NO. COA09-408 TWENTY-EIGHTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
**********************************************
STATE OF NORTH CAROLINA )
)
vs. ) FROM BUNCOMBE COUNTY
) 07CRS 63711;63714;
)07 CRS 288
RONALD WAYNE McMAHAN )
)
______)
********************************************
DEFENDANT-APPELLANT’S BRIEF
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i
INDEX
PAGE
TABLE OF AUTHORITIES ...... iii
QUESTIONS PRESENTED ...... 1
STATEMENT OF THE CASE ...... 2
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW ...... 2
STATEMENT OF THE FACTS ...... 3
ARGUMENTS ...... 4
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO DISMISS THE CHARGES AGAINST DEFENDANT AS THE STATE FAILED TO PROVIDE SUBSTANTIAL EVIDENCE OF ALL THE ELEMENTS OF THE CRIMES CHARGED (ASSIGNMENT OF ERROR NO.1, Rp.26) .4
- FELONY ELUDE ARREST ...... 6
- POSSESSION OF DRUGS AND PARAPHERNALIA . . 10
CONCLUSION ...... 14
CERTIFICATE OF SERVICE ...... 15
ii
CASES TABLE OF AUTHORITIES PAGE
Dunlap v. Lee, 257 N.C. 447, 126 S.E. 2d 62 (1962). . . .8,9
Ingle v. Roy Stone Transfer Corp., 271 N.C. 276,
156 S.E.2d 265(1967)...... 8
N.C. Dep’t of Env’t & Natural Res. v. Carroll,
358 N.C. 649, 599 S.E.2d 888(2004)...... 5
Stanton v. Brame, 136 N.C. App. 170,523 S.E.2d 424(1999).5
State v. Beaver, 317 N.C. 643,346 S.E.2d 476(1986). . . .11
State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002). 5,6
State v. Matias, 354 N.C. 549,556 S.E.2d 269(2001). . . .11
State v. McLaurin, 320 N.C. 143, 357 S.E.2d 636 (1987). .12,13,14
State v. Minor, 290 N.C. 68,224 S.E.2d 180(1976). . . . .12,13,14
State v. Nettles, 170 N.C. App. 100,612 S.E.2d 172(2005).5
STATUTES
N.C.G.S. 7A-27(b) ...... 2
N.C.G.S. 20-140 ...... 6,7
N.C.G.S.§ 20-141.5 ...... 6
N.C.G.S. 90-95 (a)(1) ...... 10
N.C.G.S. 90-113.22 ...... 10
NO. COA09-408 TWENTY-EIGHTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
**********************************************
STATE OF NORTH CAROLINA )
)
vs. ) FROM BUNCOMBE COUNTY
) 07CRS 63711;63714;
)07 CRS 288
RONALD WAYNE McMAHAN )
)
______)
DEFENDANT-APPELLANT’S BRIEF
********************************************
QUESTIONS PRESENTED
I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN FAILING TO DISMISS THE CHARGES AGAINST DEFENDANT AS THE STATE FAILED TO PROVIDE SUBSTANTIAL EVIDENCE OF ALL THE ELEMENTS OF THE CRIMES CHARGED?
STATEMENT OF THE CASE
Mr. McMahan was indicted for one count of possession of drug paraphernalia, one count of possession with intent to sale and distribute schedule II controlled substance, and one count of felony elude arrest with two aggravating factors on 2 June 2008. The Defendant’s case was called for hearing at the 22 September 2008 session of Criminal Superior Court for Buncombe County before the Honorable J. Marlene Hyatt. On or around 23 September 2008 the jury returned a verdict finding the Defendant guilty of all charges. The trial court entered the judgment on 23 September 2008, sentencing Defendant to consecutive sentences on the three charges totaling a minimum of 30 months, and a maximum of 56 months in the Department of Corrections. The Defendant gave timely notice of appeal from the judgment of the trial court in open court on 23 September 2008. The transcript was ordered on 15 October 2008 and was mailed to the parties on 18 January 2009.
The final record on appeal was filed with the North Carolina Court of Appeals on 30 March 2009 and docketed on 31 March 2009. The printed Record on Appeal was mailed from the Office of the Clerk of the Court of Appeals on 6 April 2009.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
The ground for appellate review is a final judgment of superior court under N.C. Gen. Stat. 7A-27(b). A timely notice on appeal was given by the Defendant in open court on 23 September 2008.
STATEMENT OF THE FACTS
On 6 November 2007 Jason Summey of the Buncombe County Sheriff’s Department was doing traffic enforcement in the vicinity of U.S. Highway 70 near Swannanoa. Summey testified that as he was patrolling in a residential neighborhood, Mr. McMahan went by him on a motorcycle in the opposite direction. Summey noticed that the head beam of the motorcycle did not come to a complete stop at a stop sign and he turned his vehicle around to investigate. There were no cars or people in the area when Mr. McMahan’s motorcycle rolled through the stop sign. (Tpp.8;10;45)
Summey testified that he saw Mr. McMahan go through another stop sign and turn westbound on Highway 70. Summey activated his blue lights and followed, hoping to get Mr. McMahan to pull over at a campground on Highway 70. Summey testified that he got behind Mr. McMahan on Highway 70 and Mr. McMahan was traveling about 35 miles per hour on his motorcycle with his helmet on. There was no traffic in front of Mr. McMahan or behind Summey on Highway 70. Summey could hear the engine of Mr. McMahan’s motorcycle making a “choking” sound, and it was noticeably having mechanical problems. (Tpp.11;12)
After passing the KOA campground, McMahan pulled his motorcycle into the parking lot of Hipps Stone Sales off of Highway 70. Summey parked his car and got out to pursue Mr. McMahan on foot. In a few seconds he caught up to Mr. McMahan on his motorcycle on foot in the parking lot. When Mr. McMahan did not respond to Summey’s verbal commands to stop, Summey tasered him from 10 to 15 feet away, causing Mr. McMahan to fall from his motorcycle to the ground. (Tpp.14;15-17)
Summey got up to Mr. McMahan when he was on the ground after falling off his motorcycle. Summey then tasered Mr. McMahan two more times on the ground because he would not show him his hands. Summey then got handcuffs on Mr. McMahan and got him up. Summey found no contraband on Mr. McMahan’s person when he took him into custody. The only things he found on him were a small flashlight, and $290 in cash. Summey did not see Mr. McMahan throw anything from his hands while he was pursuing him in the car or on foot in the parking lot. Summey also testified that he did not see Mr. McMahan unzip his coveralls at any time to remove anything during the entire time he was pursuing him. (Tpp.22;23;48;52;55)
After Summey had gotten Mr. McMahan up and into custody, he noticed a black knife sheath on the ground. This sheath contained 2 bags of crystalline substances that turned out to be methamphetamine. Summey testified that he never saw the black sheath on Mr. McMahan’s person. (Tpp.24;25;55)
ARGUMENTS
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO DISMISS THE CHARGES AGAINST DEFENDANT AS THE STATE FAILED TO PROVIDE SUBSTANTIAL EVIDENCE OF ALL THE ELEMENTS OF THE CRIMES CHARGED (ASSIGNMENT OF ERROR NO.1, Rp.26)
No substantial evidence was presented that Mr. McMahan was ever in possession of drug paraphernalia or any controlled substance. Further, the State failed to present any evidence that Mr. McMahan drove recklessly on the occasion complained of. As such, the drug related charges should have been dismissed, and the second aggravator should have been dismissed, reducing the eluding arrest charge to a misdemeanor.
Standard of Review
The standard of review on a motion to dismiss a charge which was properly ruled upon is de novo. The question is whether the evidence presented was substantial as a matter of law. State v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d 172, 174, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Questions of law are reviewed de novo. Stanton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d 424, 427 (1999). Under a de novo standard of review, the reviewing court considers the matter anew and freely substitutes its own judgment for that of the lower court. N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).
In ruling upon a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which may be drawn from the evidence. State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002). The trial court determines whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Id. at 473, 573 S.E.2d at 889. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id.
Arguments
A. Felony Elude Arrest
N.C.G.S.§ 20-141.5states:
(a) It shall be unlawful for any person to operate a motor vehicle on a street, highway, or public vehicular area while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties. Except as provided in subsection (b) of this section, violation of this section shall be a Class 1 misdemeanor.
(b) If two or more of the following aggravating factors are present at the time the violation occurs, violation of this section shall be a Class H felony.
In the present case, the two aggravating factors alleged by the State were that (1) the defendant was driving while the defendant’s driver’s license was revoked; and (2) The defendant was driving recklessly in violation of G.S.20-140. (Rp.7) The applicable part of G.S. 20-140, defines reckless driving as follows:
(a) Any person who drives any vehicle upon a highway or any public vehicular area carelessly and heedlessly in willful or wanton disregard of the rights or safety of others shall be guilty of reckless driving.
(b) Any person who drives any vehicle upon a highway or any public vehicular area without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property shall be guilty of reckless driving.
In the present case, the State presented no substantial evidence that Mr. McMahan in any way engaged in any of the conduct described in the statute which would constitute reckless driving. Officer Summey testified that he observed Mr. McMahan not make complete stops as he went through two stop signs in a residential area. On those occasions, there were no vehicles or pedestrians anywhere in the vicinity. Officer Summey then got behind Mr. McMahan’s motorcycle on U.S. Highway 70. Summey testified that Mr. McMahan never went above 35 miles per hour at any point he was behind him. Further, there were no vehicles in front of Mr. McMahan or behind Officer Summey at any point. Finally, Mr. McMahan pulled off Highway 70 into the parking lot of a store where Officer Summey proceeded to catch up to the motorcycle on foot and taser Mr. McMahan causing him to fall off his motorcycle. Officer Summey never testified that there was any property damage, and he testified that at all times there were no other vehicles around during the time he observed and pursued Mr. McMahan. (Tpp.11;12;14;15-17;45)
It is evident that Mr. McMahan did not engage in any driving that “disregard[ed] of the rights or safety of others”, as there were no other pedestrians or vehicles anywhere around his motorcycle during the entire time Officer Summey observed him. Further, Mr. McMahan did not drive “without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property”. Officer Summey testified that it was obvious Mr. McMahan’s motorcycle was experiencing mechanical problems and never got above 35 miles per hour during the entire time he was following it. Officer Summey was able to park his vehicle and overtake the motorcycle on foot. There was simply no evidence that Mr. McMahan’s driving endangered any other person or property in any way.
In Ingle v. Roy Stone Transfer Corp., 271 N.C. 276, 283-85, 156 S.E.2d 265, 271-72 (1967), our Supreme Court defined reckless driving as “continuing acts, or a series of acts” constituting culpable or criminal negligence, which, in the context of reckless driving, is “intentional, willful or wanton violation of a safety statute or ordinance which proximately results in injury.... Neither the intentional nor the unintentional violation of a traffic law without more constitutes reckless driving.” (emphasis added).
In Dunlap v. Lee, 257 N.C. 447, 126 S.E. 2d 62 (1962), our Supreme Court held it was error to charge on reckless driving on the evidence in that case. The Court observed: "A person may violate the reckless driving statute by either one of the two courses of conduct defined in subsections (a) and (b), or in both respects. (citation omitted) The language of each subsection constitutes culpable negligence. (citation omitted) Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequence or heedless indifference to the safety and rights of others." (citation omitted).
In the Dunlap case, both cars were traveling between 35 and 40 miles per hour. "The impact was relatively slight." The Court went on to say, "(d) efendant's testimony permits the inference that he was not keeping a reasonable lookout. There is no direct evidence in the record of excessive speed or that defendant was following too closely; the direct evidence is to the contrary. The evidence does not support the allegation of reckless driving." Id.
In the present case, the only violations of any traffic laws testified to by Officer Summey were the two stop signs that he observed Mr. McMahan not stop completely for. However, these traffic violations, whether intentional or unintentional, subjected no other motorist or pedestrian to any danger as Officer Summey testified there was no one around when this happened. Likewise, there was no testimony of any speed over 35 miles per hour, and no testimony of any danger to person or property at any time during Officer Summey’s pursuit of Mr. McMahan. As the State failed to present substantial evidence of the aggravating factor of reckless driving, that aggravator should have been dismissed, and the charge against Mr. McMahan reduced to misdemeanor eluding arrest.
B. Possession of Drugs and Paraphernalia
Mr. McMahan was also charged with possession with intent to sale or distribute a schedule II controlled substance under N.C.G.S. 90-95 (a)(1), and possession of drug paraphernalia under N.C.G.S. 90-113.22. A central element of both these charges is that Mr. McMahan had possession of those items. N.C.G.S. 90-95(a)(1)(2007); N.C.G.S. 90-113.22(2007). As the State failed to present substantial evidence of this crucial element, these charges must be dismissed.
Officer Summey testified that he never saw the black knife sheath that contained the bags of methamphetamine in Mr. McMahan’s possession. He never observed the sheath on his person or in his hands at any time. (Tpp.47-8) Officer Summey testified that he found the knife sheath on the ground when he rolled Mr. McMahan over after he had placed his hands in handcuffs behind his back after tasering him three times. (Tpp.20-22) Officer Summey testified that from the first time he tasered Mr. McMahan while he was riding on his motorcycle at a slow speed, to when he rolled him over after handcuffing he was no more than 10-15 feet away from him at any time. (Tp.44) Officer Summey did not see Mr. McMahan throw anything from his hands at any time while he was pursuing him. He also did not see Mr. McMahan unzip his coveralls and remove anything at any time. (Tp.52)
As Mr. McMahan did not have actual possession of the contraband at any time, the State was required to present substantial evidence he had “constructive possession.” To convict a defendant of possession of cocaine under a constructive possession theory, the State is required to present substantial evidence that defendant had the "`intent and capability to maintain control and dominion over' the narcotics." State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)). To do so, the State must show either that (1) defendant had "exclusive possession of the place where the narcotics [were] found"; or (2) that "other incriminating circumstances" existed tending to show that defendant constructively possessed the narcotics found. Id. at 552, 556 S.E.2d at 271 (citations omitted).
In the present case, there was no substantial evidence that defendant had "exclusive possession of the place where the narcotics were found” as it was found on the ground in a parking lot. Therefore, any analysis of whether substantial evidence exists to support the possession charge should be limited to an inquiry of whether "other incriminating circumstances" were present and were substantial enough to tie Mr. McMahan to the controlled substance to show he had the intent and capability to maintain control and dominion over it.
In State v. Minor, 290 N.C. 68, 75, 224 S.E.2d 180, 185 (1976), the defendant helped plant a garden and occupied an abandoned residence for a short time near a field where marijuana was cultivated. Id. at 72-73, 224 S.E.2d at 183-84. Law enforcement found a container in the residence labeled with the defendant's name. Id. at 72, 224 S.E.2d at 183. When the defendant was arrested, two wilted marijuana leaves were found in the car in which he had been a passenger. Id. at 72, 224 S.E.2d at 183-84. Our Supreme Court found that under these facts alone, the State had presented insufficient evidence to prove constructive possession of marijuana and ruled the defendant's motion to dismiss should have been granted. Id. at 74-75, 224 S.E.2d at 185.
In State v. McLaurin, 320 N.C. 143, 357 S.E.2d 636 (1987), the defendant was convicted of possession of drug paraphernalia under a constructive possession theory. Id. at 144, 357 S.E.2d at 637. Police searched the defendant's residence pursuant to a search warrant and found drug paraphernalia which contained traces of cocaine, throughout the house. Id. In a crawl space beneath the dwelling, law enforcement found three marked one hundred dollar bills that were used in a previous drug transaction. Id at 145, 357 S.E.2d at 637. The defendant admitted to living in the residence, and photographs of her were found inside the house along with her Medicaid card. Id. However, the defendant did not have exclusive control over the premises, leading our Supreme Court to conclude that "because there was no evidence of other incriminating circumstances linking her to [the seized paraphernalia], her control was insufficiently substantial to support a conclusion of her possession of the seized paraphernalia." Id. at 147, 357 S.E.2d at 638.
In the present case, there were even less “incriminating circumstances” present than in McLaurin and Minor. First and foremost, the paraphernalia in the present case was found not in a residence, or a car that Mr. McMahan lived in, stayed at, or rode in, nor was it found anywhere on any property owned by Mr. McMahan. It was found on the ground of a parking lot of a business off of Highway 70. This parking lot was open for travel by the public, and there was no evidence that Mr. McMahan had been there before.
No paraphernalia or any other incidence of controlled substances or a drug buy was found on Mr. McMahan’s person. He had a flashlight on his person, which Officer Summey testified was not unusual as it was dark out. The State did present evidence that Mr. McMahan had some cash on his person, and did not stop for the blue lights or on Officer Summey’s verbal command. However, there was no evidence that he had any “marked bills” that had been used in a previous drug transaction as in McLaurin. Thus the fact that he did not stop for the blue light in and of itself does not arise to the level of “incriminating circumstances” that could elevate this over McLaurin and Minor to find constructive possession in this case.
The paraphernalia and drugs were found on the ground in a public place. Officer Summey, who had been within 15 feet of Mr. McMahan the entire time he was on the ground off his bike never saw anything in Mr. McMahan’s hands, and did not see him throw anything from his hands while he was on the bike. On these facts, the State did not show Constructive possession and these charges should have been dismissed.
CONCLUSION
The Defendant respectfully requests that this Court reverse the trial court as argued above, and remand to the trial court for entry of an order dismissing the charges of possession of drug paraphernalia, possession of controlled substance with intent to sale or distribute, and felony eluding arrest, and remand for re-sentencing on misdemeanor eluding arrest and driving while license revoked.