State v. Ussery

416 S.E.2d 610 (1992)

106 N.C. App. 371

STATE of North Carolina v. Derrick Keith USSERY.

No. 926SC41.

Court of Appeals of North Carolina.

June 2, 1992.

*611 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. K.D. Sturgis, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Teresa A. McHugh, Raleigh, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant first argues that the trial court erred by denying his motions to dismiss because the evidence presented was insufficient. Specifically, defendant contends there was no evidence presented that the offense was committed within 300 feet of the legal boundary of a school. We disagree.

In ruling on a motion to dismiss, the trial court must determine whether the State presented substantial evidence of each element of the offense charged. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. Id.

In this case, an element of the offense charged is that the offense was committed "on property used for an elementary or secondary school or within 300 feet of the boundary of real property used for an elementary or secondary school...." G.S. 90-95(e)(8). Principal Kathy Landen testified that a measurement was made from the boundary of Chaloner Middle School to the site of the offense. Her identification of the boundary was based on a deed and plat of the property and on the use of the property by the school. Likewise, Superintendent Mike Williams of the Roanoke Rapids Graded School District testified that the measurement was made from the boundary of the school as he knew it based on the deed and plat and on his experience in supervising the school. The distance was measured twice and found to be 242 feet. We hold this evidence was sufficient to show that the site of the drug purchases was within 300 feet of the boundary of real property used for a school. Defendant's argument is meritless.

*612 Defendant next argues the trial court should have dismissed one of the indictments because there was only one transaction. Specifically, defendant contends his right to due process was violated because an undercover agent made two purchases of cocaine within a short time of each other. We disagree.

Clearly, evidence of two separate offenses was presented in this case. Our Supreme Court has stated that relief may be granted "where, through vindictive prosecutorial abuse, criminal charges, arising out of the same course of conduct, have been arbitrarily stacked like pancakes, one upon another, with the result that the total punishment imposed is so disproportionate to his offenses as to violate that fundamental concept of fairness which is the basis of due process of law." State v. Fulcher, 294 N.C. 503, 526, 243 S.E.2d 338, 353 (1978). In this case, defendant's consecutive prison terms total thirty years. Since the trial court found there was an aggravating factor and no mitigating factors, defendant could have been sentenced to the maximum thirty years in prison for any one of the offenses. For that reason, the total punishment is not so disproportionate as to violate defendant's right to due process. Defendant's argument is meritless.

Finally, defendant argues that the trial court erred by requiring him to provide a list of witnesses and by refusing to grant a mistrial based upon the prosecutor's closing argument. We disagree.

Prior to jury selection, the State requested a list of defendant's potential witnesses and defendant objected. The trial court denied the objection and ordered defendant to furnish the State with the names. The trial court ordered the names to be divulged so that during voir dire of potential jurors the State and the court could ascertain the jurors' knowledge of and relationship to any witnesses that might be called to testify. A requirement that a defendant divulge the names of potential witnesses for this purpose is not in and of itself error or abuse of discretion. See State v. Smith, 320 N.C. 404, 358 S.E.2d 329 (1987).

Defendant further contends the requirement that he divulge the names of potential witnesses was prejudicial to him because the prosecutor used the names during closing argument to show he did not call certain witnesses in his defense. Defendant has failed to provide a transcript of the closing argument in question. Our review is limited to what appears in the record or in the verbatim transcript of proceedings. N.C.R.App.P. 9(a). We cannot assume or speculate that there was prejudicial error when none appears on the record. See State v. Moore, 75 N.C.App. 543, 331 S.E.2d 251, disc. review denied, 315 N.C. 188, 337 S.E.2d 862 (1985). For that reason, we are precluded from addressing the alleged error in the prosecutor's closing argument. Defendant has failed to show the trial court erred by requiring him to provide a list of witnesses and by refusing to grant a mistrial based on the prosecutor's closing argument.

We hold defendant had a fair trial, free from prejudicial error.

No error.

JOHNSON and WYNN, JJ., concur.