Opinion
No. COA09-516.
Filed February 2, 2010.
Anson County Nos. 08CRS050028-050031.
Appeal by defendant from judgments entered 13 November 2008 by Judge John Holshouser in Anson County Superior Court. Heard in the Court of Appeals 14 October 2009.
Attorney General Roy Cooper, by Assistant Attorney General J. Aldean Webster III, for the State. Hartsell Williams, P.A., by Christy E. Wilhelm, for defendant-appellant.
Emmanuel Bell ("defendant") appeals as a matter of right from four convictions: (1) trafficking in marijuana by possession; (2) trafficking in marijuana by transporting; (3) intentionally or knowingly maintaining a vehicle that was used for keeping or selling a controlled substance; and (4) possession of a controlled substance on the premises of the Anson County jail. Defendant has properly preserved, argued and appealed the following issues: (1) that the trial court erred in admitting into evidence the amount of defendant's pretrial release bond; (2) erred in submitting the case to the jury for lack of substantial evidence; and (3) erred in sentencing defendant to consecutive terms. After review, we conclude that defendant received a trial free of prejudicial error.
I. FACTUAL BACKGROUND
On 8 January 2008, defendant was driving a Dodge Caravan, rented from Enterprise Rental Company, from Charlotte to Wadesboro, Anson County, North Carolina. After noticing that defendant was following an eighteen-wheeler too closely, Wadesboro police officer Tom Luckey ("Officer Luckey") conducted a traffic stop of defendant's vehicle.
While conducting the traffic stop, Officer Luckey smelled a strong odor of marijuana, and saw square bricks of marijuana protruding from laundry bags which were located in the back seats of the minivan. After noticing the odor of marijuana, Officer Luckey immediately requested backup, whereupon Officer Jackie Wilson responded and pulled his patrol car in front of defendant's minivan. Officer Luckey issued defendant a warning traffic citation for following the eighteen-wheeler too closely.
Officers Luckey and Wilson then approached the driver's side of the minivan and took the keys out of the ignition. They asked defendant where the marijuana was located in the vehicle. Defendant denied having marijuana in the minivan, but complied with the officer's request when he was asked to step out of the vehicle. Officer Luckey verified that the bricks in the laundry bag contained marijuana after he noticed that one of the laundry bags had fallen over and some of the bricks were exposed and in plain view. Defendant was then arrested and charged with (1) trafficking in marijuana by possession; (2) trafficking in marijuana by transporting; (3) intentionally or knowingly maintaining a vehicle that was used for keeping or selling a controlled substance.
The contents of the minivan were subsequently seized by Officer Wilson. The SBI lab determined that the marijuana bricks weighed 280.9 pounds. At trial Officer Luckey estimated the contraband to have a street value of $719,000.00. The minivan also contained an Enterprise Rental Agreement for the minivan, an AIG auto insurance policy, and a bank statement in the vehicle, all containing defendant's name.
While being arrested for these charges, at the Anson County jail, approximately three additional grams of marijuana were found concealed in defendant's rectum. After this discovery, defendant was additionally charged with possession of a controlled substance on the premises of the Anson County jail. Defendant obtained bail conditioned upon a pre-release bond of $200,000.00. On 7 April 2008, defendant was charged in a superceding indictment on all then pending criminal charges.
During trial, defendant made motions to dismiss the charge of trafficking in marijuana by possession at the close of the State's case and at the close of all of the evidence; both motions were denied by the trial court. On 13 November 2008, the jury found defendant guilty of all charges in the indictment. Based upon the guilty verdicts, the trial court sentenced defendant to 35-42 months' imprisonment for trafficking in marijuana by possession, 35-42 months' imprisonment for trafficking in marijuana by transport, and 6-8 months' imprisonment for possession of a controlled substance on jail premises. The trial judge's sentencing required that defendant serve the three prison terms consecutively. Defendant gave notice of appeal in open court.
II. ARGUMENTS ON APPEAL
On appeal, defendant contends that the trial court erred by (1) admitting evidence of the amount of defendant's pretrial release bond and his ability to attain such bond, (2) allowing the State's witness, Officer Luckey, to testify as an expert without being tendered as such, (3) denying defendant's motion to dismiss the charge of trafficking in marijuana by possession, (4) entering judgment based on defendant's contention that the evidence was inconsistent with the jury's verdict and insufficient to support a guilty verdict, (5) sentencing defendant to an unfairly lengthy sentence in violation of his constitutional rights, (6) admitting evidence resulting from a traffic stop, wherein defendant contends there was no probable cause for the stop, and (7) allowing the State to amend the indictments against defendant and proceed with trial based upon the allegedly defective instruments. As discussed below, the second, fourth, sixth and seventh assignments of error have either not been preserved, waived or abandoned by appellant.
The second assignment of error was not objected to by defendant during the trial. Defendant's contention that the trial court erred by allowing the State's witness, Officer Luckey, to testify as an expert without being so tendered was never presented to the trial court. Officer Luckey's testimony was admitted without objection. Counsel has not asserted plain error review. Absent extraordinary circumstances, "an assignment of error [] will not be considered on appellate review unless the error has been brought to the attention of the trial court by appropriate and timely objection." State v. Short, 322 N.C. 783, 790, 370 S.E.2d 351, 355 (1988); N.C. Gen. Stat. § 15A-1446(a) (1983); N.C. Gen. Stat. § 8C-1, Rule 103(a)(1) (2009). Failure to timely object to the admission of evidence waives the objection. See Spencer v. Spencer, 70 N.C. App. 159, 165, 319 S.E.2d 636, 642 (1984). We note that defendant elicited the majority of the testimony from Officer Luckey for which he now complains. Moreover, defendant does not argue plain error; therefore, we decline to address the merits of defendant's argument.
With regard to defendant's fourth contention, that the evidence adduced at trial was inconsistent with the jury's verdict and insufficient to support a guilty verdict, defendant does not cite to authority or any portion of the record to support this contention. Pursuant to N.C. R. App. 28(b)(6) (2009), defendant's argument is abandoned, and we decline to further address the assignment of error. See Byrne v. Bordeaux, 85 N.C. App. 262, 265, 354 S.E.2d 277, 279 (1987) (holding that an alleged error was waived on appeal where plaintiff failed to cite authority in support of her contention).
With regard to his sixth assignment of error, defendant admits that during trial he stipulated that he violated the traffic laws of North Carolina. By doing so, counsel concedes defendant waived the constitutional objection that the police lacked probable cause for the traffic stop of his vehicle. Accordingly, we will not address defendant's sixth assignment of error.
Finally with regard to the seventh assignment of error, defendant contends that the trial court erred in allowing the State to amend the indictments against defendant based upon allegedly defective instruments. While this argument is properly before the Court, after reviewing the record, we conclude that the 8 January 2008 charging indictment, upon which defendant was convicted, was never amended during trial. Furthermore, in his appellate brief, defendant does not discuss an amendment to the 8 January 2008 charging indictment. Instead, defendant argues that the trial court's admission of Officer Luckey's testimony regarding his 16 October 2008 arrest created unnecessary prejudice to defendant and recognized the 16 October 2008 indictment as valid and probative evidence. Since defendant did not object to the testimony at trial and presents an argument which does not support the assignment of error he advances, we likewise deem this argument abandoned by the defendant. See N.C. App. R. 28(b)(6).
III. ADMISSION OF DEFENDANT'S PRETRIAL RELEASE BOND
Defendant assigns error to the trial court's admission of evidence regarding his $200,000 pretrial release bond and defendant's ability to attain the bond. Defendant argues that the evidence is irrelevant and unduly prejudicial. We disagree.
The standard of review where a defendant objects to the admission of evidence is abuse of discretion. State v. Pulley, 180 N.C. App. 54, 66, 636 S.E.2d 231, 240 (2006). Pursuant to the standard of review, the decision of whether evidence should be admitted or excluded is left within the sound discretion of the trial judge, unless the "ruling was so arbitrary that it could not have been the result of a reasoned decision." Id. (citation omitted).
Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2009). Relevant evidence is generally admissible unless "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403 (2009). A court's admission of irrelevant evidence "will be treated as harmless unless the defendant shows that he was so prejudiced by the erroneous admission that a different result would have ensued if the evidence had been excluded." State v. Harper, 96 N.C. App. 36, 42, 384 S.E.2d 297, 300 (1989).
During the cross-examination of Officer Luckey, defense counsel, James Exum, asked whether defendant's bank statement was found in the van showing that defendant maintained an account containing $144.00. Defense counsel also elicited testimony from Officer Luckey to support the defense's theory that defendant acted under duress while trafficking in marijuana by possession and transporting.
On redirect examination of Officer Luckey, the State made the following inquiries:
[STATE]: Officer Luckey, Mr. Exum asked you about the bank statement there from Nations Bank showing that Emmanuel Bell had 144 dollars in the bank; is that right?
[OFFICER LUCKEY]: Yes, sir.
[STATE]: Okay. Do you know whether that's his only account?
[OFFICER LUCKEY]: No, sir.
[STATE]: Did Mr. Bell ever tell you that was his only account, that's all the money he had in the world?
[OFFICER LUCKEY]: No, sir.
[STATE]: Okay. How about, you were with Mr. Bell there at the magistrate's office. Did he get a bond in this case?
[OFFICER LUCKEY]: Yes, sir.
[STATE]: Okay. What was his bond in this case in the trafficking charges?
[OFFICER LUCKEY]: It was 200,000 dollars.
[STATE]: Okay. What about the bond —
MR. EXUM: Objection, Your Honor. Relevance.
. . . .
THE COURT: All right. I'm going to allow the fact that he posted a bond in this case, but I do not wish to have any further testimony regarding the terms and conditions of the bond. Thank you. . . .
[STATE]: Officer Luckey, you just testified that he had a bond of 200,000 dollars.
MR. EXUM: Objection, Your Honor.
THE COURT: No. I mean, I'm going to allow that information to come in. However, if you'll just continue your examination in a different direction, please.
[STATE]: Yes, Your Honor.
[STATE]: And do you know — do you know currently is the defendant, Mr. Bell, out on bond right now on this charge?
[OFFICER LUCKEY]: Yes, sir, he made bond.
The State argues that the evidence of defendant's pre-trial release bond was admitted without objection. Based on the above colloquy, we note that defendant did make an objection on relevance grounds, but did not make a motion to strike Officer Luckey's testimony. N.C. Gen. Stat. § 8C-1, Rule 103(a)(1) (2009) requires either "a timely objection or motion to strike." "No particular form is required in order to preserve the right to assert the alleged error upon appeal if the motion or objection clearly presented the alleged error to the trial court." Id. Therefore, defendant properly preserved the issue for appeal. See id.
Defendant contends that his pre-trial release bond was not relevant because the evidence did not make it more or less probable that he trafficked marijuana by transportation or possession on 8 January 2008. In the alternative, defendant contends that if relevant, the evidence was unduly prejudicial. Specifically, defendant argues that evidence of his ability to post bond inflamed the jury and ultimately led jurors to convict him in order to ensure that justice was served.
In response, the State contends that its inquiry regarding the pre-trial bond amount and defendant's ability to post the bond was relevant as background information to aid the jury in its understanding of the evidence. The State argues that the evidence explains why defendant was out of jail on 16 October 2008, when he was again found by Officer Luckey to be carrying a small amount of marijuana and $5,308.00.
In Santora, McKay Ranieri v. Franklin, our Court adopted the advisory committee's note to the North Carolina Rules of Evidence, holding that "[e]vidence which is essentially background in nature is universally offered and admitted as an aid to understanding." 79 N.C. App. 585, 589, 339 S.E.2d 799, 802 (1986); see Rule 401, advisory committee's note. Here, Officer Luckey's testimony regarding defendant's pre-trial bond was relevant as background information because defendant was arrested on 16 October 2008 for possession of marijuana while on pre-trial bond release by Officer Luckey. Defendant's 16 October 2008 arrest was offered by the State to negate defendant's contention, as established during their cross-examination of Officer Luckey, that he was transporting marijuana while under duress on 8 January 2008. As such, we hold that Officer Luckey's testimony regarding defendant's pre-trial bond was relevant to aid the jury in its understanding of the evidence.
Further the testimony was not unduly prejudicial to defendant. Defendant cites no case law in support of his contention that the evidence of his pre-trial bond release was prejudicial to him. We note that evidence of a defendant's pre-trial bond release tends to show that defendant was not viewed as a threat to society; thus, this evidence would not inflame the jury in any manner. We hold that the evidence of defendant's pre-trial bond release was not unduly prejudicial to defendant and, as such, the trial court did not err in admitting the evidence.
IV. DEFENDANT'S MOTION TO DISMISS
Defendant also argues that the trial court erred by denying his motion to dismiss the charge of trafficking in marijuana by possession. Defendant contends that the State failed to present sufficient evidence that he was in actual or constructive possession of the marijuana found in the vehicle. We disagree.
When considering a motion to dismiss, based on insufficiency of evidence, the standard of review is "whether the State has offered substantial evidence to show the defendant committed each element required to be convicted of the crime charged." State v. Jackson, 189 N.C. App. 747, 753, 659 S.E.2d 73, 77, disc. review denied, appeal dismissed, 362 N.C. 512, 668 S.E.2d 564 (2008), cert. denied, ___ U.S. ___, 173 L. Ed. 2d 662 (2009). "`"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."'" State v. Edwards, 174 N.C. App. 490, 496, 621 S.E.2d 333, 338 (2005) (citations omitted). In making a determination, the Court must view the evidence admitted in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor. State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994). "The motion to dismiss should be denied if there is substantial evidence supporting a finding that the offense charged was committed." State v. Poag, 159 N.C. App. 312, 318, 583 S.E.2d 661, 666 (2003) (citations omitted).
N.C. Gen. Stat. § 90-95(h)(1) (2009) provides that "[a]ny person who sells, manufactures, delivers, transports, or possesses in excess of 10 pounds of marijuana shall be known as `trafficking in marijuana.'" Defendant solely contends that the State failed to produce sufficient evidence that he possessed the marijuana found in the vehicle.
The possession element of trafficking in marijuana can be proven by showing that defendant had both the power and intent to control the disposition or use of the marijuana. State v. Dow, 70 N.C. App. 82, 85, 318 S.E.2d 883, 885 (1984). Defendant's "possession may be either actual or constructive." Id. (citation omitted). Constructive possession can be proven where the defendant, though not in actual possession of the contraband, has the intent and capability to maintain control and dominion over the drugs. State v. Cowan, ___ N.C. App. ___, ___, 669 S.E.2d 811, 816 (2008). The "power to control the automobile where a controlled substance was found is sufficient, in and of itself, to give rise to the inference of knowledge and possession sufficient to go to the jury." Dow, 70 N.C. App. at 85, 318 S.E.2d at 886 (1984).
In the present case, there was competent evidence that defendant was the custodian of the van where the marijuana was found. The State's evidence tended to show that defendant
personally rented and was driving the van wherein 280.9 pounds of marijuana was found by Officer Luckey. This evidence clearly shows that defendant was exercising control over the van by driving it on the public roadway. Pursuant to this Court's holding in Dow, the State's evidence of defendant driving the van containing the marijuana, in and of itself, is sufficient "to give rise to the inference of knowledge and possession sufficient to go to the jury." See id. As such, the trial court did not err by denying defendant's motion to dismiss.
V. CONSTITUTIONALITY OF CONSECUTIVE TERMS OF IMPRISONMENT
The State contends that defendant is precluded from raising this issue on appeal because he did not object to the consecutive sentences at the trial court level. After reviewing the record, we note that defendant did not object to the trial court's sentence on constitutional grounds, and the trial court did not rule on this issue. Generally, the appellate courts "will not pass upon a constitutional question unless it was raised and passed upon in the court below." State v. Cortes-Serrano, ___ N.C. App. ___, ___, 673 S.E.2d 756, 765 (2009). However, in State v. Curmon, our Court held that "[a]n error at sentencing is not considered an error at trial for the purpose of Rule 10(b)(1) because this rule is `directed to matters which occur at trial and upon which the trial court must be given an opportunity to rule in order to preserve the question for appeal.'" State v. Curmon, 171 N.C. App. 697, 703, 615 S.E.2d 417, 422 (2005) (citation omitted). Therefore, defendant was not required by Rule 10 of the North Carolina Rules of Appellate Procedure to object at sentencing to preserve this issue on appeal. Id. at 704, 615 S.E.2d at 422-23.
Defendant was found guilty of trafficking in marijuana by transportation and possession of 280 pounds of marijuana; both offenses are in violation of N.C. Gen. Stat. § 90-95H(1)(b) (2009). Pursuant to N.C. Gen. Stat. § 90-95H(1)(b), defendant "shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 42 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000)." Our Supreme Court has held that "[a] defendant may be convicted of and sentenced for each specific criminal act which he commits." State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983).
In the present case, the trial court sentenced defendant to the statutorily prescribed mandatory sentences for both of the trafficking in marijuana offenses, and sentenced defendant to 6-8 months as a third consecutive sentence to the two consecutive trafficking sentences for possession of a controlled substance on jail premises. As such, the trial court did not commit error by sentencing defendant to consecutive terms of imprisonment for each of his crimes.
VI. CONCLUSION
For the reasons stated herein, we hold defendant received a fair trial, free of prejudicial error. Accordingly, the holding of the trial court is
No error.
Judges STEELMAN and ELMORE concur.
Report per Rule 30(e).