An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-959 NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Onslow County Nos. 11 CRS 53063 NICHOLAS TAVARES WEST, 11 CRS 53064 Defendant.
Appeal by defendant from judgments entered 3 April 2013 by
Judge Charles H. Henry in Onslow County Superior Court. Heard
in the Court of Appeals 22 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General Belinda A. Smith, for the State.
Sue Genrich Berry for defendant-appellant.
GEER, Judge.
Defendant Nicholas Tavares West appeals his convictions of
possession of a firearm by a felon, possession of drug
paraphernalia, possession of up to one-half ounce of marijuana,
and resisting a public officer. On appeal, defendant primarily
argues that the trial court erred in denying his motion to
dismiss the charge of possession of a firearm by a felon because
the State failed to present substantial evidence that defendant -2- constructively possessed the handgun located in the trunk of the
car defendant was driving. Given the State's evidence that
defendant was the driver and sole occupant of the car, together
with other circumstantial evidence that defendant constructively
possessed the handgun, we hold the trial court properly denied
defendant's motion.
Facts
The State's evidence tended to show the following facts.
At about 9:45 p.m. on 8 May 2011, Officer Joshua Porter of the
Jacksonville Police Department and his partner were driving in a
marked patrol car with their windows down in an alleyway in a
high drug-trafficking neighborhood in Jacksonville, North
Carolina. The officers noticed an "overwhelming" smell of
burning marijuana and saw there was an occupied Buick LeSabre
nearby. They parked and approached the Buick to investigate the
smell. One of the Buick's windows was down and, as he got
closer, Officer Porter determined the Buick was "without
question" the source of the smell. Officer Porter had seen
defendant driving the Buick on several occasions, and a
subsequent search revealed that, on 8 May 2011, the Buick was
registered to defendant.
Defendant was sitting in the driver's seat of the Buick and
was the only occupant. The officers had defendant exit the -3- Buick and asked defendant where the marijuana was located.
Defendant denied smoking marijuana, pointed to another car in
the area, and claimed someone in the other car was smoking
marijuana. When both officers looked toward the other car,
defendant fled on foot. The officers ran after defendant and
eventually overtook him. After being caught, defendant
continued to physically struggle with the officers to the point
that Officer Porter's partner tased defendant to subdue him.
Officers then searched the Buick and, on the front
passenger side floorboard, discovered a hand-rolled cigar filled
with marijuana and charred at one end. Officers also found a
metal pipe used to smoke marijuana in a duffel bag in the back
seat; between 20 and 50 clear plastic sandwich bags, which are
often used to package marijuana, in the center console; and
marijuana residue on the floorboard of the rear passenger side
seat. There were several articles of mail in defendant's name
located in the front passenger-side seat.
Upon looking in the trunk, officers immediately saw in
plain view a shiny silver .25 caliber handgun that had a round
in the chamber and rounds in the magazine. In "close proximity"
to the handgun, officers found a purple pouch containing a
digital scale on which marijuana and white powder residue was
found, and a silver bottle of GNC Inositol powder. There were -4- very few other items in the trunk. Officers also searched
defendant's person and, in his wallet, found a pack of cigarette
rolling papers that can be used to smoke marijuana.
Defendant was arrested and informed of the charges against
him, including possession of a firearm by a felon. Later, while
awaiting a bond determination, defendant told the officers that
"he learned his lesson last time, and this time I'm taking the
plea."
On 10 July 2012, defendant was indicted for possession of a
firearm by a felon, possession with intent to sell or deliver a
counterfeit controlled substance, possession of between one-half
ounce and one and one-half ounces of marijuana, possession of
drug paraphernalia, resisting a public officer, and being a
habitual felon. Prior to trial, defendant pled guilty to
possession of less than one-half ounce of marijuana, a lesser
included offense of the indicted charge, and to resisting a
public officer. Also prior to trial, the State dismissed the
charge of possession with intent to sell or deliver a
counterfeit controlled substance.
At trial, defendant introduced into evidence a certificate
of title showing defendant transferred title of the Buick to his
mother, Angela West Hunter, in January 2011. Defendant also
presented the testimony of his wife, Angel West, and his mother -5- that tended to show the following. Defendant bought the Buick
for Ms. Hunter because he had ruined her former car, and Ms.
Hunter actually owned the Buick on 8 May 2011. Ms. Hunter often
drove the Buick, and defendant, defendant's wife, and
defendant's daughter each occasionally drove the Buick during
the spring of 2011.
On 5 May 2011, Ms. Hunter was going through boxes belonging
to her late stepmother when she found the silver handgun at
issue in this case. She put the gun in the trunk of the Buick
with the intention of giving it to a family member. However,
after Ms. Hunter was unable to deliver the gun because the
family member was not at home, she forgot about it. Ms. Hunter
never told defendant the gun was in the trunk. Ms. Hunter was
familiar with the purple pouch in the trunk, but she did not put
it in the trunk, she never saw defendant with it, and she did
not remember where she had seen it. Ms. Hunter had never seen
the digital scale prior to trial.
On 8 May 2011, defendant, his wife, and their children
drove together to Ms. Hunter's house for a Mother's Day dinner.
Ms. West left by 7:30 p.m. with the children, and defendant
stayed to watch basketball with his father. Ms. Hunter gave
defendant permission to drive the Buick home and, on his way
home, defendant delivered a plate of food to Ms. Hunter's friend -6- who lived on the street where the officers found defendant
parked. Nobody besides Ms. Hunter drove the Buick between 5 May
and 8 May 2011, and Ms. Hunter never opened the trunk after
placing the gun in it.
The jury found defendant guilty of possession of a firearm
by a felon and possession of drug paraphernalia. Defendant then
admitted his status as a habitual felon. The trial court
consolidated the offenses of possession of a firearm by a felon
and possession of drug paraphernalia and sentenced defendant to
a presumptive-range term of 88 to 118 months imprisonment. The
trial court further consolidated the offenses of possession of
up to one-half ounce of marijuana and resisting a public officer
and sentenced defendant to a concurrent term of 60 days
imprisonment. Defendant timely appealed to this Court.
I
Defendant first argues that the trial court erred in
denying his motion to dismiss the charge of possession of a
firearm by a felon. "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).
"'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 -7- 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 (2000)
(quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918
(1993)). "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 making its determination, the trial court
considers all the evidence "in the light most favorable to the
State, giving the State the benefit of every reasonable
inference and resolving any contradictions in its favor." State
v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
"There are two elements to possession of a firearm by a
felon: '(1) defendant was previously convicted of a felony; and
(2) thereafter possessed a firearm.'" State v. Mitchell, ___
N.C. App. ___, ___, 735 S.E.2d 438, 442-43 (2012) (quoting State
v. Best, 214 N.C. App. 39, 45, 713 S.E.2d 556, 561 (2011)),
appeal dismissed and disc. review denied, 366 N.C. 578, 740
S.E.2d 466 (2013). The only issue in this case is whether the
State presented substantial evidence that defendant possessed a
firearm.
A defendant has possession of contraband when he has "both
the power and intent to control its disposition or use." State -8- v. Dow, 70 N.C. App. 82, 85, 318 S.E.2d 883, 885 (1984).
"Possession may be either actual or constructive." Id.
"Constructive possession exists when there is no actual personal
dominion over the [contraband], but there is an intent and
capability to maintain control and dominion over it." Id.
Evidence that a defendant owns a vehicle can give rise to
an inference of constructive possession of items within it.
Id., 318 S.E.2d at 886 ("Had the defendant, in the instant case,
owned the automobile, an inference that he was in constructive
possession of the controlled substance found therein would have
been permissible."). Here, the State presented evidence that
the Buick was registered to defendant and Officer Porter had
previously seen defendant driving the Buick on several
occasions. While defendant's evidence tended to show defendant
transferred title of the Buick to his mother roughly four months
prior to the search, it is well established that "defendant's
evidence rebutting the inference of guilt is not to be
considered [on a motion to dismiss] except to the extent that it
explains, clarifies or is not inconsistent with the State's
evidence[.]" State v. Walker, 332 N.C. 520, 530, 422 S.E.2d
716, 722 (1992).
In addition to the presumption arising from the State's
evidence that the Buick was registered to defendant, "[a]n -9- inference of constructive possession can also arise from
evidence which tends to show that a defendant was the custodian
of the vehicle where the [contraband] was found." Dow, 70 N.C.
App. at 85, 318 S.E.2d at 886. Our courts have consistently
held that "the 'driver of a borrowed car, like the owner of the
car, has the power to control the contents of the car[,]'" and
"power to control the automobile where [contraband] was found is
sufficient, in and of itself, to give rise to the inference of
knowledge and possession sufficient to go to the jury." Id.
(quoting State v. Glaze, 24 N.C. App. 60, 64, 210 S.E.2d 124,
127 (1974)). Since there is no dispute in this case that
defendant was the driver and sole occupant of the Buick on the
evening of 8 May 2011, those facts were sufficient, in the light
most favorable to the State, to permit an inference of
defendant's constructive possession of the handgun in the trunk.
See id. at 83-84, 85, 318 S.E.2d at 885, 886 (holding State
presented substantial evidence of constructive possession of
marijuana in car when State's evidence showed defendant was
driver of car also occupied by two other men at time of stop and
marijuana was located on and under rear floor mat of car, and
defendant's evidence showed he borrowed car three days prior to
stop and had custody of it until time of stop). -10- Moreover, the State's evidence showed defendant told
officers, after being informed that he was charged with
possession of a firearm by a felon, that "he learned his lesson
last time" and this time he would plead guilty; there was mail
in defendant's name in the passenger seat of the car; and
defendant fled from the officers and physically struggled with
them to avoid arrest, leading him to plead guilty to resisting a
public officer. See State v. Bagley, 183 N.C. App. 514, 521,
644 S.E.2d 615, 620 (2007) ("[E]vidence of flight is admissible
if offered for the purpose of showing defendant's guilty
conscience as circumstantial evidence of guilt of the crime for
which he is being tried . . . .").
Additionally, defendant pled guilty to possession of
marijuana, and the State's evidence showed a marijuana smoking
pipe was found in the back seat of the car in the same duffel
bag that contained men's clothes in defendant's size; the
digital scale showing marijuana residue in the trunk was in
"close proximity" to the shiny silver handgun located in plain
view; there were between 20 and 50 plastic bags in the center
console of the Buick and those items are commonly used to
package marijuana; marijuana residue was found on the rear
floorboard of the car; and the handgun was a cheap "throw-away
gun" commonly used by drug-dealers. There were few other items -11- in the trunk, and Ms. Hunter testified she had never before seen
the digital scale. This evidence tended to show defendant was
involved in drug transactions, put the digital scale in the
trunk, and either personally put the gun in the trunk or was at
least aware of its presence when driving the car on 8 May 2011.
We hold the State presented substantial evidence of
defendant's constructive possession of the handgun in the trunk.
Consequently, the trial court did not err in denying defendant's
motion to dismiss the charge of possession of a firearm by a
felon.
II
Defendant next contends that the indictment charging him as
a habitual felon was fatally defective since the alleged date of
the offense for one of the three predicate felony convictions
differed from the date of offense shown on the prior judgment
submitted to the trial court as proof of that conviction.
Defendant argues that, as a result of the defective indictment,
the trial court lacked subject matter jurisdiction over the
habitual felon charge.
Defendant was indicted for being a habitual felon, which is
defined as "[a]ny person who has been convicted of or pled
guilty to three felony offenses in any federal court or state
court . . . ." N.C. Gen. Stat. § 14-7.1 (2013). N.C. Gen. -12- Stat. § 14-7.3 (2013) provides that an indictment charging a
defendant as a habitual felon "must set forth," among other
things, "the date that prior felony offenses were committed."
Defendant's indictment for being a habitual felon provides
in relevant part that defendant was convicted of the sale and
delivery of marijuana in Onslow County on 31 October 1995 and
that the date of offense was "05/31/1995." As a factual basis
for defendant's guilty plea, the State presented the judgment
for defendant's sale and delivery of marijuana conviction that
provided the same information as defendant's habitual felon
indictment, except that the date of offense was provided as "05-
12-1995." Defendant's argument on appeal is based solely on
this discrepancy.
In State v. Taylor, 203 N.C. App. 448, 453, 691 S.E.2d 755,
760 (2010), cert. denied, 366 N.C. 408, 736 S.E.2d 180 (2012),
the defendant similarly argued that his indictment for being a
habitual felon was fatally defective because the date of offense
for a predicate felony alleged in his habitual felon indictment,
"'12/8/1992,'" differed from the date of offense shown on the
relevant judgment presented by the State at trial, "'12/18/92.'"
The Court explained that "'the date alleged in the indictment is
neither an essential nor a substantial fact as to the charge of
habitual felon . . . .'" Id. at 454, 691 S.E.2d at 761 (quoting -13- State v. Locklear, 117 N.C. App. 255, 260, 450 S.E.2d 516, 519
(1994)). Instead, it is "'the fact that another felony was
committed, not its specific date, which [i]s the essential
question in the habitual felon indictment.'" Id. (quoting
Locklear, 117 N.C. App. at 260, 450 S.E.2d at 519).
The habitual felon indictment in Taylor "provided notice of
the three prior felonies being used to support the indictment,
the dates the felonies were committed, the jurisdiction in which
they were committed, the dates of convictions, the court in
which the convictions took place, and the file numbers of the
cases." Id. at 455, 691 S.E.2d at 761. Under those
circumstances, the Court held that the habitual felon indictment
was sufficient on its face to support the charged offense. Id.,
691 S.E.2d at 761-62.
Here, as in Taylor, the habitual felon indictment provided
defendant notice of the three prior felonies supporting the
indictment, the dates the felonies were committed, the
jurisdiction in which they were committed, the dates of
conviction, and the court in which the convictions took place.
There can be no question that defendant had notice of the prior
felonies alleged against him, since prior to entry of
defendant's plea to being a habitual felon, defense counsel
expressly stipulated to "the three convictions which are -14- identified in the [habitual felon] indictment," stating that
they "[were], in fact, correct and do apply to [defendant]."
Defense counsel based his stipulation on his assertion that he
"[had] actually checked the judgments [himself]." Accordingly,
"[d]espite the discrepancy regarding the date defendant
committed the prior [relevant] offense, the habitual felon
indictment . . . provided defendant with adequate notice of the
prior felonies supporting the indictment in order for defendant
to prepare a defense." Id. at 455, 691 S.E.2d at 761. The
indictment, therefore, sufficiently charged defendant with being
a habitual felon, and the trial court had subject matter
jurisdiction over the charge.
III
Defendant additionally argues that questions to his wife
and mother on cross-examination attempted to elicit improper
evidence regarding his criminal history. Defendant contends
that the questions violated his rights to due process under the
Fourteenth Amendment to the United States Constitution and
Article I, Section 19 of the North Carolina Constitution, as
well as Rules 401 and 404 of the Rules of Evidence.
During cross-examination of defendant's wife, Ms. West, the
following occurred: -15- Q. Ms. West, you said you and [defendant] have been married since 2000; is that right?
A. Yes.
Q. Okay. And have you shared a residence that entire time?
A. Off and on.
Q. Okay. And when it was off, what was happening?
A. When it was off?
Q. When you weren't sharing a residence, what was going on?
A. Just marital problems.
Q. Okay. And was there ever a time where your husband couldn't be in the marital residence with you?
A. Meaning?
Q. As in did he ever have to live or stay somewhere else other than for marital problems?
A. 2001 or '2, whenever the charges that you brought up earlier.
Q. Okay. And is that because he was in prison at that time?
Q. Okay. Did he ever go to prison on any other occasions while you were married?
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained. -16- Q. (By [prosecutor]) Were there ever any other times when he was outside of the marital home?
THE COURT: You need to confine yourself to the time of May of 2011 and thereabouts.
The cross-examination testimony regarding defendant's
prison sentence during 2001 or 2002 appears to be a reference to
defendant's sentence for his prior conviction of assault with a
deadly weapon inflicting serious injury that served as the
predicate felony for his charge of possession of a firearm by a
felon. During its case-in-chief, the State presented evidence
of the judgment for that conviction.
In addition, the State cross-examined defendant's mother,
Ms. Hunter, in relevant part as follows:
Q. Okay. Ms. Hunter, had you ever known your son to have a handgun before?
A. No, ma'am.
Q. Okay. What about in 2000, when he used one for the assault with a deadly weapon inflicting serious injury against someone?
A. What about it?
Q. Were you aware that he used a similar-caliber handgun in that case?
A. No, ma'am. I never seen him with no gun. -17- The indictment underlying defendant's 2001 conviction of assault
with a deadly weapon inflicting serious injury, also presented
to the jury during the State's case-in-chief, alleged defendant
committed the assault with a "22 handgun."
Defendant did not object to the challenged cross-
examination of Ms. West on constitutional grounds and did not
object to the challenged cross-examination of Ms. Hunter on any
grounds. Generally, "[c]onstitutional issues not raised and
passed upon at trial will not be considered for the first time
on appeal." State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463,
473 (2002). See N.C.R. App. P. 10(a)(1). Defendant does not
assert that admission of the challenged testimony constituted
plain error. Although defendant asks this Court to invoke Rule
2 of the Rules of Appellate Procedure in order to review the
merits of his argument, we see no cause for invoking Rule 2 in
order to "prevent manifest injustice to a party, or to expedite
decision in the public interest" in this case.
We, therefore, do not address defendant's constitutional
arguments as to cross-examination of either witness. Given
defendant's failure to object on any grounds and failure to
argue plain error, we also decline to address defendant's Rules
401 and 404 arguments with respect to Ms. Hunter. -18- To the extent defendant challenges on appeal the cross-
examination of Ms. West prior to defendant's objections, he has
not preserved his argument for appeal and has not argued plain
error. Further, the trial court sustained both of defendant's
objections during the relevant cross-examination of Ms. West,
and Ms. West did not, therefore, answer the challenged
questions. Defendant nonetheless argues that the questions
themselves were sufficiently prejudicial to warrant a new trial.
Assuming the State's attempted cross-examination of Ms.
West regarding times defendant was in prison other than as a
result of his prior conviction for assault with a deadly weapon
inflicting serious injury was improper, our Supreme Court "has
held that the mere asking of a question, followed by a sustained
objection, is not prejudicial to a defendant." State v. Brewer,
325 N.C. 550, 569-70, 386 S.E.2d 569, 580 (1989). Moreover,
with respect to the possession of a firearm by a felon charge,
the jury was properly shown that defendant had a prior felony
conviction, and we have already addressed the substantial weight
of evidence that tended to show defendant constructively
possessed the handgun in the trunk.
With respect to the possession of drug paraphernalia
charge, defendant pled guilty to possession of marijuana;
defendant appeared to have been smoking marijuana immediately -19- prior to his encounter with the officers; the officers found a
marijuana pipe in the Buick located in a duffel bag in the back
seat that contained men's clothes in defendant's size and "men's
grooming products"; there is no dispute that defendant was the
driver and sole occupant of the car; defendant fled from the
officers when they asked him about the marijuana; and Ms. Hunter
denied having ever seen the digital scale located in the trunk
that showed marijuana residue. Given this evidence, and the
trial court's prompt sustaining of defendant's objections,
defendant cannot show prejudice from any impropriety in the
State's cross-examination of Ms. West.
IV
Finally, defendant contends that the trial court erred in
calculating his sentence. Defendant first argues that the trial
court, in determining defendant's prior record level,
erroneously relied upon a prior conviction, which had been
consolidated with another prior conviction that was used as a
predicate felony for defendant's habitual felon conviction.
N.C. Gen. Stat. § 14-7.6 (2013) provides that "[i]n
determining the prior record level, convictions used to
establish a person's status as an habitual felon shall not be
used." N.C. Gen. Stat. § 15A-1340.15(b) (2013) provides: "If an
offender is convicted of more than one offense at the same time, -20- the court may consolidate the offenses for judgment and impose a
single judgment for the consolidated offenses. The judgment
shall contain a sentence disposition specified for the class of
offense and prior record level of the most serious offense . . .
."
In this case, a single, consolidated judgment was entered
against defendant in 2001 for separate convictions of robbery
with a dangerous weapon and conspiring to commit robbery with a
firearm. The two offenses were committed on the same date. The
State used the conspiracy to commit robbery with a firearm
conviction as a predicate felony for defendant's habitual felon
charge. The prior record level worksheet prepared by the State,
stipulated to by defendant, and apparently relied upon by the
trial court in determining defendant's sentence, added six
points for the robbery with a dangerous weapon conviction.
Defendant contends that when his prior convictions for robbery
with a dangerous weapon and conspiring to commit robbery with a
firearm were consolidated for sentencing, those offenses
"merged" such that it was improper to use one to support his
habitual felon conviction and the other to add prior record
level points.
This Court rejected defendant's precise argument in State
v. McCrae, 124 N.C. App. 664, 478 S.E.2d 210 (1996). There, as -21- here, the defendant argued that "the trial court erred when it
determined his prior record level . . . by assigning points for
a prior conviction which was consolidated for judgment with a
conviction already used to constitute defendant as an habitual
felon." Id. This Court explained that, contrary to the
defendant's argument, "[c]onsolidation of offenses for judgment
means only that convictions are consolidated for the purpose of
rendering judgment, each conviction still stands." Id. at 665,
478 S.E.2d at 211. McCrae controls our decision here, and we
hold that the trial court did not err in assigning prior record
level points for a conviction consolidated with a separate
conviction used to indict defendant as a habitual felon.
Although defendant also argues that the trial court erred
in assigning him a prior record level point based on a finding
that "all the elements of the present offense are included in
any prior offense for which the offender was convicted, whether
or not the prior offense or offenses were used in determining
prior record level," N.C. Gen. Stat. § 15A-1340.14(b)(6) (2013),
defendant concedes that any error was harmless. Consequently,
we conclude defendant received a trial free from prejudicial
error.
No error.
Judges BRYANT and CALABRIA concur. -22- Report per Rule 30(e).