State v. Broome

• Decision Date: 21 December 1999
• Docket Number: No. COA98-1372.,COA98-1372.
• Citation: 136 NC App. 82,523 S.E.2d 448
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Antonio Lamont BROOME.

523 S.E.2d 448

136 NC App. 82

STATE of North Carolina v. Antonio Lamont BROOME.

No. COA98-1372.

Court of Appeals of North Carolina.

December 21, 1999.

Attorney General Michael F. Easley, by Assistant Attorney General Mary Dee Carraway, for the State.

Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant.

EAGLES, Chief Judge.

Defendant Broome was indicted for trafficking by possession of 200-400 grams of cocaine in violation of N.C. Gen.Stat. § 90-95(h). The State introduced as evidence a package of cocaine mixture seized from Broome's car weighing 273 grams; however, the State's expert testified that the package contained only 27 grams of pure cocaine. Defendant argues that because of this "fatal variance" between the State's proof and the offense charged in the indictment, he was denied his constitutional right to sufficient notice of the charge against him, to prepare a proper defense, and to avoid double jeopardy. See State v. Ingram, 20 N.C.App. 464, 466, 201 S.E.2d 532, 534 (1974)

.

Preliminarily, we note that Broome's attorney failed to renew his motion to dismiss the case at the close of evidence, necessary to properly preserve this issue. N.C. R.App. P. 10(b)(3). The issue is therefore abandoned. Id. At defendant's urging, we have evaluated his first assignment of error under the plain error rule. N.C. R.App. P 10(c)(4); State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). We find no plain error.

To support his contention that his conviction should be vacated, Broome cites State v. White, 3 N.C.App. 31, 164 S.E.2d 36 (1968) and State v. Rush, 19 N.C.App. 109, 197 S.E.2d 891 (1973). In Rush, this Court arrested judgment against a drug offender convicted of an offense not contained in the indictment. Unlike Rush, the defendant here was indicted, tried and convicted of the same offense, trafficking by possession of cocaine in violation of G.S. 90-95(h). In White, this Court found a fatal variance between an indictment alleging various traffic violations and the proof of those violations—a traffic citation with an inaccurate violation date. This Court vacated the defendant's sentence, holding that "[t]he allegation and proof must correspond ... [so that] the defendant will know with what he is charged." Id. at 33, 164 S.E.2d at 38-39. The rule in White, while authoritative, is an incomplete statement of the law as it relates to this case.

In State v. Tyndall, 55 N.C.App. 57, 284 S.E.2d 575 (1981), this Court held that "[n]ot every variance ... is sufficient to require a motion to dismiss." Tyndall at 61, 284 S.E.2d at 577, citing State v. Furr, 292 N.C. 711, 235 S.E.2d 193, cert. denied, 434 U.S. 924, 98 S.Ct. 402, 54 L.Ed.2d 281 (1977). Here, as in Tyndall, a drug offender based his assignment of error on an alleged variance between the indictment and the State's proof. Specifically, Broome argues that possession of a 273-gram mixture containing only 27 grams of pure cocaine is legally insufficient to support a conviction for trafficking in 200-400 grams of cocaine. G.S.90-95(h)(3)(a) states that it is a felony to possess a "substance or mixture ... [that] [i]s 200 grams or more, but less than 400 grams." (Emphasis added). Consistent with the legislative intent of this statute—to deter large-scale trafficking in "mixtures containing controlled substances"—we hold, as we did in Tyndall, "that the quantity of the mixture containing cocaine may be sufficient in itself to constitute a violation under G.S. 90-95(h)(3)." Tyndall at 60-61, 284 S.E.2d at 577. Because it is unlawful to traffic in either pure or mixed cocaine, the relevant question here is the weight of the total substances seized, regardless of the substances' purity. Because the package contents seized from Broome's car weighed 273 grams, we hold that there was no variance. This assignment of error is overruled.

On 2 February 1999, we denied Broome's motion to amend the record to include a new assignment of error. Broome's second argument is based entirely on the proposed amendment to the record excluded by our 2 February order. Therefore, Broome's second argument is not supported by the record and is dismissed pursuant to N.C. R.App. P. 10(c)(1).

In his third assignment of error, Broome argues that there was insufficient evidence that he "possessed" cocaine within the meaning of G.S. 90-95(h). Because Broome failed to renew his motion to dismiss at the close of evidence, we may consider this assignment of error only under the plain error rule. N.C. R.App. P. 10(c)(3),(4); State v. Harris, 315 N.C. 556, 564, 340 S.E.2d 383, 388 (1986). Although the cocaine mixture was seized from his vehicle's back seat, Broome essentially argues that the drugs never left the police's possession because (1) Officer Tarte put the drugs in Broome's back seat, (2) the parking lot was surrounded by police, (3) Broome was unable to leave the lot, and (4) Broome never touched the drugs. We are not persuaded.

Possession may be actual or constructive. Constructive possession may be proven by evidence of defendant's intent to control the disposition of a particular object. See State v. Alston, 131 N.C.App. 514, 508 S.E.2d 315 (1998)

; State v. Hunter, 107 N.C.App. 402, 420 S.E.2d 700 (1992),

overruled on other grounds, State v. Pipkins, 337 N.C. 431, 446 S.E.2d 360 (1994); State v. Dow, 70 N.C.App. 82, 85, 318 S.E.2d 883, 885 (1984). We have held that "[a]n inference of constructive possession can ... arise from evidence which tends to show that a defendant was the custodian of the vehicle where [a] controlled substance was found." Hunter, 107 N.C.App. at 409,

420 S.E.2d at 705, citing Dow, 70 N.C.App. at 85,

318 S.E.2d at 886. Unlike the Alston case cited by Broome, Broome owned and was present in the car in which the police found the drugs. Moreover, Broome was the lone occupant of the car at the time the drugs were seized from his car, the drugs having been deposited there at Broome's direction. Regardless of whether he was able to escape, Broome had the power to control the automobile in which the substances were found, raising an inference of possession sufficient to go to the jury. Hunter.

After careful review, we hold that there was no plain error in the trial court finding sufficient evidence of Broome's intent and capability to control the disposition and use of the cocaine found in his automobile. Officer Tarte testified (and Morgan confirmed) that he received a tube sock full of cash from Broome. Officer Tarte and Broome both testified that Tarte put a package of cocaine in the back seat of Broome's vehicle. Officer Tarte testified that he and Broome discussed the contents of the package before Tarte left Broome's vehicle. We hold there was sufficient evidence from which a jury could find that Broome took possession of the cocaine in exchange for cash payment. Accordingly, we overrule this assignment of error.

Broome next argues that because the court erred in refusing to charge the jury on the lesser included offense of attempt, due process, Beck v. Alabama, 447 U.S. 625, 638, 643, 100 S.Ct. 2382, 2392, 65 L.Ed.2d 392, 403 (1980), and state law, State v. Childress, 228 N.C. 208, 209, 45 S.E.2d 42, 44 (1947)(interpreting G.S. § 15-170), entitle him to a new trial. We disagree.

An attempted crime is an intentional "overt act" done for the purpose of committing a crime but falling short of the completed crime. State v. Collins, 334 N.C. 54, 60, 431 S.E.2d 188, 192 (1993); State v. Gray, 58 N.C.App. 102, 106, 293 S.E.2d 274, 277 (1982), cert. denied, 306 N.C. 746, 295 S.E.2d 482 (1982). An attempted crime is generally considered a lesser offense of that crime. See Collins, 334 N.C.. at 59,

431 S.E.2d at 191; Gray, 58 N.C.App. at 106,

293 S.E.2d at 277. N.C. Gen.Stat. § 15-170 requires that the jury be instructed on the lesser included offense of attempt if "(1) the evidence is equivocal on this element of the greater offense so that the jury could reasonably find either the existence or the nonexistence of the element; and (2) absent this element only a conviction of the lesser included offense would be justified." State v. Whitaker, 307 N.C. 115, 118, 296 S.E.2d 273, 274 (1982). Broome contends that the evidence was equivocal on the element of possession and that the jury could have reasonably found that the defendant did not have constructive possession of the cocaine. Without the element of possession, he argues that his "interaction with Tarte and his attempt to leave the parking lot" could reasonably be seen by a jury as overt acts falling short of the completed offense of trafficking.

An attempt charge is not required if the State's evidence tends to show completion of the offense, see Whitaker at 119, 296 S.E.2d at 275; Gray, 58 N.C.App. at 106-07, 293 S.E.2d at 277, and there is no conflicting evidence relating to the elements of the crime charged, Gray; State v. McLean, 2 N.C.App. 460, 463, 163 S.E.2d 125, 126 (1968). Based on the State's uncontroverted evidence of possession discussed above, we hold that the offense of trafficking was complete at the time of Broome's arrest. The trial judge properly refused to instruct on an attempt.

We next decide whether the trial court erred in failing to instruct on the defense of entrapment. We note that because Broome did not request an entrapment instruction at trial, he must show plain error. N.C. R.App. P. 10(b)(3),(4); State v. Allen, 339 N.C. 545, 554-55, 453 S.E.2d 150, 155 (1995), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396 (1997)

; State v. Connell, 127 N.C.App. 685, 691, 493 S.E.2d 292, 296 (1997), disc. rev. denied, 347 N.C. 579, 502 S.E.2d 602 (1998); State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). The United States Supreme Court has observed that "it is a rare case in which an improper instruction will justify a reversal of a criminal conviction when no objection was made in the...