Appeal by defendant from judgment dated 7 April 1999 by Judge
James D. Llewellyn in Wilson County Superior Court. Heard in the
Court of Appeals 22 August 2000.
Attorney General Michael F. Easley, by Associate Attorney
General Christopher W. Brooks, for the State.
Gibbons, Cozart, Jones, Hughes, Sallenger & Taylor, by Thomas
R. Sallenger, for defendant-appellant.
GREENE, Judge.
Michael Lee Bowens (Defendant) appeals from a judgment entered
following a jury verdict finding him guilty of maintaining a
dwelling to keep or sell controlled substances, possession of
marijuana with intent to sell and deliver, and having attained an
habitual felon status. Defendant was sentenced to a minimum term
of 90 months and a maximum term of 117 months.
Defendant was charged on 12 October 1998 with maintaining a
dwelling to keep or sell controlled substances, possession with
intent to sell or deliver marijuana, and felonious possession of
marijuana. The habitual felon indictment alleged, in pertinent
part, that Defendant "willfully and feloniously did commit the
crime of Felonious Possession of Marijuana . . . while being an
habitual felon."
The State presented evidence that on 10 July 1998, at 12:45
p.m., Officers Adolphus McGhee (McGhee), R.L. Branch (Branch), and
Brian Brame (Brame), of the Wilson Police Department, executed a
search warrant at 1108 Carolina Street. Prior to the execution of
the warrant, the officers had observed the Carolina Street location
for 2-to-3 days and during that time had seen Defendant enter the
residence 8-to-10 times. McGhee testified he did not see anybody,
other than Defendant, enter or exit the dwelling during the
surveillance. In addition, Branch testified he was familiar with
Defendant and Defendant lived "[a]t 1108 Carolina Street." Oncross-examination, Branch stated he did not check to see who the
dwelling was rented to, the telephone records, the City of Wilson
utilities records, or any mail items lying around in the residence
to determine who was noted as paying any of the bills. At the time
the search warrant was executed, Defendant was the only person
inside the dwelling and was found in the kitchen running toward the
rear of the residence. McGhee placed Defendant in handcuffs and
searched him for weapons. During the search, McGhee detected a
bulge and had Brame, the designated evidence officer, check
Defendant. From Defendant's right rear pocket, Brame removed two
hundred and thirty-three dollars and approximately 7.5 grams of
marijuana. Although Brame recalled he did look for pieces of paper
with names and addresses on them, he was unable to locate any.
As the search continued, the officers discovered andconfiscated a bag of marijuana weighing approximately 61.2 gram
s.
The bag was found hidden in the couch in the living room and
contained twenty-nine individual bags of marijuana, referred to as
"dime bags." The officers also found approximately 11.5 grams of
marijuana located on a table near a television set in the living
room, as well as a police scanner, an electronic scale, a metal
smoking pipe, individual baggies used for packaging marijuana,
scissors, small scales used for cutting or weighing marijuana, and
a shoe box containing marijuana residue.
Branch testified he only saw men's clothing and did not see
any women's clothing in the bedroom closet. He also stated that as
the officers were placing Defendant in the police vehicle, Angela
Williams (Williams) approached him and asked whether Defendant was
being arrested. Williams stated she did not live at 1108 Carolina
Street, she lived around the corner and she was only visiting.
At the close of the State's evidence, Defendant moved for
dismissal of all of the charges, with the exception of the habitual
felon charge which had not yet been presented to the jury. The
trial court granted the dismissal of the felonious possession of
marijuana charge and denied the motion with respect to the other
charges.
Williams, who also is the mother of three of Defendant's
children, testified for Defendant that she rented the dwelling at
1108 Carolina Street, the lease and utilities were in her name, and
she paid for both the rent and utilities. She further testified
she lived at 1108 Carolina Street and, on occasion, her childrenstayed there with her. Williams also stated the furnishings, the
male clothing items, and any pictures located in the dwelling all
belonged to her. Furthermore, Williams testified Defendant was
there to see their children when the search occurred. She stated
the marijuana hidden in the couch, the 11.5 grams of marijuana
found on the table in front of the television, the police scanner,
the smoking pipe, the electronic scale, the scissors, the scales,
and the baggies all belonged to her and Defendant had no idea the
marijuana was present.
At the close of Defendant's evidence, Defendant again made
motions for the dismissal of the charge of possession with intent
to sell or deliver marijuana and of the charge of knowingly and
intentionally keeping or maintaining a dwelling which was used to
keep or sell controlled substances. The trial judge again denied
the motions.
After the jury found Defendant guilty of the remaining charges
and before the habitual felon indictment was submitted to the jury,
Defendant moved to dismiss that indictment on the ground the
principal felony in the indictment had been dismissed. The trial
court denied this motion and the jury found Defendant guilty of
being an habitual felon.
_____________________________
The issues are whether: (I) the State presented substantial
evidence Defendant maintained the dwelling at 1108 Carolina Street;
(II) the State presented substantial evidence of Defendant's
constructive possession of the marijuana located in the dwelling;and (III) an habitual felon indictment must be dismissed if the
principal felony listed in the indictment is dismissed.
I
[1]Defendant was charged with knowingly and intentionally
maintaining a dwelling used for keeping or selling controlled
substances under N.C. Gen. Stat. § 90-108(a)(7). This statute, in
pertinent part, makes it unlawful for any person:
To knowingly keep or maintain any store, shop,
warehouse, dwelling house, building, vehicle,
boat, aircraft, or any place whatever, . . .
which is used for the keeping or selling of [a
controlled substance] . . . in violation of
this Article.
N.C.G.S. § 90-108(a)(7) (1999). Whether a person “keep[s] or
maintain[s]” a dwelling, within the meaning of N.C. Gen. Stat.
§ 90-108(a)(7), requires the consideration of several factors, none
of which are dispositive.
See State v. Allen, 102 N.C. App. 598,
608, 403 S.E.2d 907, 913-14,
rev'd on other grounds, 332 N.C. 123,
418 S.E.2d 225 (1992). Those factors include: ownership of the
property; occupancy of the property; repairs to the property;
payment of taxes; payment of utility expenses; payment of repair
expenses; and payment of rent.
See id.; see also Black's Law
Dictionary 953 (6th ed. 1990);
State v. Rich, 87 N.C. App. 380,
384, 361 S.E.2d 321, 324 (1987).
In this case, the State's evidence
(See footnote 1)
shows: Defendant was seenin and out of the dwelling 8-to-10 times over the course of 2-to-3
days; nobody else was seen entering the premises during this 2-to-3
day period of time; men's clothing was found in one closet in the
dwelling; Branch testified he believed Defendant lived at 1108
Carolina Street, although he offered no basis for that opinion and
had not checked to see who the dwelling was rented to or who paid
the utilities and telephone bills. This evidence, considered in
the light most favorable to the State,
State v. Davis, 130 N.C.
App. 675, 679, 505 S.E.2d 138, 141 (1998) (motion to dismiss
requires evidence be considered in light most favorable to the
State), does not constitute substantial evidence Defendant kept or
maintained the dwelling at 1108 Carolina Street,
State v. Franklin,
327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990) (motion to dismiss
should be denied if there is relevant evidence a reasonable juror
might accept as adequate to support a conclusion the State has
proven all elements of the crime). There is no evidence Defendant
was the owner or the lessee of the dwelling, or that he had any
responsibility for the payment of the utilities or the general
upkeep of the dwelling. Testimony Defendant was present at the
dwelling on several occasions and testimony he lived
(See footnote 2)
“[a]t 1108
Carolina Street” cannot alone support a conclusion Defendant kept
or maintained the dwelling. Although men's clothing was found in
the dwelling, there is no evidence the clothes belonged toDefendant. Accordingly, Defendant's motion to dismiss the charge
of maintaining a dwelling to keep or sell controlled substances
should have been granted.
II
[2]Defendant was charged with possession with the intent to
sell or deliver marijuana in violation of N.C. Gen. Stat. § 90-
95(a)(1). Under this statute, the State has the burden of proving:
(1) Defendant possessed the controlled substance, and (2) with the
intent to sell or distribute it.
State v. Carr, 122 N.C. App. 369,
372, 470 S.E.2d 70, 72-73 (1996).
Defendant contends the trial court erred in failing to dismiss
this charge because there is no evidence he possessed the drugs
found in the dwelling. We disagree.
Possession may be either actual or constructive.
State v.
Broome, 136 N.C. App. 82, 87, 523 S.E.2d 448, 452 (1999),
disc.
review denied, 351 N.C. 362, --- S.E.2d --- (2000). Actual
possession requires a party to have physical or personal custody of
the item. 28 C.J.S.
Drugs and Narcotics § 170, at 773 (1996).
Constructive possession, however, exists when a person, although
not having actual possession of the controlled substance, has the
intent and capability to maintain control and dominion over the
controlled substance.
State v. Neal, 109 N.C. App. 684, 686, 428
S.E.2d 287, 289 (1993). Constructive possession of drugs is most
often shown by evidence the defendant has exclusive possession of
the property in which the drugs are located.
State v. Alston, 91
N.C. App. 707, 710, 373 S.E.2d 306, 309 (1988). It can also beshown with evidence the defendant has nonexclusive possession of
the property where the drugs are located; provided, there is other
incriminating evidence.
Id. Possession of the property where the
drugs are located, either exclusive or nonexclusive, is not,
however, the sole method of showing constructive possession.
Evidence the defendant was “within close juxtaposition to a
narcotic drug,” along with other incriminating evidence can
constitute constructive possession.
State v. Weems, 31 N.C. App.
569, 571, 230 S.E.2d 193, 194 (1976);
see State v. Harvey, 281 N.C.
1, 12-13, 187 S.E.2d 706, 714 (1972) (defendant within three or
four feet of drugs);
see also Neal, 109 N.C. App. at 687-88, 428
S.E.2d at 290 (incriminating circumstance includes fleeing from the
area where the illegal drugs are found). Furthermore, “routine
access” by a defendant to property where drugs are located can
support a conclusion the defendant has constructive possession of
those drugs.
See State v. James, 81 N.C. App. 91, 94, 344 S.E.2d
77, 80 (1986).
In this case, Defendant was found in the dwelling located at
1108 Carolina Street, he was seen there on several other occasions,
he attempted to flee from the officers, 7.5 grams of marijuana were
found on his person, and approximately 72.7 grams of marijuana were
found in and about the house. This evidence is sufficient to
support a conclusion Defendant had actual possession of some of the
drugs and constructive possession of some of the drugs.
See State
v. Bell, 33 N.C. App. 607, 235 S.E.2d 886 (no limitation as to the
amount of controlled substance which must be possessed in order tobe found guilty of possession with intent to sell or deliver),
appeal dismissed, 293 N.C. 254, 237 S.E.2d 536 (1977);
State v.
Williams, 307 N.C. 452, 456, 298 S.E.2d 372, 375 (1983) (evidence
defendant was seen in the yard on at least four occasions within
two weeks of the time of the search warrant is some evidence to
raise a reasonable inference defendant was in constructive
possession). Accordingly, Defendant's motion to dismiss the charge
of possession with the intent to sell or deliver marijuana was
properly denied.
III
[3]Any person who has been convicted of three felony offenses
“is declared to be an habitual felon.” N.C.G.S. § 14-7.1 (1999).
When a person is charged with the commission of a felony and “is
also charged with being an habitual felon,” he must, upon
conviction, be sentenced as an habitual felon. N.C.G.S. § 14-7.2
(1999). The indictment charging a person as an habitual felon
“shall be separate from the indictment charging him with the
principal felony.” N.C.G.S. § 14-7.3 (1999). A separate habitual
felon indictment is not required for each principal felony.
State
v. Patton, 342 N.C. 633, 635, 466 S.E.2d 708, 709 (1996).
Furthermore, there is no requirement the habitual felon indictment
specifically refer to the principal felony.
Id. at 636, 466 S.E.2d
at 710.
In this case, Defendant was charged with three principal
felonies and the habitual felon indictment specifically referenced
only one of those felonies: felonious possession of marijuana. Thetrial judge dismissed the charge of felonious possession of
marijuana and the merit of that dismissal has not been raised by
the State. Defendant argues if the habitual felon indictment
references a principal felony and that felony is subsequently
dismissed, the habitual felon indictment fails and should not be
submitted to the jury. We disagree.
(See footnote 3)
In order to be sufficient, a criminal indictment must allege
all of the essential elements of the crime sought to be charged and
any allegations beyond the essential elements of the crime sought
to be charged are irrelevant and may be treated as mere surplusage.
State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996).
If an indictment contains surplus language, the surplusage may be
ignored if its inclusion has not caused prejudice to the defendant.
State v. Sisk, 123 N.C. App. 361, 366, 473 S.E.2d 348, 352 (1996),
aff'd in part and dismissed in part, 345 N.C. 749, 483 S.E.2d 440
(1997). "What is important is the defendant's understanding of the
charge against which he need[s] to defend."
State v. Cameron, 83
N.C. App. 69, 73, 349 S.E.2d 327, 330 (1986).
(See footnote 4)
Although the principal felony referenced in Defendant's
habitual felon indictment, felonious possession of marijuana, had
been dismissed, it is not an essential element of being an habitual
felon and is treated as surplusage and ignored.
See Patton, 342
N.C. at 636, 466 S.E.2d at 710
. The essential purpose of an
habitual felon indictment is to give a defendant notice he is being
charged as an habitual felon so he may prepare a defense as to
having a charge of the three listed felony convictions.
Id. In
the instant case, Defendant had notice of the habitual felon charge
against him, including the three felony convictions listed in the
indictment, and the State's intention to prosecute him as an
habitual felon. Since Defendant had notice and understanding of
the habitual felon indictment, he had the opportunity to present a
defense and was, therefore, not prejudiced. Accordingly, the
habitual felon indictment was properly submitted to the jury.
Maintaining a dwelling used to keep or sell a controlled
substance: Reversed.
Possession with intent to sell or deliver marijuana: No
error.
Habitual felon: No error.
Judges Edmunds and Smith concur.
Footnote: 1