State v. West

An unpublished opinion of the North Carolina Court of Appeals does not constitute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?

A. Yes.

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?

[DEFENSE COUNSEL]: Objection.

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).