Opinion
No. COA08-112
Filed 2 September 2008
Appeal by defendant from judgments entered 25 July 2007 by Judge Milton F. Fitch, Jr. in Nash County Superior Court. Heard in the Court of Appeals 11 June 2008.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Angel E. Gray, for the State. Jarvis John Edgerton, IV, for defendant-appellant.
Nash County No. 06 CRS 054781-82.
Where the State's witness's testimony was competent, the trial court did not abuse its discretion in allowing the witness to testify. Where defendant's argument on appeal is different than his objection at trial, the argument is not preserved for appellate review.
I. Factual and Procedural Background
On 21 July 2006, Thomas Spencer (defendant) called Charles Kay and asked Kay to drive him to Rocky Mount, N.C. later that evening. At approximately 7 p.m., defendant, Kay, and a man named Barry Hester met at defendant's apartment in Raleigh. Kay observed defendant "cooking" cocaine to manufacture crack cocaine. The men left the apartment in Kay's van at 9 p.m. and drove to Rocky Mount. The purpose of the trip was to make a sale of the crack cocaine. On their way to Rocky Mount, the men stopped at a gas station in Dortches, N.C. Kay opened the hood of the van, and defendant and Hester went into the store, returning to the van approximately five minutes later.
Across the street from the gas station, several Nash County Sheriff's deputies were conducting drug surveillance and were on the lookout for Kay's tan-colored van. The deputies observed the three men for several minutes, and when defendant and Hester returned to the van, the deputies activated the blue lights and sirens on their car and approached the van. Defendant and Hester fled. Defendant was apprehended by Sergeant Wooten and Corporal Greg Adams, and Hester was apprehended by Deputy Warren Lewis. A search of the van revealed a plastic bag containing an off-white rock-like substance located in the floorboard between the driver's seat and the front passenger seat. This was covered up with a towel. In addition, a crack pipe and one rock of crack cocaine were found in the vicinity of the driver's seat. Kay, the driver of the van, acknowledged that the last two items belonged to him, but testified that the bag belonged to defendant. Sergeant Wooten recovered a plastic bag from the path taken by defendant when he fled the scene, which was submitted to Deputy Lewis. State Bureau of Investigation ("SBI") Lab tests revealed that the rock-like substances found in the van and on the path were cocaine.
On 8 January 2007, defendant was indicted for: (1) trafficking in cocaine by possession; (2) trafficking in cocaine by transportation; (3) trafficking in cocaine by manufacture; (4) conspiracy to traffic in cocaine; and (5) resisting a public officer.
On 24-25 July 2007, these cases were tried before a jury. At the close of the State's evidence, the trial court dismissed the charges of trafficking in cocaine by manufacture and conspiracy to traffic in cocaine. A jury found defendant guilty of trafficking in cocaine by possession, trafficking in cocaine by transportation, and resisting a public officer. The trial court sentenced defendant to two consecutive terms of imprisonment of 35 to 42 months on each of the trafficking in cocaine charges. A concurrent sentence of 60 days imprisonment was imposed on the charge of resisting a public officer. Defendant appeals.
II. Officer Bill Lewis Testimony
In his first argument, defendant contends that the trial court erred in allowing Officer Bill Lewis to testify regarding actions taken by Sergeant Wooten at the crime scene on the grounds that Officer Lewis lacked personal knowledge of these events. We disagree.
N.C. Gen. Stat. . 8C-1, Rule 602 (2007) states, in part, that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." "Whether a witness is qualified to testify is `a matter which rests in the sound discretion of the trial court in light of its observation of the particular witness.'" State v. Aquino, 149 N.C. App. 172, 179, 560 S.E.2d552, 557 (2002) (quoting State v. Redd, 144 N.C. App. 248, 255, 549 S.E.2d 875, 880 (2001)). "[P]ersonal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception," State v. Cole, 147 N.C. App. 637, 645, 556 S.E.2d 666, 671 (2001) (quoting N.C. Gen. Stat. § 8C-1, Rule 602 (Commentary)), and "need not be explicit but may be implied from the witness's testimony." State v. Jones, 98 N.C. App. 342, 349, 391 S.E.2d 52, 57 (1990). "Furthermore, a lay witness may testify as to his or her opinion, provided that the opinion is rationally based upon his or her perception and is helpful to the jury's understanding of the testimony." State v. Strickland, 346 N.C. 443, 460-61, 488 S.E.2d 194, 204 (1997) (citing N.C. Gen. Stat. § 8C-1, Rule 701).
At trial, during direct examination of State's witness Deputy Bill Lewis, the prosecutor questioned Deputy Lewis about the evidence he collected at the scene of the incident:
[Deputy Lewis]: And also Sergeant Wooten turned over a plastic bag which he obtained —
[Mr. Braswell]: Objection to what Sergeant Wooten did.
[The Court]: Overruled.
[Deputy Lewis]: He had obtained from the direction I saw —
[Prosecutor]: Mr. Spencer.
[Deputy Lewis]: Mr. Spencer runs [sic]. That was turned over to me to collect also.
Defendant argues that, since Deputy Lewis never testified that he saw Sergeant Wooten obtain the plastic bag, his testimony was inadmissible under Rule 602 due to a lack of personal knowledge. In the instant case, Deputy Lewis testified that he saw defendant exit the van and flee. He further testified that Corporal Adams and Sergeant Wooten apprehended defendant, and that Sergeant Wooten subsequently gave Deputy Lewis a plastic bag which he recovered during his pursuit of defendant.
Under Rules 602 and 701, we hold that the testimony by Deputy Lewis was competent. Deputy Lewis saw defendant exit the van, watched him flee the scene, and was aware that defendant was apprehended by Sergeant Wooten. Deputy Lewis's testimony that the bag Sergeant Wooten turned over to him was recovered from the direction in which defendant ran was rationally based on his perceptions. See Strickland at 460-61, 488 S.E.2d at 204.
We hold that the trial court did not abuse its discretion by allowing Deputy Lewis to testify regarding the plastic bag. This argument is without merit.
III. Resisting a Public Officer
In his second argument, defendant contends that the trial court erred in failing to dismiss the misdemeanor charge of resisting a public officer on the grounds that the State failed to offer evidence that Sergeant Wooten was attempting to arrest defendant on a drug offense when defendant fled the scene, as alleged in the indictment. We disagree.
Defendant's argument on appeal is based on an alleged fatal variance between the indictment and the evidence presented at trial. However, defendant's motion to dismiss was based solely on the insufficiency of the evidence relating to the trafficking in cocaine charges. As such, defendant has failed to preserve this argument for appellate review. State v. Pickens, 346 N.C. 628, 645, 488 S.E.2d 162, 172 (1997) ("Regarding the alleged variance between the indictment and the evidence at trial, defendant based his motions at trial solely on the ground of insufficient evidence and thus has failed to preserve this argument for appellate review.").
Even assuming arguendo that defendant has preserved this argument for review, we hold that the asserted variance does not constitute error in this case.
"[A]n indictment for the charge of resisting an officer must: 1) identify the officer by name, 2) indicate the official duty being discharged, and 3) indicate generally how defendant resisted the officer." State v. Swift, 105 N.C. App. 550, 553, 414 S.E.2d 65, 67 (1992). "A variance between the criminal offense charged and the offense established by the evidence is in essence a failure of the State to establish the offense charged." State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971).
In the instant case, the indictment for resisting a public officer reads, in part:
[T]he defendant named above, unlawfully and willfully did resist, delay and obstruct D. Wooten, a public officer holding the office of deputy with the Nash County Sheriff's Office, Nashville, North Carolina, by running away from said deputy. At the time, the deputy was discharging and attempting to discharge a duty of his office, attempting to arrest defendant for drug offense. . . .
The evidence presented at trial, viewed in the light most favorable to the State, was that Sergeant Wooten, along with other officers of the Nash County Sheriff's office, were across the street from the gas station conducting surveillance at the time of the incident. Officer Bill Lewis testified that the officers were looking for "illegal drug activity" associated with a "tan colored mini van." The deputies were familiar with the van due to its prior trips to the area to complete drug transactions. After observing the van for approximately ten minutes, the deputies activated the blue lights and sirens on their vehicles and approached the van, at which point defendant fled the scene. Sergeant Wooten apprehended defendant, and defendant was subsequently arrested for drug offenses.
The State presented sufficient evidence of the "essential element[s] of the offense," and the trial court properly denied defendant's motion to dismiss. See Pickens at 646, 488 S.E.2d at 172. This argument is without merit.
Defendant's remaining assignments of error are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6) (2008) for failure to argue them in his brief.
NO ERROR.
Judges MCGEE AND GEER concur.
Report per Rule 30(e).