State v. McRae

430 S.E.2d 434 (1993)

110 N.C. App. 643

STATE of North Carolina v. Gordon McRAE.

No. 9220SC697.

Court of Appeals of North Carolina.

June 15, 1993.

*436 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Karen E. Long, Raleigh, for the State.

Pollock, Fullenwider, Cunningham & Patterson, P.A. by Bruce T. Cunningham, Jr., Southern Pines, for defendant-appellant.

WELLS, Judge.

In his first assignment of error, defendant contends the trial court improperly denied defendant's motion to dismiss the charge of trafficking in cocaine by transporting. Specifically, defendant contends that on 18 October 1990, he immediately delivered the cocaine to the undercover officer when he returned from Mr. Williams' house, and from that point on, he was simply holding the cocaine under Agent Francisco's direction. We disagree.

We note initially that when reviewing the sufficiency of the State's evidence to overcome a motion to dismiss, the evidence must be viewed and considered in a light most favorable to the State. If there is substantial evidence that the crime charged was committed and the defendant was the perpetrator, a motion to dismiss must be denied. State v. Riddle, 300 N.C. 744, 268 S.E.2d 80 (1980).

N.C.Gen.Stat. § 90-95(h)(3) provides in pertinent part that "[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine ... shall be guilty of a felony, which felony shall be known as `trafficking in cocaine.'" In State v. Greenidge, 102 N.C.App. 447, 402 S.E.2d 639 (1991), the Court stated that although the word "transport" has not been defined in the North Carolina Controlled Substances Act, G.S. § 90-86 et seq., our courts have previously defined it as "any real carrying about or movement from one place to another." Id. (quoting Cunard Steamship Company v. Mellon, 262 U.S. 100, 43 S. Ct. 504, 67 L. Ed. 894 (1922)).

Our courts have determined that even a very slight movement may be "real" or "substantial" enough to constitute "transportation" depending upon the purpose of the movement and the characteristics of the areas from which and to which the contraband is moved. See Greenidge, supra. For instance, in State v. Outlaw, 96 N.C.App. 192, 385 S.E.2d 165 (1989), disc. review denied, 326 N.C. 266, 389 S.E.2d 118 (1990), our Court concluded that the defendant was guilty of trafficking by transporting cocaine when he removed drugs from a dwelling, placed them in his truck parked in the driveway, and backed a minimal distance down his driveway. In State v. Greenidge, we determined that the simple act of tossing the drugs from a dwelling to a point outside the curtilage was "real" or "substantial" movement so *437 as to constitute "transportation." See Greenidge, supra.

Here, defendant removed the drugs from a dwelling house and carried them to a car by which he left the premises. In keeping with prior case law, we find such movement to be "substantial" and sufficient to sustain the charge of trafficking by transporting in violation of G.S. § 90-95(h)(3).

Defendant next contends that he cannot be convicted of both trafficking in cocaine by transporting and trafficking in cocaine by possessing because the two convictions involve one incident with the same cocaine and would subject him to double jeopardy. We disagree.

The North Carolina Supreme Court, in State v. Steward, 330 N.C. 607, 411 S.E.2d 376 (1992), squarely addressed this issue and determined that a defendant could be convicted of and sentenced for trafficking by transporting and possession as two separate crimes when the same cocaine was involved in both offenses. This assignment of error is therefore overruled.

By his third assignment of error, defendant contends that the trial court erred in not submitting to the jury, in addition to the trafficking in cocaine by possessing charge, the lesser charge of felonious possession of cocaine. In his testimony about the events of 18 October 1990, the defendant stated that before he delivered the cocaine from the supplier to the undercover agent, he stopped in the bathroom and took a tiny amount of cocaine for himself. For the court to submit the charge of felonious possession of cocaine under G.S. § 90-95(d), there must be evidence that the defendant possessed more than one gram of cocaine. See State v. Hyatt, 98 N.C.App. 214, 390 S.E.2d 355 (1990). The evidence at trial tends to establish that defendant took less than a gram of cocaine for himself. The trial court may not submit the charge of felonious possession because the evidence was insufficient to support it. See State v. Agubata, 94 N.C.App. 710, 381 S.E.2d 191 (1989). When all the evidence tends to show that the accused committed the crime charged and there is no evidence of guilt of a lesser-included offense, a court is correct in refusing to charge on the lesser-included offense. State v. Summitt, 301 N.C. 591, 273 S.E.2d 425, cert. denied, 451 U.S. 970, 101 S. Ct. 2048, 68 L. Ed. 2d 349 (1981). We therefore overrule this assignment of error.

By his fourth assignment of error, defendant asserts that the trial court erred in refusing to dismiss the charges of trafficking by sale on 18 October 1990, and sale and possession with intent to sell and deliver on 24 October 1990 because the evidence was insufficient to support these charges. We find defendant's arguments unpersuasive. After reviewing the record and applying the Riddle standard as previously set forth, we are of the opinion that there was sufficient evidence of every essential element of the offenses charged. We find the denial of defendant's motion to dismiss to be proper.

By his final assignment of error, defendant claims that the trial court erred in refusing to dismiss the charge of trafficking. Defendant, however, presents no argument in support of this contention, and therefore, this assignment of error is deemed abandoned. N.C.R.App.P. 28(a).

For the reasons set forth herein, we find the defendant received a fair trial free from prejudicial error.

No error.

COZORT and JOHN, JJ., concur.