{ "id": 8918799, "name": "STATE OF NORTH CAROLINA v. TYRONE ANTHONY LANE", "name_abbreviation": "State v. Lane", "decision_date": "2004-04-06", "docket_number": "No. COA03-510", "first_page": "495", "last_page": "503", "citations": [ { "type": "official", "cite": "163 N.C. App. 495" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "292 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569585 ], "year": 1977, "opinion_index": -1, "case_paths": [ "/nc/292/0294-01" ] }, { "cite": "463 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "421", "parenthetical": "applying standard arraignment law to habitual felon charge" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 571", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916817 ], "year": 1995, "pin_cites": [ { "page": "578", "parenthetical": "applying standard arraignment law to habitual felon charge" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0571-01" ] }, { "cite": "578 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "634" } ], "opinion_index": 0 }, { "cite": "356 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511179, 1511403, 1511277, 1511540, 1511320 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0691-04", "/nc/356/0691-03", "/nc/356/0691-05", "/nc/356/0691-02", "/nc/356/0691-01" ] }, { "cite": "571 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "595", "parenthetical": "rejecting the defendant's claim of section 15A-943 violations in the absence of a written arraignment request in the record" }, { "page": "595" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 630", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251098 ], "year": 2002, "pin_cites": [ { "page": "633-34", "parenthetical": "rejecting the defendant's claim of section 15A-943 violations in the absence of a written arraignment request in the record" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0630-01" ] }, { "cite": "237 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "847" } ], "opinion_index": 0 }, { "cite": "293 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563998 ], "year": 1977, "pin_cites": [ { "page": "319-20" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0315-01" ] }, { "cite": "230 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "194", "parenthetical": "\"evidence which places an accused within close juxtaposition to a narcotic drug under circumstances giving rise to a reasonable inference that he knew of its presence may be sufficient to justify the jury in concluding that it was in his possession\"" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 569", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551091 ], "year": 1976, "pin_cites": [ { "page": "571", "parenthetical": "\"evidence which places an accused within close juxtaposition to a narcotic drug under circumstances giving rise to a reasonable inference that he knew of its presence may be sufficient to justify the jury in concluding that it was in his possession\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0569-01" ] }, { "cite": "428 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "290" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 684", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526231 ], "year": 1993, "pin_cites": [ { "page": "687-88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0684-01" ] }, { "cite": "313 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "589" } ], "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "year": 1984, "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] }, { "cite": "361 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "323" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358426 ], "year": 1987, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0380-01" ] }, { "cite": "567 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511311 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0141-01" ] }, { "cite": "556 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "311", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377653 ], "year": 2001, "pin_cites": [ { "page": "11", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0001-01" ] }, { "cite": "556 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138558 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0549-01" ] }, { "cite": "550 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "3" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435089 ], "year": 2001, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0445-01" ] }, { "cite": "235 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "267" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549378 ], "year": 1977, "pin_cites": [ { "page": "292-93" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0291-01" ] }, { "cite": "442 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "30" } ], "opinion_index": 0 }, { "cite": "336 N.C. 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538166 ], "year": 1994, "pin_cites": [ { "page": "32-33" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0022-01" ] }, { "cite": "568 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "282" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 714", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251438 ], "year": 2002, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0714-01" ] }, { "cite": "393 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "327 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496850 ], "year": 1990, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0162-01" ] }, { "cite": "367 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "355" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522558 ], "year": 1988, "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0101-01" ] }, { "cite": "559 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "355 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219976 ], "year": 2002, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0266-01" ] }, { "cite": "552 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "218" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11355762 ], "year": 2001, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0234-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-108", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "310" }, { "page": "(a)(7)" }, { "page": "(a)(7)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "233 S.E.2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "554" } ], "opinion_index": 0 }, { "cite": "292 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569585 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0294-01" ] } ], "analysis": { "cardinality": 907, "char_count": 20397, "ocr_confidence": 0.761, "pagerank": { "raw": 1.1999315255904246e-07, "percentile": 0.5933857533778997 }, "sha256": "a46b25a3994ea46f0fcfcd866eef0849d68500d2eed0cc42224a479d7be8b765", "simhash": "1:2db8d0bfb42f055a", "word_count": 3298 }, "last_updated": "2023-07-14T15:27:37.331987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TYRONE ANTHONY LANE" ], "opinions": [ { "text": "BRYANT, Judge.\nTyrone Anthony Lane (defendant) appeals judgments dated 6 September 2002 entered consistent with a jury verdict finding him guilty of possession of cocaine with intent to sell or deliver, assault on a law enforcement officer, resisting, delaying or obstructing a public officer, driving while license revoked (01 CRS 29254), intentionally keeping or maintaining a vehicle for the purpose of keeping or selling controlled substances (01 CRS 29255), and having attained the status of habitual felon (02 CRS 1919).\nAt trial, Deputy Michael Howe testified he was in uniform but driving an unmarked patrol car on 5 December 2001. He was on the lookout for two brothers for whom arrest warrants had been issued when he spotted defendant driving a vehicle \u201cat a low rate of speed.\u201d Defendant was driving in an area Deputy Howe often frequented when \u201cattempting to locate subjects\u201d with outstanding arrest warrants. Deputy Howe observed that defendant was not wearing a seat-belt. His suspicion aroused, Deputy Howe pulled in behind defendant\u2019s vehicle to follow it. Defendant operated his right turn signal but, after making \u201ca few jerky motions with his head,\u201d turned left while the right turn signal was still blinking. Deputy Howe thought defendant might have recognized the license plates on his vehicle and become nervous. The officer was about to conduct a stop of defendant\u2019s vehicle when defendant made \u201ca sharp, last-minute\u201d turn onto another street. After following defendant to a parking lot, Deputy Howe next saw defendant standing on the driver\u2019s side of his vehicle and then observed his walking away. In fear that defendant \u201cwas going to take off running,\u201d Deputy Howe continued to follow defendant in his patrol car. No other person was in the vicinity.\nDeputy Howe finally approached defendant and explained he had observed defendant driving without his seatbelt. Defendant nodded in response and stopped walking. When Deputy Howe asked to see defendant\u2019s driver\u2019s license, defendant replied he did not have one. After Deputy Howe had written down defendant\u2019s name, defendant started to walk away. Deputy Howe requested defendant to \u201cstep back towards [him].\u201d Instead of complying, defendant pointed between two buildings, stating his intention to walk toward them, and continued in that direction. Deputy Howe warned defendant that he was conducting an investigation and would detain defendant if he did not stop walking. Deputy Howe spoke in a calm voice because defendant \u201cappeared to be very nervous about something.\u201d Deputy Howe asked defendant to step over to his patrol car where he conducted a pat-down search of defendant to check for weapons. During the frisk, Deputy Howe came across an object in defendant\u2019s left jeans pocket. When Deputy Howe squeezed the item from the outside of defendant\u2019s clothing, defendant \u201cjerked around,\u201d almost hitting the officer\u2019s face with his elbow. During the struggle that ensued, defendant \u201cwas able to throw something [in]to his mouth.\u201d Deputy Howe did not get a chance to see what that \u201csomething\u201d was but noted that it came from defendant\u2019s pocket. As Deputy Howe \u201cattempted to take [defendant] down to the ground\u201d to place him under arrest for resisting an officer, defendant \u201crepeatedly struck [him] in the face.\u201d Deputy Howe tried to get to his radio to call for assistance, but defendant struck \u201cthe mike\u201d with his hand foiling the officer\u2019s attempt. Defendant then started running. Deputy Howe initially gave chase. After a short distance, however, Deputy Howe returned to his vehicle, which was still running, and radioed for assistance in setting up a perimeter to detain defendant. Defendant was eventually found hiding underneath a pickup truck.\nFollowing defendant\u2019s arrest, Deputy Howe returned to the parking lot to check on defendant\u2019s vehicle. Deputy Howe walked around the vehicle, noting that all the doors were locked and windows closed. Unable to find the keys to the vehicle, Deputy Howe ran its tags to contact the owner but was unsuccessful. A \u201cwrecker service\u201d was called to unlock the vehicle doors. After unlocking the doors, a canine unit conducted an exterior and interior sniff of the vehicle. On the exterior, the police dog alerted to the driver\u2019s door handle; and in the interior, it alerted \u201cto the area of the front seat in between the front driver seat and the front passenger seat.\u201d When the canine officer checked the area between the front seats, he found a white envelope containing eight small Ziploc bags of cocaine. The parties stipulated that the envelope contained 4.4 grams of cocaine.\nThe issues are whether the trial court erred in: (I) denying defendant\u2019s motion to dismiss the charges of maintaining a vehicle for the purpose of keeping or selling controlled substances and possession of cocaine with intent to sell or deliver; (II) failing to dismiss the habitual felon indictment based on double jeopardy; and (III) overruling defendant\u2019s objection to being tried on the habitual felon charge during the same week as his arraignment on that charge.\nI\nMaintaining a Vehicle\nDefendant first argues the trial court committed plain error by failing to dismiss the charge of maintaining a vehicle for the purpose of keeping or selling controlled substances based on our Supreme Court\u2019s holding in State v. Best, 292 N.C. 294, 233 S.E.2d 544 (1977). We disagree. In Best, our Supreme Court analyzed the North Carolina Controlled Substances Act and determined that a medical doctor could not be convicted for the sale and delivery of a controlled substance pursuant to N.C. Gen. Stat. \u00a7 90-95. Id. Instead, any violation by a medical professional would be governed by N.C. Gen. Stat. \u00a7 90-108. Id. at 310, 233 S.E.2d at 554. In this case, defendant appears to be basing his argument on the proposition that the holding in Best extends to laymen and therefore precludes a conviction of maintaining a vehicle for the purpose of keeping or selling controlled substances under N.C. Gen. Stat. \u00a7 90-108(a)(7). As the decision in Best focused solely on the role of medical practitioners, there is no indication that it applies to laymen. Accordingly, this assignment of error is overruled.\nAlternatively, defendant assigns as error the trial court\u2019s denial of his motion to dismiss the charge due to insufficiency of the evidence. Specifically, defendant contends that evidence of drugs found in a vehicle on one occasion, without more, is insufficient to support the conclusion he maintained a vehicle for the purpose of keeping or selling controlled substances.\nUpon review of \u2022 a motion to dismiss, the court determines whether there is substantial evidence, viewed in the light most favorable to the State, of each essential element of the offense charged and of the defendant being the perpetrator of the offense. State v. Stancil, 146 N.C. App. 234, 244, 552 S.E.2d 212, 218 (2001), aff\u2019d as modified, 355 N.C. 266, 559 S.E.2d 788 (2002) (per curiam); State v. Compton, 90 N.C. App. 101, 103, 367 S.E.2d 353, 355 (1988). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990).\nIn State v. Dickerson, this Court held that one isolated incident of a defendant having been seated in a motor vehicle while selling a controlled substance is insufficient to warrant a charge to the jury of keeping or maintaining a motor vehicle for the sale and/or delivery of that substance. State v. Dickerson, 152 N.C. App. 714, 716, 568 S.E.2d 281, 282 (2002). This Court reasoned:\nPursuant to N.C. Gen. Stat. \u00a7 90-108(a)(7), it is illegal to \u201cknowingly keep or maintain any . . . vehicle . . . which is used for the keeping or selling of [controlled substances].\u201d The statute thus prohibits the keeping or maintaining of a vehicle only when it is used for \u201ckeeping or selling\u201d controlled substances. As stated by our Supreme Court in State v. Mitchell, the word \u201c \u2018[k]eep\u2019 . . . denotes not just possession, but possession that occurs over a duration of time.\u201d Thus, the fact \u201c[t]hat an individual within a vehicle possesses marijuana on one occasion cannot establish . . . the vehicle is \u2018used for keeping\u2019 marijuana; nor can one marijuana cigarette found within the car establish that element.\u201d Likewise, the fact that a defendant was in his vehicle on one occasion when he sold a controlled substance does not by itself demonstrate the vehicle was kept or maintained to sell a controlled substance.\nId. (quoting N.C.G.S. \u00a7 90-108(a)(7) (2001) and State v. Mitchell, 336 N.C. 22, 32-33, 442 S.E.2d 24, 30 (1994)) (alteration in original). The evidence in the case before us does not indicate possession of cocaine in the vehicle that occurred over a duration of time, nor is there evidence that defendant had used the vehicle on a prior occasion to sell cocaine. We therefore agree with defendant that his motion to dismiss should have been granted.\nPossession of Cocaine\nDefendant next contends the trial court erred in denying his motion to dismiss the charge of possession of cocaine with intent to sell or deliver because the evidence was insufficient on the element of constructive possession.\nAn accused has possession of [a controlled substance] within the meaning of the [North Carolina] Controlled Substances Act when he has both the power and intent to control its disposition. The possession may be either actual or constructive. Constructive possession of [a controlled substance] exists when the accused is without actual personal dominion over the material, but has the intent and capability to maintain control and dominion over it.\nState v. Wiggins, 33 N.C. App. 291, 292-93, 235 S.E.2d 265, 267 (1977). Naturally, \u201cpower and intent to control [a] controlled substance can exist only when one is aware of its presence.\u201d State v. Matias, 143 N.C. App. 445, 448, 550 S.E.2d 1, 3, aff'd, 354 N.C. 549, 556 S.E.2d 269 (2001). This Court has previously emphasized that \u201c \u2018constructive possession depends on the totality of the circumstances in each case. No single factor controls, but ordinarily the questions will be for the jury.\u2019 \u201d State v. Butler, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001) (citation omitted) (emphasis omitted), aff'd, 356 N.C. 141, 567 S.E.2d 137 (2002). \u201cThe State is not required to prove that the defendant. . . was the only person with access to [the controlled substance],\u201d State v. Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987); however, if control of the area in which the controlled substance is found is not exclusive, \u201cconstructive possession of the contraband materials may not be inferred without other incriminating circumstances.\u201d State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984).\nHere, defendant contends his control over the vehicle he was driving was not exclusive because he was not the vehicle\u2019s owner and he had left it unattended after Deputy Howe approached him. As such, defendant argues the State\u2019s evidence of his presence in the vehicle was insufficient to support the charge in the absence of additional incriminating circumstances. Concluding that this case presents sufficient additional incriminating circumstances, we disagree.\nThe evidence showed Deputy Howe observed defendant driving \u201cat a low rate of speed\u201d in a vehicle containing an envelope with eight small Ziploc bags of cocaine apparently prepackaged for sale. Defendant\u2019s driving became evasive after Deputy Howe\u2019s patrol car approached defendant\u2019s vehicle from behind. When Deputy Howe finally confronted defendant in the parking lot, \u201c[i]t was apparent [to Deputy Howe] that [defendant] was attempting to . . . get away from [him].\u201d The subsequent weapon\u2019s frisk resulted in forceful resistance by defendant after Deputy Howe began inspecting an object in defendant\u2019s jeans pocket. During the struggle that followed, defendant appeared to be destroying evidence by placing an object in his mouth. Ultimately, defendant fled. See, e.g:, State v. Neal, 109 N.C. App. 684, 687-88, 428 S.E.2d 287, 290 (1993) (sufficient incriminating circumstances supporting an inference of constructive possession where a large amount of cash was found on the defendant\u2019s person at the time of arrest and there was evidence from which a jury might infer an attempt to flee from the area where illegal drugs were found); see also State v. Weems, 31 N.C. App. 569, 571, 230 S.E.2d 193, 194 (1976) (\u201cevidence which places an accused within close juxtaposition to a narcotic drug under circumstances giving rise to a reasonable inference that he knew of its presence may be sufficient to justify the jury in concluding that it was in his possession\u201d). We further note that during the officer\u2019s investigation of defendant, their later struggle, and the subsequent police search for defendant, the vehicle defendant had driven remained locked. Based on these \u201cother incriminating circumstances,\u201d defendant\u2019s argument notwithstanding, a juror could reasonably infer defendant had the power and intent to control the cocaine found next to the driver\u2019s seat in the vehicle and therefore constructively possessed the cocaine. The trial court thus did not err in denying defendant\u2019s motion to dismiss the possession charge.\nII\nDefendant also assigns as error the trial court\u2019s failure to dismiss the habitual felon indictment based on double jeopardy. In his brief to this Court, defendant states he was served with the substantive felony warrants, arrested, and later released on bond. Approximately two months later, defendant was served with a warrant for his arrest on the habitual felon indictment, whereupon he spent four days in jail until he could post an additional bond. Defendant now argues the four days he was imprisoned on the habitual felon warrant amounted to multiple punishments for the same offense in violation of double jeopardy. The record, however, reflects that the trial court, in sentencing defendant on the substantive felonies, gave defendant credit for those four days. Defendant\u2019s argument is therefore without merit.\nIII\nFinally, defendant asserts the trial court erred in proceeding to trial, over his objection, on the habitual felon indictment in the same week as his arraignment on the charge. Defendant relies on N.C. Gen. Stat. \u00a7 15A-943, which provides in subsection (a) that in counties where there are twenty or more weeks per year of trial sessions of superior court at which criminal cases are heard, arraignments must be scheduled \u201con at least the first day of every other week in which criminal cases are heard,\u201d and in subsection (b) that \u201c[w]hen a defendant pleads not guilty at an arraignment required by subsection (a), he may not be tried without his consent in the week in which he is arraigned.\u201d N.C.G.S. \u00a7 15A-943 (2003). Defendant argues that no arraignment was scheduled according to section 15A-943(a) and, when the trial court did arraign him on 3 September 2002 on the habitual felon charge, he objected to proceeding to trial on the same day he was arraigned but was denied the one-week interval between arraignment and trial to which he was entitled under section 15A-943(b).\nOur Supreme Court has held that it is reversible error to proceed with trial on the same day as arraignment without the defendant\u2019s consent. State v. Shook, 293 N.C. 315, 319-20, 237 S.E.2d 843, 847 (1977). Where, however, a defendant fails to file \u201ca written request with the clerk of superior court for an arraignment not later than 21 days after service of the bill of indictment. . . [or, if applicable,] not later than 21 days from the date of the return of the indictment as a true bill,\u201d N.C.G.S. \u00a7 15A-941(d) (2003), he has waived his right to arraignment and cannot raise violations of section 15A-943 as grounds for a new trial, see State v. Trull, 153 N.C. App. 630, 633-34, 571 S.E.2d 592, 595 (2002) (rejecting the defendant\u2019s claim of section 15A-943 violations in the absence of a written arraignment request in the record), disc. review denied and appeal dismissed, 356 N.C. 691, 578 S.E.2d 597 (2003). As previously held by this Court, \u201cit would be illogical to require the State to schedule an arraignment pursuant to one statute where the right to such has been waived pursuant to another.\u201d Id. at 634, 571 S.E.2d at 595. As the record in this case contains no written request by defendant for an arraignment on the habitual felon charge, this assignment of error is overruled.\nDefendant\u2019s conviction of maintaining a vehicle for the purpose of keeping or selling controlled substances is vacated and this case remanded for resentencing.\nVacated in part and remanded.\nJudges TIMMONS-GOODSON and ELMORE concur.\n. The State argues in its brief to this Court that a defendant need not be arraigned on a habitual felon charge. Considering the purpose of an arraignment and this Court\u2019s previous application of the law on arraignments in the habitual felon context, we reject this proposition. See N.C.G.S. \u00a7 15A-941(a) (2003) (\u201c[a]rraignment consists of bringing a defendant in open court . . . , advising him of the charges pending against him, and directing him to plead\u201d); e.g., State v. Branson, 120 N.C. App. 571, 578, 463 S.E.2d 417, 421 (1995) (applying standard arraignment law to habitual felon charge).\n. The habitual felon indictment in this case was returned as a true bill on 29 January 2002.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Newton Pritchett, for the State.", "Robert T. Newman, Sr. for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TYRONE ANTHONY LANE\nNo. COA03-510\n(Filed 6 April 2004)\n1. Drugs\u2014 maintaining vehicle for keeping or selling controlled substances \u2014 motion to dismiss \u2014 plain error analysis\nThe trial court did not commit plain error by failing to dismiss the charge of maintaining a vehicle for the purpose of keeping or selling controlled substances based on the holding in State v. Best, 292 N.C. 294 (1977), because that case focused solely on the role of medical practitioners and there is no indication that it applies to laymen.\n2. Drugs\u2014 maintaining vehicle for keeping or selling controlled substances \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of maintaining a vehicle for the purpose of keeping or selling controlled substances because the evidence does not indicate possession of cocaine in the vehicle that occurred over a duration of time, nor is there evidence that defendant had used the vehicle on a prior occasion to sell cocaine.\n3. Drugs\u2014 possession of cocaine with intent to sell or deliver \u2014 motion to dismiss \u2014 constructive possession\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of possession of cocaine with intent to sell or deliver based on his constructive possession of cocaine found in a car driven by defendant but owned by another, because sufficient incriminating circumstances supported an inference of constructive possession including the officer\u2019s investigation of defendant, their later struggle, the subsequent police search for defendant, and the fact that the vehicle defendant had driven where the controlled substance was found remained locked.\n4. Constitutional Law\u2014 double jeopardy \u2014 multiple punishment \u2014 credit for days served\nThe trial court did not err by failing to dismiss the habitual felon indictment based on double jeopardy even though defendant was served with a warrant for his arrest on the habitual felon indictment and spent four days in jail until he could post an additional bond, because the record reflects that the trial court gave defendant credit for those four days when it sentenced defendant on the substantive felonies.\n5. Sentencing\u2014 habitual felon indictment \u2014 right to arraignment \u2014 waiver\nThe trial court did not err by proceeding to trial, over defendant\u2019s objection, on the habitual felon indictment during the same week as his arraignment on that charge, because defendant waived his right to arraignment and cannot raise violations of N.C.G.S. \u00a7 15A-943 as grounds for a new trial when he failed to make a written request for an arraignment on the habitual felon charge.\nAppeal by defendant from judgments dated 6 September 2002 by Judge Thomas D. Haigwood in New Hanover County Superior Court. Heard in the Court of Appeals 26 February 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Newton Pritchett, for the State.\nRobert T. Newman, Sr. for defendant-appellant." }, "file_name": "0495-01", "first_page_order": 525, "last_page_order": 533 }