State v. Wynn

Union County No. 07 CRS 53688-90.

Corey Lavandor Wynn (Defendant) appeals from judgment entered on his convictions of trafficking in cocaine by possession, trafficking in cocaine by transportation, trafficking in cocaine by sale, maintaining a vehicle for the keeping or selling of controlled substances, and possession of drug paraphernalia. For the reasons stated below, we vacate Defendant's conviction of trafficking in cocaine by sale and conclude there is no error as to the remaining convictions on which judgment was entered.Page 2

On 5 November 2007, a Union County Grand Jury returned seven bills of indictment against Defendant, collectively charging him with: five separate counts of trafficking each of possession, transportation, manufacture, sale, and delivery of more than 28 grams but less than 200 grams of cocaine; maintaining a vehicle to keep a controlled substance; and possession of drug paraphernalia. The charges were joined, and the trial was held at the 6 April 2009 Criminal Session of Union County Superior Court. When court reconvened on 7 April 2009 to continue with the jury selection that had begun the previous day, Defendant was not present and the trial court allowed the jury selection process to go forward in his absence. The State then presented evidence, which tended to show the following.

On 14 June 2007, Waxhaw Police Department Detective Dexter Wilson acted on information provided to him by confidential informant Carol Jackson Jacobs, Jr. (Junior) and orchestrated a "controlled buy" in the neighboring town of Monroe, pursuant to a valid Mutual Assistance Agreement between the two municipalities. Junior arranged through a friend named Lorraine, to purchase cocaine from an individual that evening at a Salvation Army parking lot in Monroe, as the dealer refused to engage in the transaction in Waxhaw. Officers were already present in unmarked cars at the prearranged location, conducting video surveillance when Junior arrived. Detective Wilson and Monroe Police Department Sergeant Bobby Manus conducted audio surveillance from a lot directly behind the Salvation Army building. A few minutes after Junior enteredPage 3the lot, a gray Toyota Celica driven by Defendant and occupied by an unidentified male and Lorraine pulled up beside him. After some discussion about purchasing 2.5-ounces of cocaine, Defendant advised Junior he would return. Defendant left the Salvation Army parking lot and traveled up the street where he and Lorraine exited the Celica and got in a white Mitsubishi Diamante.

Defendant and Lorraine returned to the Salvation Army lot in the Diamante a few minutes later, and Defendant parked next to Junior. Nearly thirty seconds after Defendant and Junior completed the drug transaction from inside Junior's car, the officer's surrounded the vehicles and searched them both. Detective Wilson found 67 grams of cocaine divided into three plastic bags in Junior's Ford Explorer, two of which were in the front passenger seat where Defendant had been sitting, and the third was located next to the digital scales that had been provided to the informant by Detective Wilson. Inside the Diamante's center console, Detective Wilson found 4.2 grams of cocaine, a plastic bag containing approximately 150 rocks of crack cocaine weighing 11.9 grams, and $310 in cash. A set of digital scales with white powder residue and a cell phone were also found in the backseat of the Diamante. The DMV records showed that Defendant was the registered owner of the Diamante and had purchased the car in November 2006.

At the close of the evidence, Defendant moved to dismiss the charges. The trial court granted Defendant's motion as to the charge of trafficking in cocaine by manufacture and denied as to the other charges. The jury found Defendant guilty of allPage 4remaining charges, but the trial court arrested judgment on the conviction of trafficking in cocaine by delivery. Defendant was sentenced to 35 to 42 months imprisonment and fined $50,000 for trafficking by possession, followed by 35 to 42 months for trafficking by transportation, followed by a consolidated term of 35 to 42 months for trafficking by sale, maintaining a vehicle, and possession of drug paraphernalia. From the judgment on these surviving convictions, Defendant appeals. Defendant argues that the trial court lacked jurisdiction to enter judgment against him for trafficking in cocaine by sale because the indictment was fatally defective by failing to allege the name of the person to whom the cocaine was sold. We agree.

A valid indictment is a condition precedent to the superior court's jurisdiction. "[O]ur Constitution requires a bill of indictment, unless waived, for all criminal actions originating in the Superior Court, and a valid bill is necessary to vest the court with authority to determine the question of guilt or innocence."State v. Bissette,250 N.C. 514,515,108 S.E.2d 858,859(1959);see also State v.Moses,154 N.C. App. 332,334,572 S.E.2d 223,226(2002) ("A valid bill of indictment is essential to the jurisdiction of the Superior Court to try an accused for a felony and have the jury determine his guilt or innocence, `and to give authority to the court to render a valid judgment.'").

Although Defendant made no objection to or move to quash or dismiss the indictment for trafficking by sale prior to or duringPage 5trial, "where an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court."State v. Wallace,351 N.C. 481,503,528 S.E.2d 326,341(2000). We review de novo whether an indictment was sufficient.State v. Marshall,188 N.C. App. 744,748,656 S.E.2d 709,712,disc. reviewdenied,362 N.C. 368,661 S.E.2d 890(2008).

It is well established that when a defendant is charged with the sale or delivery of a controlled substance, the indictment must name the person to whom the accused allegedly sold or delivered the narcotics or, in the alternative, allege that the name of the person is unknown.State v. Wall,96 N.C. App. 45,49,384 S.E.2d 581,583(1989);State v.Ingram,20 N.C. App. 464,466,201 S.E.2d 532,534(1974). Our Supreme Court has reasoned that because the Uniform Narcotic Drug Act of 1935, now superseded, "did not expressly eliminate the common law requirement that an indictment specify the name of the person to whom a defendant allegedly sold narcotics, an indictment which does not include the purchaser's name, if known, failed to state sufficient facts to sustain a conviction."Ingram,20 N.C. App. at 466,201 S.E.2d at 534(citingState v.Bennett,280 N.C. 167,185 S.E.2d 147(1971)).

Arresting judgment in the case,Bennettreaffirmed the general rule: "`Where a sale is prohibited, it is necessary, for a conviction, to allege in the bill of indictment the name of the person to whom the sale was made or that his name is unknown,Page 6unless some statute eliminates that requirement.'"280 N.C. at 168,185 S.E.2d at 148(quotingBissette,250 N.C. at 517-18,108 S.E.2d at 861). Our courts have consistently applied the rule laid down inBennettandBissetteto vacate or arrest judgment in cases where the indictments were insufficient to confer jurisdiction on the trial court.See, e.g.,State v. Calvino,179 N.C. App. 219,221-22,632 S.E.2d 839,842(2006) (vacating defendant's conviction for sale and delivery of cocaine because the indictment was fatally flawed where the State knew the name of the individual but alleged only that defendant sold cocaine to a "confidential source of information");State v. Martindale,15 N.C. App. 216,217-18,189 S.E.2d 549,549-50(1972) (arresting judgment where indictment charging unlawful sale of narcotics was fatally defective in its failure to name the person to whom a sale was allegedly made or state that his name was unknown).

Here, the indictment charging Defendant with trafficking in cocaine by sale alleges neither the name of the individual to whom Defendant allegedly sold the cocaine in question nor that the name of the individual is unknown. "Lacking either of these allegations, the indictment is fatally defective and cannot sustain the judgment in this case."State v. Long,14 N.C. App. 508,510,188 S.E.2d 690,691(1972). Moreover, it is undisputed that the State knew Carol Jackson Jacobs, Jr. was the name of the individual to whom Defendant allegedly sold the cocaine. While the State acknowledges the holdings inBennettand its progeny, it contends these cases were wrongly decided and urges this Court to preservePage 7the issue for further review. We are bound, however, by prior decisions of this Court which have addressed and decided the same question with which we are faced here.In the Matter of Appealfrom Civil Penalty,324 N.C. 373,384,379 S.E.2d 30,36(1989). Accordingly, we hold the indictment for trafficking in cocaine by sale in case number 07 CRS 53689 is fatally flawed and vacate Defendant's conviction thereto. Defendant argues that the trial court erred in denying his motion to dismiss the charge of maintaining a vehicle for the keeping or selling of cocaine under N.C. Gen. Stat. §90-108(a)(7) because the State failed to prove that Defendant used his car to keep or sell cocaine on more than one occasion. We disagree.

When faced with a motion to dismiss based on the alleged insufficiency of the evidence, this Court conducts ade novoreview.State v. Bagley,183 N.C. App. 514,526,644 S.E.2d 615,623(2007) ("The denial of a motion to dismiss for insufficient evidence is a question of law, which this Court reviewsde novo[.]").

[T]he trial court must consider all the evidence admitted in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom, and it must decide whether there is substantial evidence of each element of the offense charged. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. If there is any evidence that tends to prove the fact in issue or that reasonably supports a logical and legitimate deduction as to the existence of that fact and does not merely raise a suspicion or conjecture regarding it,Page 8then it is proper to submit the case to the jury.

State v. Pigott,331 N.C. 199,207,415 S.E.2d 555,559-60(1992) (internal quotation marks and citations omitted). The "test . . . is the same whether the evidence is direct or circumstantial or both[,]" and if such evidence supports "a reasonable inference of defendant's guilt[,]" the motion to dismiss should be denied.State v. Scott,356 N.C. 591,596,573 S.E.2d 866,869(2002).

Our General Assembly has made it unlawful for any person "[t]o knowingly keep or maintain any . . . vehicle . . . which is used for the keeping or selling of [controlled substances]." N.C. Gen. Stat. §90-108(a)(7)(2007). Accordingly, "[t]his statute prohibits the maintaining of a vehicle only when it is used for `keeping or selling' controlled substances" — such as cocaine in this case.State v. Mitchell,336 N.C. 22,32,442 S.E.2d 24,29(1994). Our Supreme Court has addressed this element of the statute and, because the definition of "keeping" implies retaining, preserving, or maintaining continuously, held that the term "`[k]eep' therefore denotes not just possession, but possession that occurs over a duration of time."Id.at 32,442 S.E.2d at 30. The Court went on to hold: "That an individual within a vehicle possesses marijuana on one occasion cannot establish that the vehicle is `used for keeping' marijuana; nor can one marijuana cigarette found within the car establish that element."Id.at 33,442 S.E.2d at 30. In light of the ruling inMitchell, this Court later held that "[l]ikewise, the fact that a defendant was in his vehicle on onePage 9occasion when he sold a controlled substance does not by itself demonstrate the vehicle was kept or maintained to sell a controlled substance."State v. Dickerson,152 N.C. App. 714,716,568 S.E.2d 281,282(2002).

Defendant citesMitchellandDickersonin support of his contention that the State's evidence of a single incident in which Defendant used his car to keep or sell cocaine cannot establish the essential "keeping or selling" element of §90-108(a)(7). However, a thorough reading of those cases and the authority upon which they rely reveals that the holdings inMitchellandDickersondo not lay down such a bright line rule, requiring the State to directly prove that Defendant used his car to keep or sell a controlled substance on more than one occasion. For, the underlying standard remains unchanged byDickersonand provides that ultimately any determination as to whether a vehicle or building was maintained for the purpose of keeping or selling drugs depends on the totality of the circumstances.Mitchell,336 N.C. at 34,442 S.E.2d at 30. "The focus of the inquiry is on theuse, not the contents, of the vehicle."Id.(holding that "[a]lthough the contents of a vehicle are clearly relevant in determining its use," the contents in that case were not dispositive because "they [did] not establish that the use of the vehicle was a prohibited one").

Defendant seems to interpretDickersonto require the State to offer direct proof establishing more than a single incident during which he used his car for the purpose of keeping or selling cocaine or any other drugs.Dickerson, however, is not to be read soPage 10narrowly; rather, the facts of that case show that the totality of the circumstances consisted entirely of one occasion on which the defendant sold cocaine from his car where "the State presented no evidence in addition to Defendant having been seated in a vehicle when the cocaine purchase occurred."Dickerson,152 N.C. App. at 716,568 S.E.2d at 282. The State argues that the facts of the instant case are markedly different fromMitchellandDickersonand that, in their totality, support a reasonable inference that Defendant maintained his car for the purpose of keeping or selling cocaine. We agree.

Our Supreme Court inMitchelldistinguished the facts of that case, which were not sufficient to sustain a conviction under §90-108(a)(7), fromState v. Bright,78 N.C. App. 239,240,337 S.E.2d 87,87-88(1985), where the defendant was properly convicted of maintaining a vehicle for keeping or selling a controlled substance, based ona singleoccasionwhen he was found with twelve envelopes containing marijuana in his vehicle, together with more than four hundred dollars, and admitted to selling marijuana to make money.Mitchell,336 N.C. at 34,442 S.E.2d at 30. While Defendant here did not admit to selling drugs as inBright, the cases are similar in that the additional evidence — beyond the sole incidence and bare fact that Defendant used his car in connection with a drug sale — supports a finding by a reasonable mind that Defendant used his car to deal drugs for a duration of time and with some degree of continuity.Page 11

The State suggests that the careful manner by which Defendant planned and prepared for the cocaine deal shows skill, knowledge, and experience and gives rise to a reasonable inference that he is a professional drug seller. Although we are not prepared to hold that such methodical preparation in and of itself constitutes substantial evidence that Defendant has acted in this manner before, the evidence becomes sufficient when combined with several crucial facts. Specifically, Defendant used two separate cars to effectuate the cocaine transaction. After arriving at the planned sale site in a Toyota Celica and briefly negotiating with Junior, he drove to another location and reappeared shortly thereafter in the Mitsubishi Diamante that belonged to him. From these facts, the jury could reasonably infer that Defendant's use of his Diamante was a central and important feature of his methodology in selling cocaine. Moreover, where Defendant used an off-site car as an initial storage place for the drugs while he assessed the sale site, he was literally using his Diamante to keep and sell cocaine. The size of the drug sale — 2.5 ounces of cocaine for $2,300.00 — is also much greater than inDickersonwhich involved an isolated incident of an eighty dollar crack cocaine sale. Additionally, while the contents of Defendant's vehicle are not dispositive, they are relevant, and the items contained in the Diamante included: (1) a substantial quantity of cocaine totaling sixty-seven grams; (2) other drugs and drug paraphernalia including a digital scale with fresh cocaine residue thereon, 4.2 grams of cocaine folded up in a piece of paper, and a plastic bag containing approximately 150Page 12rocks of crack cocaine weighing 11.9 grams; (3) a second cellular telephone, as the first had been seized by officers from Defendant's hand; and (4) $310.00 in cash. These facts, to include Defendant's calculated off-site use of his own car to harbor the drugs to be sold and the large amount of cocaine kept therein, allow a reasonable juror to infer that Defendant kept controlled substances in his vehicle for a duration of time.

Considered in the light most favorable to the State and its totality, this evidence raises far more than a suspicion that Defendant's use of his vehicle was a prohibited one.See, e.g.,State v. Frazier,142 N.C. App. 361,366,542 S.E.2d 682,686(2001) ("Factors to be considered in determining whether a particular place is used to `keep or sell' controlled substances include: a large amount of cash being found in the place; a defendant admitting to selling controlled substances; and the place containing numerous amounts of drug paraphernalia);see also State v. Thompson,188 N.C. App. 102,106,654 S.E.2d 814,817(2008) ("This Court has considered in examining the totality of the circumstances in these cases factors including the amount of drugs present, any paraphernalia (including cutting devices, scales, and containers for distribution) found in the dwelling, the amount of money found in the dwelling, and the presence of multiple cellular phones or pagers"),disc. review denied,362 N.C. 371,662 S.E.2d 391(2008). Therefore, we hold the trial court did not err in denying Defendant's motion to dismiss the charge of maintaining aPage 13vehicle for the purpose of keeping or selling a controlled substance. Defendant argues the trial court erred by proceeding with jury selection in his absence because he sufficiently established the reason therefor and did not waive his right to presence during this critical stage of trial. Defendant was present in court on the first day of trial, during which jury selection began. Jury selection was to continue at 9:30 a.m. the next day, but Defendant was absent. His attorney informed the trial court that Defendant had called him the previous evening and again that morning to say that his girlfriend was experiencing some complications, that he was in Cowpens, South Carolina at a medical unit, that his girlfriend had given birth to his chid, and she died in labor. Defendant also told him that he was "en route" and would be at the courthouse between 10:30 and 11:00 a.m. Unable to provide any further details or verify the accuracy of Defendant's whereabouts, defense counsel failed to object to resuming jury selection, nor did he move for a mistrial, a continuance, or even a temporary postponement of proceedings. Thus, the trial court was afforded no opportunity to consider the question of whether to proceed in Defendant's absence. Accordingly, our review is limited to plain error.SeeN.C. R. App. P. 10(c)(4).Page 14

Although in his assignment of error he "specifically and distinctly," pursuant to Rule 10(c)(4), alleged plain error, Defendant failed to argue in his brief that the trial court's decision to proceed with jury selection amounted to plain error.SeeN.C. R. App. P. 28(a). Accordingly, Defendant has waived appellate review of this issue. While Defendant invites us to exercise our discretionary authority to consider the question, we decline to invoke Rule 2.SeeN.C. R. App. P. 2 (allowing this Court to suspend the Rules of Appellate Procedure to "prevent manifest injustice"). After a thorough examination of the record, transcripts, and briefs, although we may sympathize with Defendant and the circumstances causing his absence thoroughly revealed to the trial court onlyafterDefendant's tardy arrival at 2:00 p.m., we do not believe Defendant will suffer any manifest injustice without suspension of the rules. We note that Defendant failed to take reasonable steps to ensure that the trial court was accurately informed of his whereabouts or the conditions hindering his timely arrival and, therefore, did not meet his burden of explaining his absence to the court's satisfaction at the time the judge decided whether or not to move forward. Accordingly, the trial court did not abuse its discretion in proceeding with jury selection based upon the limited and unsatisfactory explanation before it, and this assignment of error is dismissed.

Defendant's conviction for trafficking in cocaine by sale is vacated. Therefore, we remand this matter for entry of judgment and resentencing on the charges of maintaining a vehicle forPage 15keeping or selling controlled substances and possession of drug paraphernalia, as these counts were consolidated into a single judgment.See State v. Wortham,318 N.C. 669,674,351 S.E.2d 294,297(1987) ("[W]e think the better procedure is to remand for resentencing when one or more but not all of the convictions consolidated for judgment has been vacated."). The trial court committed no error as to the remaining convictions, and the judgments for trafficking in cocaine by possession and transportation are thus left undisturbed.

No Error in part, vacate in part, and remand for entry of judgment and resentencing consistent with this opinion.

Judges BRYANT and STEELMAN concur.

Report per Rule 30(e).Page 1