Opinion
No. COA12–1376.
2013-07-16
STATE of North Carolina v. Wayne Junior WILLIAMS.
Attorney General Roy Cooper, by Assistant Attorney General Richard A. Graham, for the State. Kimberly P. Hoppin, for defendant-appellant.
Appeal by defendant from judgments entered 12 April 2012 by Judge J. Carlton Cole in Pitt County Superior Court. Heard in the Court of Appeals 10 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Richard A. Graham, for the State. Kimberly P. Hoppin, for defendant-appellant.
CALABRIA, Judge.
Wayne Junior Williams (“defendant”) appeals from judgments entered upon jury verdicts finding him guilty of possession with the intent to sell or deliver (“PWISD”) cocaine, possession of drug paraphernalia, felonious fleeing to elude arrest and resisting a public officer. We find no error in part, reverse in part, arrest judgment in part and remand for resentencing.
I. Background
On 11 June 2010, Dillon Cofield (“Cofield”), a confidential informant who was cooperating with Detective Rose Edmonds (“Detective Edmonds”) of the Greenville Police Department (“GPD”), contacted defendant to purchase drugs. Detective Edmonds drove Cofield to a King's convenient mart (“King's”) to meet defendant. In addition to Detective Edmonds, several officers in marked and unmarked police cars were in the convenience store parking lot and surrounding area. Officers observed defendant remove something from the trunk of the vehicle he was driving, put it in his pocket, enter the vehicle and drive around to the back of the store. Defendant then exited the vehicle, but quickly reentered it and drove out of the parking lot, onto Hooker Road.
Upon Detective Edmonds's direction, Officer Nathan Lather (“Officer Lather”) and several other officers activated their blue lights and pursued defendant. Defendant drove a few blocks and turned left onto a dead end road. When defendant reached an apartment complex parking lot, he exited his vehicle and fled on foot. Officer Lather parked close to defendant's vehicle. As he attempted to release his K–9 to pursue defendant, defendant's vehicle collided with the officer's vehicle because defendant had failed to engage the park mode of the vehicle. Nevertheless, Officer Lather and his K–9 were able to exit their vehicle and began to chase defendant. Defendant hopped over a chain-link fence and Officer Lather pursued him. By this time, several other officers were also chasing defendant on foot. They continued to pursue defendant as he entered an apartment (“the apartment”) through the back door. In the apartment, the officers found several men smoking marijuana and defendant hiding in a laundry room near the kitchen. When the officers apprehended defendant they found $1,049.00 in his pocket, but did not find any controlled substances. During a search of the apartment, officers found scales, cocaine, marijuana, and Inositol, an agent used to “cut cocaine.” Officers also found a scale in the trunk of the vehicle defendant was driving.
Defendant's initial charges were dismissed with the notation “Federal Supervised Release Detainer.” Then he was indicted again for trafficking in cocaine by possession, PWISD cocaine, possession of drug paraphernalia, fleeing to elude arrest and resisting a public officer. The State did not proceed on the charge of trafficking in cocaine.
After a trial in Pitt County Superior Court, a jury found defendant guilty of all remaining charges. For PWISD cocaine, defendant was sentenced to a minimum of ten months and a maximum of twelve months. For eluding arrest, defendant was sentenced to a minimum of ten months and a maximum of twelve months. Defendant's other charges were consolidated and he was sentenced to 120 days. All sentences were to be served consecutively in the North Carolina Division of Adult Correction. Defendant appeals.
II. Motion to Dismiss
Defendant argues that the trial court committed reversible error by denying his motion to dismiss all charges, since the State failed to present sufficient evidence of each element of each offense charged.
On appeal, “[t]his Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). A defendant's motion to dismiss is properly denied if the State offers “ ‘substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citation omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). The evidence should be considered “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).
Since there is no dispute that defendant was the perpetrator of the offenses, we must determine whether there was substantial evidence of each essential element of the offenses that were submitted to the jury.
A. PWISD Cocaine
Defendant argues that the trial court erred by denying his motion to dismiss the charge of PWISD cocaine because the State failed to present evidence that he possessed cocaine. We agree.
For a defendant to be convicted of PWISD cocaine, “the State is required to prove two elements: (1) defendant's possession of the drug and (2) defendant's intention to ‘sell or deliver’ the drug.” State v. Ferguson, 204 N.C.App. 451, 459, 694 S.E.2d 470, 476–77 (2010) (internal quotation marks and citation omitted). “It is well established that possession may be actual or constructive.” State v. Bradshaw, 366 N.C. 90, ––––, 728 S.E.2d 345, 348 (2012). “A person has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use.” Ferguson, 204 N.C.App. at 459, 694 S.E.2d at 477 (internal quotation marks and citations omitted).
In the instant case, when defendant was arrested, the officers did not find any controlled substances on his person or inside the vehicle he was driving. Furthermore, the officers did not see defendant throw anything away as he fled, nor did the K–9 unit find any controlled substances during a search of the path defendant took as he ran from his car to the apartment. Therefore, the State failed to offer substantial evidence that defendant had actual possession of cocaine.
The issue then becomes whether defendant had constructive possession of cocaine. A person has constructive possession when “he has the intent and capability to maintain control and dominion over that thing. Unless a defendant has exclusive possession of the place where the contraband is found, the State must show other incriminating circumstances sufficient for the jury to find a defendant had constructive possession.” Id. (quotation marks and internal citations omitted). While each case is fact specific, our Courts have considered what constitutes “incriminating circumstances” when the “defendant exercised nonexclusive control of contraband” and “[t]wo of the most common factors are ‘the defendant's proximity to the contraband and indicia of the defendant's control over the place where the contraband is found.’ “ Bradshaw, 366 N.C. at ––––, 728 S.E.2d at 348 (citations omitted). Absent additional incriminating circumstances, mere proximity to a location where drugs or a person with drugs are found is insufficient to prove that a defendant possessed a controlled substance. Ferguson, 204 N.C.App. at 459–60, 694 S.E.2d at 477;see also State v. Barron, 202 N.C.App. 686, 692, 690 S.E.2d 22, 27 (2010) (where this Court reversed the defendant's conviction for drug possession when “the State's evidence showed nothing more than [the] ‘[D]efendant had been in an area where he could have committed the crimes charged,’ and was [thus] insufficient to send the charge of possession of controlled substances to the jury.”).
In the instant case, when the officers entered the apartment, they found several men in the kitchen smoking marijuana. Defendant was attempting to hide in the laundry room near the apartment's kitchen. Subsequently, the officers searched the apartment and found cocaine in closed kitchen drawers, cabinets in the upstairs and downstairs bathrooms, and in a hoodie in an upstairs bathroom.
Defendant's hiding place was in the vicinity of the kitchen, therefore, defendant was in close proximity to the cocaine. However, defendant's decision to hide in a room attached to the kitchen is insufficient evidence to support an inference of constructive possession. In addition, several men were located in the kitchen, smoking marijuana, when the officers entered the apartment. These men stood in closer proximity to the locations in which drugs were discovered than defendant and thus had easier access to the drugs than he did. Furthermore, defendant did not own, rent or reside at the apartment and the officers did not find anything in the apartment linking defendant to the apartment. Compare State v. Miller, 363 N.C. 96, 100, 678 S.E.2d 592, 595 (2009) (where the Court found constructive possession although the defendant did not have exclusive possession of the premises, because while the home belonged to the defendant's children, the cocaine was located in the same room as the defendant, was within the defendant's reach, the defendant's personal documents were discovered in the room where the defendant and the cocaine were located and “[t]he only other individual in the room was not near any of the cocaine.”).
The State's evidence of defendant's mere proximity to the kitchen where controlled substances were located as well as the fact that it offered no evidence that the cocaine was within defendant's reach only demonstrated that defendant had “been in an area where he could have committed the crime [.]” Barron, 202 N.C.App. at 692, 690 S.E.2d at 27. In addition, none of defendant's personal documents were discovered in the apartment. Therefore, the State's evidence was insufficient to prove defendant's constructive possession of cocaine and is insufficient to support submission of the charge to the jury. See id. The State did not present substantial evidence that defendant actually or constructively possessed the cocaine. Therefore, we reverse defendant's conviction for the charge of PWISD cocaine.
B. Possession of Drug Paraphernalia
Defendant contends that the trial court erred by denying his motion to dismiss the charge of possession of drug paraphernalia because the State failed to present sufficient evidence that he possessed the scales. We disagree.
“It is unlawful for any person to ... possess with intent to use, drug paraphernalia....” N.C. Gen.Stat. § 90–113.22 (2011). “ ‘[D]rug paraphernalia’ means all equipment, products and materials of any kind that are used to facilitate, or intended or designed to facilitate, violations of the Controlled Substances Act” and includes scales used to weigh or measure controlled substances. N.C. Gen.Stat. § 90–113.21 (2011).
Constructive possession exists when the defendant “has ‘the intent and capability to maintain control and dominion over’ “ the contraband. Miller, 363 N.C. at 99, 678 S.E.2d at 594 (citation omitted). “Where such materials are found [in a location] under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.” State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).
In the instant case, officers found plastic bags, a digital scale and Inositol in the apartment. Inside the trunk of the rental vehicle defendant was driving, officers found a digital scale. Defendant was indicted for one count of possession of drug paraphernalia, which included all the items the officers discovered. It is undisputed that scales are considered drug paraphernalia. SeeN.C. Gen.Stat. § 90–113.21(5) (2011).
While we agree with defendant that there was insufficient evidence that he possessed the drug paraphernalia found inside the apartment, there was evidence that indicated he possessed the digital scale that was located in the vehicle. The State's evidence showed that defendant was the only person seen driving the vehicle, that he had access to the trunk of the vehicle and that there was a rental receipt with his name on it found inside the car. Since there was sufficient evidence that defendant had constructive possession of the scales in the car, the motion to dismiss the possession of drug paraphernalia was properly denied by the trial court.
C. Fleeing to Elude Arrest
Defendant argues that the trial court erred by denying his motion to dismiss the charge of felony fleeing to elude arrest. We disagree.
“It shall be unlawful for any person to operate a motor vehicle on a street, highway, or public vehicular area while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties.” N.C. Gen.Stat. § 20–141.5(a) (2011). If, while speeding to elude arrest, the defendant commits two or more aggravating factors, the violation becomes a felony. SeeN .C. Gen.Stat. § 20–141.5(b) (2011).
In the instant case, defendant's indictment stated that he “unlawfully, willfully and feloniously did operate a motor vehicle on Hooker Road and Horseshoe Drive, Greenville, North Carolina, public roads while attempting to elude a law enforcement officer, N. Lather with the [GPD], in the lawful performance of his duties....” Defendant first contends that the State presented insufficient evidence that Officer Lather was lawfully performing his duties.
If an officer attempts to make an unlawful investigatory stop, then there is insufficient evidence that the officer “was discharging or attempting to discharge a duty of his office.” State v. Sinclair, 191 N.C.App. 485, 489–90, 663 S.E.2d 866, 870 (2008). Therefore, we must first determine whether Officer Lather was attempting to make an investigatory stop and whether such a stop was lawful.
Officer Lather testified that Detective Edmonds told him to “move in” on defendant because defendant was entering his vehicle and that his “job was to stop and get out with [defendant] and detain him.” Therefore, there was sufficient evidence that Officer Lather's intention was to perform an investigatory stop of defendant. Thus, we must decide whether the stop was lawful.
“An investigatory stop must be justified by ‘a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.’ “ State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (citation omitted).
The stop must be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training. The only requirement is a minimal level of objective justification, something more than an unparticularized suspicion or hunch.
Id. at 441–42, 446 S.E.2d at 70 (internal quotation marks and citations omitted). “[A] tip from an informant ‘known to [the officer] personally and [who] had provided him with information in the past’ is sufficient to provide reasonable suspicion for a stop.” State v. McRae, 203 N.C.App. 319, 324, 691 S.E.2d 56, 60 (2010) (citations omitted). However, when there is no indication that the informant has been previously used and given accurate information, he must be treated as an anonymous informant. Id. at 325, 691 S.E.2d at 60–61.
In the instant case, after Detective Edmonds arrested Cofield for drug possession, Cofield indicated that he would act as a confidential informant. There is no evidence that Cofield was previously used as an informant, therefore, we must evaluate the tip as if it was made by an anonymous informant. Id.
An anonymous tip must have “sufficient indicia of reliability.” State v. Hughes, 353 N.C. 200, 207, 539 S.E.2d 625, 630 (2000). “Although determining whether an anonymous tip is sufficiently reliable to justify an investigative detention clearly hinges upon the ‘totality of the circumstances,’ the informant's ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are ‘important factors to consider.’ “ State v. Harwood, ––– N.C.App. ––––, ––––, 727 S.E.2d 891, 898 (2012) (citation omitted). When an informant willingly places their anonymity at risk, it weighs in favor of a finding of reliability. State v. Maready, 362 N.C. 614, 619–20, 669 S.E.2d 564, 567–68 (2008). The Hughes Court noted that indicia of reliability associated with an anonymous tip includes a “range of details” such as the suspect's home, vehicle, destination and predictions of the suspect's “specific future action [.]” Hughes, 353 N.C. at 208, 539 S.E.2d at 631. However, for an anonymous tip to create the requisite reasonable suspicion the tip must “be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Harwood, ––– N.C.App. at ––––, 727 S.E.2d at 899 (citation omitted). An anonymous tip may also “be made sufficiently reliable by independent corroboration” by law enforcement. Id. at ––––, 727 S.E.2d at 898.
In the instant case, Detective Edmonds was previously acquainted with defendant. After Detective Edmonds arrested Cofield, she learned that defendant was one of his suppliers. Subsequently, Cofield and Detective Edmonds arranged for Cofield to buy one ounce of crack cocaine from defendant at King's on 11 June 2010 for $1,100 .00. When the other officers arrived at the convenience mart, defendant was already there. Cofield, who was riding along with Detective Edmonds, identified defendant as his supplier. The officers then observed defendant open the trunk of his car and put something in his pocket. At this point, Detective Edmonds told Officer Lather to “move in.” As Officer Lather attempted to detain defendant, defendant moved his parked car from the front parking lot to the back parking lot of the shop, then left the King's parking lot at a high rate of speed. Cofield successfully identified defendant as one of his suppliers and defendant appeared at the designated location. Moreover, there was independent corroboration by law enforcement that defendant appeared at the designated location to meet Cofield. Pursuant to N.C. Gen.Stat. § 20–141.5, and considering the totality of the circumstances, Officer Lather was engaged in the lawful performance of his duties while pursuing defendant and the officers had reasonable suspicion to justify stopping defendant. Therefore, no Fourth Amendment violation occurred.
Defendant also argues that the State failed to present substantial evidence of two aggravating factors, elevating the charge to a felony. We disagree.
Fleeing to elude arrest can be elevated to a felony if two or more aggravating factors are present, including reckless driving and negligent driving that leads to an accident causing more than $1,000 .00 worth of property damage. N.C. Gen.Stat. § 20–141.5(b)(3)–(4)(a) (2011). Reckless driving is defined as “[a]ny person who drives any vehicle upon a highway or any public vehicular area without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property shall be guilty of reckless driving.” N.C. Gen.Stat. § 20–140(b) (2011).
In the instant case, defendant concedes that the State offered evidence supporting the aggravating factor of negligent driving leading to an accident that causes more than $1,000.00 in property damage. However, defendant contends that the State failed to offer evidence that he drove recklessly.
The State's evidence showed that defendant was driving on public roads, Hooker Road and Horseshoe Drive. Officer Lather testified that defendant drove at a high rate of speed, 50 mph in a 40 mph zone. In addition, Officer Lather's “lit” patrol car was almost hit by defendant as the officer made a U-turn, and he only avoided the accident by stopping his patrol car. This is substantial evidence that defendant was driving on a “public vehicular area without due caution and circumspection,” and at a speed likely to endanger person or property. The State provided substantial evidence that defendant committed two aggravating factors and therefore, the trial court properly denied defendant's motion to dismiss the charge of felony fleeing to elude arrest.
D. Resisting a Public Officer
Defendant contends there was insufficient evidence to support sending the charge of resisting a public officer to the jury. We find that the indictment charging defendant with resisting a public officer was insufficient as a matter of law.
In North Carolina “ ‘[t]here can be no trial, conviction, or punishment for a crime without a formal and sufficient accusation. In the absence of an accusation the court a[c]quires no jurisdiction [whatsoever], and if it assumes jurisdiction a trial and conviction are a nullity.’ “ State v. Marshall, 188 N.C.App. 744, 748, 656 S.E.2d 709, 712–13 (2008) (citation omitted). If the indictment does not “include all the facts necessary to meet the elements of the offense ... the trial court lacks jurisdiction over the defendant and subsequent judgments are void and must be vacated.” State v. Ellis, 168 N.C.App. 651, 655, 608 S.E.2d 803, 806 (2005) (citations omitted). An indictment that is invalid on its face may be attacked at any time even if the defendant did not raise the issue at trial. State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000). “[I]f it appears that a judgment has been entered on a bill of indictment ... and that such bill or count does not sufficiently charge an offense, it is the duty, of this Court, ex mero motu, to arrest judgment.” State v. Dunston, 256 N.C. 203, 204, 123 S.E.2d 480, 481 (1962).
Conviction of resisting a public officer requires proof:
1) that the victim was a public officer;
2) that the defendant knew or had reasonable grounds to believe that the victim was a public officer;
3) that the victim was discharging or attempting to discharge a duty of his office;
4) that the defendant resisted, delayed, or obstructed the victim in discharging or attempting to discharge a duty of his office; and
5) that the defendant acted willfully and unlawfully, that is intentionally and without justification or excuse.
State v. Dammons, 159 N.C.App. 284, 294, 583 S.E.2d 606, 612 (2003) (citing N.C. Gen.Stat. § 14–233). An indictment charging a defendant with resisting a public officer must specifically allege the duty being discharged by the officer. Ellis, 168 N.C.App. at 655, 608 S.E.2d at 806.
In the instant case, the indictment stated that defendant
unlawfully and willfully did resist, delay and obstruct Officer N. Lather and Officer M. Broadwell, public officers holding the office of Police Officer with the [GPD], by running from the officers. At the time, the officer was discharging and attempting to discharge a duty of their office, for a drug trafficking offense.
The indictment stated the officers' duty was “for a drug trafficking offense.” Because the indictment omitted certain “action” words from the indictment, it failed to say what the officers were doing. We find that this statement is insufficient to allege the duty being discharged by the officers. Therefore, the trial court never had jurisdiction over defendant on this charge and the judgment is void. See id.
III. Conclusion
The trial court did not err by denying defendant's motions to dismiss the charges of possession of drug paraphernalia and felony fleeing to elude arrest because the State adduced substantial evidence of each essential element of the offenses charged and that defendant was the perpetrator. See Fritsch, 351 N.C. at 378, 526 S.E.2d at 455. However, the trial court erred by denying defendant's motion to dismiss the charge of PWISD cocaine, because the State did not present substantial evidence that defendant actually or constructively possessed the cocaine. Therefore, we reverse defendant's conviction for PWISD cocaine. Furthermore the judgment regarding the charge of resisting, delaying, or obstructing an officer is void and is arrested for insufficiency of the bill of indictment. Since the trial court consolidated defendant's convictions for possession of drug paraphernalia and resisting a public officer for judgment, we remand for resentencing.
No error in part, reversed in part, judgment arrested in part and remanded in part. Judges ERVIN and DILLON concur.
Report per Rule 30(e).