An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1214


Filed: 19 August 2003


v .                         Wayne County
                            Nos. 95 CRS 18514
ANDREW MARK HUDSON,                    95 CRS 19042

    Appeal by defendant from judgment entered 25 February 1998 by Judge W. Russell Duke, Jr. in Wayne County Superior Court. Heard in the Court of Appeals 10 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Daniel S. Johnson, for the State.

    Kathryn L VandenBerg, for defendant.

    HUDSON, Judge.

    Defendant appeals the judgment entered upon his conviction by a jury of possession of cocaine and keeping and maintaining a dwelling for the keeping, using and/or selling of cocaine. On appeal, Defendant contends (1) that the trial court committed plain error by permitting the state to introduce a statement by a confidential informant contained in a search warrant, (2) that his trial counsel was ineffective for failing to object to the statement; and (3) that the evidence was insufficient to prove beyond a reasonable doubt that Defendant constructively possessed cocaine. For the following reasons, we find no error.

    On 12 December 1995, Sergeant Effler of the Wayne CountySheriff's Department applied for a search warrant, describing the premises to be searched as “Room 23 Economy Inn, West Granthan St, Goldsboro, NC.” The individual to be searched was a “Black Male Known only as Black, 6'1”, thin built, cast on leg.” In his application, Sergeant Effler wrote that a “confidential and reliable source of information” told him that the individual described was in possession of crack cocaine and was inside the described premises. The magistrate issued the search warrant.
    At approximately ten-thirty on the morning of 12 December 1995, a number of law enforcement officers, including Sergeant Effler, assembled outside Room 23 of the Economy Inn. The officers knocked on the door and announced themselves as police officers there to execute a search warrant. The officers opened the unlocked door and found four adults, three men and a woman, in the room. Defendant and the woman were standing near the door while the other two men were sitting on the bed nearest the door. Defendant said the room was his and the officer served him with the search warrant. The room was described as approximately ten by fourteen feet with furniture including two beds separated by a night stand, and a dresser, the location of which does not appear in the record. The searchers found a number of items. Sergeant Effler found a brown medicine bottle containing off-white residue on the shelf of the night stand. Lying partially under one of the beds near the night stand, another officer found a small, clear plastic bag that contained an off-white material. Analysis determined that the off-white substances in both the bottle and bagwere cocaine. A soda can made into a smoking device was located under one of the beds, within two or three feet of the plastic bag. Four room receipts, three dated 8, 9, and 10 December respectively, and one undated, were found in a drawer of the dresser. The receipts identified Defendant as the individual who rented the room. As a result of the search, Sergeant Effler arrested Defendant and seized the medicine bottle, plastic bag, soda can, and receipts.
    During Sergeant Effler's testimony at trial, the following exchange occurred between him and the prosecutor:
    Q. When you went to appear in front of the magistrate to secure the search warrant, did you describe this particular motel room by number and location?
    A. Yes, I did.
    Q. And was that listed as the location to be searched?
    A. Yes, it was. Room 23, Economy Inn, Grantham Street, Goldsboro NC.
    Q. All right. Does the search warrant also describe a person that was searched?
    A. It did.
    Q. And did it describe the person who was searched?
    A. Yes, sir. It did. A black male known only as Black, 6'1” build with a cast on the leg.
    On 25 February 1995, a jury found Defendant guilty of possession of cocaine and maintaining a dwelling for keeping, using and/or selling cocaine. Defendant did not enter a notice of appeal. However, the United States District Court for the Eastern District of North Carolina granted a writ of habeas corpus, and this Court then ordered that Defendant's appeal should be allowed to proceed.
    First, Defendant contends that the trial court committed plainerror by admitting the testimony of Sergeant Effler concerning the search warrant. We disagree.
    Our Supreme Court has held that it is error to allow a search warrant and supporting affidavit based on information from a confidential informant to be admitted into evidence over defendant's objections because they are hearsay statements and deprive the accused of his rights of confrontation and cross-examination. State v. Edwards, 315 N.C. 304, 306, 337 S.E.2d 508, 509 (1985). Here, Defendant did not object to Sergeant Effler's brief testimony concerning the search warrant. Neither the search warrant nor the supporting affidavit were entered into evidence or shown to the jury. Nevertheless, defendant asks this Court to review this assignment of error under the plain error rule.
    [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 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.”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). Although plain error review has usually been applied to instructions to the jury, our courts have held that it can alsoapply to the admission of evidence. State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983). However, after reviewing the entire record, we are not persuaded that this is the exceptional case where the claimed error is so fundamental that justice could not have been done. Accordingly, this assignment of error is overruled.
    Next, Defendant contends that his trial counsel was ineffective for failing to object to Sergeant Effler's testimony.
    This Court has continually held that
    claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal. A motion for appropriate relief is preferable to direct appeal because in order to defend against ineffective assistance of counsel allegations, the State must rely on information provided by defendant to trial counsel, as well as defendant's thoughts, concerns, and demeanor. [O]nly when all aspects of the relationship are explored can it be determined whether counsel was reasonably likely to render effective assistance. Thus, superior courts should assess the allegations in light of all the circumstances known to counsel at the time of representation.

State v. Stroud, 147 N.C. App. 549, 553-54, 557 S.E.2d 544, 547 (2001), cert. denied, 356 N.C. 623, 575 S.E.2d 758 (2002) (internal citations and quotation marks omitted).
    Although defendant has already filed a motion for appropriate relief in superior court, his motion alleged ineffective assistance of counsel on other grounds. Because we are unable to resolve upon the record before us whether defendant was denied effective assistance of counsel due to his counsel's failure to object to Sergeant Effler's testimony, we overrule this assignment of error without prejudice to defendant's right to file a motion forappropriate relief on this basis in the superior court.
    Finally, Defendant contends that the State's evidence was insufficient to show beyond a reasonable doubt that Defendant possessed cocaine. We disagree.
    When ruling on a motion to dismiss, the court must consider all the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which can be drawn therefrom. State v. Rasor, 319 N.C. 577, 585, 356 S.E.2d 328, 333 (1987). The central question is whether there is substantial evidence of each element of the charged offense, and that the defendant was the perpetrator. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Whether the evidence presented constitutes substantial evidence is a question of law for the court. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982). “If all the evidence, taken together and viewed in the light most favorable to the State, amounts to substantial evidence of each and every element of the offense and of defendant's being the perpetrator of such offense, a motion to dismiss is properly denied.” State v. Mercer, 317 N.C. 87, 98, 343 S.E.2d 885, 892 (1986) (citations omitted).
    Possession of a controlled substance may be either actual or constructive. State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 73 (1996). Also, such possession may be either by a single individual or in combination with another person. State v.Anderson, 76 N.C. App. 434, 438, 333 S.E.2d 762, 765 (1985). “Constructive possession exists when a person, while not having actual possession of the controlled substance, has the intent and capability to maintain control and dominion over a controlled substance. State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287, 289 (1993). When controlled substances are found on the premises under the control of the accused, this fact, by itself, may be sufficient to carry the case to a jury and survive a motion to dismiss. State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989). “However, unless the [accused] has exclusive possession of the place where the [controlled substances] are found, the State must show other incriminating circumstances before constructive possession may be inferred.” Id.
    Here, it is undisputed that the searched hotel room was in Defendant's name. However, due to the presence of three other adults, Defendant did not exclusively possess the hotel room. Therefore, the State must show other incriminating circumstances. Taking the evidence in the light most favorable to the State, as we must on a motion to dismiss, we see other evidence and testimony indicating (1) that Defendant was present when the cocaine was found; (2) that the hotel room was small, approximately ten by fourteen feet; (3) that the medicine bottle and plastic bag containing the cocaine were at least in partial view; and (4) that Defendant was within approximately eight feet of both the medicine bottle and plastic bag. We conclude that Defendant's presence in the hotel room, along with his proximity to the cocaine and thecocaine's location in plain view are additional incriminating circumstances sufficient to withstand a motion to dismiss. See State v. Alston, 91 N.C. App. 707, 710, 373 S.E.2d 306, 309-10 (1988) (finding that a defendant's presence on the premises and in close proximity to a drug may be a sufficient incriminating circumstance although it is somewhat mitigated when others are present). We conclude, therefore, that there was sufficient evidence to show beyond a reasonable doubt that Defendant possessed cocaine. This assignment of error is overruled.
    No error.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

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