An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 16 October 2012
STATE OF NORTH CAROLINA
Nos. 09 CRS 225452;
10 CRS 64271
RAMONE DANGELO CUNNINGHAM
Appeal by Defendant from judgment entered 24 May 2011 by
Judge Nathaniel J. Poovey in Mecklenburg County Superior Court.
Heard in the Court of Appeals 15 August 2012.
Attorney General Roy Cooper, by Assistant Attorney General
Scott K. Beaver, for the State.
Michael E. Casterline, for Defendant.
Ramone Dangelo Cunningham (Defendant) appeals from judgment
entered on his conviction for felony possession of cocaine.
the following reasons, we find no error.
across the street from Breakroom Pool Hall, investigating a tip
from a confidential informant (CI) that Adrian McCorey was known
detectives observed McCorey loitering in the parking lot of the
white object on the ground near the back of a nearby vehicle.
Thereafter, investigating officers found a small bag containing
cocaine near the back of the vehicle, in a location consistent
Subsequently, Defendant was arrested and indicted for possession
with intent to sell or deliver cocaine.
requesting the trial court to compel the State to release the
identity of the CI.
Defendant was convicted of possession of
cocaine and having attained habitual felon status.
From this judgment, Defendant filed notice
failing to compel the State to divulge the identity of the CI.
Specifically, Defendant contends that the CI could have provided
favorable testimony for his defense and that, pursuant to Brady
v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963), the State is
-3required to disclose exculpatory evidence.
In Brady, the United
constitutional right to disclosure of evidence that would tend
to exculpate him.”
State v. McEachern, 114 N.C. App. 218, 222,
441 S.E.2d 574, 576 (1994) (citing Brady, 373 U.S. at 87, 10 L.
Ed. 2d at 218).
“To establish a Brady violation, a defendant must show (1)
that the prosecution suppressed evidence; (2) that the evidence
was favorable to the defense; and (3) that the evidence was
material to an issue at trial.”
State v. McNeil, 155 N.C. App.
Although “[m]ateriality does not require a demonstration by a
preponderance that disclosure of the suppressed evidence would
government’s suppression of evidence would undermine confidence
in the outcome of the trial.”
State v. Williams, 362 N.C. 628,
636, 669 S.E.2d 290, 296 (2008) (citation and quotation marks
Accordingly, “[e]vidence is considered material only
if there is a reasonable probability of a different result had
the evidence been disclosed to the defense.”
McNeil, 155 N.C.
-4App. at 542, 574 S.E.2d at 147 (citation and internal quotation
Defendant argues that the State had a duty to disclose the
identity of the CI because the CI could have testified that he
had never seen Defendant, and did not know Defendant.
claims that this evidence would be favorable to his defense
because it would indicate that Defendant is not involved in
McCorey’s drug dealing activities.
Defendant contends that the
suppressed the identity of the CI by objecting to Defendant’s
evidence that would be favorable to Defendant because it would
demonstrate that Defendant is not involved in McCorey’s drug
material to demonstrating that Defendant was not involved in
Defendant cites State v. Canady, 355 N.C. 242,
559 S.E.2d 762 (2002) for the proposition that the State must
disclose identities of informants where there is a reasonable
probability that Defendant could have interviewed the informants
and uncovered “information [that] could have swayed the jury to
reach a different outcome.”
Id. at 252, 559 S.E.2d at 767.
Canady, the informants whose identities were suppressed by the
-5State had given the State the names of five individuals who were
purported to be involved in a murder case.
determined that the defendant in
could have used the
thereby casting doubt in the minds of the jurors.
Here, there is no such reasonable probability that the CI
Even assuming, arguendo, that the CI would
testify that he had never seen Defendant before, there is no
reason to believe that information would lead to a different
Defendant was involved in selling drugs with McCorey, the jury
convicted Defendant of possession of a controlled subject, as
opposed to trafficking.
In order to establish possession of a
controlled substance, the State must only prove that Defendant
“ha[d] both the power and intent to control its disposition or
State v. Tisdale, 153 N.C. App. 294, 297, 569 S.E.2d 680,
Defendant’s argument is overruled.
Defendant next argues that the trial court erred in denying
his motion to dismiss where the evidence presented by the State
was inherently incredible and contradictory.
“The denial of a
motion to dismiss for insufficient evidence is a question of
-6law, which this Court reviews de novo.”
State v. Bagley, 183
“Upon defendant’s motion for dismissal, the question for
the Court is whether there is substantial evidence (1) of each
charged . . . and
defendant’s being the perpetrator of such offense.
motion is properly denied.”
If so, the
State v. Thaggard, 168 N.C. App.
263, 280-81, 608 S.E.2d 774, 786 (2005) (citation and quotation
Defendant contends that the State’s evidence
was contradictory because Detectives Hetrick and Shipman first
testified that they could not positively identify the object
thrown by Defendant in the pool hall parking lot, but later
testified that they were certain that Defendant possessed the
bag of cocaine recovered from the ground.
argues that it would be impossible for the detectives to observe
Defendant tossing the bag of cocaine and to then identify the
recovered cocaine as the object that was thrown.
This Court has determined that
[e]vidence is substantial if it is relevant
and adequate to convince a reasonable mind
to accept a conclusion.
evidence, whether direct, circumstantial, or
both, supports a finding that the offense
charged has been committed and that the
dismiss should be denied and the case goes
to the jury.
motion to dismiss, the trial court must analyze the evidence in
the light most favorable to the State and give the State the
benefit of every reasonable inference from the evidence.”
Hetrick’s and Shipman’s testimonies were contradictory and thus
his motion to dismiss should have been granted is without merit.
Both detectives stated that they are certain that the bag of
cocaine recovered from the parking lot is the same object that
they saw in Defendant’s possession.
Also, the detectives stated
that Defendant tossed the object onto the ground in the parking
lot in a location consistent with where the bag of cocaine was
When considered in the light most favorable to the
State, this evidence is sufficient to allow a reasonable juror
to infer that Defendant possessed the bag of cocaine.
Although the jury is typically charged with weighing the
credibility of evidence so long as substantial evidence exists,
this rule does not apply “where the testimony is inherently
established by the State’s own evidence.”
N.C. App. 37, 43, 323 S.E.2d 56, 60 (1984).
State v. Begley, 72
Defendant points to
-8State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967), where
witness observed the defendant at night from a distance of at
least 286 feet.
We find the instant case to be more analogous to State v.
Brewer, 328 N.C. 515, 402 S.E.2d 380 (1991), than to Miller.
The Brewer Court determined that the testimony of a locomotive
engineer driving a train at the time of a collision with the
defendant’s car “was not so inherently incredible as to require
the judge to take the case from the jury” when the engineer, who
was a half mile away, claimed to have witnessed the defendant
drive a car onto railroad tracks then slowly back the vehicle up
exiting the vehicle, leaving the passenger to be struck and
killed by the oncoming train.
Id. at 518-20, 402 S.E.2d at 383-
Here, Detectives Shipman and Hetricks observations occurred
during daylight hours from a distance of 50 yards or less and
both detectives testified that their view was not obstructed or
Defendant and McCorey, Detective Hetrick was driving his vehicle
behind the patrol car.
He saw Defendant toss an object, which
quarter, toward the rear tire of a nearby vehicle.
Shipman was positioned across the street from the pool hall, at
a distance of approximately forty or fifty yards and observed
Defendant toss an object to the ground toward the rear of the
cocaine, the only such bag in the case, in a location consistent
with the description offered by the detectives.
Based on the
detectives’ testimonies and the physical evidence provided by
the State, we cannot say that the detectives’ observations are
Accordingly, the trial court properly
denied Defendant’s motion to dismiss, leaving the jury to weigh
calculated his prior record level, resulting in an erroneous
federal firearms charge should have been categorized as a Class
determined. We disagree.
In a sentencing hearing, a defendant’s prior record level
is “determined by calculating the sum of the points assigned to
-10each of the offender’s prior convictions[.]”
State v. Burgess,
___ N.C. App. ___, ___, 715 S.E.2d 867, 869 (2011) (citation
State v. Alexander, 359 N.C. 824, 827,
616 S.E.2d 914, 917 (2005).
If a defendant has a prior felony
conviction from a jurisdiction other than North Carolina, the
Burgess, ___ N.C. App. at ___, 715 S.E.2d at 869.
“‘[i]f the State proves by the preponderance of the evidence
as . . . a
jurisdiction is substantially similar to an offense in North
Carolina that is classified as a Class I felony or higher, the
conviction is treated as that class of felony for assigning
prior record level points.’”
Id. (quoting N.C. Gen. Stat. §
15A-1340.14(e) (2011)) (citation omitted).
“The trial court’s assignment of a prior record level is a
conclusion of law which we review de novo.”
State v. Wright,
denied, 365 N.C. 200, 710 S.E.2d 9 (2011) (internal quotation
substantially similar to a North Carolina offense is a question
of law involving comparison of the elements of the out-of-state
-11offense to those of the North Carolina offense.”
N.C. App. at ___, 715 S.E.2d at 870 (citation omitted).
conviction to a North Carolina crime, and that copies of the
relevant statutes can serve as evidence.
State v. Rich, 130
N.C. App. 113, 117, 502 S.E.2d 49, 52 (1998).
Defendant was convicted in 2005 of a federal charge under
18 U.S.C. 922(g)(1): Convicted Felon in Possession of a Firearm
The State provided copies of the relevant
Thereafter, the trial court
relied upon these
statute copies to conclude that the federal firearm charge was
substantially similar to North Carolina’s charge of possession
constituted a Class G felony.
Although the State consented to a
Class I classification,
the question of whether a conviction under
an out-of-state statute is substantially
similar to an offense under North Carolina
statutes is a question . . . to be resolved
by the trial court, and stipulations as to
questions of law are generally held invalid
and ineffective, and not binding upon the
courts, either trial or appellate.
analysis of the relevant statutes, the trial court requested
copies of the federal statute and the North Carolina statute for
Pursuant to N.C. Gen. Stat. § 15A-1340.14(f)(4) (2011), a prior
conviction can be proven by any method “found by the court to be
reliable” and certainly comparing the relevant statutes would be
an appropriately reliable method for the trial court to employ.
The federal statute under which Defendant was convicted provides
that it is unlawful for any person who has been convicted of “a
crime punishable by imprisonment for a term exceeding one year”
to possess any firearm or ammunition in interstate commerce.
U.S.C. 922(g)(1) (2011).
The analogous North Carolina statute
provides that “[i]t shall be unlawful for any person who has
been convicted of a felony to purchase, own, possess, or have in
his custody, care or control any firearm[.]”
N.C. Gen. Stat. §
In North Carolina, a felony is defined, in
part, as an offense which could warrant imprisonment.
Stat. § 14-1 (2011).
Therefore, a person convicted of a crime
resulting in imprisonment for over a year must be a felon in
Accordingly, we find that the statutes are
-13substantially similar and Defendant is therefore not entitled to
a new sentencing hearing.
having attained habitual felon status should be reversed because
his conviction for the underlying offense, cocaine possession,
was the result of the preceding errors.
conviction is likewise affirmed.
Judges HUNTER, Robert C. and GEER concur.
Report per Rule 30(e).