State v. Aiken, No. COA06-1456 (N.C. App. 8/7/2007)
| Decision Date | 07 August 2007 |
| Docket Number | No. COA06-1456,COA06-1456 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. ANDREW JERMAINE AIKEN |
Attorney General Roy Cooper, by Assistant Attorney Generals Joseph Finarelli and Brandon L. Truman, for the State.
D. Tucker Charns, for defendant.
Andrew Jermaine Aiken (defendant) appeals a judgment entered upon his conviction for possession of cocaine. We find no error in part and reverse and remand in part.
On the morning of 16 December 2004, the Winston-Salem Police Department received a telephone call reporting drug activity in Piedmont Circle, a public housing community. Sergeant Jay Edwards and Officer Edward King of the Winston-Salem Police Department were dispatched to the 2800 block of Piedmont Circle, and arrived at approximately 10:40 a.m. Having received a report that several African American males were selling drugs on the short street that bisects the horseshoe-shaped community, Sergeant Edwards drove around in search of subjects matching the descriptions provided to him. On his second pass through the neighborhood, Sergeant Edwards observed three African American males, two of whom matched the physical descriptions provided by the caller. Sergeant Edwards exited his police cruiser and instructed the subjects, who had begun to walk off in separate directions, to stop and approach him. However, the subjects disregarded Sergeant Edwards' command and continued to disperse.
One subject, later identified as defendant, walked around an adjacent building and out of the line of sight of Sergeant Edwards while the other subjects approached an apartment and began knocking on its back door. Sergeant Edwards then heard, over his radio, a report that Officer King was in a foot chase in the community. As defendant ran, he ignored Officer King's commands to stop. Meanwhile, Sergeant Edwards returned to his car and, after driving a short distance, observed Officer King in pursuit of defendant, whom Sergeant Edwards recognized as one of the subjects he had confronted earlier. During the chase, defendant was out of Officer King's line of sight for approximately two to three seconds. Officer King eventually caught defendant and subdued him with the help of Sergeant Edwards. After advising defendant he was under arrest, Sergeant Edwards searched defendant and discovered: (1) a cell phone in his hand; (2) $134 neatly folded in defendant's front pocket and (3) $80 in crumpled currency in his right pocket. Based upon his training and experience in undercover drug operations, Edwards testified that the manner in which defendant kept money was consistent with that used by other drug dealers. Officer King then began to retrace the path of his foot pursuit of defendant. While doing so, Officer King found a clear "baggie" laying on a grassy area beside a sidewalk. The "baggie", which appeared to Officer King to contain crack cocaine, was warm to the touch and was not covered by frost like that covering the ground on that cold morning. Officer King returned to the arrest location with the plastic "baggie" filled with what was confirmed by field tests to be crack cocaine. Subsequently, the crack cocaine was sent to the State Bureau of Investigation for testing and was determined to consist of 4.6 grams of crack cocaine.
At the close of the evidence, defendant moved to dismiss the charges of possession of cocaine with intent to sell and deliver and possession of cocaine, which were denied by the trial court. A jury convicted defendant of the offense of possession of cocaine on 23 February 2006. The following day, defendant pled guilty to being a habitual felon, and was sentenced to 133 to 189 months imprisonment in a judgment entered 24 February 2006. Defendant timely filed notice of appeal to this Court.
In defendant's first argument on appeal, he contends that the trial court erred by admitting a statement defendant made regarding the weight of the cocaine discovered on the ground shortly after defendant was taken into custody.
In the case sub judice, defendant complained of chest pain after his being taken into custody, and was escorted to a local hospital by Sergeant Edwards and Officer King. Defendant became combative at the hospital and in an effort to calm defendant, Officer King told defendant that he would only charge defendant with a misdemeanor rather than a felony. However, when defendant was taken before a magistrate, Officer King submitted a probable cause sheet which indicated that defendant was being charged with, inter alia, felony possession with intent to sell and deliver cocaine. Upon learning of the felony charge, defendant again became despondent. Officer King then advised defendant that the weight of the cocaine dictated a felony charge, to which defendant replied, It is this statement which defendant challenges.
However, after a careful review of the record, we conclude that defendant has not properly preserved this issue for appellate review. Defendant's assignment of error on this issue is as follows:
The trial court erred in overruling the defendant's objection to the admission of the alleged statement of the defendant while he was in custody as to the weight of the cocaine when the defendant had not been advised of his right to remain silent, in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 19, 23, 24 and 27 of the North Carolina Constitution and Federal and North Carolina statutory and common law, resulting in prejudice to the defendant.
There was no objection at trial to the admission of this evidence. Thus, defendant's recourse was to assign plain error, which he has not done. As defendant failed to assign plain error in the record on appeal, and this Court's review "is confined to a consideration of those assignments of error set out in the record on appeal", defendant's argument is not properly before this Court. N.C.R. App. P. 10(a); see also State v. McNeil, 350 N.C. 657, 681, 518 S.E.2d 486, 501 (1999); State v. Williams, 153 N.C. App. 192, 196, 568 S.E.2d 890, 893 (2002); N.C.R. App. P. 10(c)(4) (). This assignment of error is therefore dismissed.
On appeal, defendant next contends that the trial court erred by failing to grant defendant's motion to dismiss the instant charges because the State failed to present substantial evidence that defendant had either actual or constructive possession of the cocaine located on the sidewalk. We disagree.
In ruling on a motion to dismiss, "the trial court must determine only 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. Crawford, 344 N.C. 65, 73, 472 SE 2d 920, 925 (1996).
State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (2002) (quoting State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001) (internal citations and quotation marks omitted)). "'[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both.'" State v. Crouse, 169 N.C. App. 382, 389, 610 S.E.2d 454, 459 (quoting State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981)), disc. review denied, 359 N.C. 637, 616 S.E.2d 923 (2005).
"An accused's possession of narcotics may be actual or constructive." State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). "A person has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use." State v. Reid, 151 N.C. App. 420, 428-29, 566 S.E.2d 186, 192 (2002). However, the State is not required to prove actual physical possession of the controlled substance; proof of constructive possession by defendant is sufficient to carry the issue to the jury. State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). "Constructive possession exists when a person, while not having actual possession, has the intent and capability to maintain control and dominion over...
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