Opinion
No. COA12–1289.
2013-06-18
STATE of North Carolina v. Dwayne Dumont HAIZLIP.
Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State. Edward Eldred for defendant.
Appeal by defendant from judgment entered 17 May 2012 by Judge Lindsay R. Davis, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 3 June 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State. Edward Eldred for defendant.
ELMORE, Judge.
Dwayne Dumont Haizlip (defendant) appeals from the judgment entered after a jury found him guilty of two counts of trafficking in more than 200 but less than 400 grams of cocaine. Defendant contends the trial court erred by failing to instruct the jury on a lesser-included offense, based on the evidence presented of the weight of the cocaine. We find no error.
On 7 September 2011, Greensboro police conducted surveillance of a house to investigate a complaint of drug activity. Defendant and several others attempted to flee in a vehicle parked outside of the house. The officers pursued the vehicle. When the car finally stopped, defendant continued to flee on foot. The officers eventually located and arrested defendant. After detaining defendant, the officers called in a K–9 unit to search his flight path. A bag containing five smaller plastic bags filled with white powder was found along defendant's flight path. The officers submitted the white powder and the bags to the State Bureau of Investigation (SBI), and an SBI agent testified that the white powder was 248.2 grams of cocaine.
The trial court denied defendant's motion to dismiss the trafficking charges. During the charge conference, defendant did not raise any objections to the trial court's proposed jury instructions or request any additional instructions. The trial court instructed the jury on trafficking by possession and by transportation of more than 200 but less than 400 grams of cocaine. Defendant did not object to the instructions as given or request any additional instructions. The jury found defendant guilty of both trafficking charges. Thereafter, defendant pled guilty to having attained habitual felon status, and the trial court sentenced him to 127 to 162 months imprisonment. Defendant now appeals.
In his sole argument, defendant contends that the trial court erred by failing to instruct the jury on trafficking in more than 28 but less than 200 grams of cocaine, a lesser-included offense of trafficking in more than 200 but less than 400 grams. SeeN.C. Gen.Stat. § 90–95(h)(3) (2011); see also, State v. Wilson, 155 N.C.App. 89, 99, 574 S.E.2d 93, 100 (2002) (“the only difference between the greater and lesser levels of the offense relate to the amount of cocaine found”). Defendant asserts that he was entitled to the instructions because the cocaine was originally packaged in five different bags, but was mixed and weighed together after it was seized by the police. However, defendant has waived appellate review of this issue by failing to object at trial or to specifically allege the trial court committed plain error in his appellate brief.
“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R.App. P. 10(a)(1) (2011). “However plain error review is available in criminal appeals, for challenges to jury instructions and evidentiary issues, ... [but] only in truly exceptional cases when absent the error the jury probably would have reached a different verdict.” Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 61, 364 (2008) (citations and quotations omitted).
Accordingly, when a defendant fails to object to the omission of a lesser-included offense jury instruction at trial, or to request such an instruction, we must review the instructions under the plain error standard. State v. Lowe, 150 N.C.App. 682, 685, 564 S.E.2d 313, 315 (2002). However, if a defendant does not “specifically and distinctly” allege the trial court's actions or omissions amounted to plain error on appeal, he waives appellate review of the issue. N.C.R.App. P. 10(a)(4) (2011), see also Dogwood, 362 N.C. at 194–95, 657 S.E.2d at 363 (stating that the waiver rule applies when a party fails “to properly preserve and issue for appellate review” pursuant to Rule 10).
Here, the discussion of plain error in defendant's appellate brief is limited to a “But see” citation in the Standard of Review section of the brief. In the body of his argument, defendant never contends he is entitled to relief under the plain error standard, and never explains how the standard applies to the facts of this case. Accordingly, we hold that he has failed to preserve this issue for appellate review. Nevertheless, we invoke N.C.R.App. P. 2 to conduct plain error review. See Dogwood at 196, 657 S.E.2d at 364 (2008).
Plain error arises when the error is “ ‘so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]’ “ State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982), cert. denied,459 U.S. 1018, 74 L.Ed.2d. 513 (1982)). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993) (citation omitted). “An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002) (citation omitted).
Here, defendant cannot satisfy the plain error standard. The State offered undisputed evidence that the substance was cocaine and that it weighed more than 248 grams. As defendant concedes, this Court has previously rejected challenges to the admission of the accumulated weight of a mixture of seized narcotics. See State v. Huerta, ––– N.C.App. ––––, 727 S.E.2d 881 (2012). On appeal, defendant offers no support for instructions on the lesser offense beyond his own speculation that one of the five bags of cocaine could have been empty and his assumption that each bag contained an equal amount of cocaine. These assumptions are not founded in the evidence presented at trial and, as such, do not support a finding of error, much less plain error, by this Court. Accordingly, we find no error.
No error.