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  "name": "STATE OF NORTH CAROLINA v. WILLIE WALKER JOHNSON",
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    "judges": [
      "Judges JACKSON and BEASLEY concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIE WALKER JOHNSON"
    ],
    "opinions": [
      {
        "text": "HUNTER, JR., Robert N., Judge.\nWillie Walker Johnson (\u201cdefendant\u201d) appeals as a matter of right from a verdict finding him guilty of felonious possession of cocaine and attaining the status offense of habitual felon. On appeal, defendant argues the following: (1) that he received ineffective assistance of counsel due to his trial counsel\u2019s failure to timely file a motion to suppress as provided in N.C. Gen. Stat. \u00a7 15A-975(b) (2009); (2) that the trial court committed prejudicial error by admitting a non-testimonial computer based criminal background check which was provided to the arresting officer by his assistant at the time of defendant\u2019s arrest; and (3) that the trial court erred in denying defendant\u2019s motion to dismiss the charge of possession of cocaine. After review, we dismiss the defendant\u2019s claim of ineffective assistance of counsel without prejudice and hold that defendant\u2019s trial and judgment was otherwise free of prejudicial error.\nI. FACTUAL BACKGROUND\nThe Mecklenburg County grand jury indicted defendant for attaining habitual felon status, possession of drug paraphernalia, and possession of crack cocaine. On 8 October 2008, following receipt of the State\u2019s written notice to introduce \u201cevidence obtained by virtue of a search without a warrant,\u201d defendant\u2019s trial counsel filed a written motion to suppress evidence. Subsequently, on 13 October 2008, the trial court denied defendant\u2019s motion to suppress, ruling that the motion was untimely.\nAt trial, the State\u2019s evidence tended to show the following: At approximately 9:30 a.m. on 9 August 2007, Officer Brian Smith of the Charlotte Police Department received a call from someone stating that a car was parked in the grass near a vacant house on Clyde Drive in an area used for overflow parking by a church. Officer Smith did not activate his blue lights when approaching the scene.\nUpon his arrival, Officer Smith noticed that no other cars were parked in the area and he observed a man asleep in the driver\u2019s seat which had been adjusted to a reclining position. Officer Smith testified that he saw a metal crack pipe on the floorboard between defendant\u2019s legs through the open driver\u2019s side window of the car. At that point, Officer Smith woke defendant, asked him to step out of the vehicle, and placed him under arrest for possession of drug paraphernalia. Officer A.G. Davis, Officer Smith\u2019s back-up officer, searched police computer records for outstanding warrants against defendant. After the records search showed the existence of unserved warrants, defendant was arrested on these charges as well.\nDuring Officer Smith\u2019s search of defendant incident to these arrests, a rock of crack cocaine was found in defendant\u2019s right front pants pocket. Officer Smith also found a plastic bag containing crack cocaine in an eyeglass case while searching the interior dashboard of the car.\nShortly thereafter, Officer Smith prepared a report of the arrest, including Officer Davis\u2019s outstanding warrant search, as a part of a computerized system for storing police reports called \u201cKBCOPS.\u201d Although Officer Davis did not testify at the trial, the results of his search (after redaction of some material) were admitted into evidence for \u201ccorroboration\u201d purposes. Upon admitting the KBCOPS report in evidence, the trial court gave a limiting instruction to the jury, providing that the report should solely be used for corroborative purposes.\nAt the close of the State\u2019s evidence, defendant moved to dismiss the charges against him. The trial court denied defendant\u2019s motion to dismiss. Defendant did not offer any evidence, and renewed his motion to dismiss the charges; the trial court, again, denied the motion.\nThe jury found defendant guilty of possession of cocaine and was not able to reach a verdict on the charge of possession of drug paraphernalia; therefore, the trial court declared a mistrial on th\u00e9 latter issue. After the jury found defendant guilty of possession of cocaine, the State presented evidence that defendant had attained habitual felon status; the jury subsequently found defendant guilty of this offense. Defendant was sentenced within the presumptive range of the guidelines to 168 months\u2019 to 211 months\u2019 imprisonment.\nII. INEFFECTIVE ASSISTANCE OF COUNSEL\nDefendant contends that he received ineffective assistance of counsel due to his trial attorney\u2019s failure to file a timely written motion to suppress pursuant to N.C. Gen. Stat. \u00a7 15A-975(b) (2009). Specifically, defendant contends that the only evidence which justified the officer\u2019s search of his person was the crack cocaine pipe that the officer located on the floorboard of defendant\u2019s car allegedly in plain view. In his motion to suppress, defendant\u2019s counsel\u2019s affidavit contended \u201con information and belief\u2019 that the pipe was not in plain view. However, the court dismissed defendant\u2019s motion and did not decide this factual issue which was the basis for defendant\u2019s arrest, the accompanying search of defendant and his car, and the subsequent production of evidence found in defendant\u2019s car and on his person. Defendant argues that the evidence would have been suppressed under the \u201cfruit of the poisonous tree\u201d doctrine, and he would not have been convicted if the motion to suppress had been filed timely.\nTo obtain relief for ineffective assistance of counsel, a defendant must demonstrate initially that his counsel\u2019s conduct fell below an objective standard of reasonableness. The defendant\u2019s burden of proof requires the following:\n\u201cFirst, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u2018counsel\u2019 guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\u201d\n. . . \u201c \u2018The defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\u2019 \u201d\nState v. Quick, 152 N.C. App. 220, 222, 566 S.E.2d 735, 737 (2002) (citations omitted).\nGenerally, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal. State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). A motion for appropriate relief is preferable to direct appeal, \u201cbecause in order to defend against ineffective assistance of counsel allegations, the State must rely on information provided by defendant to his trial counsel, as well as defendants thoughts, concerns, and demeanor.\u201d Id. at 554, 557 S.E.2d at 547.\nIn the instant case, we cannot properly evaluate defendant\u2019s claim of ineffective assistance of counsel on direct appeal because no evidentiary hearing was held on defendant\u2019s motion to suppress. Based on paragraph 4 of defense counsel\u2019s motion to suppress, it appears there is a factual dispute between defendant and the arresting officer as to whether the small metal crack pipe was or was not in plain view. Moreover, the transcript of the trial and order contained therein denying the motion to suppress contain no resolution of this factual issue.\nThe State contends, based solely on the transcript, that the small metal crack pipe was in plain view. Moreover, we note that defendant did not take the stand at trial. It is clear that defense counsel and defendant desired to have the issue heard and ruled on by the trial court or else they would not have filed the motion to suppress claiming that the pipe was not located in plain view unless the door was opened by the arresting officer. Further, the fact that defense counsel did in fact file a motion to suppress undercuts the State\u2019s argument that counsel\u2019s failure to file the motion was based upon defense counsel\u2019s opinion that the motion had no merit. Regardless, we need not speculate on these issues including any reason for the defense counsel\u2019s failure to timely file a motion to suppress. Based upon this record, it is simply not possible for this Court to adjudge whether defendant was prejudiced by counsel\u2019s failure to file the motion to suppress within the allotted time. Therefore, we dismiss this appeal without prejudice to defendant\u2019s right to file a motion for appropriate relief in superior court based upon an allegation of ineffective assistance of trial counsel. See State v. Kinch, 314 N.C. 99, 106, 331 S.E.2d 665, 669 (1985).\nIII. CORROBORATION OF EVIDENCE\nDuring the trial, the trial judge, over objection, admitted, for corroborative purposes, a statement in a computer generated copy of the police report summarizing the actions the police officers took on the morning defendant was arrested. A summation of defendant\u2019s prior criminal records and outstanding warrants was included in the report. Some of this material was redacted by the trial court; however, a portion of the report was admitted as a prior consistent statement for the purpose of corroborating the arresting officer\u2019s testimony.\nDefendant contends th\u00e1t the trial court erred in admitting the report based on his contention that the statements contained in the report were inadmissible hearsay, not recognized under the public records exception pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 803(8) (2009). The State, however, contends based upon State v. Harrison, 328 N.C. 678, 403 S.E.2d 301 (1991), that the evidence is an out-of-court statement used to corroborate a witness\u2019s courtroom testimony, not for the purpose of proving the truth of the matter asserted.\nWe refrain from resolving this interesting evidentiary issue on appeal. In order for defendant to obtain relief from an erroneous admission of evidence, defendant must show prejudice. \u201cA defendant is prejudiced by errors ... when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C. Gen. Stat. \u00a7 15A-1443(a) (2009). Given the uncontradicted evidence of actual possession of cocaine by defendant, even if the admission of the corroborative evidence had been erroneous, its effect would not be prejudicial because it is unlikely to have changed the outcome of the trial. Accordingly, this assignment of error is overruled.\nIV. MOTION TO DISMISS\nFinally, defendant argues that the trial court erred in denying his motion to dismiss the charge of possession of cocaine based on his contention that if his motion to suppress had been granted there would be insufficient evidence, or no evidence, that he ever possessed the cocaine.\nThe standard of review for a motion to dismiss is well known. A defendant\u2019s motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant\u2019s being the perpetrator of the charged offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). \u201c \u2018Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d State v. Turnage, 362 N.C. 491, 493-94, 666 S.E.2d 753, 755 (2008) (citation omitted). The Court \u201c \u2018must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence.\u2019 \u201d State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 926 (1996) (quoting State v. Saunders, 317 N.C. 308, 312, 345 S.E.2d 212, 215 (1986)). Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).\nIn his brief, defendant concedes that his motion to dismiss is not well founded if his motion to suppress is not granted. Since defendant\u2019s motion to suppress has not yet been granted, it is clear that there is sufficient evidence of record to submit the case to the jury. Specifically, since no court has overruled or reversed the denial of the motion to suppress, there is clearly sufficient evidence in the record that defendant had crack cocaine in his pants pocket. \u201cA person has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use.\u201d State v. Reid, 151 N.C. App. 420, 428-29, 566 S.E.2d 186, 192 (2002). Accordingly, we must deny defendant\u2019s assignment of error.\nV. CONCLUSION\nBased on the foregoing, we dismiss defendant\u2019s ineffective assistance of counsel claim and find no prejudicial error.\nNo error.\nJudges JACKSON and BEASLEY concur.",
        "type": "majority",
        "author": "HUNTER, JR., Robert N., Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General, James M. Stanley, Jr., for the State.",
      "William D. Aumanfor defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIE WALKER JOHNSON\nNo. COA09-966\n(Filed 4 May 2010)\n1. Appeal and Error\u2014 appealability \u2014 effective assistance of counsel \u2014 dismissed without prejudice\nDefendant\u2019s claim of ineffective assistance of counsel was dismissed without prejudice to his right to file a motion for appropriate relief in superior court. The claim could not be evaluated on direct appeal because no evidentiary hearing was held on defendant\u2019s motion to suppress.\n2. Evidence\u2014 police report \u2014 corroboration\u2014actual possession of drugs\nAlthough defendant contends the trial court erred in a felonious possession of cocaine case by admitting a portion of a computer generated copy of a police report as a prior consistent statement for the purpose of corroborating the arresting officer\u2019s testimony, its effect would not have been prejudicial even if erroneously admitted given the uncontradicted evidence of actual possession of cocaine by defendant.\n3. Drugs\u2014 possession of cocaine \u2014 motion to dismiss \u2014 motion to suppress not well grounded\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of possession of cocaine. Defendant conceded that his motion was not well grounded if his motion to suppress was not granted, and no court overruled or reversed the denial of the motion to suppress.\nAppeal by defendant from judgment entered 15 October 2008 by Judge Clifton E. Johnson in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 January 2010.\nAttorney General Roy Cooper, by Assistant Attorney General, James M. Stanley, Jr., for the State.\nWilliam D. Aumanfor defendant appellant."
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