State v. Ussery

Decision Date02 June 1992
Docket NumberNo. 926SC41,926SC41
Citation106 N.C.App. 371,416 S.E.2d 610
PartiesSTATE of North Carolina v. Derrick Keith USSERY.
CourtNorth Carolina Court of Appeals

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. K.D. Sturgis, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Teresa A. McHugh, Raleigh, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant first argues that the trial court erred by denying his motions to dismiss because the evidence presented was insufficient. Specifically, defendant contends there was no evidence presented that the offense was committed within 300 feet of the legal boundary of a school. We disagree.

In ruling on a motion to dismiss, the trial court must determine whether the State presented substantial evidence of each element of the offense charged. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). 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. Id.

In this case, an element of the offense charged is that the offense was committed "on property used for an elementary or secondary school or within 300 feet of the boundary of real property used for an elementary or secondary school...." G.S. 90-95(e)(8). Principal Kathy Landen testified that a measurement was made from the boundary of Chaloner Middle School to the site of the offense. Her identification of the boundary was based on a deed and plat of the property and on the use of the property by the school. Likewise, Superintendent Mike Williams of the Roanoke Rapids Graded School District testified that the measurement was made from the boundary of the school as he knew it based on the deed and plat and on his experience in supervising the school. The distance was measured twice and found to be 242 feet. We hold this evidence was sufficient to show that the site of the drug purchases was within 300 feet of the boundary of real property used for a school. Defendant's argument is meritless.

Defendant next argues the trial court should have dismissed one of the indictments because there was only one transaction. Specifically, defendant contends his right to due process was violated because an undercover agent made two purchases of cocaine within a short time of each other. We disagree.

Clearly, evidence of two separate offenses was presented in this case. Our Supreme Court has stated that relief may be granted "where, through vindictive prosecutorial abuse, criminal charges, arising out of the same course of conduct, have been arbitrarily stacked like pancakes, one upon another, with the result that the total punishment imposed is so disproportionate to his offenses as to violate that fundamental concept of fairness which is the basis of due process of law." State v. Fulcher, 294 N.C. 503, 526, 243 S.E.2d 338, 353 (1978). In this case, defendant's consecutive prison terms total thirty years. Since the trial court found there was an aggravating factor and no mitigating factors, defendant could have been sentenced to the maximum thirty years in prison for any one of the offenses. For that reason, the total...

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4 cases
  • State v. Powers
    • United States
    • South Carolina Supreme Court
    • June 8, 1998
    ...and disclosure immediately prior to jury selection cannot prejudice defense absent extraordinary circumstances); State v. Ussery, 106 N.C.App. 371, 416 S.E.2d 610 (1992) (no abuse of discretion in requirement that defendant divulge potential witnesses for voir dire purposes); People v. Perr......
  • State v. Moss, COA18-680
    • United States
    • North Carolina Court of Appeals
    • March 19, 2019
    ...error in the prosecutor’s argument unless a defendant provides a transcript of the argument in question. State v. Ussery , 106 N.C. App. 371, 375, 416 S.E.2d 610, 612 (1992).We will not find error in a trial court’s failure to intervene in closing arguments ex mero motu unless the remarks w......
  • Shields, Inc. v. Metric Constructors, Inc.
    • United States
    • North Carolina Court of Appeals
    • June 2, 1992
  • State v. Barnes, No. COA08-1096 (N.C. App. 4/21/2009)
    • United States
    • North Carolina Court of Appeals
    • April 21, 2009
    ...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 co......

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