Opinion
No. COA10-702
Filed 15 February 2011 This case not for publication
Appeal by defendant from judgment entered 8 October 2009 by Judge Christopher M. Collier in Mecklenburg County Superior Court. Heard in the Court of Appeals 30 November 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State. Brock, Payne Meece, P.A., by C. Scott Holmes, for defendant-appellant.
Mecklenburg County No. 07 CRS 22138-39.
Where the State presents testimony from a law enforcement officer visually identifying a substance as cocaine along with a crime laboratory report identifying the substance as cocaine based on a chemical analysis, this constitutes substantial evidence of the substance's identity, and a trial court properly denies a defendant's motion to dismiss for insufficiency of the evidence. Where a defendant pleads guilty to an offense without reserving any right to appeal, he has no general right to appeal his sentence thereupon. Where a defendant does not move to suppress evidence at trial and the factual circumstances indicate reasonable suspicion to conduct an investigatory stop, defendant fails to show error, let alone plain error.
Facts
The evidence at trial tended to show the following. On 6 December 2006, a truck driving down Freedom Drive in Charlotte struck the back of a car pulling out of a shopping center and pushed the vehicle into a tree. Officers Wayne Roth and Chang Ko of the Charlotte-Mecklenburg Police Department arrived at the accident scene and saw defendant Darell Wayne Pickett walking away from the area. Officer Ko returned defendant to the accident scene and patted him down, finding nothing. Officer Ko then checked the defendant's right front pants pocket, finding keys to the truck involved in the accident as well as what appeared to be marijuana and crack cocaine in a front pants pocket. During this time, Officer Roth checked the driver of the car and found she was not badly injured. However, another woman was running from the scene screaming and bleeding from the head. Once the woman calmed down, she stated that she had been the driver of the truck. Officer Roth did not believe this claim because the woman's head injury matched the damage to the passenger-side windshield of the truck, where Officer Roth saw long blond hairs like the woman's embedded in the glass. Another man was seated in the backseat of the truck. The truck was registered to defendant. Defendant was taken to the hospital for treatment and then released. Because defendant was unconscious, officers left a citation for possession of marijuana at the hospital, asking the nurses to give it to defendant. Sometime thereafter, defendant was arrested for felony possession of cocaine.
Defendant was charged with felony possession of cocaine and having obtained the status of habitual felon and was tried before a jury. At trial, the cocaine found on defendant was not introduced because it had been destroyed. Officer Ko testified that the substance had been cocaine and that he could visually identify it because he "had seen it before." A police property report listed 2.1 grams of cocaine, and a crime laboratory report indicated the substance had been 0.87 grams of cocaine. Both reports were admitted into evidence.
Defendant offered testimony from Timmy Gene Scruggs, a neighbor of defendant. Scruggs testified that he had been the driver of the truck at the time of the accident and that his wife had been in the passenger seat, with defendant seated in the back. Scruggs said that defendant had gotten out of the truck to go for help and had put on Scrugg's jacket at that time. Scruggs testified that there had been marijuana and cocaine in his jacket pocket and that the drugs belonged to him, not to defendant. On cross-examination, Scruggs admitted that he did not know the officers had testified that defendant was not wearing a jacket when he was searched and that the drugs were found in defendant's pants pocket.
Defendant moved to dismiss for insufficiency of the evidence at the close of the State's evidence and again at the close of all evidence. The trial court denied both motions. The jury found defendant guilty of possession of cocaine and defendant then pled guilty to attaining the status of habitual felon. The trial court sentenced defendant in the presumptive range to a sentence of 107 to 138 months. Defendant appeals.
Defendant makes four arguments on appeal: (I) the trial court erred in denying his motions to dismiss for insufficiency of the evidence; (II) his nine-to eleven-year sentence was excessive; (III) his guilty plea to habitual felon status was not knowing and voluntary; and (IV) the trial court committed plain error in admitting illegally-seized evidence. Noting that his guilty plea to habitual felon status bars his right to direct appeal of that conviction, defendant also petitions this Court for review by writ of certiorari as to issue III.
I
Defendant first argues that the trial court erred in denying his motions to dismiss for insufficiency. We disagree.
Our standard of review from the denial of a motion to dismiss for insufficiency is well-established:
When ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor. Any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered. The trial court must decide only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. When the evidence raises no more than a suspicion of guilt, a motion to dismiss should be granted. However, so long as the evidence supports a reasonable inference of the defendant's guilt, a motion to dismiss is properly denied even though the evidence also permits a reasonable inference of the defendant's innocence.
State v. Miller, 363 N.C. 96, 98-99, 678 S.E.2d 592, 594 (2009) (internal quotation marks and citations omitted). "The denial of a motion to dismiss for insufficient evidence is a question of law, which this Court reviews de novo." State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007) (internal quotation marks and citations omitted).
Here, defendant was charged with felony possession of cocaine in violation of N.C. Gen. Stat. § 90-95(a)(3) (2009). The elements of this offense are that a person possesses a controlled substance. Id. Defendant did not object to Officer Ko's testimony that he had visually identified the substance as cocaine nor to the admission of the property and crime lab reports. Defendant now contends that the State failed to present substantial evidence that the substance seized from his pants pocket was cocaine, a controlled substance. Defendant cites State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010), in support of his contentions. We find that case inapplicable.
In Ward, the "issue for [] review [was] whether the trial court abused its discretion by permitting the State's expert witness to identify certain pills when the expert's methodology consisted solely of a visual inspection process." Id. at 134, 694 S.E.2d at 739. Thus, Ward involved reliability determinations under N.C. Gen. Stat. § 8C-1, Rule 702. Id. The present case is both factually and legally distinct. First, there was no challenge to admission under Rule 702. Second, here the alleged controlled substance was not identified solely on the basis of a visual inspection process. Instead, Officer's Ko's visual identification was corroborated by the crime lab report, which was admitted without objection, identifying the substance as cocaine based on a chemical analysis. The evidence presented here was sufficient to support a reasonable inference of defendant's guilt and the trial court properly denied defendant's motions to dismiss. This argument is overruled.
II
Defendant next argues that his sentence violates his constitutional right to be free from cruel and unusual punishment. We disagree.
Defendant contends that it is cruel and unusual punishment to punish him as a habitual felon for possessing a "user-amount of drugs while being a drug addict." As defendant acknowledges in his brief, he pled guilty to having obtained the status of habitual felon. A defendant who appeals from a judgment entered pursuant to a guilty plea has a right to appeal only:
(1) whether the sentence is supported by the evidence (if the minimum term of imprisonment does not fall within the presumptive range); (2) whether the sentence results from an incorrect finding of the defendant's prior record level under N.C. Gen. Stat. § 15A-1340.14 or the defendant's prior conviction level under N.C. Gen. Stat. § 15A-1340.21; (3) whether the sentence constitutes a type of sentence not authorized
by N.C. Gen. Stat. § 15A-1340.17 or § 15A-1340.23 for the defendant's class of offense and prior record or conviction level; (4) whether the trial court improperly denied the defendant's motion to suppress; and (5) whether the trial court improperly denied the defendant's motion to withdraw his guilty plea.
State v. Carter, 167 N.C. App. 582, 584, 605 S.E.2d 676, 678 (2004); see also N.C. Gen. Stat. § 15A-1444(a1), (a2), (e) (2009). Defendant's constitutional argument does not fall into any of these limited categories, and we decline to review this issue by writ of certiorari.
We also note that defendant did not raise this constitutional issue at trial. "[A] constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal." State v. Benson, 323 N.C. 318, 322, 372, S.E.2d 517, 519 (1988) (quotations omitted). However, defendant would not prevail even had he properly preserved this matter for our review because "both this Court and our Supreme Court have rejected constitutional challenges to the Habitual Felon Act based on allegations of cruel and unusual punishment." State v. McIlwaine, 169 N.C. App. 397, 403, 610 S.E.2d 399, 403 (2005) (citing State. v. Todd, 313 N.C. 110, 118-19, 326 S.E.2d 249, 253-55 (1985); State v. Dammons, 159 N.C. App. 284, 298, 583 S.E.2d 606, 615, disc. rev. denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert. denied, 541 U.S. 951, 158 L. Ed. 2d 382 (2004)). This assignment of error is dismissed.
III
Defendant also argues that his guilty plea to habitual felon status was not knowing and voluntary. We disagree.
As noted above, defendant acknowledges that he pled guilty to attaining the status of habitual felon and did not reserve his right to appeal any issues related to that plea. Defendant makes no compelling argument for this Court to review this issue via writ of certiorari pursuant to N.C.G.S. § 15A-1444(e), and we decline to do so. This argument is dismissed.
IV
Defendant argues that the trial court committed plain error in admitting evidence regarding the cocaine Officer Ko seized from him. We disagree.
Defendant contends that Officer Ko's stop and search violated his constitutional right to be free of illegal searches and seizures. Specifically, defendant asserts that Officer Ko lacked reasonable suspicion to conduct an investigatory stop. This type of argument would typically be made prior to trial via a motion to suppress. Where no motion to suppress is made,
the usual standard of review cannot be employed in evaluating [the] [d]efendant's challenge to the admission of [the evidence]. Instead, we must simply examine the information before the trial court in order to determine if it committed plain error by allowing the admission of the challenged [evidence].
State v. Mohamed, ___ N.C. App. ___, ___, 696 S.E.2d 724, 730 (2010). In turn,
[t]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation and internal quotation marks omitted). Under plain error review, we grant relief only if we conclude that, but for the alleged error, the jury probably would have reached a different verdict. State v. Doe, 190 N.C. App. 723, 732, 661 S.E.2d 272, 278 (2008).
In determining whether reasonable suspicion existed to support an investigatory stop, we consider whether there exist "specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant[ed] [the] intrusion." State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779, cert. denied, 444 U.S. 907, 62 L. Ed. 2d 143 (1979) (quotation marks and citation omitted). We view the circumstances "as a whole 'through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.'" Id. at 706, 252 S.E.2d at 779 (quoting United States v. Hall, 525 F.2d 857, 859 (D.C. Cir. 1976)).
Here, Officer Ko arrived on the scene, within 30 seconds of the traffic accident, and saw defendant running away from the scene. When defendant saw the officers' marked patrol cars, he changed direction and began running in the opposite direction. Officer Ko made eye contact with defendant and asked him to stop, but defendant continued to walk rapidly away behind a restaurant. Officer Ko believed that defendant was connected to the vehicle, which had just been involved in a traffic accident. Once he stopped defendant, he saw that defendant had injuries to his head. He then learned that the truck was registered to defendant. Based on these specific and articulable facts, together with Officer Ko's rational inference that defendant had been driving the truck involved in the accident and that he appeared to be attempting to leave the scene, we believe Officer Ko had reasonable suspicion to conduct an investigatory stop of defendant. Thus, defendant has failed to show any error, let alone plain error, in the admission of the evidence related to the seizure of cocaine from his pants pocket. This argument is overruled.
No error in part; dismissed in part.
Judge STROUD and BEASLEY concur.
Report per rule 30(e).