Heard in the Court of Appeals August 26, 2013
Appeal by defendant from judgment entered 21 August 2013 by Judge Nathaniel J. Poovey in Catawba County Superior Court,
Nos. 11 CRS 054162, 12 CRS 004054.
Attorney General Roy Cooper, by Assistant Attorney General Elizabeth A. Fisher, for the State.
M. Alexander Charns for defendant-appellant.
BRYANT, Judge. Chief Judge McGEE and Judge STROUD concur.
Where defendant's indictment and judgment were for the same offense and a deviation in the trial court's jury instruction as to that offense was not significant, defendant cannot show plain error. The trial court did not err in describing a reasonable doubt as a " fair doubt" in its preliminary jury instruction where the entirety of the trial court's jury charge correctly stated the definition of reasonable doubt to the jury. Where defendant cannot show that his attorney's failure to object to a jury instruction would have resulted in a different outcome at trial, defendant's ineffective assistance of counsel claim will be denied.
On 23 April 2012, defendant Karsten Eugene Turner was indicted on one count each of possession with intent to sell or deliver cocaine and resisting a public officer. On the same date, defendant was separately indicted for being an habitual felon. The charges came on for trial during the 19 August 2013 session of Catawba County Superior Court, the Honorable Nathaniel J. Poovey, Judge presiding. The State's evidence presented during the trial tended to show the following.
On 11 July 2011, Investigator Wes Gardin of the Hickory Police Department conducted surveillance at 442 10th Avenue Drive in Hickory. The surveillance was set-up based on information that a gold-colored Honda Accord would arrive that day at that location for a drug transaction. Shortly after beginning his surveillance, Investigator Gardin saw a gold-colored Honda Accord arrive and park at 420 10th Avenue; Investigator Gardin recognized the driver of the car as defendant.
Investigator Gardin directed a marked unit, operated by Officer Killian and Sergeant Kerley, to pull in behind the Honda and activate its lights to conduct a narcotics investigation. Upon the marked unit activating its lights, defendant exited the car, leaving the driver's side door open, and took off running. Investigator Gardin and Officer Killian engaged in a foot pursuit of defendant; despite ordering defendant to halt, the chase did not end until defendant tripped and fell. As a passenger was observed in defendant's Honda, Sergeant Kerley remained with the car during the pursuit of defendant.
After capturing defendant, the officers returned to the Honda and saw through the open driver's side door a baggie of crack cocaine in the driver's seat. Upon searching the Honda, the officers found a marijuana joint in the center console and a second baggie of crack cocaine in the glove box. Investigator Gardin testified that the baggie found on the driver's seat contained about 5-6 rocks of cocaine, while the baggie found in the glove box contained over 200 rocks of cocaine. The officer also found about $80.00 cash in the driver's seat of the Honda.
The passenger in the Honda was identified as Victor Wilfong. Defendant and Wilfong were arrested and transported to the Hickory Police Department for processing.
While being held at the Hickory Police Department, defendant voluntarily made a statement to Investigator Gardin that " it's all mine." Investigator Gardin testified that he took defendant's statement " to mean that all the controlled substances found in that vehicle belonged to [defendant]."
On 21 August 2013, a jury convicted defendant of possession with intent to sell or deliver cocaine and resisting a public officer. The trial court found defendant had a prior record level of II, and defendant stipulated to being an habitual felon. After finding that defendant had shown three mitigating factors, the trial court sentenced defendant to 50 to 69 months imprisonment. Defendant appeals.
On appeal, defendant argues that the trial court erred (I) in holding that it had jurisdiction to enter judgment against defendant for a charge not alleged in the indictment, and (II) by instructing the jury that a reasonable doubt was a " fair doubt." Defendant further ...