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rejecting an evidentiary impossibility argument where the defendant contended the evidence suggested a police officer moved out of the way of Defendant’s vehicle and fired two shots with superhuman speed
Summary of this case from State v. WilsonOpinion
No. COA02-1357
Filed 16 September 2003 This case not for publication
Appeal by defendants from judgments dated 17 August 2001 by Judge Benjamin G. Alford in New Hanover County Superior Court. Heard in the Court of Appeals 21 August 2003.
Attorney General Roy Cooper, by Assistant Attorney General Lorrin Freeman, for the State in the Green case; and Assistant Attorney General Amy L. Yonowitz, for the State in the Miller case. Paul Cleavenger for defendant-appellant Green. Daniel F. Read and Maria J. Mangano for defendant-appellant Miller.
New Hanover County No. 01 CRS 2328, New Hanover County No. 01 CRS 2309.
Gregory Donell Miller (Miller) and Terry Lamar Green (Green) (collectively defendants) appeal judgments dated 17 August 2001 entered consistent with jury verdicts finding Miller guilty of assault with a deadly weapon on a law enforcement officer, possession with intent to sell or deliver marijuana, and misdemeanor maintaining a place to keep and deliver a controlled substance and Green guilty of possession with intent to sell or deliver marijuana.
The trial court allowed the State's pre-trial motion for joinder of all charges against defendants and denied Green's motion for separate trials. The evidence presented at trial revealed that Deputy Christopher Long was out on patrol in Wilmington, North Carolina on 8 February 2001, when he noted a white Ford pulling out from a side street onto 17th Street in a reckless manner. Miller was driving the Ford and Green was a passenger. Deputy Long verified the vehicle's license plate number and determined that the license plate, registered to a 1990 Acura, was no longer active. After losing sight of the vehicle for a short time, Deputy Long located the Ford parked and unoccupied in the area of Queen Street and 17th Street. Deputy Long radioed for backup, and Corporal L. Christopher Robinson and Lieutenant Clarence Hayes with the New Hanover County Sheriff's Department arrived to assist.
Deputy Long parked his patrol car approximately six car lengths in front of defendants' vehicle. When Deputy Long saw Miller and Green walking back to the Ford shortly thereafter, he got out of his patrol car and approached defendants on foot. Deputy Long made eye contact with both defendants and called out to them, at which time "[t]hey jumped in the vehicle." Miller started the Ford and drove five or six feet toward Deputy Long, prompting the officer to draw his weapon and shout commands to stop and turn off the vehicle. Miller then put the vehicle in reverse and tried to go backward. But when Miller saw Corporal Robinson in his patrol car approach from behind, Miller put the Ford in forward once again and accelerated toward Deputy Long. Deputy Long testified that he tried to get out of the vehicle's path. Realizing, however, that he would not be able to escape the approaching Ford in time, Deputy Long fired two rounds into the driver's side window, wounding both Miller and Green. Thereafter, the vehicle proceeded across the street until it struck a parked automobile.
An ambulance was called, and defendants were pulled out of the vehicle and searched. Corporal Robinson placed the contents of Green's pockets on the hood of defendants' vehicle. Corporal Robinson then inspected the Ford and noticed a bag filled with six one-by-one-inch Ziploc bags containing what was later determined to be a total of 15.2 grams of marijuana and several empty plastic bags on the driver's side floorboard. A small Ziploc bag, consistent with the six Ziploc bags of marijuana, was also found on the street outside the passenger door of the vehicle. The items taken from Green included $191, an amount identical to the amount of cash found on Miller, and a North Carolina driver's license issued to a Kevin Donnell Murphy. In addition, police officers discovered a black jacket on the back seat of the vehicle, the pockets of which contained a postal scale, nine dollars, and a Maryland birth certificate and social security card issued to a Kevin Donnell Murphy.
While Green was in the ambulance, a paramedic discovered a bulge in Green's right front pants pocket and subsequently removed small Ziploc bags measuring one by one inch from the pocket. These bags were consistent in size with the six individual bags of marijuana found on the driver's side floorboard of the Ford.
Brooke Cole, an eyewitness to the incident, testified that she believed Deputy Long would have been struck by defendants' vehicle had he not jumped out of the way. Another eyewitness, Karen Moore, confirmed that defendants' vehicle was traveling toward Deputy Long when he fired two shots into the automobile. In addition, two expert witnesses in accident reconstruction, one testifying for the State and the other on Miller's behalf, testified that: when Miller accelerated toward Deputy Long for the second time, the vehicle left a ten-foot-long acceleration mark on the street; it took 1.12 seconds for the vehicle to move from the beginning to the end of the acceleration mark; and at the end of the acceleration mark the vehicle was traveling at approximately twelve miles per hour.
At the close of the State's evidence, Miller moved to dismiss the charge of assault with a deadly weapon on a law enforcement officer and Green moved to dismiss the charge of possession. The trial court denied both motions. Thereafter, only Miller presented defense evidence and subsequently renewed his motion to dismiss at the close of all the evidence, which was again denied.
The issues are whether the trial court: (I) abused its discretion by granting the State's motion for joinder and denying Green's motion to sever; (II) erred by denying defendants' motions to dismiss; and (III) erred by allowing the State to refer to defendants as drug dealers.
I
Green first argues that the trial court abused its discretion by granting the State's motion for joinder of Green and Miller for trial. Specifically, Green contends that because the majority of the trial testimony dealt with the charge against Miller of assault with a deadly weapon on a law enforcement officer, he was denied a fair trial and was found guilty simply by association rather than based on the evidence against him. We disagree.
Charges against two or more defendants may be joined for trial:
When, even if all of the defendants are not charged with accountability for each offense, the several offenses charged:
1. Were part of a common scheme or plan; or
2. Were part of the same act or transaction; or
3. Were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others.
N.C.G.S. § 15A-926(b)(2)b. (2001). "[T]he ruling upon a motion for severance shall not be disturbed on appeal unless defendant demonstrates an abuse of judicial discretion which effectively deprived him of a fair trial." State v. Lake, 305 N.C. 143, 147, 286 S.E.2d 541, 543-44 (1982); see State v. Crummy, 107 N.C. App. 305, 330, 420 S.E.2d 448, 462 (1992) ("[a] trial court's ruling on joinder or severance is within the court's discretion"). Thus, joinder must be denied if separate trials are necessary to give each defendant a fair trial. State v. Ervin, 38 N.C. App. 261, 265, 248 S.E.2d 91, 94 (1978); see also State v. Lowery, 318 N.C. 54, 61, 347 S.E.2d 729, 735 (1986) ("[i]f we were convinced that juries were unable to separately evaluate the guilt or innocence of defendants tried jointly because of a tendency to determine guilt by association at trial, we would never uphold joint trials of criminal defendants").
In this case, the offenses committed by Green and Miller were properly joined for trial because they "[w]ere so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others." N.C.G.S. § 15A-926(b)(2)b.3. (2001). All of the charges arose out of the same incident that took place on the corner of 17th Street and Queen Street in Wilmington on 8 February 2001. Miller's acceleration toward Deputy Long, which prompted Deputy Long to fire two rounds into the vehicle wounding Miller and Green, was not only the basis for the assault charge against Miller but was also the event that led to the lawful search of defendants and the detection of the marijuana and thus the remaining charges against defendants. If the trial had been severed, much of the same evidence would therefore have needed to be presented to establish a case against each defendant. Accordingly, there was no abuse of discretion depriving Green of a fair trial. See Crummy, 107 N.C. App. at 330, 420 S.E.2d at 462.
II. Defendants next argue the trial court erred by denying their individual motions to dismiss. We disagree.
In reviewing a motion to dismiss, the trial court must determine whether there is substantial evidence of each essential element of the offense charged and defendant is the perpetrator of the offense. State v. Payne, 149 N.C. App. 421, 424, 561 S.E.2d 507, 509 (2002). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Barrett, 343 N.C. 164, 172, 469 S.E.2d 888, 893 (1996). Furthermore, "[i]n ruling on a motion to dismiss in a criminal action, the evidence must be viewed in the light most favorable to the State, with the State receiving the benefit of all reasonable inferences which may be drawn from the evidence." State v. Smith, 99 N.C. App. 67, 72, 392 S.E.2d 642, 645 (1990).
Miller's Motion to Dismiss
Miller asserts the trial court erred by denying his motion to dismiss the charge of assault with a deadly weapon on a law enforcement officer. Conviction of this crime requires proof of: (1) an assault, (2) with a deadly weapon, (3) on a law enforcement officer, (4) who is engaged in the performance of his or her duties. N.C.G.S. § 14-34.2 (2001). Assault is defined as:
an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a man of reasonable firmness in fear of immediate bodily harm.
State v. Roberts, 270 N.C. 655, 659, 155 S.E.2d 303, 306 (1967) (citation omitted) (internal quotation omitted).
Relying on the "general rule[that] evidence which is inherently impossible or in conflict with indisputable physical facts or laws of nature is not sufficient to take the case to the jury," Douglas v. Booth, 6 N.C. App. 156, 160, 169 S.E.2d 492, 495 (1969), Miller contends only that his motion to dismiss should have been granted because it was a physical and scientific impossibility for him to have assaulted Deputy Long. Specifically, Miller asserts it was impossible for Deputy Long to have been in the path of defendants' vehicle, moved out of the way, and fired two shots into the driver's side window, in the span of 1.12 seconds. This is the amount of time the two experts in accident reconstruction testified it took for defendants' vehicle to reach the end of the acceleration mark left on the road the second time Miller drove forward. According to Miller, the only explanation consistent with the physical evidence would be that Deputy Long was standing to the side of the Ford instead of in its path, and therefore, no assault could have occurred.
We note that besides his assertion, Miller has failed to present any evidence of a physical and scientific impossibility for Deputy Long, whose weapon was already drawn, to have reacted in the manner that he did in 1.12 seconds. Moreover, there was substantial evidence presented by the State to contradict Miller's contention. For example: (1) Deputy Long testified that Miller was driving toward him and that he did not feel as if he could get out of the vehicle's path in time; (2) an eyewitness corroborated that the vehicle was traveling toward Deputy Long; and (3) another eyewitness testified that Deputy Long would have been struck by the vehicle had he not jumped out of the way. Since "[c]ontradictions and discrepancies in the evidence are for the jury to resolve and do not warrant dismissal," State v. Bruce, 315 N.C. 273, 281, 337 S.E.2d 510, 516 (1985), the trial court did not err in denying Miller's motion to dismiss.
Green's Motion to Dismiss
With respect to his motion to dismiss, Green contends the State failed to produce substantial evidence of the elements of (1) possession of marijuana (2) with the intent to sell or deliver.
The elements of the charge of possession of marijuana with intent to sell or deliver are: (1) knowing, (2) possession, (3) of marijuana, a controlled substance, (4) with the intent to sell or deliver. N.C.G.S. § 90-95(a)(1) (2001). In this case, Green argues there was no evidence he knew the marijuana was in the vehicle or that he had possession of it, as the marijuana was found on the driver's side floorboard.
This Court has held:
An accused has possession of marijuana within the meaning of the [North Carolina] Controlled Substances Act when he has both the power and intent to control its disposition. The possession may be either actual or constructive. Constructive possession of marijuana exists when the accused is without actual personal dominion over the material, but has the intent and capability to maintain control and dominion over it.
State v. Wiggins, 33 N.C. App. 291, 292-93, 235 S.E.2d 265, 267(1977) (citations omitted). "[P]ower and intent to control [a] controlled substance can exist only when one is aware of its presence." 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). "The State is not required to prove that the defendant owned the controlled substance, or that [the] defendant was the only person with access to it." State v. Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987). We recognize that under the doctrine of constructive possession, Green's presence in an automobile containing drugs does not, without additional incriminating circumstances, constitute sufficient proof of drug possession. See Matias, 143 N.C. App. at 448, 550 S.E.2d at 3. This Court, however, has found sufficient incriminating circumstances supporting an inference of constructive possession where a large amount of cash was found on the defendant's person at the time of arrest and there was evidence from which a jury might infer that the defendant was fleeing from the area where illegal drugs were found. State v. Neal, 109 N.C. App. 684, 687-88, 428 S.E.2d 287, 290 (1993); see also State v. Weems, 31 N.C. App. 569, 571, 230 S.E.2d 193, 194 (1976) ("evidence which places an accused within close juxtaposition to a narcotic drug under circumstances giving rise to a reasonable inference that he knows of its presence may be sufficient to justify the jury in concluding that it is in his possession").
In the case sub judice, the State produced evidence at trial that a small Ziploc bag was found in the street on the passenger side of the vehicle. In addition, Green was found in possession of numerous Ziploc bags measuring one by one inch. The bags found in Green's pocket and the bag found on the street were consistent in size with the six individual bags of marijuana found packaged together on the driver's side floorboard of the Ford. The evidence also showed that Green and Miller were each in possession of the same amount of cash, i.e. $191. Furthermore, Green ignored Deputy Long's orders both prior to and after entering the vehicle and instead attempted to flee the scene with Miller. Finally, Green was in possession of a North Carolina driver's license issued to a Kevin Donnell Murphy. In the back seat of the vehicle, police officers discovered a black jacket, the pockets of which contained a postal scale and a birth certificate and social security card, both of which were issued to a Kevin Donnell Murphy. This evidence is sufficient to justify a reasonable conclusion that Green had "the intent and capability to maintain control and dominion over" the marijuana and therefore had constructive possession of the controlled substance. Wiggins, 33 N.C. App. at 293, 235 S.E.2d at 267; see Barrett, 343 N.C. at 172, 469 S.E.2d at 893.
Green further argues that, because 15.2 grams of marijuana "is not generally considered divisible for sale," the State failed to produce sufficient evidence of his intent to sell or deliver marijuana. Green, however, has failed to cite any authority in his brief to this Court to support his argument. As such, it is deemed abandoned. See N.C.R. App. P. 28(b)(6) (assignments of error in support of which no authority is cited will be taken as abandoned).
III
Finally, Miller contends the trial court erred by allowing the State during the opening statement and closing argument to characterize defendants as "drug dealers" and to state that they were "splitting drug proceeds." We note at the outset that opening statements were not recorded. Thus, we are unable to review the State's opening statement for error. See State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254 (1985) ("This Court's review on appeal is limited to what is in the record or in the designated verbatim transcript of proceedings. An appellate court cannot assume or speculate that there was prejudicial error when none appears on the record before it.").
"'[C]ounsel are given wide latitude in arguments to the jury and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence.'" State v. Jones, 355 N.C. 117, 128, 558 S.E.2d 97, 105 (2002) (citation omitted). Nevertheless, "[a] prosecutor should refrain from making characterizations relating to a defendant which are calculated to cause prejudice before the jury `when there is no evidence from which such characterizations may legitimately be inferred.'" State v. Thompson, 118 N.C. App. 33, 43, 454 S.E.2d 271, 277 (1995) (quoting State v. Britt, 288 N.C. 699, 712, 220 S.E.2d 283, 291 (1975)).
In the present case, the evidence showed that a bag of marijuana was found on the driver's side floorboard of the vehicle in which Miller and Green were driving. The bag of marijuana contained six smaller bags, measuring one inch by one inch, each of which contained marijuana. These bags were consistent in size and appearance with bags found in Green's possession. Moreover, a postal scale was found in the pocket of a jacket found in the back seat of the vehicle. Finally, Miller and Green were each in possession of exactly $191. Under these circumstances, the characterization of defendants as "drug dealers" and the statement that they were "splitting drug proceeds" were reasonable inferences for the State to argue based on the evidence. See Jones, 355 N.C. at 128, 558 S.E.2d at 105. This assignment of error is therefore overruled.
No error.
Judges McGEE and GEER concur.
Report per Rule 30(e).