The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-949
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 12 CRS 214702
CLEVELAND RAY
Appeal by defendant from judgment entered 2 May 2013 by
Judge Nathaniel J. Poovey in Mecklenburg County Superior Court.
Heard in the Court of Appeals 31 March 2014.
Roy Cooper, Attorney General, by Justin M. Hampton,
Assistant Attorney General, for the State.
Mary March Exum for defendant-appellant.
DAVIS, Judge.
Cleveland Ray (“Defendant”) appeals from a judgment entered
upon his conviction for felony possession of cocaine. After
careful review, we find no error.
Factual Background
Defendant was charged with possession with intent to sell
or deliver cocaine and maintaining a dwelling for such purposes.
The charges arose from a 4 April 2012 search of a boarding house
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where Defendant leased a room. Officers seized 2.6 grams of
crack cocaine and $965.00 in cash from Defendant’s person.
Defendant was tried during the 1 May 2013 Criminal Session
of Mecklenburg County Superior Court. At the close of the
State’s evidence, Defendant moved for dismissal of the charges
against him, and the trial court allowed his motion as to the
maintaining a dwelling charge. The jury found Defendant guilty
of felony possession of cocaine — the lesser-included offense of
possession with intent to sell or distribute cocaine. The trial
court sentenced Defendant to a term of 10 to 21 months
imprisonment. Defendant appealed to this Court.
Analysis
Defendant’s sole argument on appeal is that the trial court
erred in denying his motion to dismiss the charge of possession
with intent to sell or deliver cocaine.
A trial court’s denial of a defendant’s motion to dismiss
is reviewed de novo. State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007). On appeal, this Court must determine
“whether there is substantial evidence (1) of each essential
element of the offense charged, or of a lesser offense included
therein, and (2) of defendant’s being the perpetrator . . . .”
State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)
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(citation omitted). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265
S.E.2d 164, 169 (1980). The evidence must be viewed in the
light most favorable to the State with every reasonable
inference drawn in the State’s favor. State v. Rose, 339 N.C.
172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S.
1135, 132 L.Ed.2d 818 (1995). Any inconsistencies or
discrepancies in the evidence are for the jury to resolve and do
not warrant dismissal. State v. Powell, 299 N.C. 95, 99, 261
S.E.2d 114, 117 (1980).
Although Defendant argues that the trial court erred in
denying his motion to dismiss the possession with intent to sell
or deliver cocaine charge, he does not contend that the trial
court erred in submitting the lesser-included offense of
possession of cocaine. Indeed, Defendant concedes on appeal
that “the State presented sufficient evidence that [Defendant]
possessed cocaine” to withstand the motion to dismiss. The jury
ultimately convicted Defendant only of the lesser offense of
possession of cocaine.
“[I]t is well established in North Carolina that a
conviction of a lesser offense renders any error in submission
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of a greater offense harmless.” State v. Williams, 100 N.C.
App. 567, 573, 397 S.E.2d 364, 368 (1990). Thus, even assuming
arguendo that the trial court erred in submitting the offense of
possession with intent to sell or distribute cocaine because
there was insufficient evidence of Defendant’s intent to sell or
distribute, such error was rendered harmless by the jury’s
verdict convicting him of the lesser-included offense of
possession of cocaine. See State v. Williams, 154 N.C. App.
176, 181, 571 S.E.2d 619, 622 (2002) (holding that “[e]ven
assuming, arguendo, there was insufficient evidence of ‘serious
bodily injury’ to satisfy the statutory definition, any error in
submission to the jury of the greater offense was rendered
harmless by the jury’s verdict convicting of the lesser offense
of assault inflicting serious injury”). Accordingly,
Defendant’s argument is overruled.
Conclusion
For the reasons stated above, we conclude that Defendant
received a fair trial free from error.
NO ERROR.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
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