State v. Ray

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-949 NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County No. 12 CRS 214702 CLEVELAND RAY

Appeal by defendant from judgment entered 2 May 2013 by

Judge Nathaniel J. Poovey in Mecklenburg County Superior Court.

Heard in the Court of Appeals 31 March 2014.

Roy Cooper, Attorney General, by Justin M. Hampton, Assistant Attorney General, for the State.

Mary March Exum for defendant-appellant.

DAVIS, Judge.

Cleveland Ray (“Defendant”) appeals from a judgment entered

upon his conviction for felony possession of cocaine. After

careful review, we find no error.

Factual Background

Defendant was charged with possession with intent to sell

or deliver cocaine and maintaining a dwelling for such purposes.

The charges arose from a 4 April 2012 search of a boarding house -2- where Defendant leased a room. Officers seized 2.6 grams of

crack cocaine and $965.00 in cash from Defendant’s person.

Defendant was tried during the 1 May 2013 Criminal Session

of Mecklenburg County Superior Court. At the close of the

State’s evidence, Defendant moved for dismissal of the charges

against him, and the trial court allowed his motion as to the

maintaining a dwelling charge. The jury found Defendant guilty

of felony possession of cocaine — the lesser-included offense of

possession with intent to sell or distribute cocaine. The trial

court sentenced Defendant to a term of 10 to 21 months

imprisonment. Defendant appealed to this Court.

Analysis

Defendant’s sole argument on appeal is that the trial court

erred in denying his motion to dismiss the charge of possession

with intent to sell or deliver cocaine.

A trial court’s denial of a defendant’s motion to dismiss

is reviewed de novo. State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007). On appeal, this Court must determine

“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 . . . .”

State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) -3- (citation omitted). 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). The evidence must be viewed in the

light most favorable to the State with every reasonable

inference drawn in the State’s favor. State v. Rose, 339 N.C.

172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S.

1135, 132 L.Ed.2d 818 (1995). Any inconsistencies or

discrepancies in the evidence are for the jury to resolve and do

not warrant dismissal. State v. Powell, 299 N.C. 95, 99, 261

S.E.2d 114, 117 (1980).

Although Defendant argues that the trial court erred in

denying his motion to dismiss the possession with intent to sell

or deliver cocaine charge, he does not contend that the trial

court erred in submitting the lesser-included offense of

possession of cocaine. Indeed, Defendant concedes on appeal

that “the State presented sufficient evidence that [Defendant]

possessed cocaine” to withstand the motion to dismiss. The jury

ultimately convicted Defendant only of the lesser offense of

possession of cocaine.

“[I]t is well established in North Carolina that a

conviction of a lesser offense renders any error in submission -4- of a greater offense harmless.” State v. Williams, 100 N.C.

App. 567, 573, 397 S.E.2d 364, 368 (1990). Thus, even assuming

arguendo that the trial court erred in submitting the offense of

possession with intent to sell or distribute cocaine because

there was insufficient evidence of Defendant’s intent to sell or

distribute, such error was rendered harmless by the jury’s

verdict convicting him of the lesser-included offense of

possession of cocaine. See State v. Williams, 154 N.C. App.

176, 181, 571 S.E.2d 619, 622 (2002) (holding that “[e]ven

assuming, arguendo, there was insufficient evidence of ‘serious

bodily injury’ to satisfy the statutory definition, any error in

submission to the jury of the greater offense was rendered

harmless by the jury’s verdict convicting of the lesser offense

of assault inflicting serious injury”). Accordingly,

Defendant’s argument is overruled.

Conclusion

For the reasons stated above, we conclude that Defendant

received a fair trial free from error.

NO ERROR.

Judges McGEE and ELMORE concur.

Report per Rule 30(e). -5-