Opinion
No. COA02-1083
Filed 20 May 2003 This case not for publication
Appeal by defendant from judgment dated 18 January 2002 by Judge Jay D. Hockenbury in New Hanover County Superior Court. Heard in the Court of Appeals 23 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General Rudy E. Renfer, for the State. Hosford Hosford, P.L.L.C., by Geoffrey W. Hosford, for defendant appellant.
New Hanover County Nos. 01 CRS 013273-74.
Leo A. Fenton (defendant) appeals a judgment dated 18 January 2002 entered consistent with a jury verdict finding him guilty of one count each of trafficking in 494.6 grams of cocaine by (1) transportation and (2) possession.
At trial, the State's evidence revealed that Officer Bobby Blackman of the Vice and Narcotics unit of the New Hanover County Sheriff's Department was on duty at a bus station in Wilmington, North Carolina on the morning of 13 June 2001 when he noticed defendant exit a Greyhound bus. Defendant, who was carrying two bags, appeared to be looking for someone but then made "a U-turn and started walking towards the street" away from the entrance of the bus station. Officer Blackman, who was in plain clothes, approached defendant and asked to talk to him. Defendant agreed. Officer Blackman inquired after defendant's departure city, to which defendant replied he had been in Richmond, Virginia for two or three days visiting a girlfriend. When Detective Bryan Warrelmann of the Wilmington Police Department, also in plain clothes, joined them, Officer Blackman identified himself and Detective Warrelmann as police officers assigned to the investigation of drug activity. Officer Blackman asked defendant if he was carrying anything illegal in his bags and if he would mind if the police searched them. Defendant answered "no" to both questions. As Detective Warrelmann searched the first bag, a blue gym bag, Officer Blackman asked to see defendant's bus ticket. The ticket was purchased in New Jersey and listed Baltimore, Maryland as the departure city, with a stop in Richmond. Officer Blackman asked about the discrepancy between defendant's initial answer and the printed ticket information, but defendant gave no explanation. Officer Blackman then inquired whom defendant knew in Wilmington, whereupon defendant stated he had some friends in the city.
Inside the blue gym bag, Detective Warrelmann found men's clothing in sizes extra large and double extra large, such as T-shirts, socks, and boxer shorts, a C.D. case, a shaving kit, two jars of cocoa butter, and two jars of hair gel. Detective Warrelmann opened one of the cocoa butter jars and because "something didn't look right . . . stuck [his] finger in it." Detective Warrelmann felt a hard object inside the jar. Upon inspection of a second jar, he found another hard, heavily taped object. Based on the packaging of the objects, Detective Warrelmann suspected he had found a controlled substance and instructed Officer Blackman to place defendant under arrest. A chemical analysis by the North Carolina State Bureau of Investigation later identified the substance found in the jars to be 494.6 grams of cocaine hydrochloride, a Schedule II controlled substance.
Detective Warrelmann testified that, after defendant had been placed in handcuffs and they were still at the bus station, defendant told them the blue gym bag was not his but "belonged to a little old lady in Richmond, Virginia, who must have switched bags with him." According to Officer Blackman, however, defendant never told the officers that the blue gym bag was not his, defendant did not ask the officers to go back on the bus to look for his bag, and consequently the officers did not enter the bus.
After having been transported to the police station and read his rights, defendant was interviewed by Detective Tracy Smith. During the interview, defendant appeared coherent and neither sleepy nor confused. Defendant told Detective Smith he had left from New Jersey the day before and had planned to stay at the Fairfield Inn motel in Wilmington. The purpose of defendant's trip was to visit his cousin and two women he knew. Defendant had intended to telephone his cousin once he arrived at the motel. Detective Smith asked defendant to describe the items in his blue bag. Defendant listed jeans, socks, cookies, and water, concluding "[i]f those items were in the bag, then that's my bag." Defendant again stated that an old lady had switched bags with him and that he had already told this to the arresting officers. When Detective Smith commented on the size and nature of the clothing found in the bag that did not fit with defendant's description of an old lady, defendant explained someone must have switched bags while he was sleeping on the bus. At the conclusion of the interview, Detective Warrelmann addressed defendant's claim of having accidentally grabbed the wrong bag upon exiting the bus by comparing the size of the boxer shorts worn by defendant to the ones found in the blue gym bag. According to Detective Warrelmann, Defendant wore a size double extra large consistent with the contents of the bag.
At the close of the State's evidence, defendant moved to dismiss the charges. The trial court denied the motion, and defendant presented evidence to show that the blue gym bag he carried off the bus did not belong to him. At the close of all the evidence, defendant renewed his motion to dismiss. The trial court again denied the motion.
After jury deliberations had begun, the jury asked the trial court whether "transportation [could] be defined more specifically as to distance drugs are moved." In response, the trial court instructed the jury in accordance with State v. Greenidge, 102 N.C. App. 447, 402 S.E.2d 639 (1991) and defined transportation as "any real carrying about or movement from one place to another." Defendant objected to the instruction. When the jury subsequently found defendant guilty of two counts of trafficking, defendant requested the trial court to poll the jury. The court reporter did not record the individual polling of the jurors, but the trial court stated for the record that:
the jury was polled and . . . each juror was asked if he had returned . . . a verdict of guilty of trafficking in cocaine by transportation . . . and . . . a verdict of guilty in trafficking in cocaine by possession . . . and if that was still his or her verdict, . . . each juror answered each question "Yes," and the Court concludes that the verdict . . . is a unanimous verdict.
The trial court then proceeded to the sentencing phase of the trial. The trial court specifically addressed defendant at this time and asked him if "there [was] anything [he] would like to say to the Court before [the trial court] sentence[d] [him]." Defendant responded: "No, sir." The trial court subsequently imposed a minimum sentence of 175 months and a corresponding maximum sentence of 219 months imprisonment.
The issues are whether: (I) the State presented substantial evidence defendant knowingly possessed a controlled substance; (II) the trial court erred in its instruction to the jury on the element of transportation; (III) the limited record on the polling of the jury mandates a new trial; (IV) defendant received ineffective assistance of counsel; and (V) defendant was denied the opportunity to exercise his right of allocution.
I. Defendant first argues the trial court erred in denying his motion to dismiss because the State's evidence of the contents of the blue gym bag supported his "non-ownership" of the bag. Accordingly, defendant contends, the State failed to present substantial evidence he knowingly possessed the cocaine found inside the bag. We disagree.
In ruling on a defendant's motion to dismiss, the trial court must determine whether, considered in the light most favorable to the State, (1) there is substantial evidence of each essential element of the offense charged and (2) the defendant is the perpetrator. State v. Cockerham, 129 N.C. App. 221, 223-24, 497 S.E.2d 831, 832 (1998). "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). In considering the evidence, the trial court must resolve any contradictions in the State's favor. State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001). The trial court neither weighs the evidence nor considers evidence unfavorable to the State because the issue of witness credibility falls within the province of the jury. See id.
Knowing possession is an essential element of the trafficking offenses with which defendant was charged, see N.C.G.S. § 90-95(h)(3) (2001), and may be either actual or constructive, State v. Bowens, 140 N.C. App. 217, 222, 535 S.E.2d 870, 873 (2000). A defendant has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or with others, he has the power and intent to control its disposition or use. State v. Crawford, 104 N.C. App. 591, 600, 410 S.E.2d 499, 504 (1991). In addition, "the State may overcome a motion to dismiss [based on the element of constructive possession] by presenting evidence which places the accused `within such close juxtaposition to the narcotic drugs as to justify the jury in concluding that the same was in his possession.'" State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972) (quoting State v. Allen, 279 N.C. 406, 411-12, 183 S.E.2d 680, 684 (1971)).
In this case, defendant testified at trial that the blue gym bag did not belong to him and that unlike the size of clothing found in the blue bag, he wore size large boxer shorts on the day of his arrest. For purposes of a motion to dismiss, this evidence, however, is of no significance as the trial court does not consider evidence unfavorable to the State. See Parker, 354 N.C. at 278, 553 S.E.2d at 894. The State's evidence established that the police took the blue gym bag, in which the cocaine was located, directly from defendant's person. The clothes found inside the bag were sizes extra large and double extra large, and Detective Warrelmann testified defendant wore size double extra-large boxer shorts when he was placed in custody. As the State's evidence thus supports a reasonable inference that the bag and its contents, including the cocaine, belonged to defendant, there was substantial evidence to support the conclusion that defendant was in knowing possession of a controlled substance. Accordingly, the trial court did not err in denying defendant's motion to dismiss.
II. Defendant also assigns as error the trial court's instruction to the jury on the element of transportation. Specifically, defendant contends the trial court erred in defining transportation as "any real carrying about or movement from one place to another" because Greenidge required "substantial movement." This argument is without merit.
In Greenidge, this Court noted that although "the word `transport' is not defined in the North Carolina Controlled Substance Act, [N.C. Gen. Stat. §] 90-87, it has previously been defined as `any real carrying about or movement from one place to another.'" Greenidge, 102 N.C. App. at 449, 402 S.E.2d at 640 (quoting Cunard Steamship Co. v. Mellon, 262 U.S. 100, 122, 67 L.Ed. 894, 901 (1922)). This Court further explained that because "`[r]eal' connotes `substantial' . . ., the type of movement required for transportation to have occurred is a `substantial movement.'" Id. at 449-50, 402 S.E.2d at 640. As the words "real" and "substantial" are therefore interchangeable and the trial court used the definition provided in Greenidge, it properly defined the element of transportation for the jury in the case sub judice. Accordingly, defendant's assignment of error is overruled. See State v. Yearwood, 147 N.C. App. 662, 669-70, 556 S.E.2d 672, 677 (2001) (no error where the trial court's instructions comport with North Carolina case law).
III. Defendant next argues the failure to transcribe the actual process of polling the jury prevented meaningful appellate review and thus mandates a new trial. We disagree.
"[A] defendant has a constitutional right, upon timely request, to have the jury polled as a corollary to his right to a unanimous verdict." State v. Holadia, 149 N.C. App. 248, 259, 561 S.E.2d 514, 522, disc. review denied, 355 N.C. 497, 562 S.E.2d 432 (2002). The purpose of polling the jury is:
to give each juror an opportunity, before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned, and thus to enable the court and the parties to ascertain with certainty that a unanimous verdict has been in fact reached and that no juror has been coerced or induced to agree to a verdict to which he has not fully assented.
Davis v. State, 273 N.C. 533, 541, 160 S.E.2d 697, 703 (1968) (emphasis omitted).
In this case, the transcript reveals that, following the polling, the trial court stated for the record that:
the jury was polled and . . . each juror was asked if he had returned . . . a verdict of guilty of trafficking in cocaine by transportation . . . and . . . a verdict of guilty in trafficking in cocaine by possession . . . and if that was still his or her verdict, . . . each juror answered each question "Yes," and the Court concludes that the verdict . . . is a unanimous verdict.
The record thus reflects the individual jurors' assent in open court to the verdict and the jury's unanimity. See id.; see also State v. Goode, 350 N.C. 247, 264, 512 S.E.2d 414, 424 (1999) (holding that even though the record did not include the polling of the individual jurors, it was not silent because the trial court's statements reflected that each juror had been individually polled and that each had assented to the guilty verdicts). As such, defendant is not entitled to a new trial.
IV
We now address defendant's ineffective assistance of counsel claim. When attacking a conviction based on ineffective assistance of counsel, a defendant must show that his counsel's conduct fell below an objective standard of reasonableness. State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). The defendant bears the burden of showing that: (1) his counsel's performance was deficient in that the errors made were "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment" and (2) the deficient performance prejudiced the defense by depriving the defendant of a fair trial. Id. (citation omitted) (internal quotation omitted).
During closing arguments, which were not recorded in the transcript, the State commented on the date of a prior visit by defendant to Wilmington, which occurred during the Azalea Festival. The record reflects defense counsel's request to the trial court for a curative instruction because the State had given the wrong date for the festival. The trial court denied the request, stating it would let the jury use its "common sense to know when the Azalea Festival" was held.
In his brief to this Court, defendant argues the State "[p]resumably . . . attempted to show that [defendant] could not have been testifying truthfully because, according to [the State], the festival always occurs the last week of [April]" as opposed to the beginning of the month. By failing to have closing arguments recorded, however, defendant contends his counsel provided ineffective assistance as this omission foreclosed meaningful appellate review of the State's comment. We disagree.
Defense counsel's failure to request the recording of closing arguments was neither deficient nor was it prejudicial. See id. Even though the record does not include closing arguments, it clearly reflects defense counsel's objection to the State's comment. Moreover, "[t]he fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." Id. at 563, 324 S.E.2d at 248. Defendant offers no argument of such a probability had defense counsel insisted closing arguments be recorded. Therefore, defendant has failed to sufficiently present a claim for ineffective assistance of counsel.
V
Finally, defendant asserts the trial court committed plain error by denying defendant the opportunity to exercise his right of allocution during the sentencing hearing.
A defendant's right to allocution is codified in N.C. Gen. Stat. § 15A-1334(b), which provides that "[t]he defendant at the [sentencing] hearing may make a statement in his own behalf." N.C.G.S. § 15A-1334(b) (2001). This right may be exercised upon the defendant's request prior to the pronouncement of the sentence. State v. Miller, 137 N.C. App. 450, 461, 528 S.E.2d 626, 632 (2000). In this case, defendant did not request to exercise his right of allocution. Further, and contrary to defendant's contentions in his brief to this Court, the trial court expressly asked defendant whether he wished to address the court prior to sentencing, but defendant declined. Accordingly, this assignment of error is overruled as well.
No error.
Judges TIMMONS-GOODSON and GEER concur.
Report per Rule 30(e).