State v. Freeman

• Decision Date: 21 August 2007
• Docket Number: No. COA06-1502.,COA06-1502.
• Citation: 648 S.E.2d 876
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. George Oliver FREEMAN.

648 S.E.2d 876

STATE of North Carolina v. George Oliver FREEMAN.

No. COA06-1502.

Court of Appeals of North Carolina.

August 21, 2007.

Appeal by defendant from judgments entered 11 June 2006 by Judge Nathaniel J. Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 6 June 2007.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Edwin Lee Gavin, II, for the State.

Kathleen Arundell Widelski, Concord, for defendant-appellant.

JACKSON, Judge.

George Oliver Freeman ("defendant") appeals from judgment entered upon his conviction for possession of cocaine.

On the evening of 11 January 2004, Officer Christopher Miller ("Officer Miller") of the Charlotte-Mecklenburg Police Department responded, along with Officers Lester and Poe, to a report of an armed robbery at the Circle K convenience store at the 2300 block of The Plaza. Officer Miller arrived within two minutes of the call, and upon pulling into the parking lot, Officer Miller observed a white Pontiac in front of the store and believed that the driver "might be a possible accomplice or a get-away driver." He then observed defendant exiting the Circle K through the front door and noted that defendant's hands were in his pockets. After the officers ordered defendant to lie down on the ground, defendant pulled his hands out of his pockets and dropped, along with his car keys, an item that looked like a pill bottle. Just before lying down, defendant kicked the bottle underneath the white Pontiac.

Officer Miller noted that no one else was near the location where the pill bottle landed and after defendant was secured, Officer Miller recovered the pill bottle. Inside the pill bottle, Officer Miller discovered a variety of white pills and believed that two of them were crack cocaine.

In addition to the pills, Officer Miller also seized a North Carolina identification card from defendant's person. Officer Miller explained that defendant "had given various names and dates of birth as to what his true identity was. We eventually found the I.D. card with a date of birth. The I.D. card was fictitious, and through a couple of different data bases we were able to determine who he was, talk to him a little bit more, and then he told us who he was."

After conducting a brief investigation, the officers learned that no armed robbery had taken place. They placed defendant in custody on suspicion of possession of crack cocaine, and on 18 November 2004, a forensic chemist employed by the Charlotte-Mecklenburg Police Crime Lab determined that two pills recovered from the bottle were cocaine with a combined weight of 0.22 grams.

On 11 July 2006, a jury found defendant guilty of possession of cocaine, and defendant subsequently admitted his habitual felon status. The trial court sentenced defendant as a Prior Record Level VI offender to 135 months to 171 months imprisonment. Defendant gave notice of appeal in open court.

In his first argument, defendant contends that the trial court erred in denying his motion to dismiss for failure of the State to establish that the crime alleged occurred in the State of North Carolina. We disagree.

"`In considering a motion to dismiss, the evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom.'" State v. Elliott, 360 N.C. 400, 412, 628 S.E.2d 735, 744 (quoting State v. Lowery, 309 N.C. 763, 766, 309 S.E.2d 232, 236 (1983)), cert. denied, ___ U.S. ___, 127 S.Ct. 505, 166 L.Ed.2d 378 (2006). At the close of the State's evidence, defendant made a motion to dismiss, stating "I don't believe I heard anything about jurisdiction. I heard the 2300 block of The Plaza, but I didn't hear anything about them proving that that event took place in Charlotte, Mecklenburg County." The trial court denied defendant's motion to dismiss.

"It is well settled law that an act must have occurred within the territorial boundaries of the state to be punishable as a crime in the state." State v. Williams, 74 N.C.App. 131, 132, 327 S.E.2d 300, 301 (1985). As this Court has explained,

[w]here a criminal defendant challenges the theory upon which the State claims jurisdiction to try him, the question is a legal question for the court; however, where the defendant challenges the facts upon which jurisdiction is claimed, the question is one for the jury.

State v. Dial, 122 N.C.App. 298, 305, 470 S.E.2d 84, 88-89, disc. rev. and cert. denied, 343 N.C. 754, 473 S.E.2d 620 (1996).

In the case sub judice, defendant is correct that there was no testimony that explicitly stated the crime occurred in Charlotte, Mecklenburg County, North Carolina. Although the evidence is circumstantial, "this factor alone does not mean that the evidence is deficient in any respect." State v. Rick, 342 N.C. 91, 99, 463 S.E.2d 182, 186 (1995). Rather, "circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. The jurors must decide whether the evidence satisfies them beyond a reasonable doubt that the defendant is guilty." State v. Tirado, 358 N.C. 551, 582, 599 S.E.2d 515, 536 (2004) (internal quotation marks and citations omitted), cert. denied sub nom., Queen v. North Carolina, 544 U.S. 909, 125 S.Ct. 1600, 161 L.Ed.2d 285 (2005).

Here, defendant was indicted by a Mecklenburg County, North Carolina grand jury, and the crime was investigated and defendant was arrested by the Charlotte-Mecklenburg Police Department. Specifically, Officer Miller testified that he was an officer with the Charlotte-Mecklenburg Police Department and was "so sworn and duly employed" when he encountered defendant on 11 January 2004. Officer Miller further testified that he was on Central Avenue, a few blocks away from the 2300 block of The Plaza, when he received the call concerning a possible armed robbery. In addition to the pill bottle, a North Carolina identification card was seized during defendant's arrest. Finally, Dee Anne Johnson, a forensic chemist employed by the Charlotte-Mecklenburg Police Crime Lab, performed the analysis on the pills, and a Charlotte-Mecklenburg police property sheet accompanied the sealed package containing the pills. Defendant did not object to any of this testimony, and when viewed as a whole, "[w]e believe the circumstantial evidence presented in this case, together with the reasonable inferences which could be properly drawn therefrom, is sufficient for the jury's consideration and determination." Rick, 342 N.C. at 99, 463 S.E.2d at 186; see also State v. Drakeford, 104 N.C.App. 298, 301, 409 S.E.2d 319, 321 (1991). Accordingly, defendant's assignment of error is overruled.

Defendant next contends that the trial court erred in failing to grant his motion to dismiss due to insufficiency of the evidence. Defendant, however, has failed to preserve this question for appellate review.

"In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make." N.C. R.App. P. 10(b)(1) (2006). At the close of the State's evidence, defendant made a motion to dismiss, arguing, "I don't believe I heard anything about jurisdiction. I heard the 2300 block of The Plaza, but I didn't hear anything about them proving that that event took place in Charlotte, Mecklenburg County. Other than that, I don't wish to be heard." (Emphases added). After denying the motion, the trial court asked if defendant wished to present evidence. Defendant responded, "Your Honor, we will rest and renew our Motion to Dismiss." Defendant's motions to dismiss were based specifically on his contention that the State failed to prove that the crime alleged occurred in North Carolina. Defendant's motion to dismiss was not based on insufficiency of the evidence in general. "This Court will not consider arguments based upon matters not presented to or adjudicated by the trial court." State v. Forte, 360 N.C. 427, 438, 629 S.E.2d 137, 145 (quoting State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600, cert. denied, 540 U.S. 988, 124 S.Ct. 475, 157 L.Ed.2d 382 (2003)), cert. denied, ___ U.S. ___, 127 S.Ct. 557, 166 L.Ed.2d 413 (2006). Accordingly, this issue is not properly before this Court, and we dismiss defendant's assignment of error.

Defendant further argues that his sentence is grossly disproportionate to the severity of the crime and violates the Eighth Amendment prohibition against cruel and unusual punishment. Defendant did not object at trial, however, and "constitutional arguments will not be considered for the first time on appeal." State v. Chapman, 359 N.C. 328, 360, 611 S.E.2d 794, 819 (2005). Although defendant assigns plain error to this issue, it is well-settled that "plain error analysis applies only to instructions to the jury and evidentiary matters." State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578, cert. denied, 531 U.S. 1041, 121 S.Ct. 635, 148 L.Ed.2d 543 (2000). Defendant has failed to preserve his Eighth Amendment argument, and we dismiss defendant's assignment of error.

Defendant also contends that the trial court committed plain error in allowing Officer Miller to testify that the substance seized was crack cocaine on the grounds that the testimony constituted inadmissible lay opinion. We disagree.

Pursuant to Rule 701 of the North Carolina Rules of Evidence, "[i]f the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." N.C. Gen.Stat. § 8C-1, Rule 701 (2005). "As long as the lay witness has a basis of personal knowledge for his...