Opinion
No. 07-358.
Filed January 15, 2008.
Wake County Nos. 05 CRS 117332, 05 CRS 122348.
Appeal by defendant from judgment entered 7 November 2006 by Judge J. B. Allen in Wake County Superior Court. Heard in the Court of Appeals 17 October 2007.
Attorney General Roy C. Cooper, III, by Special Deputy Attorney General J. Allen Jernigan, for the State. Daniel F. Read for defendant-appellant.
Donnell Ross ("defendant") appeals from a judgment entered 7 November 2006 pursuant to a jury verdict finding him guilty of possession of cocaine. After careful review, we find no error.
I.
On 19 November 2005, two detectives from the Wake County Sheriff's Department's drugs and vice division, Detective Eric Keevert and Detective Chad Hines, were in separate cars patrolling a "known drug area" in Wake County. Around 8:00 p.m., Detective Hines saw defendant emerge from a trailer wearing a large black coat, get into the driver's seat of a car, start the car, and drive away. Both detectives had arrested defendant on prior occasions for driving while his license was permanently revoked; the most recent arrest was in February 2005, by Detective Keevert. With this knowledge, the detectives pulled defendant over, placed him in handcuffs, and arrested him for driving while his license was revoked. They then placed him in Detective Keevert's vehicle and began searching defendant's car incident to arrest.
During their search, the detectives found on the passenger side floorboard the black coat defendant had been wearing when he left the trailer. In the pocket of that coat, they found 0.4 grams of what was later determined to be cocaine. The detectives did not check that defendant's license was still revoked until they returned with defendant to the police station, at which point they performed a record check and found that it was indeed still permanently revoked.
Defendant presented no evidence and moved to dismiss, which motion was denied. The jury returned a verdict of guilty, and defendant pled guilty to being a habitual felon. Defendant was sentenced to a term of seventy to ninety-three months' incarceration. He now appeals.
II.
Defendant makes four arguments on appeal: The trial court should have granted his motion to suppress the evidence from the stop; the trial court should not have allowed the presentation of evidence of his other crimes; the trial court should have granted his motion to dismiss because insufficient evidence was presented to the jury; and the trial court should not have sentenced him as a habitual felon. We consider each argument in turn.
A.
Before his trial began, defendant made a motion to suppress the evidence obtained at the traffic stop. That motion was denied by the trial court, which made findings of fact and gave its ruling on the motion in open court. Defendant appeals that ruling, arguing that the detectives did not possess objective proof of the facts on which they depended — that is, that defendant's license was still revoked — to justify their arrest of defendant. We disagree.
The scope of this Court's review of a trial court's ruling on a motion to suppress "is strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).
Defendant's argument here centers on the fact that the detectives did not check defendant's license status before arresting him. Defendant argues the revoked license was a pretext for arresting defendant so that they could search his car, and thus defendant's Fourth Amendment rights were violated by the search. This argument is without merit.
In State v. Ivey, 360 N.C. 562, 633 S.E.2d 459, rehearing denied, 360 N.C. 655, 636 S.E.2d 573 (2006), our Supreme Court stated that:
As a general rule, "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." In examining the legality of a traffic stop, the proper inquiry is not the subjective reasoning of the officer, but whether the objective facts support a finding that probable cause existed to stop the defendant. Probable cause exists when there is a fair probability or substantial chance a crime has been committed and that the defendant committed it. Thus, the United States and North Carolina Constitutions require an officer who makes a seizure on the basis of a perceived traffic violation to have probable cause to believe the driver's actions violated a motor vehicle law.
Id. at 563-64, 633 S.E.2d at 460-61 (citations omitted). In his argument, defendant relies on a portion of this language — specifically, "whether the objective facts support a finding that probable cause existed to stop the defendant" — to support his contention that the evidence should have been suppressed, inasmuch as the detectives did not discover the objective fact that defendant's license was still revoked until after his arrest. This argument, however, ignores the sentence following this language: "Probable cause exists when there is a fair probability or substantial chance a crime has been committed and that the defendant committed it." Detective Keevert testified that he himself had arrested defendant for driving while his license was revoked in February 2005, nine months before the arrest in this case, and had determined at that time that defendant's license was permanently revoked. These are objective facts on which the detectives could reasonably have relied. The detectives therefore had probable cause to believe defendant was committing a traffic violation, and thus to arrest him. Defendant relies on Ivey and State v. McArn, 159 N.C. App. 209, 582 S.E.2d 371 (2003), for his argument. While the legal principles in both are applicable here, neither case is based on facts that make it parallel to the case at hand. In Ivey, the defendant was pulled over and given an unsafe movement citation for failing to signal a right turn at an intersection where the only possible route was a right turn and where no other traffic was in the vicinity that might have been endangered by the failure to signal. Ivey, 360 N.C. at 563-64, 633 S.E.2d at 460-61. In McArn, the officer pulled defendant over based solely on the information provided in a vague, uncorroborated anonymous tip. McArn, 159 N.C. App. at 214, 582 S.E.2d at 375. In both cases, the evidence was suppressed on appeal.
In the case at hand, however, the detectives neither relied on their own faulty subjective reasoning as in Ivey nor relied on unsubstantiated information from an anonymous third party as in McArn. Instead, the detectives acted on their own firsthand knowledge of objective facts: Defendant was operating a motor vehicle while defendant's license was permanently revoked. As such, the detectives had probable cause to pull over defendant, and this assignment of error is overruled.
B.
Defendant next argues that the trial court erred by admitting evidence that the two detectives knew defendant from previous arrests for driving while his license was revoked, as the prejudicial impact of this evidence outweighed its probative value. Regardless of the merits of this case, as the State points out in its brief, defendant objected to this evidence only during the testimony of Detective Hines, even though the same information was offered by Detective Keevert later in the trial. Although the testimony of each detective refers to two different instances — that is, each described a previous incident wherein he alone arrested defendant — it is the same evidence: Defendant has been arrested for driving while his license was revoked. "Where evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost." State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984). As such, defendant did not properly preserve this issue for appeal, and this Court will not consider this argument.
C.
Defendant next argues that the trial court erred in denying his motion to dismiss for insufficient evidence because the State did not present substantial evidence of each element of the crime charged. This argument is without merit.
In considering a motion to dismiss, the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. The test of whether the evidence is sufficient to withstand a motion to dismiss is whether a reasonable inference of defendant's guilt may be drawn therefrom[.]
State v. Gainey, 343 N.C. 79, 85, 468 S.E.2d 227, 231 (1996) (citation omitted). Defendant argues that the cocaine was not found on his person, but in the pocket of a coat in his car, which was not linked to him via fingerprint evidence. However, the State is not required to prove actual physical possession; proof of constructive possession by a defendant is sufficient to carry the issue to the jury over a motion to dismiss. State v. Perry, 316 N.C. 87, 96-97, 340 S.E.2d 450, 456 (1986). Here, Detective Hines saw defendant leave his trailer wearing the coat, saw him get into his car still wearing the coat, and upon removing defendant from the car found the coat inside. Taking this evidence in the light most favorable to the State, a reasonable inference could well be drawn that defendant was in possession of the cocaine. As such, this argument is without merit and is overruled.
D.
Defendant finally argues that his sentence of seventy to ninety-three months' imprisonment constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. This argument is without merit.
The maximum sentence defendant could have received, given this conviction and his prior record level, was 261 months. Instead, the trial court sentenced him to seventy to ninety-three months' imprisonment and recommended him for immediate work release. Indeed, seventy to ninety-three months' imprisonment was the sentence actually requested by defendant at trial. The court heard this request and considered the mitigating factors offered by defendant (defendant supports his family, has a good employment history, and admitted his habitual felon status) before sentencing defendant. Defendant's vague policy arguments that this sentence violates the Eighth Amendment are meritless. Our Supreme Court has "reject[ed] outright the suggestion that our legislature is constitutionally prohibited from enhancing punishment for habitual offenders" based on, among other constitutional provisions, the Eighth Amendment. State v. Todd, 313 N.C. 110, 117, 326 S.E.2d 249, 253 (1985).
Defendant cites to one case in support of his argument: State v. Starkey, 177 N.C. App. 264, 628 S.E.2d 424 (2006), cert. denied, ___ N.C. ___, 636 S.E.2d 196 (2007). There, the defendant was found guilty of possession of 0.1 grams of cocaine and sentenced as a habitual felon. Id. at 265, 628 S.E.2d at 424. Immediately after entering the jury's verdict of seventy to ninety-three months' imprisonment, the trial court granted its own motion for appropriate relief, found that the sentence was grossly inappropriate considering the crime committed and the mitigating factors presented by the defendant, and entered a new sentence of eight to ten months' imprisonment. Id. at 266, 628 S.E.2d at 425-26. Defendant argues that this shows that courts are beginning to recognize that habitual felon sentencing for possession of small amounts of cocaine is unduly harsh.
However, a cursory reading of the case shows that the appeal by the State was dismissed not because of the merits of the defendant's argument, but because the State did not have the right to appeal from the judgment. Id. at 267, 628 S.E.2d at 426. As such, this argument is unavailing, and the assignment of error is overruled.
III.
Because the trial court did not err in its ruling on either motion, its admission of certain testimony, or in sentencing, we find no error.
No error.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).