State v. Coleman

• Decision Date: 21 May 2013
• Docket Number: No. COA12–946.,COA12–946.
• Citation: 742 S.E.2d 346
• Parties: STATE of North Carolina v. Anthony COLEMAN.
• Court: North Carolina Court of Appeals

742 S.E.2d 346

STATE of North Carolina

v.Anthony COLEMAN.

No. COA12–946.

Court of Appeals of North Carolina.

May 21, 2013.

Appeal by defendant from judgments entered 10 December 2010 by Judge Timothy S. Kincaid in Mecklenburg County Superior Court. Heard in the Court of Appeals 30 January 2013.

Attorney General Roy Cooper, by Assistant Attorney General J. Joy Strickland, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellant.

BRYANT, Judge.

Where the trial court failed to adequately instruct the jury on the law as it applied to the material facts of this case, we hold the failure amounts to plain error. Defendant is entitled to a new trial.

On 25 November 2009, defendant was stopped by officers with the Charlotte–Mecklenburg Police Department for a traffic violation. When questioned as to whether he had any drugs or weapons in the vehicle, defendant acknowledged carrying marijuana. The officers recovered a baggie containing approximately 2 8 grams of marijuana from the front passenger compartment and then proceeded to search the vehicle. In the trunk, the officers recovered a box containing six similarly sized bags of marijuana and approximately 45 grams of heroin. Defendant was arrested and later indicted on charges of trafficking in twenty-eight grams or more of heroin, by possession and trafficking in twenty-eight grams or more of heroin, by transportation.¹

A jury trial was conducted during the 6 December 2010 Criminal Session of Mecklenburg County Superior Court, the Honorable Timothy S. Kincaid, Judge presiding. During the prosecution's case-in-chief, an audio recording of defendant's interview with police detectives made the day of his arrest was admitted into evidence and played for the jury. Defendant presented no evidence at trial.

At the conclusion of the evidence, the jury returned guilty verdicts on the charges of trafficking in heroin by possession and trafficking in heroin by transportation. The trial court entered judgment in accordance with the jury verdicts and sentenced defendant to concurrent terms of 225 months to 279 months.² Defendant appeals.

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On appeal, defendant raises two issues: whether the trial court erred by (I) failing to instruct the jury on the law of guilty knowledge; and (II) failing to intervene ex mero motu during the State's closing argument. Because the first issue is dispositive of this case, we need not review the second issue.

I

Defendant argues that the trial court erred by failing to instruct the jury on the law of guilty knowledge. Specifically, defendant contends that the trial court erred in failing to instruct the jury in accordance with the pattern jury instructions regarding circumstances where a defendant contends he did not know the true identity of what he possessed. We agree.

Preservation of issue for appeal

During the charge conference, the trial court stated that on the charges of trafficking by possession and trafficking by transportation, it would instruct the jury in accordance with North Carolina pattern instructions—N.C.P.I., criminal 260.17 and 260.30. Defendant asked if the trial court would “give the usual instruction about knowing.” During the subsequent exchange,the trial court gave no indication that it would include the language contained in footnote 4 of both N.C.P.I., criminal 260.17 and 260.30, addressing scenarios where a defendant contends that he did not know the true identity of what he possessed. Defendant made no motion to amend the instruction, and following the trial court's jury charge, when offered an opportunity to request corrections to the instructions given, defendant made no requests or objections.

On appeal, defendant argues that the trial court erred by failing to give an instruction in accordance with footnote 4 of N.C.P.I.—Crim. 260.17 and Crim. 260.30. Footnote 4 of Crim. 260.17 provides that “[i]f the defendant contends that he did not know the true identity of what he possessed, [the State must prove beyond a reasonable doubt that] ‘the defendant knew that what he possessed was [heroin].” N.C.P.I.—Crim. 260.17 n.4 (2012). The language set out in Crim. 260.30 n.4 is nearly identical.³ Defendant requests that in the event we do not find that his argument has been preserved as a matter of law, we review the trial court's instructions for plain error.

Generally “[a] party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires to consider its verdict....” R.App. P. 10(a)(2) (2012); compare State v. Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988) (“[Holding that] a request for an instruction at the charge conference [was] sufficient compliance with the rule[, now N.C. R.App. P. 10(a)(2),] to warrant our full review on appeal where the requested instruction [was] subsequently promised but not given....” (citation omitted)); and State v. LePage, 204 N.C.App. 37, 45–46, 693 S.E.2d 157, 163 (2010) (reviewing for prejudicial error a jury instruction inconsistent with the pattern instruction agreed upon during the charge conference).

“In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C. R.App. P. 10(a)(4).

Standard of Review

“[P]lain error review is limited to errors in a trial court's jury instructions or a trial court's rulings on admissibility of evidence.” State v. Roache, 358 N.C. 243, 275, 595 S.E.2d 381, 403 (2004) (citation omitted).

[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.

State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012) (citation omitted) (original emphasis and brackets). Assuming without deciding that defendant failed to properly preserve this issue for appellate review, we review this issue for plain error.

Analysis

In accordance with North Carolina General Statutes, section 15A–1231 (2011), the trial court conducted a conference on the jury instructions after the close of the evidence and before the closing arguments of the parties. During this conference, the trial court identified by name and pattern jury instruction number the instructions that it intended to give during the jury charge including “260.17 and 260.30, trafficking in heroin by possession and by transportation, respectively....”

North Carolina Pattern Jury Instruction, Criminal 260.17—Drug Trafficking by Possession, in pertinent part, reads as follows:

For you to find the defendant guilty of this offense the State must prove two things beyond a reasonable doubt:

First, that the defendant knowingly possessed [heroin]. A person possesses [heroin] if he is aware of its presence and has ... both the power and intent to control the disposition or use of that substance.

N.C.P.I.—Crim. 260.17 (2012). N.C. Pattern Instruction—Criminal 260.30–Drug Trafficking by Transportation, states, in pertinent part, “[f]or you to find the defendant guilty of this offense the State must prove two things beyond a reasonable doubt: First, that the defendant knowingly transported [heroin].” N.C.P.I.—Crim. 260.30 (2012).

Footnote 4 of pattern instructions—criminal 260.17 and 260.30 ⁴ advises the trial judge to further instruct the jury where defendant contends he did not know the identity of the substance. Footnote 4 of pattern instruction—criminal 260.17 reads, as follows: “If the defendant contends that he did not know the true identity of what he possessed, add this language to the first sentence: ‘and the defendant knew that what he possessed was [heroin].’ ” N.C.P.I.—Crim. 260.17 n.4 (emphasis added). Therefore, if given as proposed by defendant, the first sentence of pattern instruction-Crim. 260.17 would read as follows: “First, that defendant knowingly possessed heroin and defendant knew that what he possessed was heroin.” N.C.P.I.—Crim. 260.17 n.4.⁵

Knowledge that one possesses contraband is presumed by the act of possession unless the defendant denies knowledge of possession and contests knowledge as disputed fact. See State v. Tellez, No. 09–1010, 2010 WL 1287086, at *5–6, 2010 N.C.App. LEXIS 576, at *14 (N.C.App., 6 April 2010) (unpublished opinion).

The State argues that defendant is not entitled to the instruction set out in footnote 4 because “defendant did not testify nor did he present any evidence to raise the issue of knowledge as a disputed fact.”

However, during the State's case-in-chief, a detective in the Vice Narcotics Unit of the Charlotte Police Department testified that he interviewed defendant the day he was arrested. The detective gave the following summary of defendant's statements during the interview: Defendant said he had been asked to hold a box until later in the week, at which time he would be contacted about where to deliver the box. Defendant stated he was expecting to be paid $200.00 for holding the box. “He said he thought the box contained marijuana and cocaine and he took some marijuana out of it and put it under the seat of his car.” The...