Opinion
No. COA11–1515.
2012-08-21
STATE of North Carolina v. Vernon David McALLISTER, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General J. Aldean Webster, III, for the State. McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, for defendant-appellant.
Appeal by defendant from judgments entered 19 July 2011 by Judge Douglas B. Sasser in Robeson County Superior Court. Heard in the Court of Appeals 6 June 2012. Attorney General Roy Cooper, by Assistant Attorney General J. Aldean Webster, III, for the State. McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, for defendant-appellant.
HUNTER, ROBERT C., Judge.
Defendant Vernon David McAllister (“defendant”) appeals from judgments entered against him after a jury found him guilty of: (1) trafficking opium by possession of oxycodone; (2) possession of a schedule II controlled substance, to wit oxycodone; and (3) possession of drug paraphernalia. Defendant argues that: (1) the trial court erred in denying defendant's motions to dismiss the possession of drug paraphernalia charge; (2) the trial court's jury instruction for possession of drug paraphernalia constituted plain error; and (3) the trial court committed plain error by upholding defendant's convictions of and sentences for possession of oxycodone and trafficking in oxycodone by possession in violation of defendant's double jeopardy protection. After careful review, we find no error.
Background
The evidence presented at trial tended to establish the following: On 3 December 2009, Sergeant Burnis Wilkins (“Sergeant Wilkins”), a police officer with the Lumberton police department, received a phone call about a small, red car parked outside a house across from Roland Norment School. Sergeant Wilkins called Detective Peter Marcinsky (“Detective Marcinsky”), an officer in the Lumberton police department's drug unit, and relayed the information from the phone call. Detective Marcinsky arrived at the location of the car, later identified as defendant's car, around 11:00 p.m. along with other police officers.
Detective Marcinsky testified that he approached defendant's car and asked for identification. Defendant identified himself and said he was at that location to “pick up a girl [he] knew.” Defendant gave Detective Marcinsky consent to search his car and his person.
After getting out of his vehicle, defendant stepped around to the back of his car where Detective Marcinsky began to search him. Detective Marcinsky found a pill bottle in the waistband of defendant's pants containing nine round pills that were imprinted with the number 512. The bottle and the pills were admitted at trial as State's Exhibit 1. During the search of defendant's car, Detective Marcinsky found a single pill, identical to the ones in the pill bottle, on the passenger floorboard.
Shane Moore (“Agent Moore”), a former special agent at the State Bureau of Investigation in the drug chemistry section, testified that he analyzed the pills Detective Marcinsky found. Agent Moore identified the pills as oxycodone, an opium derivative, and stated that their combined weight was 4.8 grams. Agent Moore performed no analysis on the single pill found on the floorboard of defendant's car and did not include it in determining the overall weight of the pills.
Defendant made motions to dismiss all charges after the State rested and after his presentation of evidence. The trial court denied the motions both times.
The jury found defendant guilty on 19 July 2011 of trafficking opium by possession of oxycodone; possession of a schedule II controlled substance, to wit oxycodone; and possession of drug paraphernalia. The trial court sentenced defendant to a minimum of 70 months and a maximum of 84 months. Furthermore, the trial court fined defendant $50,000.
Defendant gave oral notice of appeal.
Discussion
Defendant first argues that the trial court erred in denying his motions to dismiss the possession of drug paraphernalia charge. Specifically, defendant contends that although the State established he “possessed” the pill bottle, i.e. the drug paraphernalia, he did not have the requisite intent necessary to establish a violation of N.C. Gen.Stat. § 90–113.22(a). We disagree.
This court reviews a trial court's denial of a motion to dismiss de novo. State v. Sanders, 208 N.C.App. 142, ––––, 701 S.E.2d 380, 382 (2010). “This Court, under a de novo standard of review, considers the matter anew and freely substitutes its own judgment for that of the trial court.” Id. (citing State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008)).
“In ruling on a motion to dismiss, the trial court must interpret the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor.” State v.. Williams, 136 N.C.App. 218, 219–20, 523 S.E.2d 428, 430 (1999) (citation omitted). When determining whether to grant a defendant's motion to dismiss, the trial court must find that “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.” State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). 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).
Pursuant to N.C. Gen.Stat. § 90–113.22(a) (2011), in pertinent part, “[i]t is unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia to ... store, contain, or conceal a controlled substance [.]” (Emphasis added.) In order to prevail on a motion to dismiss a possession of drug paraphernalia charge, the State must provide substantial evidence that: (1) defendant possessed drug paraphernalia, and (2) defendant had “the intent to use the [drug paraphernalia] in connection with controlled substances.” State v. Hedgecoe, 106 N.C.App. 157, 164, 415 S.E.2d 777, 781 (1992). Drug paraphernalia is defined as “all equipment, products and materials of any kind that are used to facilitate ... violations of the Controlled Substances Act, including ... storing, containing, and concealing controlled substances[.]” N.C. Gen.Stat. § 90–113.21 (2011). Furthermore, the statute specifically notes that containers used for storing controlled substances constitute drug paraphernalia. N.C. Gen.Stat. § 90–113.21(a)(10).
Here, the State presented evidence that defendant had the pill bottle in the waistband of his pants and was using it, at the time it was discovered, to store or contain the oxycodone pills. Since the pill bottle constitutes a type of container and the statute specifically lists containers as a type of drug paraphernalia, defendant had actual possession of drug paraphernalia. Furthermore, with regard to his intent to use the pill bottle, defendant was actually using it to store the pills at the time Detective Marcinsky searched defendant. Thus, his intent to use the pill bottle can be inferred by his actual use of it to store or contain the oxycodone pills. Therefore, we hold that the State presented sufficient evidence that defendant possessed drug paraphernalia with the intent to use it.
In support of his argument, defendant cites Hedgecoe where this Court held that the trial court erred by failing to grant the defendant's motion to dismiss the possession of drug paraphernalia charge. 106 N.C.App. at 164, 415 S.E.2d at 781. In Hedgecoe, a hypodermic syringe and needle were found in the defendant's possession. Id. However, this Court found that the State's evidence establishing “mere possession” of the drug paraphernalia without the “accompanying intent necessary to establish a violation of our Controlled Substances Act[ ]” was not sufficient to defeat defendant's motion to dismiss. Id.
Unlike Hedgecoe, in the present case, the State has provided substantial evidence of both defendant's possession of the drug paraphernalia and his intent to use it to store or contain the oxycodone pills. Therefore, defendant's argument is without merit, and the trial court did not err in denying defendant's motions to dismiss the possession of drug paraphernalia charge.
Defendant next argues that the trial court committed plain error when it failed to identify for the jury what item constituted drug paraphernalia and provided improper jury instructions on oxycodone. In support of his argument, defendant contends that because the trial court failed to specifically mention the pill bottle in its jury instructions and did not provide the jury with the definition of drug paraphernalia as stated in N.C. Gen.Stat. § 90–113.21, “the jury may have returned a different verdict had they been properly instructed.” Furthermore, defendant alleges that the trial court erred in telling the jury that “oxycodone is a controlled substance in North Carolina that is unlawful to possess” since it can be lawfully possessed with a valid prescription. Since defendant did not object at trial to the jury instructions, he argues plain error on appeal. We are not persuaded.
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). “A prerequisite to our engaging in a plain error analysis is the determination that the instruction complained of constitutes error at all[.]” State v. Whetstone, ––– N.C.App. ––––, ––––, 711 S.E.2d 778, 781 (2011) (internal quotation marks and citation omitted).
Here, the trial court gave the following jury instructions on possession of drug paraphernalia:
The defendant has been charged with unlawfully and knowingly possessing with intent to use drug paraphernalia.
For you to find the defendant guilty of this offense, the State must prove three things beyond a reasonable doubt.
First, that the defendant possessed certain drug paraphernalia.
Drug paraphernalia means all equipment, products, and materials of any kind that are used to facilitate or intended or designed to facilitate violations of the Controlled Substances Act.
Second, that the defendant did this knowingly.
A person possesses drug paraphernalia knowingly when he is aware of its presence and has, either by himself or together with others, both the power and intent to control the disposition or use of said paraphernalia.
And third, that the defendant did so with the intent to use said drug paraphernalia in order to store, conceal, contain, package, or repackage a controlled substance which would be unlawful to possess.
Oxycodone is a controlled substance in North Carolina that is unlawful to possess.
(Emphasis added.) Defendant did not object to the jury instructions. The trial court reinstructed the jury using these same instructions after the jury sent the trial court a note requesting clarification on the trafficking charge.
The jury instructions are almost verbatim from N.C.P.I.Crim. 260.95, the pattern jury instructions for possession of drug paraphernalia. The pattern jury instructions do not require the trial court to identify the drug paraphernalia or provide the detailed definition of the term “drug paraphernalia” outlined in N .C. Gen.Stat. § 90–113.21 as defendant contends. The trial court has the option of providing the more detailed definition, as noted by a footnote in the pattern instructions, but it is not required. Under North Carolina law, the elements of a possession of drug paraphernalia charge include possession of the paraphernalia and intent to use it in connection with a controlled substance. Hedgecoe, 106 N.C.App. at 164, 415 S.E.2d at 781. Here, the trial court properly instructed the jury on all elements of a possession of drug paraphernalia charge. Therefore, defendant has failed to establish any error in the jury instructions, much less plain error.
Furthermore, with regards to the statement “[o]xycodone is a controlled substance in North Carolina that is unlawful to possess,” it is a verbatim recitation of the pattern jury instructions. Therefore, defendant's assertion that it constitutes error is without merit. Although defendant is correct that if a person has a valid prescription for oxycodone, it would not be considered “unlawful to possess.” However, since defendant has failed to establish this statement constitutes error, his argument is without merit.
In a separate, yet related argument, defendant argues that the jury instructions were “flawed because [they] basically provided no theory upon which to convict [defendant].” In other words, defendant seems to assert that because the jury instructions failed to name the pill bottle as the specific drug paraphernalia at issue in this case but the indictment did, the jury was instructed on two separate theories of the case, and the trial court allowed the jury to convict upon an “abstract theory.” Defendant cites State v. Tirado, 358 N.C. 551, 599 S.E.2d 515 (2004), and State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980), in support of his argument.
In Tirado, the defendants' indictments for kidnapping “alleged that each defendant confined, restrained, and removed the victims for the purpose of ‘facilitating the commission of a felony.’ “ 358 N.C. at 575, 599 S.E.2d at 532. In the jury instructions, however, the trial court identified the particular felony the defendant allegedly committed in connection to the kidnapping. Id. In other words, the particular underlying purpose for the kidnapping was identified differently in the indictments and the jury instructions. Id. Although our Supreme Court held that the indictment and jury instructions set out different theories, the error was not prejudicial. Id. at 576, 599 S.E.2d at 533.
Similarly, in Taylor, the defendant was indicted for kidnapping by unlawfully “removing” the victim from a parking lot whereas the jury instructions stated that the defendant “confined” and “restrained” the victim. 301 N.C. at 170, 270 S.E.2d at 413. Furthermore, the underlying purpose for the kidnapping differed between the indictment and the jury instructions. Id. at 171, 270 S.E.2d at 414. Our Supreme Court held that these differing theories constituted prejudicial error. Id.
Unlike Tirado or Taylor, here, the trial court did not present different theories by identifying the pill bottle as the specific type of drug paraphernalia defendant was charged with possessing in the indictment and not identifying it in the jury instructions. The jury was not presented any evidence of alternative types of drug paraphernalia. Thus, the theory in the jury instructions and the theories established by the evidence and in the indictment are all the same theory—that defendant possessed drug paraphernalia, specifically the pill bottle, to contain, store, package, or repackage the oxycodone. Therefore, defendant's argument is without merit.
Defendant's final argument is that the trial court committed plain error by not arresting judgment on defendant's possession of oxycodone conviction when defendant was also convicted of and sentenced for trafficking in oxycodone in violation of defendant's double jeopardy protection. Specifically, defendant asserts that the felonious possession of oxycodone is a lesser included offense of trafficking in oxycodone by possession because all essential elements are identical except for the amount. Therefore, defendant requests the conviction for felonious possession of oxycodone be vacated. We hold that defendant failed to preserve this argument on appeal.
At trial, defendant made a motion to set aside the verdicts for all convictions, but he did not argue, at any point, that the convictions of and sentences for possession of oxycodone and trafficking in oxycodone by possession violated his double jeopardy protection. Therefore, since defendant failed to argue at trial that his sentence violated double jeopardy, it is waived on appeal. See State v. Williams, ––– N.C.App. ––––, ––––, 715 S.E.2d 553, 561 (2011) (holding that the defendant waived his argument on appeal that his sentence violated double jeopardy when he failed to argue the issue at trial). Therefore, we will not review for plain error, and defendant's argument is dismissed on appeal for failing to object at trial.
We note that even if we had considered defendant's argument on appeal, State v. Pipkins, 337 N.C. 431, 446 S.E.2d 360 (1994), would be controlling, and we would find no error. Id. at 433–35, 446 S.E.2d at 362–63 (holding that a defendant may be convicted of felonious possession of a controlled substance and trafficking in the controlled substance by possession without violating double jeopardy based on our Supreme Court's conclusion that the “legislature's intent was to proscribe and punish separately the offenses of felonious possession of cocaine and of trafficking in cocaine by possession”). See also State v. Boyd, 154 N.C.App. 302, 311, 572 S.E.2d 192, 198 (2002) (finding that the “defendant's convictions for possession with intent to sell and distribute cocaine and trafficking in the same cocaine by possession” did not violate double jeopardy based on Pipkins), cert. denied,357 N.C. 463, 586 S.E.2d 104 (2003).
Conclusion
Based on the foregoing reasons, we find no error.
No error. Judges GEER and BEASLEY concur.
Report per Rule 30(e).