An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-829

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2003

STATE OF NORTH CAROLINA

v .                         Wake County
                            No. 01 CRS 20017
REGINALD KEITH HENRY

    Appeal by defendant from judgments entered 3 October 2001 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 25 March 2003.

    Attorney General Roy Cooper, by Associate Attorney General Margaret P. Eagles, for the State.

    Ligon and Hinton, by Lemuel W. Hinton, for defendant.

    TYSON, Judge.

    Reginald Keith Henry (“defendant”) appeals his convictions for possession of a controlled substance with intent to sell or deliver and for the sale or delivery of a controlled substance. We find no error.

I. Background

    On 27 February 2001 at approximately 5:30 p.m., defendant was standing near the intersection of Cross Street and Fisher Street in Raleigh, North Carolina. Raleigh Police Officer Steve Lowery was positioned in a minivan on Heath Street to watch for “open-air drug sales” at the intersection. Lowery observed a white Mazda 626 stop at the intersection and saw defendant run over to the vehicle. A money transaction took place between defendant and the driver ofthe vehicle. Defendant turned from the vehicle, ran to a nearby area of bushes and shrubs, knelt down, and picked up an object before returning to the car and handing the object to the driver. The vehicle left while defendant returned to the same area of bushes and shrubs and once again knelt down. Defendant then ran across the street to an oak tree, “move[d] some leaves”, lifted a plastic bag, and “rehid” it in the leaves.
    The white Mazda 626 was stopped after leaving the intersection. Raleigh Police Officer John Fulton discovered one “dime bag” of marijuana in the driver's possession. The police found six “baggies” of marijuana at the nearby area of bushes and shrubs where defendant first knelt. The police also discovered 34 “baggies” of marijuana at the oak tree where defendant ran after the white car left the intersection. Both the “dime bag” in the driver's possession and one-half of the “baggies” the police found at the intersection were “pinkish” in color. Defendant was arrested and the Police found $270 on his person, in 5, 10 and 20 dollar bills.
    Defendant was indicted on 14 May 2001 on charges of possession with intent to sell marijuana, possession with intent to deliver marijuana, sale of marijuana, and delivery of marijuana. Defendant did not offer any evidence at trial. On 3 October 2001, a jury convicted defendant of possession of a controlled substance with intent to sell or deliver and of sale or delivery of a controlled substance. Defendant was sentenced to consecutive sentences ofsix to eight months for possession and eight to ten months suspended sentence for the sale or delivery.
II. Issues

    Defendant contends that the trial court erred in (1) denying defendant's motion to dismiss for insufficient evidence, (2) refusing to exercise its discretion and permit defendant to reopen the trial to introduce evidence after the jury had retired to deliberate, and (3) denying defendant a right to a fair trial because of the State's continual elicitation of evidence of defendant's prior bad acts and crimes.
III. Motion to Dismiss

    Defendant contends the trial court erred in denying his motion to dismiss for insufficient evidence of every element of the offenses charged. We disagree.
    A motion to dismiss is properly denied when, reviewed in a light most favorable to the State, the State presents substantial evidence of every element of the crime charged. State v. Powell, 299 N.C. 95, 98-99, 261 S.E.2d 114, 117-18 (1980). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
A. Possession With Intent to Sell or Deliver Marijuana

    The elements of possession of a controlled substance with intent to sell or deliver are, “(1) possession of a substance; (2) the substance must be a controlled substance; (3) there must be intent to sell or distribute the controlled substance.” State v.Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001); See N.C. Gen. Stat. § 90-95(a)(1) (2001). Defendant contends insufficient evidence was presented to show defendant possessed the marijuana found by the police officers.
    “'An accused's possession of [a controlled substance] may be actual or constructive.'” State v. Martinez, 150 N.C. App. 364, 371, 562 S.E.2d 914, 918, disc. rev. denied, 356 N.C. 172, 568 S.E.2d 859 (2002) (quoting State v. Weems, 31 N.C. App. 569, 570, 230 S.E.2d 193, 194 (1976) (quoting State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972))). “A defendant has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or with others, he has the power and intent to control its disposition or use.” State v. Diaz, ___ N.C. App. ___, ___, 575 S.E.2d 523, 528 (2002). There were no controlled substances found on defendant when he was arrested. The basis for defendant's argument centers on the issue of constructive possession.
    “Constructive possession occurs when a defendant has both the power and intent to control the disposition of the [controlled substance], although he is not in actual possession.” Id. “'Evidence of constructive possession is sufficient to support a conviction if it would allow a reasonable mind to conclude that defendant had the intent and capability to exercise control and dominion over the controlled substance.'” Martinez, 150 N.C. App. at 371, 562 S.E.2d at 918 (quoting 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)). “'Proving constructive possession where [a] defendant had nonexclusive possession of the place in which the [controlled substance was] found requires a showing by the State of other incriminating circumstances which would permit an inference of constructive possession.” Id. (quoting State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 73 (1996)).
    Here, marijuana was found at two separate public locations. Defendant did not have exclusive possession of the places in which the marijuana was found. However, the State provided evidence of other “incriminating circumstances which [] permit an inference of constructive possession.” Id. The State's evidence included several incriminating circumstances:
                1. Defendant was the only person “milling around” at a known “open-air drug sales” location.

        2.    A white Mazda 626 pulled up and stopped at this intersection, defendant ran over to the vehicle, and a money transaction took place outside the driver side window between defendant and the driver of the vehicle.

        3.    Defendant turned from the vehicle and ran to a nearby area of bushes and shrubs, where police later found six “baggies” of marijuana.

        4.    Defendant knelt down in this area of bushes and shrubs and picked up an object.

        5.    Defendant returned to the car where the money transaction took place and handed an object to the driver of the vehicle.

        6.    When the vehicle drove away, defendant returned to the area of bushes and shrubs, where the marijuana was later found, and knelt down again.

        7.    The vehicle involved in the money transaction was stopped after leaving the intersection and the police discovered the driver possessed a “dime bag” of marijuana.    
        8.    After the vehicle left the intersection defendant ran across the street to an oak tree, where police later found 34 “baggies” of marijuana.

        9.    At the oak tree defendant “move[d] some leaves”, lifted a plastic bag and “rehid” the plastic bag in the leaves.

        10.    Defendant was the only individual who was seen attaining access to either of the locations where police later found marijuana.
        
        11.    The police recovered a “pinkish” “baggie” of marijuana from the driver of the vehicle. About one half of the “baggies” of marijuana found at the two locations of the intersection were also “pinkish” in color.

        12.    Defendant possessed $270 in $5, $10 and $20 dollar bills when arrested.

These incriminating circumstances “permit an inference” that “allow a reasonable mind to conclude that defendant had the intent and capability to exercise control and dominion over the [marijuana found by the police].” Id.
B. Sale or Delivery of Marijuana

    The elements of sale or delivery of a controlled substance are (1) transfer of a controlled substance (2) by either sale, delivery or both. Carr, 145 N.C. App. at 341, 549 S.E.2d at 901. The North Carolina Controlled Substances Act defines “'deliver' or 'delivery' to mean 'the actual[,] constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.'” Id. at 342, 549 S.E.2d at 902 (quoting N.C. Gen. Stat. § 90-87(7)). The “crime of transfer of a controlled substance by delivery [is] complete upon the transfer or attempted transfer from one person to another of a controlledsubstance, regardless of whether the two persons entered into an exchange of the controlled substance for another item of value, such as money, goods, or services.” Id. at 342-43, 549 S.E.2d at 902. “[T]he term 'sale,' in the context of the North Carolina Controlled Substances Act, means the exchange of a controlled substance for money or any other form of consideration.” Id. at 343, 549 S.E.2d at 902.
    The State offered sufficient evidence to submit the charge of sale or delivery of a controlled substance to the jury. The State presented evidence that defendant: (1) was part of a money transaction with the driver of a vehicle, (2) retrieved an object from a location where police later found marijuana, (3) handed this object to the driver of the vehicle, the vehicle was later stopped and marijuana was found on the driver, and (4) had in his constructive possession marijuana packaged in pinkish “baggies” similar to those found on the driver of the vehicle.
    Reviewed in a light most favorable to the State, the State presented sufficient evidence that “a reasonable mind might accept as adequate” to conclude every element is satisfied for both the crime of possession with intent to sell or deliver a controlled substance and the crime of sale or delivery of a controlled substance. Smith, 300 N.C. at 78, 265 S.E.2d at 169. This assignment of error is overruled.
IV. Reopening of Trial

    
Defendant contends the trial judge committed prejudicial error by refusing to exercise his discretion to reopen the trial andallow defendant to introduce additional evidence after the jury had retired to deliberate. Defendant argues the trial court erroneously believed that he lacked the authority to re-open the trial. We disagree.
A. Trial Court's Discretion

    “The trial judge has inherent authority to supervise and control trial proceedings. The manner of the presentation of the evidence is largely within the sound discretion of the trial judge and his control of a case will not be disturbed absent a manifest abuse of discretion.” State v. Davis, 317 N.C. 315, 318, 345 S.E.2d 176, 178 (1986). The trial judge's decision will be upheld if the ruling was not “'so arbitrary that it could not have been the result of a reasoned decision.'” State v. Perez, 135 N.C. App. 543, 555, 522 S.E.2d 102, 110 (1999), disc. rev. denied, 351 N.C. 366, 543 S.E.2d 140 (2000) (quoting State v. Dial, 122 N.C. App. 298, 308, 470 S.E.2d 84, 91, disc. review denied, 343 N.C. 754, 473 S.E.2d 620 (1996)).
    “The judge in his discretion may permit any party to introduce additional evidence at any time prior to verdict”, N.C. Gen. Stat. § 15A-1226(b), “[h]owever, there is no constitutional right to have a case reopened.” State v. Perkins, 57 N.C. App. 516, 520, 291 S.E.2d 865, 868 (1982). Our Supreme Court has held, “'there is error when the trial court refuses to exercise its discretion in the erroneous belief that it has no discretion.'” State v. Lawrence, 352 N.C. 1, 27, 530 S.E.2d 807, 823 (2000) (quoting Statev. Johnson, 346 N.C. 119, 124, 484 S.E.2d 372, 376 (1997)(quoting State v. Lang, 301 N.C. 508, 510, 272 S.E.2d 123, 125 (1980))).
    The trial judge announced at the end of the day on 2 October 2001 that court would reconvene the next day at 8:30 in the morning. Defendant was present to hear this instruction. At 8:30 the next morning, defendant was not present. Motions were heard and sometime after 8:45 the jury was brought back into the court room. Defendant was called and failed. Counsel for the defendant stated he would not offer any evidence and closing arguments began. Defendant entered the courtroom during his counsel's closing argument. The jury was charged and sent out to begin deliberations. At both this point and immediately before the trial court entered judgment, the trial judge and defendant discussed (1) defendant's absence when court reconvened, (2) defendant's desire to present testimony from the two witnesses he had brought to court, and (3) the trial court's refusal to reopen the trial to allow defendant to put on evidence.
    Defendant contends that the trial judge erroneously believed that he lacked the authority to reopen the trial after the jury had begun deliberations. The trial judge stated:
        But nonetheless those witnesses will not be heard now obviously. This jury is already deliberating. You had a fair chance to produce them and inform counsel. So that's all I can do on that. ...
        
        No. Oh, no. Absolutely not. I don't even need to hear from the prosecutor on that. I can't do that. I don't know if I can't. I know I'm not going to do it and I don't think I can.
    The context of these statements shows the trial judge's exercise of discretion. The trial judge, before entering judgment, explained why he was not reopening the trial, stating:
        The reason your witnesses weren't called is because you didn't inform your lawyer or the Court that you had them until this morning after you got here late and after the closing arguments had begun. I can't run a courtroom that way. I can't run it that way...[b]ecause it just won't work. You've got to respect where you are...I have to do my job. My job is to run an orderly courtroom. I can't have people coming in late with witnesses after the evidence has closed and reopening and bringing evidence in.

The trial judge's explanation shows that he was, in fact, aware of his discretion and exercised that discretion. Judge Jones took the time to explain his rationale for not reopening the trial to defendant. The trial judge made a “reasoned decision” in exercising his “inherent authority to supervise and control trial proceedings.” Perez, 135 N.C. App. at 555, 522 S.E.2d at 110; Davis, 317 N.C. at 318, 345 S.E.2d at 178.
B. Constitutional Rights

    Defendant also contends the trial judge's refusal to reopen the trial denied him his constitutional right to present witnesses in order to confront the witnesses and testimony offered against him.
    Both Amendment VI of the United States Constitution, applied to North Carolina through Amendment XIV, and Article I § 23 of the North Carolina Constitution provide that “a defendant has a constitutional right to present witnesses to confront the witnesses and testimony against him.” State v. Cody, 135 N.C. App. 722, 726,522 S.E.2d 777, 779 (1999). The right of a defendant to present his own witnesses to establish a defense is a fundamental element of the due process of law. State v. Mackey, 58 N.C. App. 385, 387, 293 S.E.2d 617, 618, disc. rev. denied, 306 N.C. 748, 295 S.E.2d 761 (1982). A violation of this right could hamper the free presentation of legitimate testimony. Id. “However, a defendant may waive the benefit of statutory or constitutional provisions by 'express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it.'” Id. at 389, 293 S.E.2d at 619 (quoting State v. Gaiten, 277 N.C. 236, 239, 176 S.E.2d 778, 781 (1970)).
    Defendant was offered the opportunity to present witnesses. Defendant waived this right when he and his witnesses were voluntarily absent from the courtroom when his trial reconvened after receiving prior notice. This assignment of error is overruled.
    
V. Defendant's Prior Bad Act and Crimes

    
Defendant contends he was denied his right to a fair trial by the State's continual elicitation of evidence of defendant's prior bad acts and crimes, despite the defendant's objection and the trial court's disapproval.
    “Evidence of [a defendant's] other crimes, wrongs, or acts is not admissible [at trial] to prove the character of [the defendant] in order to show that he acted in conformity therewith.” N.C. Gen. Stat. § 8C-1, Rule 404(b). Similarly, “[e]vidence of a [defendant]'s character or a trait of his character is notadmissible for the purpose of proving that he acted in conformity therewith on a particular occasion.” N.C. Gen. Stat. § 8C-1, Rule 404(a).
    “'When defense counsel objects, and the objection is sustained, and curative instructions are given to the jury, defendant has no grounds for exception on appeal.'” State v. Lewis, 147 N.C. App. 274, 280, 555 S.E.2d 348, 352 (2001) (quoting State v. Fletcher, 125 N.C. App. 505, 511, 481 S.E.2d 418, 423, disc. rev. denied, 346 N.C. 285, 487 S.E.2d 560, cert. denied, 522 U.S. 957, 139 L. Ed. 2d 299 (1997)). “When a jury is instructed to disregard improperly admitted testimony, the presumption is that it will disregard the testimony.” State v. Patterson, 149 N.C. App. 354, 361, 561 S.E.2d 321, 325 (2002) (quoting State v. McCraw, 300 N.C. 610, 620, 268 S.E.2d 173, 179 (1980)). “Jurors are presumed to follow a trial court's instructions.” State v. McCarver, 341 N.C. 364, 384, 462 S.E.2d 25, 36 (1995). “'Ordinarily it is presumed that the jury followed such instruction and the admission [of evidence later struck from the record] is not held to be reversible error unless it is apparent from the entire record that the prejudicial effect of it was not removed from the minds of the jury by the court's admonition.'” State v. Newcomb, 36 N.C. App. 137, 140, 243 S.E.2d 175, 177 (1978) (quoting Smith v. Perdue, 258 N.C. 686, 690, 129 S.E.2d 293, 297 (1963)).
    During the State's redirect examination of Officer Doughty, he testified he had previously seen the defendant, had many dealings with him, some of which were “arrest type situations”. Defendantobjected, the trial court sustained, and defendant moved to strike. The trial court granted the motion to strike and instructed the jury to, “[i]gnore the last response. It's not to be considered in your consideration of this case.”
    The State asked Officer Doughty if he had “personally seen [defendant] involved in contraband in the area ... prior to” the night of defendant's arrest. Officer Doughty answered yes and defendant again objected. The court sustained the objection. Defendant moved to strike, and the trial court granted the motion. Later, the State asked Officer Doughty if he had “ever known [defendant] to have a legitimate job.” Defendant objected and the trial court sustained as to the word “legitimate”.
    It is not “apparent from the entire record that the prejudicial effect of [Officer Doughty's statements] was not removed from the minds of the jury by the court's admonition”. Id.
    The trial court sustained defendant's objection, struck the testimony, and instructed the jury to disregard the statement. There is no evidence that the jury disregarded the trial court's instruction. This assignment of error is overruled.
VI. Conclusion

    Defendant's motion to dismiss was properly denied. The trial court exercised its discretion in denying defendant's request to reopen the trial after the jury retired to deliberate. Defendant was not prejudiced by improper statements made at trial, after the statements were stricken from the record and the jury received curative instructions.    No Error.
    Judges WYNN and STEELMAN concur.
    Report per Rule 30(e).

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