State v. TurnerÂ

NO. COA14-318
NORTH CAROLINA COURT OF APPEALS
Filed: 18 November 2014
STATE OF NORTH CAROLINA
v. Catawba County
Nos. 11 CRS 054162, 12 CRS
004054
KARSTEN EUGENE TURNER,
Defendant.
Appeal by defendant from judgment entered 21 August 2013 by
Judge Nathaniel J. Poovey in Catawba County Superior Court.
Heard in the Court of Appeals 26 August 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth A. Fisher, for the State.
M. Alexander Charns for defendant-appellant.
BRYANT, Judge.
Where defendant’s indictment and judgment were for the same
offense and a deviation in the trial court’s jury instruction as
to that offense was not significant, defendant cannot show plain
error. The trial court did not err in describing a reasonable
doubt as a “fair doubt” in its preliminary jury instruction
where the entirety of the trial court’s jury charge correctly
stated the definition of reasonable doubt to the jury. Where
-2-
defendant cannot show that his attorney’s failure to object to a
jury instruction would have resulted in a different outcome at
trial, defendant’s ineffective assistance of counsel claim will
be denied.
On 23 April 2012, defendant Karsten Eugene Turner was
indicted on one count each of possession with intent to sell or
deliver cocaine and resisting a public officer. On the same
date, defendant was separately indicted for being an habitual
felon. The charges came on for trial during the 19 August 2013
session of Catawba County Superior Court, the Honorable
Nathaniel J. Poovey, Judge presiding. The State’s evidence
presented during the trial tended to show the following.
On 11 July 2011, Investigator Wes Gardin of the Hickory
Police Department conducted surveillance at 442 10th Avenue
Drive in Hickory. The surveillance was set-up based on
information that a gold-colored Honda Accord would arrive that
day at that location for a drug transaction. Shortly after
beginning his surveillance, Investigator Gardin saw a gold-
colored Honda Accord arrive and park at 420 10th Avenue;
Investigator Gardin recognized the driver of the car as
defendant.
-3-
Investigator Gardin directed a marked unit, operated by
Officer Killian and Sergeant Kerley, to pull in behind the Honda
and activate its lights to conduct a narcotics investigation.
Upon the marked unit activating its lights, defendant exited the
car, leaving the driver’s side door open, and took off running.
Investigator Gardin and Officer Killian engaged in a foot
pursuit of defendant; despite ordering defendant to halt, the
chase did not end until defendant tripped and fell. As a
passenger was observed in defendant’s Honda, Sergeant Kerley
remained with the car during the pursuit of defendant.
After capturing defendant, the officers returned to the
Honda and saw through the open driver’s side door a baggie of
crack cocaine in the driver’s seat. Upon searching the Honda,
the officers found a marijuana joint in the center console and a
second baggie of crack cocaine in the glove box. Investigator
Gardin testified that the baggie found on the driver’s seat
contained about 5—6 rocks of cocaine, while the baggie found in
the glove box contained over 200 rocks of cocaine. The officer
also found about $80.00 cash in the driver’s seat of the Honda.
The passenger in the Honda was identified as Victor
Wilfong. Defendant and Wilfong were arrested and transported to
the Hickory Police Department for processing.
-4-
While being held at the Hickory Police Department,
defendant voluntarily made a statement to Investigator Gardin
that “it’s all mine.” Investigator Gardin testified that he
took defendant’s statement “to mean that all the controlled
substances found in that vehicle belonged to [defendant].”
On 21 August 2013, a jury convicted defendant of possession
with intent to sell or deliver cocaine and resisting a public
officer. The trial court found defendant had a prior record
level of II, and defendant stipulated to being an habitual
felon. After finding that defendant had shown three mitigating
factors, the trial court sentenced defendant to 50 to 69 months
imprisonment. Defendant appeals.
________________________
On appeal, defendant argues that the trial court erred (I)
in holding that it had jurisdiction to enter judgment against
defendant for a charge not alleged in the indictment, and (II)
by instructing the jury that a reasonable doubt was a “fair
doubt.” Defendant further argues (III) that he received
ineffective assistance of counsel.
I.
Defendant argues that the trial court erred in holding that
it had jurisdiction to enter judgment against him for a charge
-5-
not alleged in the indictment. Specifically, defendant contends
the trial court committed a jurisdictional error because it
instructed the jury on the offense of possession of cocaine with
intent to manufacture, sell, or deliver, rather than the offense
for which defendant was indicted, possession of cocaine with
intent to sell or deliver, and that as a result, “[t]he State’s
indictment was fatally defective here as to manufacturing.”
However, defendant failed to object to the indictment and
failed to object to the jury instruction until after the jury
returned its verdict. Pursuant to North Carolina Rules of
Appellate Procedure, Rule 10, “[a] party may not make any
portion of the jury charge or omission therefrom the basis of an
issue presented on appeal unless the party objects thereto
before the jury retires to consider its verdict . . . .” N.C.
R. App. P. 10(a)(2) (2013). As such, this Court reviews
unpreserved instructional and evidentiary issues for plain
error. State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326,
333 (2012) (citation omitted).
[T]he plain error rule . . . is always to be
applied cautiously and only in the
exceptional case where, after reviewing the
entire record, it can be said the claimed
error is a fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been
done, or where [the error] is grave error
-6-
which amounts to a denial of a fundamental
right of the accused, or the error has
resulted in a miscarriage of justice or in
the denial to appellant of a fair trial or
where the error is such as to seriously
affect the fairness, integrity or public
reputation of judicial proceedings or where
it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
Id. at 516—17, 723 S.E.2d at 333 (citations and quotations
omitted).
Defendant was indicted for one count of possession of
cocaine with intent to sell or deliver. In its jury
instructions, the trial court instructed the jury on the offense
of possession of cocaine with intent to manufacture, sell, or
deliver:
The defendant has been charged with
possessing cocaine with the intent to
manufacture, sell or deliver it. For you to
find the defendant guilty of this offense
the State must prove two things beyond a
reasonable doubt.
First, that the defendant knowingly
possessed cocaine. Cocaine is a controlled
substance. A person possesses cocaine when
he is aware of its presence and has either
by himself or together with others both the
power and intent to control the disposition
or use of that substance.
And, second, that the defendant
intended to manufacture, sell or deliver the
cocaine. Intent is seldom, if ever, provable
by direct evidence. It must ordinarily be
-7-
proved by circumstances from which it may be
inferred.
Defendant did not object to this instruction during either
the jury charge conference or when the trial court gave its
instructions to the jury. In fact, the discrepancy between the
indictment and the jury instructions were discovered only after
the jury returned its verdict finding defendant guilty of
possession of cocaine with intent to manufacture, sell, or
deliver. After considering the arguments of counsel, the trial
court held that the use of the word “manufacture” in the jury
instructions was harmless error, noting that the charge required
the jury to find only two elements, possession and intent, and
that “[t]here wasn’t any particular evidence also regarding what
constitutes manufacture, what constitutes a sale or what
constitutes delivery[]” to affect the jury’s finding as to the
element of intent. The trial court then sentenced defendant in
the mitigated range for the offense for which defendant was
indicted: possession of cocaine with intent to sell or deliver.
We agree with the trial court that the use of the word
“manufacture” in its jury instructions was harmless error.
“[A]n indictment is insufficient to support a conviction if it
does not conform to material elements in the jury charge
required to support the conviction.” State v. Bollinger, 192
-8-
N.C. App. 241, 245, 665 S.E.2d 136, 139 (2008) (citation
omitted). Likewise, “an indictment is sufficient if it charges
the substance of the offense, puts the defendant on notice of
the crime, and alleges all essential elements of the crime.”
Id. at 246, 665 S.E.2d at 139 (citation omitted). North
Carolina General Statutes, section 90-95(a)(1), holds that “it
is unlawful for any person . . . [t]o manufacture, sell or
deliver, or possess with intent to manufacture, sell or deliver,
a controlled substance[.]” N.C. Gen. Stat. § 90-95(a)(1)
(2013). It is well-established that there are two essential
elements of this charge: possession and intent. See State v.
Hyatt, 98 N.C. App. 214, 216, 390 S.E.2d 355, 357 (1990)
(citation and quotation omitted).
Defendant was charged with possession of cocaine with
intent to sell or deliver. N.C.G.S. § 90-95(a)(1) only requires
the jury to find one element of intent: an intent to sell,
deliver or manufacture. N.C.G.S. § 90-95(a)(1) (emphasis
added). The gravamen of the offense of possession with intent
to sell or deliver is possession and intent. As long as
defendant possessed the cocaine with intent — whether to sell,
deliver, or manufacture — he has committed the statutory offense
of possession of cocaine with intent to sell or deliver. See
-9-
State v. Moore, 327 N.C. 378, 383, 395 S.E.2d 124, 127 (1990)
(citations omitted). Therefore, even assuming arguendo the
trial court erred in instructing the jury as to possession of
cocaine with intent to manufacture, as well as sell or deliver,
this error did not rise to the level of plain error. See
Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (“For error to
constitute plain error, a defendant must demonstrate that a
fundamental error occurred at trial. To show that an error was
fundamental, a defendant must establish prejudice—that, after
examination of the entire record, the error had a probable
impact on the jury's finding that the defendant was guilty.”
(citations and quotation omitted)). The record shows that the
charge of possession with intent to sell or deliver was
supported by the evidence, as two baggies of crack cocaine rocks
and cash were found in defendant’s car, with the cash and
smaller baggie of crack cocaine being found in the driver’s seat
where defendant had been sitting. As such, defendant cannot
show plain error where he received a mitigated sentence for the
proper, indicted charge of possession of cocaine with intent to
sell or deliver. Accordingly, defendant’s first argument is
overruled.
II.
-10-
Defendant next argues that the trial court erred by
instructing the jury that a reasonable doubt was a “fair doubt.”
We disagree.
As defendant failed to object to the trial court’s jury
instruction that a reasonable doubt was a “fair doubt,” we
review defendant’s second issue on appeal for plain error. See
Lawrence, 365 N.C. at 516, 723 S.E.2d at 333.
Defendant contends the trial court erred in instructing the
jury that a reasonable doubt was a “fair doubt.”
“[A]s a whole, the instructions [must] correctly conve[y]
the concept of reasonable doubt to the jury.” State v. Hooks,
353 N.C. 629, 633, 548 S.E.2d 501, 505 (2001) (citation and
quotation omitted).
The charge of the court must be read as a
whole . . . , in the same connected way that
the judge is supposed to have intended it
and the jury to have considered it[]. . . .
It will be construed contextually, and
isolated portions will not be held
prejudicial when the charge as [a] whole is
correct. If the charge presents the law
fairly and clearly to the jury, the fact
that some expressions, standing alone, might
be considered erroneous will afford no
ground for reversal.
Id. at 634, 548 S.E.2d at 505 (citations and quotations
omitted). “If, when so construed, it is sufficiently clear that
no reasonable cause exists to believe that the jury was misled
-11-
or misinformed, any exception to it will not be sustained even
though the instruction could have been more aptly worded.”
State v. Maniego, 163 N.C. App. 676, 685, 594 S.E.2d 242, 248
(2004) (citation omitted).
The jury instruction of which defendant complains was a
preliminary instruction given by the trial court to prospective
jurors prior to the commencement of jury selection, as opposed
to final instructions given after the close of evidence at
trial. The trial court, in its preliminary instruction, stated
the following:
A reasonable doubt is not a vain nor
fanciful doubt. For most things that relate
to human affairs are open to some possible
or imaginary doubt. A reasonable doubt is a
fair doubt based upon reason or common sense
arising out of some or all the evidence that
has been presented or the lack or
insufficiency of the evidence as the case
may be. Proof beyond a reasonable doubt is
proof that fully satisfies or entirely
convinces you of the defendant's guilt.
Thereafter, a petit jury was selected to hear the evidence in
the case. After all the evidence was presented, the trial court
instructed the jury as to the definition of reasonable doubt:
A reasonable doubt is a doubt based on
reason and common sense arising out of some
or all of the evidence that has been
presented or the lack or insufficiency of
the evidence as the case may be. Proof
beyond a reasonable doubt is proof that
-12-
fully satisfies or entirely convinces you of
the defendant's guilt.
Defendant’s argument that the trial court erred in its jury
instruction on reasonable doubt by describing it as a “fair
doubt” lacks merit. It is clear from a review of the trial
court’s two statements of the reasonable doubt instruction that
although the trial court did deviate from the pattern
instruction by using the term “fair doubt” in its preliminary
jury instruction to prospective jurors, the charge as a whole
was correct. See State v. James, 342 N.C. 589, 597—98, 466
S.E.2d 710, 715—16 (1996) (the defendant was not prejudiced
where the trial court gave an appropriate jury instruction at
the close of evidence despite giving an allegedly erroneous
preliminary instruction); State v. Hunt, 339 N.C. 622, 643—44,
457 S.E.2d 276, 288—89 (1994) (holding that the trial court’s
jury instruction, which defined a reasonable doubt as “a fair
doubt,” was not “constitutionally deficient” and did not
impermissibly alter the context of the jury instruction); see
also State v. Flowers,1 No. COA01-1024, 2002 N.C. App. LEXIS
2208, at *4—6 (July 16, 2002) (the trial court did not commit
plain error where it gave an erroneous preliminary jury
1
We note that although Flowers and McElvine are unpublished
opinions of this Court, both cases are on point with the instant
case.
-13-
instruction to prospective jurors but gave the proper jury
instruction at the close of evidence at trial); State v.
McElvine, No. COA01-677, 2002 N.C. App. LEXIS 2124, at *12 (May
21, 2002) (finding the defendant could not show plain error
where, “[w]hen taking the entire instruction as a whole and in
context, the trial court properly instructed the prospective
jurors on the presumption of innocence and the burden of proof
on the State. Thus, we find the trial court did not err in its
preliminary instructions to the jury.”). Defendant’s argument
is, therefore, overruled.
III.
Defendant also argues that he received ineffective
assistance of counsel. We disagree.
“In general, claims of ineffective assistance of counsel
should be considered through motions for appropriate relief and
not on direct appeal.” State v. Stroud, 147 N.C. App. 549, 553,
557 S.E.2d 544, 547 (2001) (citations omitted).
It is well established that ineffective
assistance of counsel claims brought on
direct review will be decided on the merits
when the cold record reveals that no further
investigation is required, i.e., claims that
may be developed and argued without such
ancillary procedures as the appointment of
investigators or an evidentiary hearing.
Thus, when this Court reviews ineffective
assistance of counsel claims on direct
-14-
appeal and determines that they have been
brought prematurely, we dismiss those claims
without prejudice, allowing defendant[s] to
bring them pursuant to a subsequent motion
for appropriate relief in the trial court.
State v. Thompson, 359 N.C. 77, 122—23, 604 S.E.2d 850, 881
(2004) (citations and quotation omitted).
Criminal defendants are entitled to the
effective assistance of counsel. When a
defendant attacks his conviction on the
basis that counsel was ineffective, he must
show that his counsel's conduct fell below
an objective standard of reasonableness. In
order to meet this burden [the] defendant
must satisfy a two part test.
First, the defendant must show that
counsel's performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as
the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant
must show that the deficient performance
prejudiced the defense. This requires
showing that counsel's errors were so
serious as to deprive the defendant of a
fair trial, a trial whose result is
reliable.
In considering [ineffective assistance
of counsel] claims, if a reviewing court can
determine at the outset that there is no
reasonable probability that in the absence
of counsel's alleged errors the result of
the proceeding would have been different,
then the court need not determine whether
counsel's performance was actually
deficient.
-15-
State v. Boozer, 210 N.C. App. 371, 382—83, 707 S.E.2d 756, 765
(2011) (citations and quotation omitted), disc. review denied,
365 N.C. 543, 720 S.E.2d 667 (2012).
Defendant contends he received ineffective assistance of
counsel because his attorney failed to object to the trial
court’s jury instruction on possession of cocaine with intent to
manufacture, sell, or deliver. Because the record reveals no
further investigation is required, we review defendant’s
ineffective assistance of counsel claim.
Defendant argues that he received ineffective assistance of
counsel because, by not objecting to the trial court’s jury
instruction on possession of cocaine with intent to manufacture,
sell, or deliver, defendant’s attorney caused defendant to be
convicted of an offense for which defendant was not indicted.
We disagree for, as discussed in Issue I, the trial court’s
error did not amount to plain error. Further, defendant did not
challenge his indictment (for possession of cocaine with intent
to sell or deliver), and the trial court sentenced defendant in
the mitigating range for the indicted offense. As such,
defendant’s ineffective assistance of counsel claim lacks merit.
Moreover, assuming arguendo that defendant’s attorney was
deficient in failing to object to the trial court’s jury
-16-
instructions, defendant has failed to show how his attorney’s
actions amounted to prejudicial error. “The fact that counsel
made an error, even an unreasonable error, does not warrant
reversal of a conviction unless there is a reasonable
probability that, but for counsel's errors, there would have
been a different result in the proceedings.” State v. Braswell,
312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985) (citation
omitted). Here, where defendant’s car was stopped by officers
acting on a tip and, in addition to a bag with 5—6 rocks of
crack cocaine and cash found on the driver’s seat and
defendant’s voluntary admission that “it’s all mine,” over 200
rocks of crack cocaine were found in a baggie in defendant’s
glove box, there was no reasonable probability that a different
result would have been reached by the jury. “After examining
the record we conclude that there is no reasonable probability
that any of the alleged errors of defendant's counsel affected
the outcome of the trial.” Id. at 563, 324 S.E.2d at 249.
Accordingly, defendant’s argument is overruled, and his claim of
ineffective assistance of counsel denied.
No error.
Chief Judge McGEE and Judge STROUD concur.