State v. Barnes, No. COA08-1096 (N.C. App. 4/21/2009)
| Decision Date | 21 April 2009 |
| Docket Number | No. COA08-1096,COA08-1096 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. MICHAEL BARNES. |
Bryan Gates for defendant-appellant.
Where the State offered substantial evidence that defendant committed the offense within 300 feet of a boundary of property used for an elementary school, the trial court did not err in denying defendant's motion to dismiss.
At approximately 10:30 p.m. on 26 January 2007, Officers Darrin Ritter and Jeff Sheffield of the Moore County Sheriff's Department were in plainclothes in an unmarked car checking for alcohol violations in Southern Pines. The two detectives were driving north on Hardin Street when Michael Barnes ("defendant"), who was on a bicycle, flashed a light at them. Defendant turned around, pulled up next to the car, and, after Officer Sheffield rolled down the window, asked what they needed. Based on his experience, Officer Ritter knew that they were in a well-known drug area, and therefore believed defendant was offering crack cocaine. Each officer asked for $20.00 worth of crack. Pointing to an elementary school, defendant then told the officers to pull down the street and wait.
The officers turned right on Indiana Avenue towards the school, and defendant turned left. The officers pulled up to the intersection of Carlisle and Indiana near the school, made a U-turn, and then waited in the spot where defendant pointed. As defendant approached, Officer Ritter exited the car. Defendant indicated that he had crack, and then Officer Ritter identified himself as a police officer and told defendant not to move. Defendant attempted to flee, to destroy the crack, and fought with the officers. Eventually defendant was handcuffed after being tasered. The officers seized small pieces of crack from defendant. The State Bureau of Investigation determined that there was cocaine base present.
After arresting defendant, the officers measured the distance between the site of the arrest and the boundary of the Southern Pines Elementary School. A measuring wheel was used to take the measurement. The distance was approximately 100 feet. Later that evening, Officer Ritter used the Moore County computer-based CIS mapping system to confirm the school's boundary. At trial, the State used an aerial photograph from the CIS system to illustrate Officer Ritter's testimony, but the photograph was not admitted into evidence.
Defendant was indicted for possession of crack cocaine with intent to sell and deliver within 300 feet of the boundary of property used for an elementary school and delivery of crack cocaine within 300 feet of a boundary of property used for an elementary school. On 14 May 2008, a jury found defendant guilty of possession of crack cocaine with the intent to sell and deliver within 300 feet of the boundary of a property used for an elementary school. The trial court entered judgment imposing a presumptive range sentence of 53 to 73 months active imprisonment . Defendant appeals.
In his sole argument on appeal, defendant contends that the trial court erred in denying his motion to dismiss. We disagree.
When reviewing a motion to dismiss, we view "the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences."State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004) (citation omitted). A trial court may properly deny a motion to dismiss where "substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator[.]" Id. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citation omitted). North Carolina General Statute § 90-95(e)(8) (amended 1 December 2007),1 provides that any person 21 years of age or older who commits a controlled substance offense prohibited under N.C. Gen. Stat. § 90-95(a)(1) "within 300 feet of the boundary of real property used for . . . an elementary or secondary school shall be punished as a Class E felon." N.C. Gen. Stat. § 90-95(e)(8) (2007); State v. Ussery, 106 N.C. App. 371, 374, 416 S.E.2d 610, 611 (1992). Section 90-95(a)(1), in turn, makes it unlawful for any person to possess, with intent to sell or deliver, a controlled substance.
Defendant contends that the State failed to present sufficient evidence to establish that the offense was committed within 300 feet of the legal boundary of a school. He argues that the State's evidence regarding the boundary was insufficient because (1) the officer...
To continue reading
Request your trial