                                   NO. COA14-318

                     NORTH CAROLINA COURT OF APPEALS

                           Filed: 18 November 2014


STATE OF NORTH CAROLINA


    v.                                      Catawba County
                                            Nos. 11 CRS 054162, 12 CRS
                                            004054
KARSTEN EUGENE TURNER,
     Defendant.


    Appeal by defendant from judgment entered 21 August 2013 by

Judge    Nathaniel   J.   Poovey    in   Catawba   County   Superior   Court.

Heard in the Court of Appeals 26 August 2013.


    Attorney General Roy Cooper, by Assistant Attorney General
    Elizabeth A. Fisher, for the State.

    M. Alexander Charns for defendant-appellant.


    BRYANT, Judge.


    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
                                           -2-
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.
                                            -3-
    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.
                                         -4-
       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     argues       (III)    that     he     received

ineffective assistance of counsel.

                                               I.

       Defendant argues that the trial court erred in holding that

it had jurisdiction to enter judgment against him for a charge
                                           -5-
not alleged in the indictment.               Specifically, defendant contends

the   trial    court     committed     a     jurisdictional         error    because   it

instructed the jury on the offense of possession of cocaine with

intent to manufacture, sell, or deliver, rather than the offense

for which defendant was indicted, possession of cocaine with

intent to sell or deliver, and that as a result, “[t]he State’s

indictment was fatally defective here as to manufacturing.”

       However, defendant failed to object to the indictment and

failed to object to the jury instruction until after the jury

returned      its    verdict.      Pursuant       to    North    Carolina      Rules   of

Appellate      Procedure,       Rule   10,    “[a]      party    may   not     make    any

portion of the jury charge or omission therefrom the basis of an

issue    presented      on   appeal     unless        the   party    objects       thereto

before the jury retires to consider its verdict . . . .”                              N.C.

R.    App.    P.    10(a)(2)    (2013).          As    such,    this   Court       reviews

unpreserved         instructional      and    evidentiary        issues      for    plain

error.       State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326,

333 (2012) (citation omitted).

              [T]he plain error rule . . . is always to be
              applied   cautiously   and   only   in   the
              exceptional case where, after reviewing the
              entire record, it can be said the claimed
              error is a fundamental error, something so
              basic, so prejudicial, so lacking in its
              elements that     justice cannot have been
              done, or where [the error] is grave error
                                         -6-
            which amounts to a denial of a fundamental
            right of the accused, or the error has
            resulted in a miscarriage of justice or in
            the denial to appellant of a fair trial or
            where the error is such as to seriously
            affect the fairness, integrity or public
            reputation of judicial proceedings or where
            it can be fairly said the instructional
            mistake had a probable impact on the jury's
            finding that the defendant was guilty.

Id.   at   516—17,    723     S.E.2d    at     333   (citations       and   quotations

omitted).

      Defendant      was    indicted     for    one    count     of   possession   of

cocaine     with     intent    to      sell    or     deliver.         In   its   jury

instructions, the trial court instructed the jury on the offense

of possession of cocaine with intent to manufacture, sell, or

deliver:

                 The defendant has been charged with
            possessing   cocaine  with  the  intent  to
            manufacture, sell or deliver it. For you to
            find the defendant guilty of this offense
            the State must prove two things beyond a
            reasonable doubt.

                 First, that the defendant knowingly
            possessed cocaine.   Cocaine is a controlled
            substance.   A person possesses cocaine when
            he is aware of its presence and has either
            by himself or together with others both the
            power and intent to control the disposition
            or use of that substance.

                 And,   second,   that   the   defendant
            intended to manufacture, sell or deliver the
            cocaine. Intent is seldom, if ever, provable
            by direct evidence.   It must ordinarily be
                                         -7-
              proved by circumstances from which it may be
              inferred.

       Defendant did not object to this instruction during either

the jury charge conference or when the trial court gave its

instructions to the jury.              In fact, the discrepancy between the

indictment and the jury instructions were discovered only after

the    jury   returned    its    verdict       finding    defendant         guilty   of

possession     of   cocaine     with     intent   to     manufacture,        sell,   or

deliver.      After considering the arguments of counsel, the trial

court held that the use of the word “manufacture” in the jury

instructions was harmless error, noting that the charge required

the jury to find only two elements, possession and intent, and

that “[t]here wasn’t any particular evidence also regarding what

constitutes      manufacture,      what     constitutes         a    sale    or    what

constitutes delivery[]” to affect the jury’s finding as to the

element of intent.        The trial court then sentenced defendant in

the mitigated range for the offense for which defendant was

indicted: possession of cocaine with intent to sell or deliver.

       We agree with the trial court that the use of the word

“manufacture”       in   its    jury    instructions      was       harmless      error.

“[A]n indictment is insufficient to support a conviction if it

does    not   conform    to    material     elements      in    the    jury       charge

required to support the conviction.”                   State v. Bollinger, 192
                                                -8-
N.C.    App.       241,     245,    665    S.E.2d       136,     139   (2008)        (citation

omitted).          Likewise, “an indictment is sufficient if it charges

the substance of the offense, puts the defendant on notice of

the crime, and alleges all essential elements of the crime.”

Id.    at    246,     665       S.E.2d    at    139     (citation      omitted).         North

Carolina General Statutes, section 90-95(a)(1), holds that “it

is unlawful for any person . . . [t]o manufacture, sell or

deliver, or possess with intent to manufacture, sell or deliver,

a    controlled       substance[.]”              N.C.     Gen.    Stat.     §   90-95(a)(1)

(2013).           It is well-established that there are two essential

elements of this charge: possession and intent. See State v.

Hyatt,       98    N.C.    App.     214,    216,      390   S.E.2d      355,    357     (1990)

(citation and quotation omitted).

       Defendant          was    charged       with   possession       of   cocaine       with

intent to sell or deliver.                 N.C.G.S. § 90-95(a)(1) only requires

the jury to find one element of intent: an intent to sell,

deliver       or    manufacture.               N.C.G.S.     §    90-95(a)(1)         (emphasis

added).       The gravamen of the offense of possession with intent

to    sell    or     deliver       is    possession       and    intent.        As    long   as

defendant possessed the cocaine with intent — whether to sell,

deliver, or manufacture — he has committed the statutory offense

of possession of cocaine with intent to sell or deliver.                                     See
                                        -9-
State v. Moore, 327 N.C. 378, 383, 395 S.E.2d 124, 127 (1990)

(citations     omitted).        Therefore,      even   assuming     arguendo     the

trial court erred in instructing the jury as to possession of

cocaine with intent to manufacture, as well as sell or deliver,

this error did not rise to the level of plain error.                             See

Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (“For error to

constitute     plain   error,     a   defendant    must   demonstrate       that   a

fundamental error occurred at trial.              To show that an error was

fundamental, a defendant must establish prejudice—that, after

examination     of   the   entire     record,    the   error   had    a   probable

impact on the jury's finding that the defendant was guilty.”

(citations and quotation omitted)).               The record shows that the

charge   of    possession     with     intent     to   sell    or    deliver     was

supported by the evidence, as two baggies of crack cocaine rocks

and   cash    were   found   in   defendant’s      car,   with      the   cash   and

smaller baggie of crack cocaine being found in the driver’s seat

where defendant had been sitting.                 As such, defendant cannot

show plain error where he received a mitigated sentence for the

proper, indicted charge of possession of cocaine with intent to

sell or deliver.           Accordingly, defendant’s first argument is

overruled.

                                          II.
                                        -10-
      Defendant    next       argues    that      the    trial     court    erred    by

instructing the jury that a reasonable doubt was a “fair doubt.”

We disagree.

      As defendant failed to object to the trial court’s jury

instruction    that      a   reasonable     doubt       was   a   “fair    doubt,”   we

review defendant’s second issue on appeal for plain error.                           See

Lawrence, 365 N.C. at 516, 723 S.E.2d at 333.

      Defendant contends the trial court erred in instructing the

jury that a reasonable doubt was a “fair doubt.”

      “[A]s a whole, the instructions [must] correctly conve[y]

the concept of reasonable doubt to the jury.”                       State v. Hooks,

353 N.C. 629, 633, 548 S.E.2d 501, 505 (2001) (citation and

quotation omitted).

            The charge of the court must be read as a
            whole . . . , in the same connected way that
            the judge is supposed to have intended it
            and the jury to have considered it[]. . . .
            It will be construed contextually, and
            isolated   portions   will   not   be   held
            prejudicial when the charge as [a] whole is
            correct.   If the charge presents the law
            fairly and clearly to the jury, the fact
            that some expressions, standing alone, might
            be considered erroneous will afford no
            ground for reversal.

Id.   at    634,   548       S.E.2d    at   505    (citations       and    quotations

omitted).     “If, when so construed, it is sufficiently clear that

no reasonable cause exists to believe that the jury was misled
                                      -11-
or misinformed, any exception to it will not be sustained even

though   the    instruction    could    have   been    more   aptly   worded.”

State v. Maniego, 163 N.C. App. 676, 685, 594 S.E.2d 242, 248

(2004) (citation omitted).

      The jury instruction of which defendant complains was a

preliminary instruction given by the trial court to prospective

jurors prior to the commencement of jury selection, as opposed

to   final   instructions     given    after   the    close   of   evidence   at

trial.   The trial court, in its preliminary instruction, stated

the following:

             A reasonable doubt is not a vain nor
             fanciful doubt. For most things that relate
             to human affairs are open to some possible
             or imaginary doubt. A reasonable doubt is a
             fair doubt based upon reason or common sense
             arising out of some or all the evidence that
             has   been   presented   or   the   lack  or
             insufficiency of the evidence as the case
             may be.   Proof beyond a reasonable doubt is
             proof that fully satisfies or entirely
             convinces you of the defendant's guilt.

Thereafter, a petit jury was selected to hear the evidence in

the case.      After all the evidence was presented, the trial court

instructed the jury as to the definition of reasonable doubt:

             A reasonable doubt is a doubt based on
             reason and common sense arising out of some
             or all of the evidence that has been
             presented or the lack or insufficiency of
             the evidence as the case may be.      Proof
             beyond a reasonable doubt is proof that
                                         -12-
              fully satisfies or entirely convinces you of
              the defendant's guilt.

      Defendant’s argument that the trial court erred in its jury

instruction on reasonable doubt by describing it as a “fair

doubt” lacks merit.            It is clear from a review of the trial

court’s two statements of the reasonable doubt instruction that

although      the    trial     court     did      deviate     from     the     pattern

instruction by using the term “fair doubt” in its preliminary

jury instruction to prospective jurors, the charge as a whole

was correct.         See State v. James, 342 N.C. 589, 597—98, 466

S.E.2d    710,    715—16     (1996)    (the      defendant    was    not    prejudiced

where the trial court gave an appropriate jury instruction at

the   close    of   evidence      despite     giving   an    allegedly       erroneous

preliminary instruction); State v. Hunt, 339 N.C. 622, 643—44,

457 S.E.2d 276, 288—89 (1994) (holding that the trial court’s

jury instruction, which defined a reasonable doubt as “a fair

doubt,”     was     not     “constitutionally        deficient”       and    did   not

impermissibly alter the context of the jury instruction); see

also State v. Flowers,1 No. COA01-1024, 2002 N.C. App. LEXIS

2208, at *4—6 (July 16, 2002) (the trial court did not commit

plain     error     where    it   gave      an    erroneous     preliminary        jury

1
  We note that although Flowers and McElvine are unpublished
opinions of this Court, both cases are on point with the instant
case.
                                         -13-
instruction      to    prospective       jurors    but   gave    the    proper   jury

instruction      at    the    close    of   evidence     at     trial);     State   v.

McElvine, No. COA01-677, 2002 N.C. App. LEXIS 2124, at *12 (May

21, 2002) (finding the defendant could not show plain error

where, “[w]hen taking the entire instruction as a whole and in

context,   the    trial       court   properly     instructed     the     prospective

jurors on the presumption of innocence and the burden of proof

on the State.         Thus, we find the trial court did not err in its

preliminary instructions to the jury.”).                   Defendant’s argument

is, therefore, overruled.

                                         III.

    Defendant          also     argues      that    he   received         ineffective

assistance of counsel.          We disagree.

    “In general, 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) (citations omitted).

           It is well established that ineffective
           assistance of counsel claims brought on
           direct review will be decided on the merits
           when the cold record reveals that no further
           investigation is required, i.e., claims that
           may be developed and argued without such
           ancillary procedures as the appointment of
           investigators or an evidentiary hearing.
           Thus, when this Court reviews ineffective
           assistance of counsel claims on direct
                              -14-
         appeal and determines that they have been
         brought prematurely, we dismiss those claims
         without prejudice, allowing defendant[s] to
         bring them pursuant to a subsequent motion
         for appropriate relief in the trial court.

State v. Thompson, 359 N.C. 77, 122—23, 604 S.E.2d 850, 881

(2004) (citations and quotation omitted).

              Criminal defendants are entitled to the
         effective assistance of counsel.     When a
         defendant attacks his conviction on the
         basis that counsel was ineffective, he must
         show that his counsel's conduct fell below
         an objective standard of reasonableness. In
         order to meet this burden [the] defendant
         must satisfy a two part test.

              First, the defendant must show that
         counsel's performance was deficient.     This
         requires showing that counsel made errors so
         serious that counsel was not functioning as
         the “counsel” guaranteed the defendant by
         the Sixth Amendment.   Second, the defendant
         must show that the deficient performance
         prejudiced the defense.       This requires
         showing   that  counsel's  errors   were   so
         serious as to deprive the defendant of a
         fair   trial,  a   trial  whose   result   is
         reliable.

              In considering [ineffective assistance
         of counsel] claims, if a reviewing court can
         determine at the outset that there is no
         reasonable probability that in the absence
         of counsel's alleged errors the result of
         the proceeding would have been different,
         then the court need not determine whether
         counsel's    performance     was    actually
         deficient.
                                       -15-
State v. Boozer, 210 N.C. App. 371, 382—83, 707 S.E.2d 756, 765

(2011) (citations and quotation omitted), disc. review denied,

365 N.C. 543, 720 S.E.2d 667 (2012).

      Defendant contends he received ineffective assistance of

counsel   because   his     attorney     failed     to    object   to    the   trial

court’s jury instruction on possession of cocaine with intent to

manufacture, sell, or deliver.              Because the record reveals no

further     investigation     is    required,        we    review       defendant’s

ineffective assistance of counsel claim.

      Defendant argues that he received ineffective assistance of

counsel because, by not objecting to the trial court’s jury

instruction on possession of cocaine with intent to manufacture,

sell, or deliver, defendant’s attorney caused defendant to be

convicted of an offense for which defendant was not indicted.

We disagree for, as discussed in Issue I, the trial court’s

error did not amount to plain error.               Further, defendant did not

challenge his indictment (for possession of cocaine with intent

to sell or deliver), and the trial court sentenced defendant in

the   mitigating    range    for   the    indicted        offense.       As    such,

defendant’s ineffective assistance of counsel claim lacks merit.

      Moreover, assuming arguendo that defendant’s attorney was

deficient    in   failing    to    object     to    the    trial    court’s     jury
                                        -16-
instructions, defendant has failed to show how his attorney’s

actions amounted to prejudicial error.                 “The fact that counsel

made an error, even an unreasonable error, does not warrant

reversal       of   a    conviction     unless      there    is   a    reasonable

probability that, but for counsel's errors, there would have

been a different result in the proceedings.”                 State v. Braswell,

312     N.C.   553,     563,    324   S.E.2d    241,   248    (1985)    (citation

omitted).       Here, where defendant’s car was stopped by officers

acting on a tip and, in addition to a bag with 5—6 rocks of

crack     cocaine       and    cash   found    on   the     driver’s   seat   and

defendant’s voluntary admission that “it’s all mine,” over 200

rocks of crack cocaine were found in a baggie in defendant’s

glove box, there was no reasonable probability that a different

result would have been reached by the jury.                    “After examining

the record we conclude that there is no reasonable probability

that any of the alleged errors of defendant's counsel affected

the outcome of the trial.”               Id. at 563, 324 S.E.2d at 249.

Accordingly, defendant’s argument is overruled, and his claim of

ineffective assistance of counsel denied.

      No error.

      Chief Judge McGEE and Judge STROUD concur.
