Opinion
No. COA10-1083
Filed 3 May 2011 This case not for publication
Appeal by defendant from judgment entered 21 January 2010 by Judge Paul Gessner in Alamance County Superior Court. Heard in the Court of Appeals 22 February 2011.
Attorney General Roy Cooper, by Assistant District Attorney Marc X. Sneed, for the State. John T. Hall for defendant-appellant.
Alamance County Nos. 09 CRS 2908, 09 CRS 51385, 09 CRS 51583.
Robert Mitchell Foust ("defendant") appeals from a judgment entered after a jury found him guilty of felony possession of cocaine. On appeal, defendant argues that: (1) the trial court erred in failing to strike alleged hearsay testimony from the arresting officer; (2) the trial court erred in denying his motion to dismiss; (3) he was unfairly prejudiced by the ineffective assistance of his trial counsel; (4) the trial court erred by denying his motion to continue the trial; and (5) the trial court erred by sentencing him in the aggravated range. After careful review, we find no error.
Background
The evidence at trial tended to establish that on 25 February 2009, Christopher Sullivan, manager of the meat counter at Food Lion, saw defendant conceal several packages of meat and leave the store without paying. Defendant was stopped by a customer and returned to the store, at which point Sullivan took him into the manager's office and recovered two packages of meat from defendant's pants. Sullivan testified that another package of meat fell out of defendant's pants as he was running out of the store. Sullivan contacted the Graham Police Department, and Officer CD. Dunnagan arrived at the scene shortly thereafter. When Officer Dunnagan entered the manager's office, defendant immediately stated: "[Y]eah, they caught me.'" Officer Dunnagan then interviewed Sullivan regarding what had occurred, and subsequently placed defendant under arrest for misdemeanor larceny. In preparing to place handcuffs on defendant, Officer Dunnagan noticed that defendant was trying to stick a metal object up his sleeve. Officer Dunnagan found a car key in defendant's sleeve and proceeded to search him for weapons. The search revealed a knife and a metal smoking pipe. The State Bureau of Investigation later determined that residue found on the pipe was cocaine.
Defendant was charged with misdemeanor larceny, misdemeanor possession of drug paraphernalia, and felony possession of cocaine. On 20 January 2010 a jury convicted defendant of misdemeanor larceny and possession of drug paraphernalia, but did not reach a verdict regarding the felony possession of cocaine charge. On 21 January 2010, after the denial of defendant's motion for a continuance, defendant was tried a second time for the charge of felony possession of cocaine. Sullivan did not testify at the second trial, but Officer Dunnagan testified regarding the events of 25 February 2009. A jury convicted defendant of felony possession of cocaine, as well as attaining habitual felon status. Defendant was sentenced as a Class C felon, Prior Record level VI, and ordered to serve between 168 and 211 months in prison. Defendant timely appealed to this Court from the judgment entered after the second trial.
Discussion I. Hearsay
Defendant first argues that Officer Dunnagan's testimony at the second trial regarding Sullivan's statements about the larceny constituted inadmissible hearsay. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2009). The standard of review for this issue is de novo. State v. Miller, 197 N.C. App. 78, 87, 676 S.E.2d 546, 552, disc. review denied, 363 N.C. 586, 683 S.E.2d 216 (2009).
Here, Sullivan did not testify at defendant's second trial for possession of cocaine. Counsel for the State explained to the trial court that Sullivan's testimony was not necessary as "a verdict ha[d] been reached in the larceny case" and "Sullivan's usefulness in [the first] trial was to establish the elements of the larceny." Officer Dunnagan testified that Sullivan "had observed [defendant] sticking packages of meat into his pants," and that defendant "left the store without paying." Officer Dunnagan also testified that Sullivan advised him that "one of the packages fell out of [defendant's] pants as he was exiting the store."
Defendant did not object to Officer Dunnagan's testimony at trial. Consequently, he has not preserved this argument for appellate review. N.C. R. App. P. 10(a)(1). Moreover, while defendant claims that the trial court should have intervened " ex mero motu," defendant does not sufficiently argue in his brief that the admission of this testimony constituted plain error. As a result, defendant has failed to comply with N.C. R. App. P. 10(a)(4) and has waived appellate review of this issue. See State v. Scercy, 159 N.C. App. 344, 354, 583 S.E.2d 339, 345 (2003) (holding that defendant's failure to argue plain error in his brief constituted a waiver of appellate review of that issue). Assuming, arguendo, that defendant had properly argued plain error, we have reviewed this issue and hold that the admission of the challenged testimony did not constitute plain error.
II. Motion to Dismiss
Next, defendant argues that the trial court erred in denying his motion to dismiss the possession of cocaine charge on the ground that there was insufficient evidence presented at trial to establish each element of the offense.
When ruling on a defendant's motion to dismiss, the evidence must be considered in the light most favorable to the State. The State is entitled to every reasonable inference which can be drawn from the evidence presented. If there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that defendant committed it, a case for the jury is made and nonsuit is denied.
State v. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989) (internal citations and quotation marks omitted).
Defendant was charged with felony possession of cocaine pursuant to N.C. Gen. Stat. § 90-95(d)(2) (2009). A person possesses a controlled substance when he is "aware of its presence" and "has both the power and intent to control its disposition or use." State v. Matias, 143 N.C. App. 445, 448, 550 S.E.2d 1, 3, aff'd, 354 N.C. 549, 556 S.E.2d 269 (2001). Despite the absence of a coherent argument in defendant's brief, we have reviewed the evidence in the light most favorable to the State and hold that there was substantial evidence that defendant possessed the cocaine in the pipe found on his person.
We note that defendant makes a disjointed argument that the cocaine was seized after an unlawful search and that any probable cause supporting his arrest was based on Sullivan's hearsay statements. Defendant is not appealing the denial of a motion to suppress the cocaine and defendant's hearsay argument is unrelated to his motion to dismiss. We need not address these arguments further.
The case of State v. Williams, 149 N.C. App. 795, 561 S.E.2d 925, disc. review denied, 355 N.C. 757, 566 S.E.2d 481, cert. denied, 537 U.S. 1035, 154 L. Ed. 2d 455 (2002), is factually similar to the case at bar. There, this Court held that the trial court did not err in denying defendant's motion to dismiss the charge of possession of cocaine where the defendant was arrested for a separate offense and a search of defendant's person uncovered a pipe that contained cocaine residue. Id. at 797-99, 561 S.E.2d at 926-27. We reasoned that, despite the small amount of cocaine found, there was substantial evidence that defendant committed the crime charged. Id. at 799, 561 S.E.2d at 927.
In the instant case, there is substantial evidence to prove that defendant possessed the cocaine contained in the pipe. Officer Dunnagan testified that he arrived at the Food Lion after the store manager reported that defendant stole several packages of meat. Officer Dunnagan entered the manager's office and questioned defendant as to what occurred. Defendant stated: "[Y]eah, they caught me.'" Officer Dunnagan placed defendant under arrest, searched him, and found the pipe. The pipe was submitted to the State Bureau of Investigation for analysis, where residue found on the pipe was determined to be cocaine. As in Williams, we hold that there was substantial evidence that defendant unlawfully possessed the cocaine, and, therefore, the trial court did not err in denying his motion to dismiss.
III. Ineffective Assistance of Counsel
Defendant argues that he was denied his constitutional rights to effective assistance of counsel, to confront the witnesses against him, to due process of law, and to the equal protection of the law, due to alleged errors committed by his trial attorney. Defendant asserts that such prejudice resulted from his counsel's failure to object to the alleged hearsay, combined with other errors, including: (1) submitting a motion to suppress without listing the evidence he sought to suppress; (2) failing to object to the confiscated "pipe" being referred to as a "crack pipe"; (3) failing to object to the State's use of the pipe as an exhibit; (4) failing to object to the lab results that identified the residue on the pipe as cocaine; (5) mentioning at trial that defendant had been seen by someone other than Officer Dunnagan with stolen meat in his pants; (6) pointing out that defendant had not been co-operative with Officer Dunnagan; (7) failing to request a " Harbison hearing"; (8) repeatedly asking improper questions that prompted objection by the prosecutor, which were sustained by the trial court; and (9) failing to object during the State's case-in-chief.
Defendant alleges that pursuant to State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985), "but for counsel's errors, there would have been a different result in the proceedings." Defendant argues plain error in the alternative; however, our Supreme Court has held that "plain error analysis applies only to jury instructions and evidentiary matters[,]" and, therefore, defendant is precluded from arguing plain error. State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39-40 (2002), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003).
To establish grounds for relief on a claim of ineffective assistance of counsel,
"[f]irst, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)).
"[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies."
Id. at 563, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699-700).
Defendant fails to make a connection between his trial counsel's alleged mistakes and a different result at trial. The evidence at trial established that defendant was seen stealing meat from Food Lion; he admitted to Officer Dunnagan that he was caught stealing the meat; he was arrested and searched incident to the arrest; and Officer Dunnagan found a pipe that contained cocaine residue. Given this evidence, we do not believe that any mistakes by trial counsel prejudiced defendant to the extent that a different outcome would likely have occurred but for the mistakes.
IV. Motion to Continue
Defendant made a motion to continue the trial for possession of cocaine, which was denied. The trial was scheduled to take place one day after a jury convicted defendant of two misdemeanors, but did not reach a unanimous verdict on the felony possession charge. Defendant claims that the State made a plea offer and he was not given sufficient time to discuss the offer with his family.
The standard of review for this issue is abuse of discretion, which "requires the reviewing court to determine whether the decision of the trial court 'is manifestly unsupported by reason,' or [is] 'so arbitrary that it could not have been the result of a reasoned decision.'" State v. Locklear, 331 N.C. 239, 248, 415 S.E.2d 726, 732 (1992) (quoting Little v. Penn Ventilator Co., 317 N.C. 206, 218, 345 S.E.2d 204, 212 (1986)). Our Supreme Court has set forth that the "[d]enial of a motion for a continuance, regardless of its nature, is . . . grounds for a new trial only upon a showing by defendant that the denial was erroneous and that this case was prejudiced thereby." State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981).
In determining whether to grant a motion to continue, the trial court must consider, inter alia, "[w]hether the case taken as a whole is so unusual and so complex, due to the number of defendants or the nature of the prosecution or otherwise, that more time is needed for adequate preparation[.]" N.C. Gen. Stat. § 15A-952(g)(2) (2009).
Consideration of a motion to continue . . . is heavily fact-based, and disposition of the motion is to be determined by weighing the complexity of the charges, including the number of incidents, the number of witnesses, the number of locations involved, and the severity of the punishment, against the amount of time available for preparation of a defense.
State v. Worrell, 190 N.C. App. 387, 392, 660 S.E.2d 183, 187 (2008), disc. review denied, 363 N.C. 589, 684 S.E.2d 160 (2009).
In the instant case, the evidence presented in the second trial was essentially the same as that which was used in the first trial. Defendant fails to show that the second trial was so "unusual and so complex" as to require a continuance. Further, defendant had an evening to discuss the plea offer, which was not itself complex. Defendant decided to proceed to trial. We hold that the trial court did not abuse its discretion by denying defendant's motion to continue.
V. Sentencing
Defendant was deemed to be a Class C, Prior Record Level VI offender and was sentenced to 168 to 211 months imprisonment. Defendant argues that the trial court erred by sentencing him within the aggravated range, without finding aggravating factors, because the minimum term of 168 months falls within both the presumptive and aggravated ranges. Defendant claims that this overlap creates an ambiguity, and, therefore, the ambiguity must be resolved in his favor. This Court has previously rejected defendant's argument and determined that despite the overlap, the trial court is not required to find aggravating factors so long as the sentence is within the presumptive range. State v. Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997); State v. Ramirez, 156 N.C. App. 249, 259, 576 S.E.2d 714, 721, disc. review denied, 357 N.C. 255, 583 S.E.2d 286, cert. denied, 540 U.S. 991, 157 L. Ed. 2d 388 (2003); State v. Fowler, 157 N.C. App. 564, 567, 579 S.E.2d 499, 501 (2003). Consequently, we hold that the trial court did not err in sentencing defendant within the presumptive range.
Conclusion
In sum, we hold that: (1) defendant did not preserve his hearsay argument for appellate review or sufficiently argue plain error; (2) the trial court did not err in denying defendant's motion to dismiss, as there was sufficient evidence of the crime charged; (3) defendant was not prejudiced by alleged ineffective assistance of his trial counsel; (4) the trial court did not abuse its discretion by denying defendant's motion to continue the trial; and (5) the trial court did not abuse its discretion in determining defendant's term of imprisonment, as the sentence falls within the presumptive range, and, therefore, did not require a showing of aggravating factors.
No Error.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).