Opinion
No. COA03-545
Filed July 20, 2004 This case not for publication
Appeal by defendant from judgment entered 30 October 2002 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 5 February 2004.
Attorney General Roy Cooper, by Assistant Attorney General Margaret P. Eagles, for the State. Duncan B. McCormick for defendant-appellant.
Lenoir County No. 99 CRS 9782.
Patrick Campbell ("defendant") appeals his convictions for possession with intent to sell and deliver a controlled substance, keeping and maintaining a dwelling for the use of a controlled substance, trafficking in marijuana by possession, and felony conspiracy to possess a controlled substance with intent to sell and deliver and to keep and maintain a dwelling for the use of a controlled substance. For the reasons stated herein, we conclude defendant received a trial free of prejudicial error, but we vacate and remand defendant's convictions for resentencing.
The evidence presented by the State at trial tends to show the following: On 27 September 1999, defendant asked his next-door neighbor, Marcella Clark ("Clark"), to store a large quantity of marijuana in her residence in exchange for one hundred dollars and a small amount of marijuana. Clark agreed, and one of defendant's associates delivered the marijuana to Clark's residence later that afternoon.
Acting on a tip from a confidential informant, several officers from the Kinston Police Department Narcotics Squad executed a search warrant at Clark's residence on 29 September 1999. While searching Clark's residence, the officers located and seized approximately thirty-two pounds of marijuana and drug paraphernalia. Clark explained her agreement with defendant and informed the officers that the marijuana belonged to defendant, who lived next-door. Clark also informed the officers that she had previously seen a large amount of marijuana in defendant's residence. At least four of the officers then proceeded to defendant's residence in order to verify Clark's statement.
As the officers approached defendant's residence, Detective Ken Barnes ("Detective Barnes") heard voices emanating from the rear of the residence and smelled what he believed to be burning marijuana. Detective Barnes and the other officers proceeded to the rear of the residence in the direction of the voices and smell of marijuana. Upon reaching the rear of the residence, the officers looked through a screen door and observed defendant and three other men smoking marijuana inside. When the officers announced their presence, defendant and the other three individuals inside the residence "jumped up" and "all started to get out of their chairs." The officers entered the residence and secured defendant and the other three individuals. Lieutenant Steve Hossfeld ("Lieutenant Hossfeld") and Sergeant Roger Harrell ("Sergeant Harrell") then left the residence in order to obtain a search warrant. When Lieutenant Hossfeld and Sergeant Harrell returned, the four officers searched the residence and seized various items of drug paraphernalia, an SKS assault weapon, a nine millimeter handgun, and approximately one-quarter pound of marijuana and $4,500 in cash.
On 10 January 2000, defendant was indicted for possession with intent to sell and deliver a controlled substance and keeping and maintaining a dwelling for the use of a controlled substance. On 7 August 2000, a superceding indictment charged defendant with possession with intent to sell and deliver a controlled substance, keeping and maintaining a dwelling for the use of a controlled substance, trafficking in marijuana by possession, and felony conspiracy to possess marijuana with intent to sell and deliver and to keep and maintain a dwelling for the use of a controlled substance. Defendant completed an affidavit of indigency on 7 August 2000 and was appointed counsel by the trial court. Prior to trial, defendant twice moved the trial court for continuance of his case. On 18 September 2000 and 19 September 2000, the trial court denied defendant's motions for continuance. Defendant was arraigned on 19 September 2000 and his trial began the same day. Although defendant subsequently absconded, defendant's trial continued, and on 20 September 2000, the jury returned a guilty verdict on each charge. Judgment was continued until defendant could be located.
We note that while N.C. Gen. Stat. § 90-108(a)(7) (2003) makes it illegal to "keep or maintain" a dwelling for the use of a controlled substance, in the instant case defendant was indicted, convicted, and sentenced for "keeping and maintaining" a dwelling for the use of a controlled substance. In order to remain consistent with the record in the case, we will use the latter terminology.
Defendant was located in New York in the fall of 2000 and extradited to North Carolina for sentencing. At sentencing, defendant stipulated that he had a prior conviction in New York for felonious assault with intent to cause serious injury. Based upon this stipulation, the trial court found defendant to have a prior record level III, and on 30 October 2002, the trial court sentenced defendant to a total of thirty-four to thirty-nine months incarceration and thirty-six months supervised probation. Defendant appeals.
As an initial matter, we note that defendant's brief contains arguments supporting only ten of his original twenty-three assignments of error. Pursuant to North Carolina Rule of Appellate Procedure 28(b)(6) (2004), the thirteen omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those assignments of error properly preserved by defendant for appeal.
The issues on appeal are whether the trial court erred by (I) arraigning and trying defendant in the same week; (II) denying defendant's motions for continuance; (III) denying defendant's motion to dismiss the charge of trafficking in marijuana by possession; (IV) denying defendant's motion to suppress the evidence obtained through the search of defendant's home; (V) denying defendant's motion to dismiss the charge of keeping and maintaining a dwelling for the use of a controlled substance; (VI) denying defendant's motion to dismiss the charge of possession with intent to sell and deliver a controlled substance; and (VII) finding that defendant was a prior record level III for sentencing purposes.
Defendant first argues that the trial court erred by arraigning and trying defendant in the same week. Defendant asserts the trial court violated N.C. Gen. Stat. § 15A-943 when it chose to arraign defendant and begin defendant's trial on the same date.
N.C. Gen. Stat. § 15A-943 (2003) sets forth the following rules with respect to calendaring trials and formal arraignments:
(a) In counties in which there are regularly scheduled 20 or more weeks of trial sessions of superior court at which criminal cases are heard, and in other counties the Chief Justice designates, the prosecutor must calendar arraignments in the superior court on at least the first day of every other week in which criminal cases are heard. No cases in which the presence of a jury is required may be calendared for the day or portion of a day during which arraignments are calendared.
(b) When a defendant pleads not guilty at an arraignment required by subsection (a), he may not be tried without his consent in the week in which he is arraigned.
Failure to follow the requirements of N.C. Gen. Stat. § 15A-943(a) "is not necessarily reversible error; a defendant must still show prejudice." State v. Cates, 140 N.C. App. 548, 551, 537 S.E.2d 508, 510 (2000). However, "[u]nless a defendant has waived the statutory protection[,]" violation of the requirements of N.C. Gen. Stat. § 15A-943(b) "constitutes automatic reversible error; no prejudice need be shown." Id.
In Cates, we concluded that a defendant does not waive the protection of N.C. Gen. Stat. § 15A-943(b) simply by failing to cite the statute in a motion to continue. Id. Instead, we determined "the proper focus is not upon whether a defendant explicitly cites section 15A-943 but upon whether his need for a continuance is based upon the same purposes for which the statute was enacted." Id. "Thus, when a defendant . . . has made a motion for a week's continuance based upon the same purposes for which the statute was designed, making an explicit `section 15A-943' objection would be redundant and is not required to invoke the statutory protections." Id. at 552, 537 S.E.2d at 511.
We take judicial notice that Lenoir County is a county that regularly schedules twenty or more weeks of criminal trial sessions a year, and therefore we conclude that N.C. Gen. Stat. § 15A-943 is applicable to the instant case. Id. at 550, 537 S.E.2d at 510. Both parties agree and the record evidences that defendant was arraigned on the same day that his trial began. Thus, there is no question that the trial court violated N.C. Gen. Stat. § 15A-943(b). However, the State contends defendant waived the statutory protection of N.C. Gen. Stat. § 15A-943(b) by failing to assert his right in his pre-trial motions. We agree.
Defendant twice moved the trial court to continue his case prior to arraignment, claiming his trial had not been put on the administrative calendar pursuant to local rules and that he preferred to be tried concurrently with co-defendants. However, neither of these reasons relate to the purposes of N.C. Gen. Stat. § 15A-943(b). As we stated in Cates, "the purpose of section 15A-943(b) is to allow both sides a sufficient interlude in order to prepare for trial." 140 N.C. App. at 551, 537 S.E.2d at 510; State v. Shook, 293 N.C. 315, 318, 237 S.E.2d 843, 846 (1977).
In the instant case, we conclude that the State's discretionary decision to try co-defendants separately is wholly unrelated to the sufficiency of defendant's trial preparation. Furthermore, as the record evidences, defendant's case was not placed on the local administrative calendar because defendant was not being offered a plea by the State. Defendant was indicted upon the charges on 7 August 2000, and the State informed defendant there would be no plea in his case. Defendant indicated he would be ready to try the case on 28 August 2000, three weeks prior to his motions for continuance. Thus, we conclude defendant's motions for continuance were not based upon the same purposes for which N.C. Gen. Stat. § 15A-943 was enacted. Therefore, we hold the trial court did not err in arraigning and trying defendant within the same week.
Defendant next argues the trial court erred by denying his motions for continuance. Defendant asserts that the trial court abused its discretion in denying the motions. We disagree.
A trial court's decision regarding a motion for continuance is discretionary, and the decision will not be disturbed on appeal absent a showing of abuse of discretion. State v. Barnard, 346 N.C. 95, 104, 484 S.E.2d 382, 387 (1997). For an abuse of discretion to have occurred, the trial court's decision must have been manifestly unsupported by reason. State v. Brown, 350 N.C. 193, 209, 513 S.E.2d 57, 67 (1999). Thus, denial of a motion for continuance "is grounds for a new trial only upon a showing by the defendant that the denial was erroneous and also that his case was prejudiced as a result of the error." State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982).
Defendant contends that the trial court abused its discretion in the instant case because the decisions to deny defendant's motions for continuance resulted in a violation of Judicial District 8-A Local Rule 2.6, which requires that cases in that district be calendared for trial no less than thirty days after their final administrative setting. N.C. Jud. Dist. 8-A Local R. 2.6, Docket Management System For Criminal Superior Court (14 Jan 2000). However, as discussed above, there was no need for an administrative setting or calendaring in the instant case because the State was not offering a plea to defendant. Furthermore, defendant had previously received court-appointed counsel and indicated that he would be prepared for trial on 28 August 2000.
Judicial District 8-A Local Rule 1.3 states that "[t]hese rules shall be construed in such a way as to avoid technical delay." N.C. Jud. Dist. 8-A Local R. 1.3, Docket Management System For Criminal Superior Court (14 Jan 2000). The rules require the "orderly, prompt and just disposition" of cases in the district while "protect[ing] the interests of [the district] and the victims of crime as well as . . . ensur[ing] that the rights of criminal defendants are preserved." N.C. Jud. Dist. 8-A Local R. 1.1, Docket Management System For Criminal Superior Court (14 Jan 2000). In the instant case, we conclude the trial court followed the purpose of the local rules and did not abuse its discretion. Therefore, we hold that the trial court did not err in denying defendant's motions for continuance.
Defendant next argues that the trial court erred by denying defendant's motion to dismiss the charge of trafficking in marijuana. Defendant asserts that the State presented insufficient evidence to establish defendant possessed the marijuana. We disagree.
When ruling on a motion to dismiss, "[t]he trial court's inquiry is limited to a determination of `whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.'" State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 139 (2002) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). "[A]ll of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence." State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).
To prove a defendant guilty of trafficking in marijuana by possession, the State must establish that the defendant knowingly possessed in excess of ten pounds of marijuana. N.C. Gen. Stat. § 90-95(h)(1) (2003). "Possession of a controlled substance may be either actual or constructive." State v. Hamilton, 145 N.C. App. 152, 155, 549 S.E.2d 233, 235 (2001). "Constructive possession of [a controlled substance] exists when there is no actual personal dominion over the [controlled substance], but there is an intent and capability to maintain control and dominion over it." State v. Brown, 310 N.C. 563, 568, 313 S.E.2d 585, 588 (1984). "[I]n order to show constructive possession by a defendant not present when a controlled substance was discovered, the State must present evidence that the defendant had exclusive use of the premises, maintained the premises as a residence, or had some apparent proprietary interest in the premises or the controlled substance." Hamilton, 145 N.C. App. at 156, 549 S.E.2d at 235. Evidence placing the accused within close proximity to the controlled substance may support a conclusion that the controlled substance was in the accused's possession. See State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972). Thus, where sufficient incriminating circumstances exist, constructive possession of a controlled substance may be inferred even where possession of the premises is nonexclusive. See Brown, 310 N.C. at 569, 313 S.E.2d at 588-89.
In the instant case, defendant did not maintain exclusive possession of the residence where the thirty-two pounds of marijuana was found, nor was he at the residence when the officers seized the marijuana. However, evidence presented at trial established that defendant lived next-door to the residence and had previous contact with the residence's owner. Clark testified that she and defendant entered into an agreement whereby he would store a shipment of marijuana at her residence in exchange for one hundred dollars and a small portion of marijuana. Shortly thereafter, one of defendant's associates delivered the marijuana to Clark's residence. Clark testified that she and defendant had previously made similar agreements, and that defendant had entered her residence in the days prior to the search in order to retrieve a portion of the marijuana stored there. Lieutenant Hossfeld, Sergeant Harrell, and Detective Barnes testified that when they searched Clark's residence, they located approximately thirty-two pounds of marijuana that Clark told them belonged to defendant. The confidential informant whose tip served as the basis for the search of Clark's residence notified the Kinston Police Department that there was a significant amount of drugs in Clark's residence that belonged to defendant. We conclude that this evidence establishes sufficient incriminating circumstances to allow a jury to infer that defendant had the intent and capability to maintain control and dominion over the marijuana, as well as a propriety interest in the marijuana. Therefore, we hold that the trial court did not err in denying defendant's motion to dismiss the trafficking in marijuana charge.
Defendant next argues that the trial court erred by denying defendant's motion to suppress the evidence obtained from the search of his residence. Defendant asserts that the trial court's findings of fact are not supported by competent evidence and that its conclusion of law is not supported by adequate findings of fact. We disagree.
This Court's review of a denial of a motion to suppress is "strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). "Indeed, an appellate court accords great deference to the trial court in this respect because [the trial court] is entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then based upon those findings, render a legal decision, in the first instance, as to whether or not a constitutional violation of some kind has occurred." Id. at 134, 291 S.E.2d at 619-20.
In the instant case, defendant has failed to assign error to any particular finding of fact and has failed to specify in what respect the trial court's findings are inadequate. Therefore, this Court's review of defendant's argument is limited to whether the trial court's findings of fact support its conclusions of law. State v. Steen, 352 N.C. 227, 238, 536 S.E.2d 1, 8 (2000). After reviewing the record, we conclude that the trial court's determination that "no illegal search occurred of [defendant's] residence or the persons found inside the residence" was properly supported by its findings of fact.
In the order denying defendant's motion to suppress the evidence obtained from the search of defendant's residence, the trial court made the following findings of fact:
1. That on the 29th day of September, 1999 officers of the Kinston Police Department executed a search warrant for a residence in Kinston, North Carolina. Upon entry in the residence contact was made with the resident, Marcella Clark. Marcella Clark adviced [sic] the officers where to find a large quantity of marijuana in the closet of her bedroom. Detective Dilday of the Kinston Police Department went to this closet and located the marijuana in plastic bags inside the closet.
2. Marcella Clark told the officers the marijuana that was located in her residence belonged to a person she knew as "Hollywood" and that he lived [next-door]. Clark stated "Hollywood" (who was later identified by Clark as being the above named defendant Patrick Campbell) would pay her to keep large amounts of marijuana in her house. Clark also told the officers that she had been to this residence on September 28, 1999 and had observed a large amount of [m]arijuana. "Hollywood" had just arrived from New York with two other black males. [sic] when Clark was at [defendant's residence] on September 28, 1999.
3. That officers of the Kinston Police Department went next door to [defendant's residence] in an attempt to verify the information which Marcella Clark had given them. As the officers walked around the back door of this residence they noticed the smell of marijuana coming from an open window at this residence. The officers went to the backdoor of this residence. At the back door of the residence the officers observed through a screen door that four black males were sitting at a table in the kitchen smoking marijuana.
4. At this time the officers made entry into the residence to ensure the marijuana that was observed on the table was not destroyed. Entry was made and the four black males were secured. A search warrant was then obtained authorizing the officers to conduct a search of [defendant's residence].
Based upon these findings of fact, the trial court denied defendant's motion to suppress the evidence seized during the search.
The Fourth Amendment to the United States Constitution and Article I of the Constitution of the State of North Carolina protect citizens against unreasonable searches and seizures by requiring that police officers have a warrant obtained with judicial approval before searching a citizen's residence. State v. Graves, 135 N.C. App. 216, 218-19, 519 S.E.2d 770, 772 (1999). "A warrantless search unaccompanied by such judicial approval is per se unreasonable unless the search falls within a well-delineated exception to the warrant requirement." Id. at 219, 519 S.E.2d at 772 (emphasis in original). "The State bears a heavy burden to demonstrate how the warrantless intrusion was exempted from the warrant requirement." Id.
In the instant case, the State offered evidence tending to show that police officers approached defendant's residence and smelled burning marijuana. Through a screen door, the officers observed in plain view defendant and three other males smoking marijuana inside the residence. It is well-established that "plainview of objects inside a house will furnish probable cause but will not, without exigent circumstances, authorize entry to seize without a warrant." State v. Prevette, 43 N.C. App. 450, 456, 259 S.E.2d 595, 600 (1979), disc. review denied and appeal dismissed, 299 N.C. 124, 261 S.E.2d 925, cert. denied, 447 U.S. 906 (1980). However, as the trial court noted in finding of fact number four, the officers entered defendant's residence in order to prevent the destruction of evidence. "[A] suspect's fleeing or seeking to escape, [or the] possible destruction of a controlled substance" are exigent circumstances that justify a warrantless entry into a residence. State v. Frazier, 142 N.C. App. 361, 368-69, 542 S.E.2d 682, 688 (2001). In the instant case, the evidence tended to show that the officers smelled burning marijuana and observed defendant and three other individuals inside smoking marijuana. When defendant and the other individuals realized that law enforcement officers were present, they rose from their chairs as if to flee the residence. Therefore, we conclude that sufficient exigent circumstances existed to justify the police officers' entry into defendant's residence and the trial court's conclusion that the entry was legal.
Defendant maintains that the officers' entry into his residence was illegal because the officers did not have the authority to enter his back yard and look through the screen door. We disagree.
In Prevette, this Court held that when law enforcement officers enter private property for the purpose of a general inquiry or interview of the property's occupants, the officers' presence is proper and lawful. 43 N.C. App. at 455, 259 S.E.2d at 599-600. As in Prevette, the officers in the instant case entered the curtilage of defendant's residence after receiving a tip that defendant was storing marijuana inside the residence. Defendant offers no legal authority to support his contention that the officers were required to approach and knock upon the front door of his residence before proceeding to the rear of the residence. Furthermore, in Prevette we stated that law enforcement officers "are entitled to go to a door to inquire about a matter" and that the officers "are not trespassers under these circumstances." Id. Our holding in Prevette did not limit the location of the officers' inquiry to any particular door of the suspect's residence, and we perceive no reason to do so in the instant case.
We note that the touchstone of the Fourth Amendment is reasonableness, State v. Robinson, 148 N.C. App. 422, 428, 560 S.E.2d 154, 158 (2002), and that the conclusions of law enforcement officers during a warrantless search should be considered "`not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.'" State v. Scott, 343 N.C. 313, 328, 471 S.E.2d 605, 614 (1996) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)). In the instant case, the officers approached the rear door of defendant's residence after hearing voices and smelling burning marijuana emanating from the rear of the residence. We conclude that the officers' decision was reasonable and did not result in an infringement upon defendant's constitutional rights. Therefore, we hold that the trial court did not err by denying the motion to suppress the evidence obtained during the search of defendant's residence.
Defendant next argues that the trial court erred by denying defendant's motion to dismiss the charge of keeping and maintaining a dwelling for the use of a controlled substance. Defendant contends that the State offered insufficient evidence to support the charge. We disagree.
To convict a defendant for knowingly and intentionally maintaining a place for the use of a controlled substance, the State must prove the defendant: (1) knowingly or intentionally kept or maintained; (2) a building or other place; (3) that was either resorted to by persons using controlled substances or was being used for keeping or selling controlled substances. N.C. Gen. Stat. § 90-108(a)(7) (2003); Frazier, 142 N.C. App. at 365, 542 S.E.2d at 686.
Defendant asserts that the State offered insufficient evidence that defendant "kept or maintained" the residence. Whether a person "keeps or maintains" a residence within the meaning of N.C. Gen. Stat. § 90-108(a)(7) "requires consideration of several factors, none of which are dispositive." Fraizer, 142 N.C. App. at 365, 542 S.E.2d at 686. Those factors include, but are not limited to: occupancy of the property; payment of rent; possession over a duration of time; possession of a key used to enter or exit the property; and payment of utility or repair expenses. Id. In the instant case, Clark testified that defendant lived at the residence for at least a year. Law enforcement officers testified that defendant was sitting at the kitchen table of the residence when they entered it. When the officers presented defendant with a search warrant to search the residence, defendant accepted it. Viewed in the light most favorable to the State, we conclude this evidence is sufficient to support a determination that defendant kept and maintained the residence within the meaning of N.C. Gen. Stat. § 90-108(a)(7).
Defendant also asserts that the State offered insufficient evidence that the residence was "resorted to by persons using controlled substances." The determination of whether a residence is used for keeping or selling or using a controlled substance depends on the totality of the circumstances. Id. at 366, 542 S.E.2d at 686. Factors to be considered include, but are not limited to: a large amount of cash being found in the residence; a defendant admitting to selling controlled substances; and the residence containing numerous amounts of drug paraphernalia. Id. In the instant case, Clark testified that she informed the officers that she had seen drugs in defendant's residence prior to the search of her residence. The officers testified that defendant and three other individuals were smoking marijuana in defendant's residence prior to the officers' entry into the residence. The officers also testified that 128 grams of marijuana and various forms of drug paraphernalia were seized during the search of defendant's residence, along with $4500 in cash and weapons commonly associated with drug dealing. Viewed in the light most favorable to the State, we conclude this evidence is sufficient to support a determination that the residence was kept and maintained for the use of a controlled substance within the meaning of N.C. Gen. Stat. § 90-108(a)(7). Therefore, we hold that the trial court did not err in denying defendant's motion to dismiss the charge of keeping and maintaining a dwelling for the use of a controlled substance.
Defendant next argues that the trial court erred by denying his motion to dismiss the charge of possession with intent to sell and deliver a controlled substance. Defendant contends that the State offered insufficient evidence to support the charge. We disagree.
To convict a defendant for possession with intent to sell and deliver a controlled substance, the State must prove: (1) the defendant possessed the substance; (2) the substance was a controlled substance; (3) the defendant intended to sell or distribute the controlled substance. N.C. Gen. Stat. § 90-95(a)(1) (2003); State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 902 (2001).
Defendant asserts the State offered insufficient evidence that he was in possession of marijuana. However, we concluded above that the State offered sufficient evidence to establish that defendant had constructive possession of the marijuana at Clark's residence. Furthermore, at trial the officers testified that they observed defendant smoking marijuana at the kitchen table of his own residence, and that during a search of defendant's residence, the officers recovered marijuana from the kitchen table, the refrigerator, a closet, a couch, and the bedroom. "Giving the State the benefit of all reasonable inferences that may be drawn from the circumstances," we conclude that the evidence was sufficient to allow a reasonable juror to conclude that defendant had the power and intent to exercise control over the marijuana. State v. Kraus, 147 N.C. App. 766, 770, 557 S.E.2d 144, 148 (2001). Moreover, we also conclude that evidence of defendant's possession of approximately $4500 in cash and thirty-two pounds of marijuana — stored at various locations in both his residence and his next-door neighbor's residence — is sufficient to establish that defendant intended to sell or distribute the marijuana. See State v. Casey, 59 N.C. App. 99, 118, 296 S.E.2d 473, 484 (1982) ("Although the State has the burden of proving that the defendant intended to sell or deliver the controlled substance, it may rely upon ordinary circumstantial evidence such as the amount of the controlled substance possessed and the nature of its packaging and labeling to carry the burden."). Therefore, we hold that the trial court did not err in denying defendant's motion to dismiss the charge of possession with intent to sell and deliver a controlled substance.
Defendant finally argues and the State concedes that the trial court erred by finding that defendant had a prior record level III for sentencing purposes. We conclude that the trial court improperly assigned six points to defendant's prior conviction in New York for felonious assault with intent to cause serious injury. While we note that defendant's sentence in the instant case for trafficking in marijuana falls within the mandate of our legislature in N.C. Gen. Stat. § 90-95(h)(1) (2003) and that the probationary sentences imposed by the trial court fall within the presumptive range for prior record level II offenders, we nevertheless vacate defendant's sentence and remand the case to the trial court for resentencing. On remand, the trial court is to determine: (1) the correct classification of the prior New York felony; and (2) the appropriate sentence with respect to each of defendant's instant felonies.
Vacated and remanded.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).