DocketNumber: No. COA13-76
Citation Numbers: 229 N.C. App. 556
Judges: Ervin, McGee, Steelman
Filed Date: 9/17/2013
Status: Precedential
Modified Date: 11/27/2022
Defendant Christopher L. Barnes appeals from a judgment sentencing him to a term of six to eight months imprisonment based upon his convictions for simple possession of a controlled substance and possession-of a controlled substance in a penal institution or local confinement facility. On appeal, Defendant argues that the trial court erred by denying his motion to dismiss the possession of a controlled substance in a local confinement facility on the grounds that the evidence did not support his conviction for committing that offense or, alternatively, that the trial court erred by entering judgment against him based upon both his convictions for possession of a controlled substance in a confinement facility and simple possession of the same controlled substance. After careful consideration of Defendant’s challenges to the trial court’s judgments in light of the record and the applicable law, we conclude that, while the trial court correctly denied Defendant’s motion to dismiss the possession of a controlled substance in a local confinement facility charge, it erred by entering judgment based on Defendant’s convictions for both possession of a controlled substance in a local confinement facility and simple possession of marijuana, so that Defendant’s conviction for simple possession of a controlled substance must be vacated and this case must be remanded to the Wayne County Superior Court for resentencing.
I. Factual Background
A. Substantive Facts
At approximately 2:00 a.m. on 21 January 2011, Officer Melvin Smith of the Goldsboro Police Department observed Defendant drive his vehicle onto Ash Street in Goldsboro without operating his headlights. As a result, Officer Smith stopped Defendant’s vehicle. Upon approaching Defendant, Officer Smith noticed a strong smell of alcohol about his person. After observing that Defendant’s speech was slurred and after hearing Defendant state that he was “not that drunk,” Officer Smith requested that Defendant exit his vehicle and perform certain field sobriety tests. As a result of Defendant’s performance on these field sobriety tests, the smell of alcohol about Defendant’s person, and Defendant’s red and glassy eyes, Officer Smith determined that Defendant was “appreciably impaired” as the result of his consumption of alcohol and arrested him for driving while subject to an impairing substance.
While in the restroom, Defendant urinated on himself, accused Officer Smith of being responsible for this mishap, and refused to cooperate with Officer Smith any further. As a result, Officer Smith was required to enlist help from other officers in returning Defendant to the location at which breath samples were taken from individuals who had been placed under arrest for driving while impaired. After Defendant was seated in a chair at that location, a bag containing a substance ultimately determined to be marijuana fell from his pants leg.
B. Procedural Facts
On 3 October 2011, the Wayne County grand jury returned bills of indictment charging Defendant with possession of methylenedioxyamphetamine, possession of the same substance in a penal institution or local confinement facility,
II. Legal Analysis
A. Possession of a Controlled Substance in a Local Confinement Facility Charge
In his initial challenge to the trial court’s judgment, Defendant argues that the trial court erred by denying his motion to dismiss the possession of a controlled substance in a local confinement facility charge. More specifically, Defendant contends that the record evidence was not sufficient to support the jury’s decision to convict him of committing this offense given that the record did not contain evidence tending to show that he intended to possess a controlled substance in a local confinement facility. Defendant’s contention lacks merit.
1. Standard of Review
In considering whether to grant a motion to dismiss for insufficiency of the evidence, the trial court must determine “ ‘whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.’ ” State v. Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 347 (2012) (quoting State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. In conducting the required analysis, the “trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State’s favor.” Id. at 92, 728 S.E.2d at 347 (quoting State v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594 (2009)) (internal quotation marks omitted). “All evidence, competent or incompetent, must be considered. Any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered.” Id. at 93, 728 S.E.2d at 347. We review the trial court’s denial of a motion to dismiss for insufficiency of the evidence using a de novo standard of review. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).
In his brief, Defendant argues that N.C. Gen. Stat. § 90-95(e)(9), which prescribes the punishment for possession of a controlled substance in a local confinement facility, should not be construed as a strict liability statute and contends that, since the record is devoid of any evidence tending to show that Defendant specifically intended to bring a controlled substance into the jail, his motion to dismiss this charge should have been allowed. Although portions of Defendant’s argument reflect a correct understanding of the applicable law, we are unable to agree with his ultimate conclusion that the trial court should have granted his dismissal motion.
The term mens rea refers to “[t]he state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime.” Black’s Law Dictionary 999 (7th ed. 1999). Although culpable or criminal negligence may suffice to support a defendant’s conviction for committing a criminal offense in some instances, see State v. Oakman, 191 N.C. App. 796, 800, 663 S.E.2d 453, 457 (noting that “culpable negligence can satisfy the intent requirement for certain crimes”), disc, review denied, 362 N.C. 686, 671 S.E.2d 330 (2008), a conviction for committing many, if not most, crimes requires proof that the defendant acted with either general or specific intent. But see, e.g., State v. Jones, 353 N.C. 159, 167, 538 S.E.2d 917, 924 (2000) (stating that “ [a]rson, as a ‘malice’ type crime, is neither a specific nor a general intent offense but requires ‘willful and malicious’ conduct”) (quoting State v. Vickers, 306 N.C. 90, 100, 291 S.E.2d 599, 606 (1982)). For example, “[f]irst degree murder, which has as an essential element the intention to kill, has been called a specific intent crime... [while] [sjecond degree murder, which does not have this element, has been called a general intent crime.” State v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 47 (2000) (quoting State v. Jones, 339 N.C. 114, 148, 451 S.E.2d 826, 844 (1994), cert. denied, 515 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873 (1995)) (quotation marks omitted). The difference between these two categories of criminal offenses is that “[s]pecific-intent crimes are crimes which have as an essential element a specific intent that a result be reached,” while “[g]eneral-intent crimes are crimes which only require the doing of some act.” Oakman, 191 N.C. App. at 800, 663 S.E.2d at 457 (quoting State v. Pierce, 346 N.C. 471, 494, 488 S.E.2d 576, 589 (1997)) (citations and internal quotations omitted). A court determines whether a particular criminal offense constitutes a general or specific intent crime by examining the elements which must be proved in order to support a conviction for committing that offense. See, e.g., State v. Mize, 315 N.C. 285, 293,
N.C. Gen. Stat. § 90-95(e)(9) provides that “[a]ny person who violates [N.C. Gen. Stat. §] 90-95(a)(3) on the premises of a penal institution or local confinement facility shah be guilty of a Class H felony.” A careful examination of the relevant statutory language provides no indication that the General Assembly intended to create a specific intent crime by enacting N.C. Gen. Stat. § 90-95(a)(3), which simply punishes the possession of a controlled substance. “[A]n accused has possession of marijuana within the meaning of the Controlled Substances Act, G.S. Chapter 90, Art. V, when he has both the power and the intent to control its disposition or use . . . .” State v. Baxter, 285 N.C. 735, 737-38, 208 S.E.2d 696, 698 (1974). Although N.C. Gen. Stat. §§ 90-95(a)(l) and (a)(2) punish, among other things, the possession of either a controlled substance or a counterfeit controlled substance with the “intent to” manufacture, sell or deliver, N.C. Gen. Stat. § 90-95(a)(3) contains no reference to the necessity for proof that the defendant acted with any specific intent. Thus, guilt of possession of a controlled substance in violation of N.C. Gen. Stat. § 90-95(a)(3) simply requires proof of general intent coupled with the requisite knowledge. See State v. Elliott, 232 N.C. 377, 378-79, 61 S.E.2d 93, 95 (1950) (stating that lack of knowledge is a defense to a possession of intoxicating liquor charge). As a result, since a conviction for committing the offense made punishable by N.C. Gen. Stat. § 90-95(e) (9) involves a violation of N.C. Gen. Stat. § 90-95(a)(3) committed in a penal institution or local confinement facility, we agree with Defendant that the offense made punishable by N.C. Gen. Stat. § 90-95(e)(9) is not a strict liability statute.
On other hand, however, we cannot agree that the offense made punishable by N.C. Gen. Stat. § 90-95(e)(9) is, as Defendant suggests in his brief, a specific intent crime.
The evidence presented at trial clearly supports a finding that Defendant knowingly possessed a controlled substance and that this knowing possession occurred in a local confinement facility. For that reason, the record contains ample support for Defendant’s conviction for committing the offense made punishable by N.C. Gen. Stat. § 90-95(e)(9). As a result, although Defendant’s contention that the criminal offense specified in N.C. Gen. Stat. § 90-95(e)(9) is not a strict liability offense is certainly correct, the record does contain sufficient evidence to support a determination that Defendant committed the general intent plus knowledge crime made punishable by that statutory provision. Thus, the principal contention advanced in Defendant’s brief does not justify an award of appellate relief.
3. Voluntariness
In addition to arguing that the crime punishable by N.C. Gen. Stat. § 90-95(e)(9) is not a strict liability offense, Defendant argues that he did not “voluntarily enter the Wayne County Detention Center.”
As a general proposition, the term “actus reus” refers to “[t]he wrongful deed that comprises-the physical components of a crime.” Black's Law Dictionary 37 (7th ed. 1999). According to the actus reus requirement, guilt of a criminal offense ordinarily requires proof that the defendant voluntarily committed a physical act. See State v. Fields, 324 N.C. 204, 208, 376 S.E.2d 740, 742 (1989) (explaining that “[t]he absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability”) (citations and quotation marks omitted). As a result, regardless of “[w]hether the offense charged be a specific-intent or a general-intent crime, in order to convict the accused the State must prove that he voluntarily did the forbidden act.” State v. Caddell, 287 N.C. 266, 296, 215 S.E.2d 348, 367 (1975). After considering the specific language of the statute under which Defendant was convicted and the decisions reached in the majority of jurisdictions which have considered this issue, however, we are convinced, contrary to Defendant’s contention, that a defendant may be found guilty of possession of a controlled substance in a local confinement facility even though he was not voluntarily present in the facility in question.
The first problem with this aspect of Defendant’s challenge to the trial court’s decision to deny his dismissal motion is that it has no support in the relevant statutory language. The offense punishable by N.C. Gen. Stat. § 90-95(e)(9) revolves around the possession of a controlled substance in a penal institution or local confinement facility rather than around the intentional bringing or introduction of a controlled substance into such a facility. A reviewing court should, of course, take the statutory language defining the offense for which a defendant was convicted
In addition, Defendant’s position is inconsistent with the result reached in the majority of decisions from other jurisdictions that have addressed the issue of whether a defendant can be convicted of possessing a controlled substance in a confinement facility after having been involuntarily brought into the facility following an arrest.
B. Simple Possession
Secondly, Defendant contends that, should this Court uphold his conviction for possession of a controlled substance in a local confinement facility, the trial court’s judgment reflecting his conviction for simple possession of that same substance should be vacated. More specifically, Defendant argues that the trial court erred by entering judgment against him for both possession of a controlled substance in a confinement facility and simple possession of the same controlled substance because the latter is a lesser included offense of the former. Defendant’s alternative contention has merit.
As we have previously noted, a defendant who has been found guilty of violating N.C. Gen. Stat. § 90-95(e)(9) has necessarily violated N.C. Gen. Stat. § 90-95(a)(3) as well. For that reason, the offense made punishable by N.C. Gen. Stat. § 90-95(a)(3) is a lesser included offense of the offense made punishable by N.C. Gen. Stat. § 90-95(e)(9). “It is well settled in North Carolina that when a defendant is indicted for a
III. Conclusion
Thus, for the reasons set forth above, we conclude that, while the trial court did not err by denying Defendant’s motion to dismiss the possession of a controlled substance in a local confinement facility charge, it erred by entering judgment against Defendant based upon his convictions for both possession of a controlled substance in a local confinement facility and simple possession of the same controlled substance. As a result, we find no error in Defendant’s conviction for possession of a controlled substance in a confinement facility, vacate Defendant’s conviction for simple possession of a controlled substance, and remand this case to the Wayne County Superior Court for resentencing.
NO ERROR IN PART; VACATED AND REMANDED FOR RESENTENCING IN PART.
. All of the charges relating to Defendant’s possession of methylenedioxamphetamine were voluntarily dismissed by the State based upon a determination that methylenedioxyamphetamine had not been statutorily defined as a controlled substance as of the date upon which Defendant was arrested for driving while impaired and brought to the Wayne County jail.
. In addition to the offenses discussed in the text, Defendant was also charged with and convicted of driving while impaired. We have not set forth the procedural facts relating to this charge in our opinion given that Defendant has not advanced any argument concerning this charge in his brief before this Court.
. We do not understand the State to disagree with Defendant’s contention that the crime made punishable by N.C. Gen. Stat. § 90-95(e)(9) is not a strict liability offense.
. Defense counsel at trial candidly admitted to the court that he did not believe that the offense made punishable in N.C. Gen. Stat. § 90-95(e)(9) was a specific intent crime.
. Although Defendant never specifically mentions the term actus reus and describes his argument as resting upon the State’s failure to show that he possessed the “intent” required for a finding of guilt, we believe that it is fair to interpret Defendant’s argument as an assertion that he lacked the intent necessary to support a finding of guilt and that he did not act intentionally, i.e., that he should be acquitted because he did not enter the Wayne County jail while possessing marijuana voluntarily.
. In addition to the six opinions discussed in the text, Tennessee reached a similar conclusion in an unpublished decision. State v. Carr, 2008 Term. Crim. App. LEXIS 753 (Tenn. Crim. App. 2008).
. We note that the Ohio Court of Appeals in State v. Sowry, 155 Ohio App. 3d 742, 803 N.E.2d 867 (2004), came to a contrary conclusion. However, it seems clear to us that that decision was implicitly overruled in Cargile.
. Although our dissenting colleague argues that we have attempted to distinguish the language of the Oregon statute at issue in Tippetts from the language of N.C. Gen. Stat. § 90-95(e)(9), we readily acknowledge that the- outcomes reached in the decisions from other jurisdictions discussed in the text of this opinion, including Tippetts, do not hinge on the literal language of the statutory provisions at issue in those cases and that, instead, those decisions focus directly on the issue of whether a finding that a defendant unlawfully possessed controlled substances in a prison or jail can be sustained when the defendant is brought into the confinement facility in the aftermath of a custodial arrest by investigating officers. We do, however, believe that the wording of the relevant statutory provision is important and have taken the language of N.C. Gen. Stat. §§ 90-95(a)(3) and 90-95(e) (9) into account in reaching the decision that Defendant’s conviction for possession of a controlled substance in a local confinement facility should not be overturned.
. Interestingly, the New Mexico Court of Appeals has held in a number of unpublished decisions that, when a prisoner who has been granted work release brings unlawful controlled substances back to the facility after work, he can be convicted of bringing contraband into the prison facility despite having no alternative except to enter the unit in which he is confined because the defendant “was in prison where he knew the contraband was prohibited” and elected to return to the facility with forbidden substances anyway. See State v. Rueda, 2009 N.M. App. Unpub. LEXIS 360, at *5 (2009); State v. Acosta, 2009 N.M.App. Unpub. LEXIS 244, at *2-3, cert, denied, N.M. LEXIS 956 (July 14,2009).
. We recognize that, while certain voluntarily created states of impairment such as intoxication do not constitute a defense to a general intent crime, see, e.g., State v. Baldwin, 330 N.C. 446, 462, 412 S.E.2d 31, 41 (1992) (recognizing that “voluntary intoxication may only be considered as a defense to specific intent crimes”), unconsciousness and other factors, such as duress, may shield a defendant from any culpability. E.g., State v. Jerrett, 309 N.C. 239, 264-65, 307 S.E.2d 339, 353 (1983) (quoting State v. Mercer, 275 N.C. 108, 116, 165 S.E.2d 328, 334 (1969), overruled on other grounds in Caddell, 287 N.C. at 290, 215 S.E.2d at 363) (recognizing that “[t]he absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability”) (internal quotation marks omitted); State v. Seahorn, 166 N.C. 373, 377, 81 S.E. 687, 688 (1914) (noting, without making any explicit mention of the actus reus requirement, that “the law presumed that the wife acted under the compulsion of her husband, and the burden was upon the State to rebut this presumption). However, Defendant has not advanced any sort of unconsciousness or duress-related defense in this case.
. Although certain of the opinions from other jurisdictions that uphold convictions resting on facts similar to those present here note that the defendant was warned that taking a controlled substance into the jail would constitute a separate offense, we do not believe that the absence of such a warning in this case is of any consequence given that
. This Court is not oblivious to the fact that our decision may have the effect of requiring a defendant who is arrested while in possession of a controlled substance to admit to the commission of a criminal offense in order to avoid liability for committing a more serious one. However, aside from the fact that Defendant did not advance an argument in reliance upon Fifth Amendment principles in his brief, Viar v. N.C. Dept. of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (stating that “[i]t is not the role of the appellate courts ... to create an appeal for an appellant”), and the fact that the
. Assuming, without deciding, that the State is correct in contending that Defendant failed to properly preserve this issue for appellate review, we elect, as we did in Moncree, to exercise our authority pursuant to N.C.R. App. P. 2 to reach the merits of Defendant’s claim.