Opinion
No. COA14–1183.
04-07-2015
STATE of North Carolina v. Credrick D. WASHINGTON.
Roy Cooper, Attorney General, by R. Marcus Lodge, Special Deputy Attorney General, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.
Roy Cooper, Attorney General, by R. Marcus Lodge, Special Deputy Attorney General, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.
STEELMAN, Judge.
Where there was evidence in the record of incriminating circumstances that supported the submission of constructive possession to the jury, the trial court did not err in denying defendant's motion to dismiss at the close of all of the evidence. In asking questions to clarify testimony, the trial court did not express an improper opinion.
I. Factual and Procedural Background
On 18 October 2011, Officer Marty Barnhardt (Officer Barnhardt) of the Concord Police Department was off duty when he responded to a dispatch concerning a domestic matter involving a gun at a nearby hotel. The dispatch gave a description of a black male driving a white car. When he arrived at the hotel, Officer Barnhardt observed a vehicle matching that description. Operating the car was Crederick Washington (defendant), matching the description of the driver from the dispatch. There was also a passenger, Clyde Brand (Brand), whom Officer Barnhardt knew to be a drug dealer. As Officer Barnhardt approached the vehicle, defendant started to get out of the car. Officer Barnhardt instructed defendant and Brand to remain in the vehicle and keep their hands visible. During this time, Officer Barnhardt observed defendant's right hand drop “[d]own to his right beside the seat or the general area beside the seat.” Brand's hands remained consistently visible. Only defendant's hand dropped “between the driver's seat and center console[.]” Other officers arrived, and defendant and Brand were secured, but not immediately arrested. Officer Barnhardt then examined the vehicle to determine whether defendant had been reaching for a weapon in the space beside the seat. What he found was an “off-white rocky substance.” The substance was ultimately determined to be crack cocaine.
Defendant was charged with possession of cocaine with the intent to sell and deliver, assault by strangulation, and being an habitual felon. The State dismissed the assault charge due to a lack of evidence. Defendant presented evidence, and moved to dismiss the possession of cocaine charge at the close of all of the evidence. This motion was denied.
On 10 July 2014, the jury found defendant guilty of the lesser included offense of possession of cocaine. Defendant then pled guilty to being an habitual felon. The trial court sentenced defendant to an active term of 110–141 months imprisonment.
Defendant appeals.
II. Motion to Dismiss
In his first argument, defendant contends that the trial court erred in denying his motion to dismiss the charge of constructive possession. We disagree.
A. Standard of Review
“This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith,186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007) (citations omitted).
“When a defendant presents evidence, he waives his right to appeal the denial of his motion to dismiss at the close of the State's evidence. Therefore, only the motion to dismiss at the close of all the evidence is before the Court.” State v. Mash, 328 N .C. 61, 66, 399 S.E.2d 307, 311 (1991) (citations omitted); see alsoN.C. Gen.Stat. § 15173 (2013). “In ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences from that evidence.” Id.(citations omitted).
“ ‘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. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v.. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) ), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000).
B. Analysis
Because defendant presented evidence at trial, we consider only his motion to dismiss at the close of all of the evidence. We consider this motion in light of all of the evidence, in the light most favorable to the State. Mash, 328 N.C. at 66, 399 S.E.2d at 311.
“Actual possession requires that a party have physical or personal custody of the item.” State v. Alston, 131 N.C.App. 514, 519, 508 S.E.2d 315, 318 (1998). Evidence may support constructive possession if a reasonable mind would find from the evidence that the accused had the intent and capability to exercise control and dominion over the contraband. State v. Peek, 89 N.C.App. 123, 126, 365 S.E.2d 320, 322 (1988). A defendant's mere presence in an automobile containing contraband is not sufficient evidence of possession, and additional incriminating circumstances must be shown. State v. Weems, 31 N.C.App. 569, 571, 230 S.E.2d 193, 194 (1976). If the defendant does not have exclusive possession over the vehicle where contraband is found, other incriminating circumstances must be present before constructive possession may be inferred. State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989).
Officer Barnhardt testified that, when he stopped the vehicle, he observed defendant reaching into the console area with his right hand. This testimony showed that defendant reached into the space in which the cocaine was found, and that nobody else was observed reaching into that area between the time of the stop and the search of the vehicle. This constitutes sufficient incriminating circumstances to support the submission of constructive possession to the jury. The trial court did not err in denying defendant's motion to dismiss at the close of all of the evidence.
This argument is without merit.
III. Improper Expression of Opinion
In his second argument, defendant contends that the trial court erred in expressing an improper opinion with respect to the testimony of a witness. We disagree.
A. Standard of Review
Whether a trial court's comments or questions to a witness constitute reversible error is considered in light of the factors and circumstances disclosed by the record. The defendant has the burden to show that the comments and questions resulted in prejudicial error. State v. Jones, 347 N.C. 193, 211, 491 S.E.2d 641, 652 (1997). We review such allegations under a totality of the circumstances. State v. Rushdan, 183 N.C.App. 281, 284, 644 S.E.2d 568, 571 (quoting State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995) ) disc. review denied,361 N.C. 574, 651 S.E.2d 557 (2007).
B. Analysis
N.C. Gen.Stat. § 15A–1222 precludes a trial judge from expressing any opinion before the jury on a question to be decided by the jury. However, it is not error per sefor the trial court to ask questions or to clarify a witness' testimony. Rushdan, 183 N.C.App. at 284, 644 S.E.2d at 570. It is well established that a trial judge may question a witness to clarify his testimony and to promote a better understanding of it. State v. Fuller, 48 N.C.App. 418, 421–22, 268 S.E.2d 879, 881, disc. review denied, 301 N.C. 403, 273 S.E.2d 448 (1980).
During the defense's evidence, defense counsel asked Detective Chris Smith (Det.Smith), one of the officers at the scene:
Q And at any point while removing Mr. Washington from the vehicle, did you ever see any altercation or confrontation between him and Officer Barnhardt?
A I don't think we give him enough time to have a confrontation.
Subsequently, the following occurred:
Q And did you say you do not recall whether or not he had reached the vehicle by the time you got out of the car?
A I was more focused on what was in the passenger's seat, and what we were dealing with. I don't remember where he was at.
Q You never saw Mr. Washington standing up outside the car with Officer Barnhardt pushing the car door shut on him; did you?
A Can you repeat that question, please?
Q You never saw Officer—you never saw Mr. Washington standing up outside the vehicle with Officer Barnhardt pushing the door closed on him? Did you ever see that?
A Obviously, I saw Officer Barnhardt detain Mr. Washington. How the facts of those—I'm on the opposite side of the car. In my experience, if I am removing somebody from a vehicle, as to get them out of the car to detain them in a hostile situation, it would be very possible that Officer Barnhardt probably did use that door in his
Q My question is did you see him? Not is it possible that it happened.
MS. PADGET: Objection Your Honor, he's testified that he couldn't see it.
THE COURT: Well, objection sustained. I think he didn't see it.
You were dealing with the other passenger?
THE WITNESS: That's correct.
THE COURT: You had your hands full?
THE WITNESS: That's correct. I think that's what I said.
Defendant contends that the State misstated Det. Smith's testimony, and that the trial court “affirmed the prosecutor's mistaken contention, and, second, endorsed the officer's testimony by echoing the officer's words.” Defendant contends that the trial court improperly expressed an opinion in this case.
Upon reviewing the testimony fully, it is clear that defense counsel asked Det. Smith several times whether he had seen the interaction between defendant and Officer Barnhardt. Upon the State's objection, the trial court then offered two questions for clarification. The trial court's questions—whether Det. Smith “had [his] hands full” dealing with Brand—helped to clarify the point that defense counsel sought to elicit, specifically whether Det. Smith saw what transpired between defendant and Officer Barnhardt.
Even assuming arguendothat the trial court's questions were improper, the burden is on defendant to show that they rose to the level of prejudicial error. Jones, 347 N.C. at 211, 491 S.E.2d at 652. In the instant case, the pivotal evidence was Officer Barnhardt's testimony that only defendant had contact with the space where the crack cocaine was located. Neither Det. Smith's testimony nor the trial court's questions contradict Officer Barnhardt's statements that (1) during his apprehension, defendant's right hand dropped into the space between the seat and console; (2) no other person reached into that space prior to the vehicle's investigation by police; and (3) the crack cocaine was located in that space. We hold that defendant has failed to show that his case was prejudiced as a result of the questions posed by the trial court.
This argument is without merit.
NO ERROR.
Chief Judge McGEE and Judge BRYANT concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgment entered 7 October 2014 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 2 March 2015.