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[T] State v. Green7/15/2003
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
In this appeal, we address two issues: (1) Whether the trial court erred in denying defendant's motion to dismiss; and (2) whether the trial court erred in sentencing defendant as a habitual felon with a prior record level of IV. Because sufficient circumstantial evidence exists to support the jury's verdict and because this Court has already rejected defendant's sentencing argument in State v. Cates, 154 N.C. App. 737, 573 S.E.2d 208 (2002), disc. review denied, 356 N.C. 682, 577 S.E.2d 897 (2003), we affirm. The State's evidence tended to show the following. At approximately 4:10 a.m. on 2 September 2001, Officer Derrick P. Dubay was dispatched to a fight on Biddle Street in New Bern. When Officer Dubay arrived at the scene, he explained to defendant, James Brown Green, Jr., that "due to the nature of the call" the officer would have to pat Green down for weapons.
At that point, defendant tried to run away. Officer Dubay grabbed defendant by the arms and held him against the front of his patrol car. While defendant was struggling with Officer Dubay, defendant, according to Officer Dubay, "made a deliberate motion to throw something underneath [the patrol] car." Positioned directly behind defendant, Officer Dubay did not see whether any object actually left defendant's hand.
Officer Dubay placed defendant in handcuffs with assistance from two other officers, who had arrived as backup. After informing defendant that he was under arrest for obstructing and delaying a law enforcement officer, Officer Dubay reached underneath the left front wheel of his patrol car, close to the area where he had patted down defendant, and recovered two bags. One bag was torn open, while the other contained a quantity of crack cocaine.
On 13 November 2001, a grand jury indicted defendant for possession with intent to sell and deliver cocaine. On 28 January 2002, a jury found defendant guilty of the lesser included offense of possession of cocaine. Pursuant to a plea agreement entered 29 January 2002, defendant admitted habitual felon status and pledguilty to other charges pending against him, including possession of a firearm by a felon, possession of cocaine with intent to sell and deliver, and driving while impaired.
In his brief, defendant has argued only three of his nine assignments of error. Under Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure, he has abandoned the six assignments of error not argued.
Defendant made a motion to dismiss at the close of the State's evidence and at the close of all of the evidence arguing that there was insufficient evidence to permit a reasonable jury to conclude that defendant possessed cocaine. In reviewing a trial court's denial of a motion to dismiss, the appellate court views the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence and resolving any contradictions in the evidence in the favor of the State. State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994), cert. denied, __ N.C. __, 533 S.E.2d 475 (1999). The trial court properly denies a motion to dismiss if the evidence, when viewed in this light, is such that a rational trier of fact could find beyond a reasonable doubt the existence of each element of the crime. Id.
It does not matter if the State has relied upon circumstantial, as opposed to direct, evidence. As our Supreme Cour
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