Opinion
No. COA08-1421.
Filed June 2, 2009.
Cumberland County No. 04CRS69935.
Appeal by defendant from judgment entered 19 February 2008 by Judge Richard T. Brown in Cumberland County Superior Court. Heard in the Court of Appeals 18 May 2009.
Attorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State. Eric A. Bach for defendant-appellant.
Defendant appeals from a judgment entered upon his conviction by a jury of sale of cocaine and possession with intent to manufacture, sell, or deliver cocaine. Defendant contends the jury returned an ambiguous verdict because the trial court included possession with intent to manufacture a controlled substance together in the same count with possession with intent to sell or deliver a controlled substance on the verdict sheet and erred when it denied his motion to dismiss that charge. Defendant also contends that, at sentencing, the trial court assigned an additional prior record level point without making a sufficient finding that all of the elements of the current offense were included in a prior offense. We find no error. On 5 July 2005, the Cumberland County grand jury returned a three-count indictment against defendant alleging his possession with intent to manufacture, sell, or deliver cocaine; sale of cocaine; and delivery of cocaine. In a separate indictment, defendant was alleged to have attained habitual felon status. The case came on for trial on 11 February 2008.
The State's evidence at trial tended to show that on 29 June 2004, Agent Nicole Mincey of the Cumberland County Bureau of Narcotics ("CCBN") set up a controlled narcotics buy at an address known to law enforcement for drug activity. Agent Mincey parked in front of the address in an unmarked car. After a few seconds, defendant approached Agent Mincey's car and asked her what she wanted "to get." Agent Mincey told defendant that she wanted "$70 worth of crack cocaine." Defendant then got into a white car that was parked in front of Agent Mincey's car and drove out of her view. When defendant returned several minutes later, he got out of the car and passed three clear, knotted plastic bags containing a tan substance to Agent Mincey through her car's passenger window. Agent Mincey handed defendant seventy dollars.
Agent Mincey returned to the CCBN office and determined that the substance was 0.88 grams of crack cocaine. Agent Mincey sent the substance to the State Bureau of Investigation for testing. An SBI technician testified that the substance submitted by Agent Mincey was 0.5 grams of cocaine base. A few days after the buy, Agent Mincey identified defendant by retrieving a photograph of him through a CCBN database. Defendant did not testify or offer any evidence at trial. The trial court denied defendant's motion to dismiss, and the jury found defendant guilty of possession of cocaine with intent to manufacture, sell, or deliver, and sale of cocaine. After the verdict, the case proceeded to the habitual felon phase. The jury found defendant guilty of having attained habitual felon status.
At sentencing, the State proffered a prior record level worksheet that alleged, in addition to four prior record level points based on prior offenses, a point because all of the elements of the current offense were included in a prior offense. The trial court noted, "the [S]tate also contends that there's one additional sentencing point in that the elements of the present offense were included in a prior offense[.]" The State requested that the trial court "take judicial notice of that." Defendant objected. The trial court then made an oral finding that defendant had a prior record level of III. In the written judgment, the trial court found that defendant had five prior record points. The trial court imposed a presumptive-range sentence of 116 to 149 months in prison. Defendant appeals.
We first address defendant's inter-related contentions that the jury returned an ambiguous verdict because the trial court included possession with intent to manufacture a controlled substance along with possession with intent to sell or deliver a controlled substance on the verdict sheet and that the trial court erred when it denied his motion to dismiss that charge. These arguments are without merit. N.C.G.S. § 90-95 (a)(1) makes it unlawful for any person to "manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance." N.C. Gen. Stat. § 90-95 (a)(1) (2007). "[T]he language of [N.C.G.S.] § 90-95 (a)(1) creates three offenses: (1) manufacture of a controlled substance, (2) transfer of a controlled substance by sale or delivery, and (3) possession with intent to manufacture, sell or deliver a controlled substance." State v. Moore, 327 N.C. 378, 381, 395 S.E.2d 124, 126 (1990).
Based on the plain language of N.C.G.S. § 90-95 (a)(1) and our Supreme Court's interpretation of the statute in Moore, we disagree with defendant's contention that possession with intent to manufacture a controlled substance and possession with intent to sell or deliver a controlled substance are separate offenses. Accordingly, the trial court properly submitted a verdict sheet that included the single offense of possession with intent to manufacture, sell, or deliver cocaine in count one.
In addition, we find that there is sufficient evidence to support the trial court's denial of defendant's motion to dismiss that charge. "The offense of possession with intent to sell or deliver has the following three elements: (1) possession of a substance; (2) the substance must be a controlled substance; (3) there must be intent to sell or distribute the controlled substance." State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001). "`Upon defendant's motion for dismissal, the question for the Court is whether there is 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. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). "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). "[A]ll of the evidence, whether competent or incompetent, must be considered in the light most favorable to the state, and the state is entitled to every reasonable inference therefrom." Id. at 78, 265 S.E.2d at 169.
Taken in the light most favorable to the State, the evidence shows that defendant sold crack cocaine wrapped in three separate plastic bags to an undercover law enforcement agent for seventy dollars. Defendant personally handed the cocaine to the agent after negotiating the deal. Accordingly, the trial court properly denied defendant's motion to dismiss the charge of possession with intent to manufacture, sell, or deliver a controlled substance.
Defendant also contends that the trial court erred in imposing a prior record level point at sentencing without making an adequate finding that defendant had previously been convicted of an offense with the same elements as the present offense. We disagree.
A defendant may be assigned an additional prior record level point at sentencing "[i]f all the elements of the present offense are included in any prior offense for which the offender was convicted, whether or not the prior offense or offenses were used in determining prior record level." N.C. Gen. Stat. § 15A-1340.14 (b)(6) (2007). "[T]he comparison of the elements of two North Carolina criminal offenses does not require the resolution of disputed facts, but is a matter of law." State v. Prush, 185 N.C. App. 472, 480, 648 S.E.2d 556, 561 (2007), disc. review denied, 362 N.C. 369, 663 S.E.2d 855 (2008).
The trial court properly found that all of the elements of defendant'surrent conviction are included in one of his prior convictions. Based on its statement during sentencing, the trial court was aware that the State alleged that defendant should be assigned a prior record point based on N.C.G.S. § 15A-1340.14 (b)(6). The State requested that the trial court take judicial notice of the prior convictions, and defendant objected. When the trial court announced its prior record level finding in open court, it noted defendant's objection. In the written judgment, the trial court found that defendant had five prior record level points, which included the point pursuant to N.C.G.S. § 15A-1340.14 (b)(6). Further, defendant's current conviction is for possession with intent to manufacture, sell, or deliver cocaine, as is one of his prior convictions. Thus, the trial court properly found that all of the elements of the current offense were included in a prior offense, and we find no error.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).