Opinion
No. COA03-156
Filed 18 November 2003 This case not for publication
Appeal by defendant from judgment entered 24 October 2002 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 10 November 2003.
Attorney General Roy Cooper, by Assistant Attorney General Amy Pickle, for the State. Peter Wood for defendant-appellant.
New Hanover County Nos. 01 CRS 24436, 28995.
On 3 December 2001, the New Hanover County grand jury indicted defendant on charges of possession with intent to sell and deliver cocaine, sale of cocaine, and delivery of cocaine. The grand jury also charged defendant with being an habitual felon. On 24 October 2002, a jury found defendant guilty of the substantive offenses and also found that he had attained the status of an habitual felon. The trial court consolidated the substantive offenses for judgment and sentenced defendant as an habitual felon to a term of 116 to 149 months imprisonment. From the trial court's judgment, defendant appeals.
At trial, the State presented evidence tending to show the following: As part of an undercover sting operation of the City/County Vice and Narcotics Unit, Detective Mike Marlowe drove into a reputed "open air" drug market at approximately 2:08 p.m. on 27 August 2001 in a vehicle equipped for audio and video surveillance. A man in a white tank top shirt and red ball cap, who was later identified as defendant, yelled for Marlowe to pull over or stop. As the man approached Marlowe, "[h]e was sorting through pieces of the material, substance that he subsequently sold to [Marlowe]. He was sorting through it in his hand as he walked toward [Marlowe's] vehicle." Marlowe gave the man twenty dollars for the substance, which testing later revealed was 0.1 gram of crack cocaine. The jury viewed the videotape of the transaction.
Defendant made a motion to dismiss the charges for insufficiency of the evidence, which the trial court denied. At approximately 10:35 a.m. on 24 October 2002, the jury found defendant to be guilty of possession with intent to sell and deliver cocaine, sale of cocaine, and delivery of cocaine. Defendant then moved to dismiss the habitual felon indictment at the close of evidence during the habitual felon proceeding, and the trial court denied the motion. During its charge to the jury, the trial court stated that "the instructions I previously gave you regarding the jury's function, reasonable doubt, credibility of witnesses, and the weight of the evidence apply equally here." Neither the State nor defendant requested corrections to the jury charge. At approximately 12:27 p.m., the jury found defendant guilty of being an habitual felon. Defendant then gave notice of appeal.
Defendant first contends the trial court erred by denying his motion to dismiss the charges for insufficiency of the evidence. He argues that "mere `handling of drugs' is not enough to show possession" and that the videotape of the transaction was not competent evidence. We disagree.
In addressing defendant's motion to dismiss made at the close of all the evidence, the trial court was to consider the evidence in the light most favorable to the State. State v. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989). The State is entitled to every reasonable inference which can be drawn from the evidence presented, and all contradictions and discrepancies are resolved in the State's favor. Id. "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 should be denied." State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 582 (1975).
Defendant was charged with three violations of N.C.G.S. § 90-95(a)(1), which makes it unlawful for any person to "sell or deliver, or possess with intent to . . . sell or deliver, a controlled substance[.]" N.C.G.S. § 90-95(a)(1) (2001). The only element of the offenses which defendant challenges is the sufficiency of the evidence of possession.
An accused has possession of a controlled substance "within the meaning of the law when he has both the power and intent to control its disposition or use." See State v. Harvey, 281 N.C. 1,12, 187 S.E.2d 706, 714 (1972). Here the State presented evidence that defendant yelled for the undercover officer to stop, then sorted through pieces of a substance in his hand as he approached and subsequently sold crack cocaine to the undercover officer. While this Court has held "handling of [drugs] for inspection purposes does not constitute possession within the meaning of section 90-95(h)(3), as [the defendant] did not have the power and intent to control its disposition or use[,]" State v. Wheeler, 138 N.C. App. 163, 165, 530 S.E.2d 311, 313 (2000), that holding is inapposite in the case sub judice. Defendant was not handling the cocaine for inspection purposes; instead, he was preparing to sell the cocaine. As for defendant's assertion that the videotape of the transaction could not be used as substantive evidence, it is without merit. "Videotapes are admissible in evidence for both substantive and illustrative purposes under N.C. Gen. Stat. § 8-97 ." State v. Mewborn, 131 N.C. App. 495, 498, 507 S.E.2d 906, 909 (1998). This assignment of error is overruled.
Defendant next contends the trial court committed plain error by denying his motion to dismiss the habitual felon indictment. He argues the indictment fails to allege an offense date. Defendant's argument is without merit.
Being an habitual felon is not a crime, but rather a status which subjects the individual who is subsequently convicted of a crime to increased punishment for that crime. State v. Allen, 292 N.C. 431, 435, 233 S.E.2d 585, 588 (1977). Because N.C.G.S. § 14-7.3 (2001) specifically outlines the requirements for charging a person with having attained the status of an habitual felon, the provisions of N.C.G.S. § 15A-924 (2001) as to the contents of a criminal pleading are not applicable. See State v. Gardner, 84 N.C. App. 616, 620, 353 S.E.2d 662, 664 (1987) (a statute which addresses a specific situation controls over a statute which addresses a general situation). In order for an habitual felon indictment to be proper, it must be separate from the indictment for the principal underlying felony and must set forth the dates that the three prior felonies were committed, the state or government against which the felonies were committed, the dates of convictions or guilty pleas for the felonies presented, and the courts where the convictions or guilty pleas took place. See G.S. § 14-7.3.
The separate indictment in this case conforms to these statutory requirements by providing the offense dates, dates of the convictions, the court where the convictions occurred, and the government against which the offenses were committed for each of defendant's three prior eligible felonies. Therefore, the language of the indictment properly charges defendant with having attained the status of an habitual felon. Defendant has not shown error and therefore this assignment of error is overruled.
In his last argument, defendant contends the trial court committed plain error during its jury instructions in the habitual felon proceeding. He argues the trial court should have fully instructed the jury during the habitual felon proceeding rather than referencing a portion of the instructions from the principal felony trial. We disagree.
When "`a charge fully instructs the jury on substantive features of the case, defines and applies the law thereto, the trial court is not required to instruct on a subordinate feature of the case absent a special request.'" State v. Allen, 141 N.C. App. 610, 618, 541 S.E.2d 490, 496 (2000) (quoting State v. Blackstock, 314 N.C. 232, 245, 333 S.E.2d 245, 253 (1985)), appeal dismissed and disc. review denied, 353 N.C. 382, 547 S.E.2d 816 (2001). Because defendant failed to object to the trial court's jury instructions during the habitual felon proceeding, this issue is subject to review under the plain error standard. See N.C.R. App. P. 10(c)(2) and (4). "Under the plain error rule, a new trial will be granted for an error to which no objection was raised at trial only if a defendant meets the heavy burden of convincing the reviewing court that the jury would have returned a different verdict but for the error." State v. Harding, 110 N.C. App. 155, 161, 429 S.E.2d 416, 420 (1993).
"[I]nstructions as to the significance of evidence which do not relate to the elements of the crime itself or defendant's criminal responsibility therefor have been considered subordinate features of the case." State v. Hunt, 283 N.C. 617, 624, 197 S.E.2d 513, 518 (1973). Similarly, "[e]vidence relating to the credibility of a witness is a subordinate, rather than a substantive, feature of the case." State v. Edwards, 37 N.C. App. 47, 50, 245 S.E.2d 527, 529 (1978). Less than two hours after the jury found defendant to be guilty of the principal felonies, the trial court, during the habitual felon proceeding, reminded the jury that the instructions from the principal felonies trial "regarding the jury's function, reasonable doubt, credibility of witnesses, and the weight of the evidence apply equally here." Defendant has not shown that the trial court erred by referring the jury to its earlier instructions on the subordinate features of the case rather than by repeating its instructions on those subordinate features. Accordingly, defendant has not shown plain error. The assignment of error is overruled.
Defendant failed to set out his remaining assignments of error in his brief. Because he has neither cited any authority nor stated any reason or argument in support of those assignments of error, they are deemed abandoned. N.C.R. App. P. 28(b)(6). Defendant received a fair trial, free from prejudicial error.
No error.
Chief Judge EAGLES and Judge BRYANT concur.
Report per Rule 30(e).