the State, and the State receives the benefit of every
reasonable inference supported by that evidence. Baublitz, 172
N.C. App. at 809, 616 S.E.2d at 621.
'The standard of review of a trial court's denial of a motion
to set aside a verdict for lack of substantial evidence is the same
as reviewing its denial of a motion to dismiss[.]' State v.
Parker, __ N.C. App. __, __, 651 S.E.2d 377, __ (2007) (quotingState v. Duncan, 136 N.C. App. 515, 520, 524 S.E.2d 808, 811
The possession element of the offense of felony possession of
cocaine can be proven by showing either actual possession or
constructive possession. State v. Siriguanico, 151 N.C. App. 107,
110, 564 S.E.2d 301, 304 (2002). 'Constructive possession exists
when the defendant, while not having actual possession, . . . has
the intent and capability to maintain control and dominion over the
narcotics.' McNeil, 359 N.C. at 809, 617 S.E.2d at 276 (quoting
State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 (2001))
(internal quotation marks omitted). When the person does not have
'exclusive possession of the place where the narcotics are found,
the State must show other incriminating circumstances before
constructive possession may be inferred.' McNeil, 359 N.C. at
810, 617 S.E.2d at 276 (quoting State v. Davis, 325 N.C. 693, 697,
386 S.E.2d 187, 190 (1989)). 'Constructive possession depends on
the totality of the circumstances in each case. No single factor
controls, but ordinarily the question will be for the jury.'
Baublitz, 172 N.C. App. at 810, 616 S.E.2d at 621 (quoting State v.
James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986)).
The evidence in this case supporting constructive possession
is compelling. As previously noted, when the police asked
Defendant to put his hands on the car, Defendant aggressively put
his right hand into his pocket; then, Defendant ran. The policemen
found the cocaine in Defendant's direct path of flight, and
although it had been raining and the grass was wet, the bag ofcocaine was still dry. When viewed in the light most favorable to
the State, we conclude that there was substantial evidence of
Defendant's constructive possession of the cocaine. See State v.
Neal, 109 N.C. App. 684, 428 S.E.2d 287 (1993). The trial court
did not err in denying Defendant's motions to dismiss and to set
aside the verdict. This assignment of error is overruled.
Sentencing as an Habitual Felon
In his final argument, Defendant contends that the trial court
committed constitutional error by sentencing Defendant as an
habitual felon to 100 to 129 months imprisonment because the
sentence was grossly disproportionate and cruel and unusual. We
Under North Carolina law, a person who has three previous
felony convictions may be sentenced as a habitual felon. N.C. Gen.
Stat. § 14-7.1 (2005). Whether the Habitual Felon Act violates a
defendant's Eighth and Fourteenth Amendment rights has been
recently reviewed by this Court. State v. McDonald, 165 N.C. App.
237, 241, 599 S.E.2d 50, 52, disc. review denied, 359 N.C. 195, 608
S.E.2d 60 (2004) (citing State v. Hensley, 156 N.C. App. 634, 577
S.E.2d 417 (2003). 'Only in exceedingly unusual non-capital cases
will the sentences imposed be so grossly disproportionate as to
violate the Eighth Amendment's proscription of cruel and unusual
punishment.' Hensley, 156 N.C. App. at 639, 577 S.E.2d at 421
(quoting State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441
Further, our Supreme Court 'rejected outright
the suggestion that our legislature isconstitutionally prohibited from enhancing
punishment for habitual offenders as
violations of constitutional strictures
dealing with . . . cruel and unusual
Id. (quoting State v. Todd, 313 N.C. 110, 117, 326 S.E.2d 249, 253
In the instant case, on 22 March 1990 and 6 June 1990,
Defendant was convicted of possession of cocaine, and on 5 August
1991, Defendant was convicted of second degree murder. On 16 March
2007, Defendant was sentenced to 100 to 129 months imprisonment,
not solely for possession of cocaine, but also because Defendant
committed multiple felonies since 1990 and was an habitual felon.
The sentence imposed here under the habitual felon laws is not so
grossly disproportionate so as to result in constitutional
infirmity. See McDonald, 165 N.C. App. 237, 599 S.E.2d 50. This
assignment of error is overruled.
For the foregoing reasons, we conclude that Defendant had a
fair trial, free from prejudicial error.
Judges TYSON and JACKSON concur.
Report per Rule 30(e).
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