State Carolina v. Best
| Decision Date | 02 August 2011 |
| Docket Number | No. COA10–1264.,COA10–1264. |
| Citation | 713 S.E.2d 556 |
| Parties | STATE of North Carolina, Plaintiffv.Dennis Lee BEST, Defendant. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendant from judgment entered 23 April 2010 by Judge W. Allen Cobb, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 8 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General Ward Zimmerman, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, Raleigh, by John Keating Wiles, for Defendant–Appellant.
Defendant Dennis Lee Best appeals from a judgment entered by the trial court sentencing him to a minimum term of 107 months and a maximum term of 138 months imprisonment in the custody of the North Carolina Department of Correction based upon his convictions for carrying a concealed weapon and possession of a firearm by a convicted felon and his plea of guilty to having attained the status of an habitual felon. On appeal, Defendant contends that the evidence was not sufficient to support his convictions for possession of a firearm by a convicted felon and carrying a concealed weapon, that he received constitutionally deficient representation from his trial counsel, and that the trial court erred in calculating his prior record level for sentencing purposes. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant's challenges to the trial court's judgment lack merit and that those judgments should remain undisturbed.
Officer Thomas Poelling of the Wilmington Police Department testified that, shortly after midnight on 21 December 2006, he was on routine patrol. At that time, Officer Poelling noticed Defendant's van, which was one of the few vehicles on the road at that time of day, because the van was being driven slowly, travelling a meandering route, and did not appear to be heading toward any apparent destination. After Officer Poelling observed that the light above the vehicle's license plate was not operating, he stopped the van for the purpose of issuing a citation to the driver and directed Defendant to get out of the van. At the time that he stopped Defendant's van, Officer Poelling discovered that there were two passengers, who were later identified as Michelle Bollinger and Willie Parker, in the van.
About a minute after Officer Poelling stopped Defendant's van, Detective Victor Baughman arrived to provide backup. Detective Baughman went to the side of the van and spoke with Mr. Parker, who had exited the van and was walking away. After instructing Mr. Parker not to leave the area, Detective Baughman looked into the vehicle and saw three to five open cans of beer and a plastic bag containing a white powder that resembled cocaine. Detective Baughman informed Officer Poelling that he had found cocaine and open beer containers in the van; at that point, all three occupants of the van were placed in handcuffs.
Ultimately, field testing revealed that the substance that Detective Baughman had observed in Defendant's van was not cocaine. However, once Detective Baughman announced that he had discovered beer cans and cocaine in the van, Officer Poelling came over for the purpose of examining the interior of the vehicle, which smelled of alcohol. In the course of looking into the van, Officer Poelling observed several open beer cans “in plain view.” Officer Poelling testified that, as he retrieved the beer cans:
After discovering the loaded firearm, which was identified as a “Smith & Wesson .38 Special revolver,” and securing it in his patrol vehicle, Officer Poelling questioned the occupants of the van about the gun.
At first, Defendant denied owning the revolver. However, “on the second occasion, [Defendant] explained that it was, in fact, his and [said that] everybody else had one, so he needed one to [o.]” When Officer Poelling asked Defendant if he was a convicted felon, Defendant replied in the affirmative. At that point, based on “[Defendant's] own admission, [Officer Poelling] decided to charge him with carrying [a] concealed weapon, [and] possession of [a] firearm by a convicted felon,” so Defendant “was arrested, transported to the station, [and] processed[.]”
Mr. Parker, who had been friends with Defendant for a long time, was with Defendant on 21 December 2006. On that occasion, Defendant and Mr. Parker were driving in the van to an establishment known as Linda's Lounge, where they planned to play pool. After they picked up Ms. Bollinger, who was going to the same place, the group was stopped by law enforcement officers before reaching Linda's Lounge. Although Mr. Parker initially denied having seen Defendant with a gun on 21 December 2006, the prosecutor reminded Mr. Parker of a statement that he had made to Detective Chris Mayo of the Wilmington Police Department in which Mr. Parker had admitted seeing Defendant with a gun. At that point, Mr. Parker testified that:
Q: And when did you see Mr. Best with that gun?
...
In addition, Mr. Parker testified that there were several beer cans in the van and that, at the time that Officer Poelling stopped the van, Defendant asked Mr. Parker to retrieve a beer can from the floor and put it in a cup holder.
Defendant's sister, Trixie Bass, testified that, although the van was titled to her, she had “sold” it to her brother, Lacey Bass, who, in turn, traded it to Defendant for another vehicle. Ms. Bass did not own a gun and had not seen Defendant in possession of a gun. Lacey Bass corroborated Ms. Bass' testimony concerning the ownership of the van and denied having ever owned a firearm himself or having seen Defendant in possession of a gun.
Detective Mayo, who had interviewed Mr. Parker, testified that:
He said he had seen Mr. Best in possession of the pistol on December 21st, 2006 and that Mr. Best had placed the pistol on the floor next to the seat earlier in the day.
A copy of a judgment showing Defendant's conviction for felonious breaking and entering on 9 May 1988 was admitted into evidence as well.
Defendant testified that he had traded his truck to Mr. Bass in exchange for Ms. Bass' van about ten days before he was stopped by Officer Poelling. In addition to being one of his friends, Mr. Parker had worked for Defendant as a painter on an intermittent basis.
On 21 December 2006, Defendant and Mr. Parker worked on a painting job until around 5:00 p.m. After work, the two of them visited Mr. Parker's house, then went to Defendant's mother's house before returning to Mr. Parker's residence, where they sat in the van in Mr. Parker's driveway for three or four hours, until approximately 11:30 p.m. Although Mr. Parker drank several beers during this three or four hour period, Defendant did not consume any alcoholic beverages during this interval.
At that point, Defendant and Mr. Parker decided to go to Linda's Lounge in order to play pool. On the way to Linda's Lounge, they saw Ms. Bollinger, who was also planning to go to Linda's Lounge, and gave her a ride. However, the van was stopped by law enforcement officers before the group arrived at Linda's Lounge. Defendant conceded that “there could have been a problem with” the license plate light and explained that the powder discovered in the van was baking soda, which he used on camping trips and as toothpaste and a cleanser.
Defendant denied owning or possessing the revolver found in the van and testified that he had never seen the firearm before, that he did not know who owned it, and that he had not told Officer Poelling that the weapon was his. Defendant also denied that there were any beer cans in the van. Defendant did not see Mr. Parker or Ms. Bollinger with a gun on 21 December 2006. Moreover, Defendant had never seen his brother or sister in possession of a firearm. However, six or seven other people had ridden in the van during the week prior to the date upon which he was stopped by Officer Poelling.
On 21 December 2006, a warrant for arrest charging Defendant with possession of a firearm by a convicted felon and carrying a concealed weapon was issued. On 29 January 2007, the New Hanover County grand jury returned bills of indictment charging Defendant with carrying a concealed...
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