State v. SinclairState v. Sinclair
On 21 August 2006, Defendant was indicted on charges of possession with intent to sell or deliver cocaine, resisting a public officer, and of having attained the status of an habitual felon. The case was tried before a jury at the 17 September 2007 session of Beaufort County Superior Court, the Honorable Jack W. Jenkins presiding. The State called two witnesses at trial: officers Jerry Davis (“Davis” or “Detective Davis”) and Jesse Dickinson (“Dickinson”), both of the Washington, North Carolina, Police Department.
Detective Davis testified as follows: on 6 August 2004, Davis was the lead detective in the Police Department’s Drug Enforcement Division. Davis knew Defendant, having had between ten and twelve “conversations” with Defendant before that day. Defendant was known as “PooSack.” About a week or two before 6 August, Davis confronted and searched Defendant at a bowling alley. On another occasion before 6 August, Davis strip-searched Defendant at the police station. Defendant was not charged with any offenses as a result of either of those encounters.
On 6 August at 3:41 p.m., Davis, other police officers, and one agent of the North Carolina Alcohol Law Enforcement Agency (“ALE”) went to the bowling alley where Davis had previously confronted Defendant
All of the officers chased Defendant across the lot. The lot was “[v]ery unkeptf,]” with grass “18 to 24 inches tall[,]” and the lot contained “lots of junk[.]” “There was no defined path through the lot. . . .” Defendant ran “with both of his hands in front of him[]” and never put his hands to his side. Davis was ten or twelve steps behind Defendant. After running 150 feet, Defendant laid down “in the pushup position[]” in a street, and the officers took Defendant into custody and searched him. The only items discovered during the search were a pack of cigarettes and $170.00 in cash. A couple of minutes later, Dickinson approached Davis with a clear plastic bag containing a substance which appeared to be crack cocaine. According to the State Bureau of Investigation, the substance in the bag contained one gram of cocaine. Davis never saw Defendant throw or drop anything during the chase.
Dickinson testified as follows: he drove to the bowling alley with Davis and the other officers. By the time Dickinson got out of his vehicle, Defendant was running through the vacant lot. After Defendant was taken into custody, Dickinson “was able to see through the grass a path from the area where we were told the group was going to be at and the path to exactly where” Defendant laid down in the street. The path “was like two or three people had come through.” Dickinson followed and searched the path, and found a clear, plastic bag. The bag was “on the top of the bent grass.” The trash and other items in the vacant lot were “[o]ld[,]” but the bag was not weathered or soiled. It was “clean and undisturbed[,]” and Dickinson did not have to reach through any grass to retrieve it.
Defendant did not present any evidence. At the close of all the evidence, Defendant made a motion “to dismiss the State’s case based upon a lack of evidence.” The trial court denied the motion. On the charge of possession with intent to sell or deliver, the jury convicted Defendant of the lesser included offense of possession of cocaine. The jury convicted Defendant on the charge of resisting a public officer. Following the verdicts, the State proceeded on the habitual felon charge. The jury found that Defendant had attained the status of an habitual felon, and the trial court sentenced Defendant to 135 to 171 months in prison on the possession conviction. The trial court imposed a concurrent sixty-day sentence on the charge of resisting a public officer. Defendant appeals.
Defendant argues that the trial court erred in denying his motion to dismiss the charge of resisting a public officer.
See
N.C. Gen. Stat. § 14-223 (2007) (proscribing the offense). When reviewing the denial of a motion to dismiss for insufficient evidence, this Court asks whether there was “ ‘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.’ ”
The elements of the offense with which Defendant was charged are:
1) that the victim was a public officer;
2) that the defendant knew or had reasonable grounds to believe that the victim was a public officer;
3) that the victim was discharging or attempting to discharge a duty of his office;
4) that the defendant resisted, delayed, or obstructed the victim in discharging or attempting to discharge a duty of his office; and
5) that the defendant acted willfully and unlawfully, that is intentionally and without justification or excuse.
State v. Dammons,
In the case at bar, there is no dispute that there was substantial evidence of the first, second, and fourth elements of the offense. The evidence in support of the fourth element consisted of the officers’ testimony concerning Defendant’s flight, as there was no evidence that Defendant struggled with any of the officers after Defendant laid down in the street. Concerning the third element, Defendant argues that there was no evidence that Defendant “resisted] lawful police conduct.” Concerning the fifth element, Defendant argues that he was “under no duty to submit to a search[]” and, therefore, “did not resist, delay[,] or obstruct Officer Davis by running away[.]” In response, the State argues that, under the circumstances of the encounter, “a reasonable person would not have felt compelled to cooperate with a search[]” and that, therefore, “[Defendant did not have the right to resist by fleeing.” We find Defendant’s arguments the more convincing.
As the starting point in our analysis, we first determine whether the encounter between Defendant and Detective Davis was consensual or whether Detective Davis was attempting to effectuate an investigatory stop. If the encounter was consensual, Defendant was at liberty “ ‘to disregard the police and go about his business,’ ”
Florida v. Bostick,
“ ‘No one is protected by the Constitution against the mere approach of police officers in a public place.’ ”
State v. Streeter,
[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, . . . ask to examine the individual’s identification, . . . and request consent to search his or her luggage, ... as long as the police do not convey a message that compliance with their requests is required.
Id.
at 434-35,
We conclude that, considering all the circumstances surrounding the encounter prior to Defendant’s flight, a reasonable person would have felt at liberty to ignore Detective Davis’ presence and go about his business. There is no evidence that Davis made any show of force or otherwise communicated to Defendant that cooperation was required. Davis merely approached Defendant, asked if he could talk to him, and informed Defendant that he wanted to search him. A reasonable person would not have felt compelled to comply with Davis’ request. The State acknowledges as much in its brief, stating that Defendant “was under no obligation to consent to talk with [Davis] or to agree to a search.” Although Defendant’s subsequent flight may have contributed to a reasonable suspicion that criminal
activity was afoot thereby justifying an investigatory stop, Defendant’s flight from a consensual encounter cannot be used as evidence that Defendant was resisting, delaying, or obstructing Davis in the performance of his duties. There is no evidence that Defendant acted “unlawfully, that is . . . without justification or excuse.”
Dammons,
We note, however, that even if Davis was attempting to effectuate an investigatory stop, there are insufficient “specific and articulable facts, which taken together with rational inferences from those facts, reasonably warranted] [the] intrusion.”
State v. Thompson,
Next, Defendant argues that the trial court erred in denying his motion to dismiss the possession charge. Although our standard of review is identical to the standard set forth above, we also acknowledge that “ ‘[i]f the evidence is sufficient only to raise a suspicion or
conjecture as to either
Defendant was charged with possession with intent to sell or deliver a controlled substance — in this case, cocaine. The elements of the offense are “(1) possession of a substance; (2) the substance must be a controlled substance; and (3) there must be intent to sell or distribute the controlled substance.”
State v. Nettles,
The possession element of the offenses “can be proven by showing either actual possession or constructive possession.”
State v. Siriguanico,
Defendant argues that there was insufficient evidence that he possessed the crack cocaine. Because the cocaine was not found in Defendant’s actual possession, we evaluate Defendant’s argument in the context of constructive possession. Incriminating circumstantial evidence of Defendant’s possession of the cocaine included: Defendant fled upon learning that Davis wanted to search him; Defendant kept his hands in .front of him during the chase; the bag was found on the precise route Defendant took while being chased by the officers; the bag was found on top of the grass that was bent during the chase; and the bag was “clean and undisturbed.” We hold that these circumstances create a reasonable inference that the crack cocaine found on the ground shortly after Defendant was apprehended came from Defendant. Viewing the evidence in the light most favorable to the State, the trial court properly denied Defendant’s motion and submitted the issue to the jury. This assignment of error is overruled.
By his third assignment of error, Defendant argues that the trial court erred in its instructions to the jury on the charge of resisting a public officer. Because we have concluded that the trial court should have dismissed this charge at the close of all the evidence, we need not address this assignment of error.
By his fourth assignment of error, Defendant argues that the trial court erred in instructing the jury that his flight from the officers was evidence of guilt. The trial court instructed the jury, generally, that
[e]vidence of flight may be considered by you, together with all other facts and circumstances in this case, in determining whether the combined circumstances amount to an admission or show a consciousness of guilt. However, proof of this circumstance is not sufficient in itself to establish [Defendant's guilt.
Because we have concluded that the trial court should have dismissed the charge of resisting a public officer, we need only determine if the trial court erred in giving this instruction as it concerned the possession charge.
“[A] trial court may not instruct a jury on defendant’s flight unless ‘there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.’ ”
State v. Levan,
Davis testified that Defendant fled from the scene after Davis communicated to Defendant that he wanted to search Defendant. This evidence shows that Defendant “took steps to avoid apprehension.” Id. The trial court did not err in giving the jury this instruction. Defendant’s assignment of error is overruled.
By his fifth assignment of error, Defendant contends the trial court erred in instructing the jury on constructive possession. Defendant maintains that “this is not a constructive possession case, but a circumstantial evidence case of actual possession.” As stated above, “[c]onstructive possession exists when the defendant, while not having actual possession, . . . has the intent and capability to maintain control and dominion over the narcotics.”
McNeil,
By his sixth and final assignment of error, Defendant argues that the habitual felon indictment was fatally defective. Section 14-7.3 of our General Statutes provides, in pertinent part:
An indictment which charges a person with being an habitual felon must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place.
N.C. Gen. Stat. § 14-7.3 (2007). Section 15A-626(b) of our General Statutes provides that “[i]n proceedings upon bills of indictment submitted by the prosecutor to the grand jury, the clerk must call as witnesses the persons whose names are listed on the bills by the prosecutor.” N.C. Gen. Stat. § 15A-626(b) (2007). Defendant argues that the indictment was fatally defective because it: (1) failed to allege that Defendant was at least eighteen years old at the time of his conviction of at least two of the prior felonies; (2) failed to name a state or other sovereign against whom the prior felonies were committed; and (3) did not indicate that any witness appeared before the Grand Jury. Defendant’s contentions lack merit.
First, an habitual felon indictment need not allege a defendant’s age or date of birth. N.C. Gen. Stat. § 14-7.3. Defendant presents no authority which holds to the contrary.
Second, we disagree that the indictment failed to name the state or sovereign against whom the prior offenses were committed. For each of the prior felonies enumerated in the indictment, the indictment stated that the felonies were committed in violation of a specific one of North Carolina’s General Statutes and that Defendant was convicted of the felony in “the Superior Court of Beaufort County, North Carolina[.]” These statements sufficiently named the
Finally, we agree with Defendant that the habitual felon indictment did not clearly indicate that Detective Davis, listed by the State as a witness on the bill of indictment, was called as a witness before the Grand Jury. This Court has held, however, that “although the foreman [of a Grand Jury] by statute must indicate which witness(es) were sworn and examined . . . the absence of [this] endorsement] will not render an otherwise valid indictment fatally defective.”
State v. Gary,
Because there was insufficient evidence that Defendant committed the offense of resisting a public officer, the trial court erred in denying Defendant’s motion to dismiss that charge. We discern no other error in Defendant’s trial.
NO ERROR IN PART; REVERSED IN PART.