Opinion
No. COA09-868
Filed 4 May 2010 This case not for publication
Appeal by Defendant from judgment entered 15 January 2009 by Judge D. Jack Hooks, Jr., in Bladen County Superior Court. Heard in the Court of Appeals 12 April 2010.
Lisa Skinner Lefler for Defendant-Appellant. Attorney General Roy Cooper, by Assistant Attorney General Vanessa N. Totten, for the State.
Bladen County No. 06 CRS 50242.
On 2 March 2006, Dorothy May Wright ("Defendant") was indicted for providing or attempting to provide a controlled substance to an inmate in violation of N.C. Gen. Stat. § 14-258.1(a). On 5 May 2008, a superceding indictment charging the same offense was returned. On 12 January 2009, Defendant's case came on for trial by jury in Bladen County Superior Court. The evidence presented at trial tended to show the following:
I. Factual Background
On 1 February 2006, Jeff Singletary, an investigator with the Bladen County Sheriff's Department, was listening to recordings of telephone calls between Ernest Wright ("Wright"), an inmate at the Bladen County Jail, and Wright's wife, Defendant. Based on the conversations between Wright and Defendant, Singletary believed there was going to be an attempt to introduce contraband into the jail. Accordingly, Singletary contacted Valeria Tigner, who was the supervisor at the jail, as well as his own supervisor, Jeff Guyton. Upon receiving the tip from Singletary, Tigner informed her partners who were on shift with her that day of the possible attempt. Kimble Ray Jones ("Jones"), who was one of the jailers working the shift with Tigner, checked the outside perimeter of the jail and found a package that had been thrown over the back fence of the jail. The package consisted of four packs of Newport cigarettes bound together with tape. In addition to the cigarettes, a "leafy-type, green-type substance" was wrapped in plastic in between the packs of cigarettes. Jones called Tigner, and Tigner went outside and retrieved the package from Jones. Tigner then called Singletary, who went to the jail and took possession of the package.
Singletary retained possession of the package until the following morning, when he returned to the jail and threw the package back over the fence. Singletary testified that he threw it back over the fence in hopes of determining who was supposed to retrieve the package. Singletary then retreated to the county manager's office, which directly overlooked the area where the package was placed, and "sat there inside and kept my eyes on it." Thereafter, Christy Romero ("Romero"), a jailer from the night shift who was unaware of the attempt to bring contraband into the jail, located the package during her rounds and notified her supervisor. Singletary recovered the package from Romero and handed it over to Guyton. Subsequent testing of the package revealed the green, leafy substance to be marijuana.
Defendant was convicted of attempting to furnish drugs to an inmate and was sentenced to a term of six to eight months imprisonment. The trial court suspended Defendant's sentence and placed her on supervised probation for 30 months, subject to the special condition that Defendant serve 60 days of imprisonment. Defendant appeals.
I. Discussion A. Motion to Dismiss
Defendant first argues that the trial court erred by denying her motion to dismiss for insufficiency of the evidence. Defendant asserts that there was no evidence connecting her with the package found outside the jail. We disagree.
To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). "`Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'" Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). When reviewing the sufficiency of the evidence, "[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994). "`[I]f there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.'" State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (quoting State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005)).
N.C. Gen. Stat. § 14-258.1 provides in pertinent part that
[i]f any person shall give or sell to any inmate of any . . . penal institution, or local confinement facility . . . any controlled substances included in Schedules I through VI contained in Article 5 of Chapter 90 of the General Statutes . . . he shall be punished as a Class H felon.
N.C. Gen. Stat. § 14-258.1(a) (2009). Here, the State's evidence tended to show that Defendant engaged in conversations with Wright regarding delivery of contraband.
On 27 January 2006, Wright asked Defendant "[w]hat happened yesterday, Honey." Defendant explained that she was there on time, but nobody came. Wright then said he "can't talk too much," but Defendant should put the items together and "[t]ape it." Thereafter, Wright and Defendant discussed the entrances to the courthouse, which was adjacent to the jail, and the fence at the rear of the courthouse near where the contraband was recovered. Wright instructed Defendant to "[t]ake care" of it tomorrow at 5:30 and not to wait for anyone. Defendant indicated that she understood. On the same day, at 6:45 p.m., Wright spoke to an unidentified female and expressed concern because "[i]t was supposed to be done today at 5:30, but it will be done tomorrow." He stated that he could not discuss the matter on the phone, but he needed to get the matter straightened out because that is how he made his money in jail. Defendant told the woman that one cigarette sold for "five dollars" in jail.
On 30 January 2006, at 5:07 p.m., Wright told Defendant to drop off a package at "the same place" tomorrow at "six o'clock" and to bring "collard greens." Wright told Defendant to "[m]ake it four of them[.]" On 31 January 2006, Defendant stated that she could not make it due to car trouble. Defendant and Wright spoke again later the same day, and she was told to bring the items at "six o'clock" the following day. On 1 February 2006, at 10:25 a.m., Wright stated to Defendant, "Oh, yeah, at 6:00. Uh, did you put . . . paper with that?" Defendant replied, "I got everything." Defendant and Wright spoke again at 10:41 a.m., and Wright wanted to know if Defendant would be leaving at "about five something to make the move."
Singletary testified that he was listening to the recorded conversations between Defendant and Wright on 1 February 2006 at approximately 5:00 p.m. He notified Tigner of his suspicions right away, and the package containing the contraband was discovered shortly thereafter. Additionally, Singletary testified that a videotape of the area near where the contraband was recovered showed Defendant "go in the field of view and then come right back out to the area directly toward the fence and then move away from the fence." Additionally, Steve Bunn, the Bladen County Sheriff, testified that Defendant "was the only person that went through the camera's field of view up into our protected area behind the fence" for "several hours" on the day the contraband was discovered. Therefore, based on the recorded conversations between Defendant and her husband, the subsequent discovery of the package containing marijuana, and the evidence of the videotape showing Defendant in the area where the package was discovered, we conclude that there was sufficient evidence to withstand Defendant's motion to dismiss.
Defendant also argues that her motion to dismiss should have been granted because the State failed to establish a chain of custody of the package found outside the jail. We note that the proper method for asserting a failure to establish a chain of custody would be to argue that the evidence was improperly admitted, rather than that a motion to dismiss was improperly denied for this reason.
At trial, Defendant did not object to the admission of the package found by Jones, which contained the cigarettes and marijuana. Therefore, our review of this alleged error is limited to plain error. N.C. R. App. P. 10(a)(4) ("In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error."). Because Defendant has failed to specifically and distinctly allege that the trial court's admission of the package amounted to plain error, Defendant has waived appellate review of this issue. See State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 874-75 (2007) (holding defendant's assignment of error was dismissed where defendant failed "to timely object at trial" and "also failed to assign plain error to the trial court's order"); see N.C. R. App. P. 28(a), (b)(6).
B. Sentencing
Defendant also argues that the trial court erred by sentencing her from the aggravated range of punishment. Defendant contends that while the judgment reflects she was to be sentenced from the presumptive range, her sentence nevertheless falls within the aggravated range of punishment. We are not persuaded by Defendant's contention.
A judgment sentencing a defendant to a term of imprisonment for the commission of a felony must contain both a minimum term of imprisonment and a maximum term of imprisonment. N.C. Gen. Stat. § 15A-1340.13(c) (2009). Unless otherwise indicated, "[t]he maximum term of imprisonment applicable to each minimum term of imprisonment is . . . as specified in [N.C. Gen. Stat. § ] 15A-1340.17." Id. The trial court is to determine the applicable maximum term of imprisonment by utilizing the chart found in N.C. Gen. Stat. § 15A-1340.17(e). "[W]here the trial court imposes sentences within the presumptive range for all offenses of which defendant was convicted, [the court] is not obligated to make findings regarding aggravating and mitigating factors." State v. Rich, 132 N.C. App. 440, 452-53, 512 S.E.2d 441, 450 (1999), aff'd. per curiam, 351 N.C. 386, 527 S.E.2d 299 (2000); see State v. Fowler, 157 N.C. App. 564, 579 S.E.2d 499 (2003) (trial court not required to find aggravating or mitigating factors where sentences fell within presumptive range for those offenses based on his criminal record).
Here, Defendant has a prior record level of II. Defendant was sentenced to a minimum term of six months and a maximum term of eight months imprisonment. The charts contained in 15A-1340.17(c) and (e) show that the trial court sentenced Defendant within the presumptive range of sentences for a Class I felony with a prior record level II. Although Defendant's sentence straddles both the presumptive and aggravated range, this did not create any ambiguity in her sentence. See State v. Ramirez, 156 N.C. App. 249, 576 S.E.2d 714 (trial court's imposition of sentences which fell into aggravated range without finding aggravated factors was not error in attempted murder prosecution; defendant was properly sentenced within presumptive range, and fact that trial court could have found aggravating factors and sentenced defendant to same term did not create error in defendant's sentence), disc. rev. denied, 357 N.C. 255, 583 S.E.2d 286, cert. denied, 540 U.S. 991, 157 L. Ed. 2d 388 (2003). Accordingly, Defendant's argument is overruled.
NO ERROR.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).