State v. McNeil

• Court: North Carolina Court of Appeals
• Writing for the Court: TIMMONS-GOODSON.
• Citation: State v. McNeil, 600 S.E.2d 31, 165 N.C.App. 777 (N.C. App. 2004)
• Decision Date: 17 August 2004
• Docket Number: No. COA03-460.,COA03-460.
• Parties: STATE of North Carolina v. Franklin McNEIL.

600 S.E.2d 31

165 NC App. 777

STATE of North Carolina v. Franklin McNEIL.

No. COA03-460.

Court of Appeals of North Carolina.

August 17, 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Pitman, for the State.

Hosford & Hosford, P.L.L.C., by Sofie W. Hosford, Wilmington, for defendant-appellant.

TIMMONS-GOODSON, Judge.

Franklin McNeil ("defendant") appeals his convictions for possession with intent to sell or deliver cocaine and attaining habitual felon status. For the reasons discussed herein, we hold that defendant received a trial free of prejudicial error.

The State's evidence presented at trial tends to show the following: On 31 August 2001, Durham County Police Department Officer J.R. Broadwell ("Officer Broadwell") was investigating a complaint that drug sales were occurring in front of a residence located on 1108 Fargo Street. As Officer Broadwell approached the 1100 block of Fargo Street, he noticed defendant and another individual ("Keech") standing in front of 1108 Fargo Street. When they saw Officer Broadwell's police vehicle approaching, defendant and Keech quickly walked away from 1108 Fargo Street. After stopping defendant and Keech to ask them where they lived, Officer Broadwell noticed that the two men were "nervous," and he decided to conduct a pat-down search of Keech. While performing the search of Keech, Officer Broadwell saw defendant put his hand into his right front pocket. When Officer Broadwell ordered defendant to take his hand out of his pocket, defendant "took off running down Fargo Street towards Umstead [Street]."

Officer Broadwell pursued defendant down Fargo Street and inside a residence located at the corner of Fargo Street and Umstead Street. Officer Broadwell continued to pursue defendant inside the residence and into a room in the rear of the residence. Upon reaching the rear room of the residence, defendant jumped and "went over the top of [a] chair with his arm." Officer Broadwell approached defendant and unsuccessfully attempted to pull defendant from behind the chair. Officer Broadwell eventually pulled defendant away from the chair, and he and defendant continued to struggle through "several rooms of the house." Officer Broadwell ultimately pulled defendant to the floor of the kitchen of the residence, at which time he placed defendant in custody.

A short period of time later, several assisting officers arrived at the residence. After securing defendant, Officer Broadwell searched the room where he and defendant had first struggled. Behind the chair that defendant had previously lunged over, Officer Broadwell found twenty-two individually wrapped white rock substances Officer Broadwell believed were pieces of crack cocaine.

Officer Broadwell then escorted defendant to his police vehicle, which was parked where Officer Broadwell had first encountered defendant and Keech. As he searched the area around the vehicle, Officer Broadwell found three small bags containing an off-white powdered substance Officer Broadwell believed was cocaine. According to Officer Broadwell, defendant stated "[t]hat the crack was his but that the bags ... on the ground were not." Subsequent laboratory tests revealed the off-white rock substances to be crack cocaine and the off-white powdered substance to be baking soda.

On 4 March 2002, defendant was indicted for possession with intent to sell and deliver cocaine and attaining habitual felon status.¹ Prior to trial, defendant moved the trial court "to suppress the tangible evidence seized by law enforcement officers in violation of his rights under the Fourth Amendment to the Constitution and Constitution of the State of North Carolina." The trial court subsequently denied the motion, and defendant was tried 21 November 2002.

At trial, defendant denied having made any statement to Officer Broadwell regarding the controlled substances Officer Broadwell seized during defendant's arrest. Defendant testified that he and Keech were walking down Fargo street because Keech wanted to "retrieve something that he had left there." Defendant further testified that he ran after Officer Broadwell asked him to remove his hands from his pockets because "me and my wife had had a little fabrication [sic] and I didn't know if she had taken a warrant out on me or not." Defendant also testified that the residence he ran inside of was where "everybody goes to smoke this stuff that they have and drink."

At the close of all the evidence, the jury found defendant guilty of possession with intent to sell or deliver cocaine and guilty of attaining habitual felon status. The trial court determined that defendant had a prior record level IV, and on 26 November 2002, the trial court sentenced defendant to 133 to 169 months incarceration. Defendant appeals.

As an initial matter, we note that defendant's brief contains arguments supporting only four of his original five assignments of error. Pursuant to N.C.R.App. P. 28(b)(6) (2004), the omitted assignment of error is deemed abandoned. Therefore, we limit our present review to those assignments of error properly preserved by defendant for appeal.

The issues on appeal are: (I) whether the trial court erred by denying defendant's motion to dismiss the charge of possession with intent to sell or deliver cocaine; (II) whether the trial court erred by denying defendant's motion to suppress the evidence seized during defendant's arrest; and (III) whether the trial court erred by allowing the State to introduce into evidence copies of defendant's previous judgments.

Defendant first argues that the trial court erred by denying his motion to dismiss the charge of possession with intent to sell or deliver cocaine. Defendant asserts that the State failed to offer sufficient evidence to support each element of the charge. We disagree.

When ruling on a motion to dismiss, "[t]he trial court's inquiry is limited to a determination of `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. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 139 (2002) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). "[A]ll of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence." State v. Davis, 130 N.C.App. 675, 679, 505 S.E.2d 138, 141 (1998).

"The offense of possession with intent to sell or deliver has the following three elements: (1) possession of a substance; (2) the substance must be a controlled substance; (3) there must be intent to sell or distribute the controlled substance." State v. Carr, 145 N.C.App. 335, 341, 549 S.E.2d 897, 901 (2001); N.C. Gen.Stat. § 90-95(a)(1) (2003). However, "`[i]n a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials.'" State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986)). Instead, "[p]ossession of a controlled substance may be either actual or constructive." State v. Hamilton, 145 N.C.App. 152, 155, 549 S.E.2d 233, 235 (2001). As long as the defendant "has the intent and capability to maintain control and dominion over" the controlled substance, he can be found to have constructive possession of the substance. State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). Incriminating circumstances, such as evidence placing the accused within close proximity to the controlled substance, may support a conclusion that the substance was in the constructive possession of the accused. See State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972). Thus, where sufficient incriminating circumstances exist, constructive possession of a controlled substance may be inferred even where possession of a premises is nonexclusive. See State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 588-89 (1984).

In the instant case, Officer Broadwell testified that his patrol of Fargo Street was based upon a report that drugs were being sold in the area in front of 1108 Fargo Street. Officer Broadwell testified that, upon his arrival in the area, he noticed defendant and Keech standing in front of 1108 Fargo Street. Officer Broadwell further testified that, as his police vehicle approached the 1100 block of Fargo Street, the two men began to walk quickly away from the vehicle and towards Umstead Street. When Officer Broadwell questioned defendant and Keech, both men acted nervous and each looked at the other before answering. Officer Broadwell testified that defendant was shaking and put his right hand in his pocket while Officer Broadwell was conducting a pat-down search of Keech. Officer Broadwell testified that after he instructed defendant to remove his hands from his pockets, defendant fled the area and ran towards Umstead Street.

Officer Broadwell testified that while he was chasing defendant, defendant was never out of his eyesight. Officer Broadwell further testified that while in the back room of the residence located at the corner of Fargo Street and Umstead Street, he noticed defendant put his right hand behind a chair. Officer Broadwell testified that "immediately" after securing defendant, he returned to the room where the chair was located and found twenty-two rocks that he believed to be crack cocaine. Officer Broadwell further testified that when he and defendant returned to Officer Broadwell's police vehicle, defendant admitted to possessing the crack cocaine the officer had found behind the chair.

We conclude that the State presented sufficient evidence to establish that defendant possessed...