2. Evidence--character--establishing elements of charged crimes
The trial court did not err in a possession of drug paraphernalia, possession with intent to
sell and deliver cocaine, and maintaining a place to keep controlled substances case by allowing a
deputy's testimony that he had seen defendant at the pertinent residence on previous occasions
even though defendant contends the testimony disclosed the deputy's familiarity with defendant
and suggested that defendant had a prior record or bad character, because the challenged
testimony was admissible to help establish the elements of the charged crimes.
3. Drugs--possession of drug paraphernalia--motion to amend indictment--motion to
dismiss
The trial court erred by granting the State's motion to amend a possession of drug
paraphernalia indictment by striking “a can designed as a smoking device” and replacing it with
“drug paraphernalia, to wit: a brown paper container,” and by denying defendant's motion to
dismiss that charge, because: (1) the amendment constituted a substantial alteration of the
indictment when common household items and substances may be classified as drug
paraphernalia, and a defendant must be apprised of the item or substance in order to mount a
defense; and (2) no evidence of a can designed as a smoking device was presented.
4. Drugs--possession with intent to sell and deliver cocaine--instruction--constructive
possession
The trial court erred by giving the jury an instruction on constructive possession of
cocaine jointly with others, and thus, defendant's conviction for possession with intent to sell and
deliver cocaine is reversed, because: (1) unless the person has exclusive possession of the place
where the narcotics are found, the State must show other incriminating circumstances before
constructive possession may be inferred; and (2) the State in this case was required to show other
incriminating circumstances before constructive possession could be inferred when five
individuals were found in or near the mobile home in which the drugs were found and two of the
individuals were in close proximity to the drugs, the residence was owned by someone other than
defendant, the warrant squad went to the residence in order to arrest someone other than
defendant, and the only evidence of defendant's connection to the premises was a deputy's
testimony that he had seen defendant at the residence on prior occasions.
5. Drugs--maintaining a place to keep controlled substances_-failure to challenge
conviction
Defendant's conviction and sentence for maintaining a place to keep controlled
substances remains intact because defendant has not challenged this conviction and sentence on
appeal.
Attorney General Roy Cooper, by Assistant Attorney General D.
David Steinbock, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and
Terri W. Sharp, for the defendant-appellant.
WYNN, Judge.
By this appeal, Defendant, Daunte Dewayne Moore, presents the
following issues for our consideration: Did the trial court
erroneously (I) allow implied hearsay; (II) allow inadmissible
character evidence; (III) deny Defendant's motion to dismiss and
allow the State to amend the drug paraphernalia indictment; and
(IV) instruct the jury on constructive possession. After careful
review, we vacate Defendant's conviction and sentences for
possession of drug paraphernalia and possession with intent to sell
and deliver cocaine.
On 12 January 2002, members of the Onslow County Sheriff's
Department warrant squad were attempting to serve active warrants
in Maysville, North Carolina. Deputies George Hardy and Jack
Springs went to 145 Hadley Collins Road to serve a warrant;
however, the individual was not there. Upon their arrival at this
address, the deputies saw a small vehicle leaving the address which
in their opinion looked suspicious. The deputies stopped the
vehicle and questioned its occupants--an elderly white male and ayoung African-American female. During the conversation, the
African-American female indicated she had been at the residence to
visit her cousin “D.D.” The young woman also opened her right hand
which contained a rock of crack cocaine. Deputy Springs testified
he knew “D.D.” to be the street name for Defendant.
After the conversation with the vehicle occupants, the
deputies went to the residence to speak with Defendant. After the
officers talked briefly with Defendant at the residence's door,
Defendant attempted to shut the door. The deputies grabbed
Defendant and arrested him for resisting arrest. Thereafter, the
deputies searched the residence. In plain view, the deputies found
a brown paper envelope containing crack cocaine sitting on top of
some insulation in an area where the paneling had been removed from
the wall.
The deputies also found two other individuals in the
residence. Upon searching Defendant's person, the deputies located
$18.00 in his front pocket and $309 in his billfold. Deputy
Springs testified he had seen Defendant at 145 Hadley Collins Road
on several previous occasions.
Based upon this evidence, Defendant was found guilty of
possession with intent to sell and deliver cocaine, possession of
drug paraphernalia, and intentionally keeping and maintaining a
place for controlled substances. The trial court sentenced
Defendant to 10-12 months for the possession with intent to sell
and deliver cocaine conviction and consecutive suspended sentences
for possession of drug paraphernalia and maintaining a place for
controlled substances. Defendant appeals. _____________________________________________________
[1] Defendant first contends the trial court erroneously
allowed improper hearsay by permitting the deputies to testify that
they went to the residence to talk with Defendant after arresting
a person with crack cocaine in her hand who had just left the
residence. We disagree.
“Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted,” N.C. Gen. Stat. § 8C-1,
Rule 801(c)(2001), and “is not admissible.” N.C. Gen. Stat. § 8C-
1, Rule 802 (2001). However, the statements of one person to
another are admissible to explain the subsequent conduct of the
person to whom the statement was made. State v. Potter, 295 N.C.
126, 244 S.E.2d 397 (1978).
In support of his contention, Defendant cites State v. Austin,
285 N.C. 364, 204 S.E.2d 675 (1974) wherein our Supreme Court held
it was reversible error to allow a motel registration card showing
the name of the defendant charged with incest and the name of his
daughter introduced into evidence. The Court stated that any
attempt by the trial judge to restrict such evidence would not
overcome the prejudicial effect of the evidence. However, Austin
is distinguishable from the facts of this case. In Austin, the
signature on the hotel registration card had not been authenticated
and the significance of the registration card was highly
prejudicial because it was the only evidence other than the
daughter's testimony which bore directly upon the question of
whether the defendant had had incestuous relations with her. Unlike Austin, in this case, the deputies' testimony placed
Defendant in close proximity to the drugs. Moreover, the
challenged testimony was neither offered for the truth of the
matter asserted nor offered as corroboration; rather, the testimony
was offered to explain the deputies' actions. Accordingly, we
conclude the trial court did not erroneously admit the testimony.
[2] In his next argument, Defendant contends the trial court
erroneously allowed character evidence in violation of N.C. Gen.
Stat. § 8C-1, Rule 404. Under Rule 404, “evidence of a person's
character or a trait of his character is not admissible for the
purpose of proving that he acted in conformity therewith on a
particular occasion.”
Defendant contends the trial court erred in allowing Deputy
Spring's testimony that he had seen Defendant at the 145 Hadley
Collins residence on previous occasions. Defendant argues this
testimony disclosed the deputy's familiarity with Defendant and
suggested that he had a prior record or bad character. However,
the State contends the testimony was admissible to establish
elements of the possession with intent to sell and deliver,
maintaining a place to keep controlled substances and possession of
drug paraphernalia charges. See State v. McLaurin, 320 N.C. 143,
357 S.E.2d 636 (1987)(possession of drug paraphernalia); State v.
Allen, 279 N.C. 406, 183 S.E.2d 680 (1971)(possession with intent
to sell and deliver); State v. Alston, 91 N.C. App. 707, 373 S.E.2d
306 (1988)(maintaining a place to keep controlled substances).
Under Rule 404, “even though evidence may tend to show other
crimes, wrongs, or acts by the defendant and his propensity tocommit them, it is admissible under Rule 404(b) so long as it also
is relevant for some purpose other than to show that defendant has
the propensity for the type of conduct for which he is being
tried.” State v. Coffey, 326 N.C. 268, 279, 389 S.E.2d 48, 54
(1990). As the challenged testimony was admissible to help
establish the elements of the charged crimes, we conclude the trial
court did not err in admitting Deputy Spring's testimony.
[3] Defendant next contends the trial court erroneously
granted the State's motion to amend the drug paraphernalia
indictment and denied Defendant's motion to dismiss. We agree.
N.C. Gen. Stat. § 15A-923(e) provides that “a bill of
indictment may not be amended.” Our Supreme Court has interpreted
the term amendment under N.C. Gen. Stat. § 15A-923(e) to mean “any
change in the indictment which would substantially alter the charge
set forth in the indictment.” State v. Snyder, 343 N.C. 61, 65,
468 S.E.2d 221, ____ (1996).
An indictment or criminal charge is
constitutionally sufficient if it apprises the
defendant of the charge against him with
enough certainty to enable him to prepare his
defense and to protect him from subsequent
prosecution for the same offense. The
indictment must also enable the court to know
what judgment to pronounce in the event of
conviction.
Snyder, 343 N.C. at 65-66, 468 S.E.2d at ____.
In this case, Defendant was charged with a violation of N.C.
Gen. Stat. § 90-113.22 (2001) which provides:
(a) It is unlawful for any person to knowingly
use, or to possess with intent to use, drug
paraphernalia to plant, propagate, cultivate,
grow, harvest, manufacture, compound, convert,
produce, process, prepare, test, analyze,
package, repackage, store, contain, or conceala controlled substance which it would be
unlawful to possess, or to inject, ingest,
inhale, or otherwise introduce into the body a
controlled substance which it would be
unlawful to possess.
According to Defendant's indictment, Defendant allegedly possessed
“drug paraphernalia, to wit: a can designed as a smoking device.”
However, none of the evidence elicited at trial related to a can;
rather, the evidence described crack cocaine in a folded brown
paper bag with a rubber band around it. Thus, at the close of the
State's evidence, Defendant moved to dismiss. Rather than dismiss
the indictment, the trial court granted the State's motion to amend
the indictment striking “a can designed as a smoking device” and
replacing it with “drug paraphernalia, to wit: a brown paper
container.” In our opinion, this amendment constituted a
substantial alteration of the indictment.
Under N.C. Gen. Stat. § 90-113.22, drug paraphernalia is not
defined. Rather, one must refer to N.C. Gen. Stat. § 90-113.21
for guidance. Under G.S. 90-113.21, “drug paraphernalia means all
equipment, products and materials of any kind that are used to
facilitate, or intended or designed to facilitate, violations of
the Controlled Substances Act . . ..” Thereafter, the provision
lists several kinds of drug paraphernalia, including common
household items such as blenders, bowls, containers, spoons, mixing
devices, envelopes and storage containers. Because some of the
items that could be considered drug paraphernalia are also common
everyday items, the statute provides
the following, along with all other relevant
evidence, may be considered in determining
whether an object is drug paraphernalia:
(1) statements by the owner or anyone in
control of the object concerning its use;
(2) prior convictions of the owner or other
person in control of the object for violations
of controlled substances law;
(3) the proximity of the object to a violation
of the Controlled Substances Act;
(4) the proximity of the object to a
controlled substance;
(5) the existence of any residue of a
controlled substance on the object;
(6) the proximity of the object to other drug
paraphernalia;
(7) instructions provided with the object
concerning its use;
(8) descriptive materials accompanying the
object explaining or depicting its use;
(9) advertising concerning its use;
(10) the manner in which the object is
displayed for sale;
(11) whether the owner, or anyone in control
of the object, is a legitimate supplier of
like or related items to the community, such
as a seller of tobacco products or
agricultural supplies;
(12) possible legitimate uses of the object in
the community;
(13) expert testimony concerning its use;
(14) the intent of the owner or other person
in control of the object to deliver it to
persons whom he knows or reasonably should
know intend to use the object to facilitate
violations of the Controlled Substances Act.
As common household items and substances may be classified as drug
paraphernalia when considered in the light of other evidence, in
order to mount a defense to the charge of possession of drug
paraphernalia, a defendant must be apprised of the item orsubstance the State categorizes as drug paraphernalia.
Accordingly, we conclude the amendment to the indictment
constituted a substantial alteration of the charge set forth in the
indictment. Moreover, as no evidence of “a can designed as a
smoking device” was presented, we conclude the trial court
erroneously denied Defendant's motion to dismiss.
[4] Finally, Defendant contends the trial court erroneously
gave the jury an instruction on constructive possession of cocaine
jointly with others. We agree.
“Constructive possession exists when the defendant while not
having actual possession, . . . has the intent and capability to
maintain control and dominion over the narcotics.” State v.
Butler, 356 N.C. 141, 146, 567 S.E.2d 137, 140 (2002). “Where such
[drugs] are found on the premises under the control of the accused
this fact, in and of itself gives rise to an inference of knowledge
and possession which may be sufficient to carry the case to the
jury on the charge of unlawful possession.” State v. Harvey, 281
N.C. 1, 12, 187 S.E.2d 706, 714 (1972). However, “unless the
person has exclusive possession of the place where the narcotics
are found, the State must show other incriminating circumstances
before constructive possession may be inferred.” State v. Davis,
325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989).
In this case, five individuals were found in or near the
mobile home in which the drugs were found. Upon the sheriff
deputies' arrival, an elderly white male and young African-American
female were observed leaving the residence's driveway in a vehicle.
Upon questioning these individuals, the sheriff deputies noticed arock of crack cocaine in the female's right hand. Inside of the
mobile home, Defendant and another man were located. Defendant
opened the front door and the other man was found in the back
bedroom. Finally, a white female was observed on the scene.
However, none of the deputies could testify as to whether the
female came from inside or outside of the mobile home. Thus, two
of the five individuals were in close proximity to the drugs--
Defendant, who opened the front door, and the other man, who was
found in the back bedroom at the end of the hallway in which the
drugs were found.
Thus, the State was required to show other incriminating
circumstances before constructive possession could be inferred. In
this case, the residence was owned by someone other than Defendant-
-a woman who was not present during any of the activity on the day
in question. Moreover, the warrant squad went to the residence in
order to arrest someone other than Defendant. Upon their arrival,
as many as five people were found in or near the residence. During
the search of the mobile home, to which the deputies indicated
Defendant consented, the deputies did not find any documents or
other items tying Defendant to the residence. The only evidence of
Defendant's connection to the premises was Deputy Jack Spring's
testimony that he had seen Defendant at the residence on prior
occasions. However, Deputy Springs was not aware of who else lived
there and he testified that other people associate there.
The State also indicates Defendant's attempt to flee from the
deputies, $327.00 of U.S. currency on his person, and the African-
American female's testimony that she was there to see her cousin,D.D., whom Deputy Springs indicated was Defendant's street name,
constituted incriminating circumstances from which one could infer
constructive possession. However, the evidence indicates Defendant
did not attempt to flee the officers. Upon answering the door, the
officers asked to talk with Defendant about narcotics activity.
Defendant indicated he did not want to talk to police and tried to
close the door. The officers then prevented Defendant from closing
the door, grabbed him and threw him on the ground and arrested him.
When Defendant attempted to close the door, he was not under
arrest, was not the subject of an arrest warrant and was under no
obligation to talk to police. Indeed, the trial court dismissed
Defendant's resist, obstruct and delay charge. Moreover, there is
no evidence Defendant struggled with the officers before the
officers handcuffed him as the State contends in its brief.
Finally, $327.00 in U.S. currency, without more, is not a
significant amount of money from which one can infer constructive
possession of drugs. As there was insufficient evidence of
incriminating circumstances, we conclude the trial court erred in
instructing the jury on constructive possession.
(See footnote 1)
See State v.
King, 99 N.C. App. 283, 288, 393 S.E.2d 152, 155 (1990)(where this
Court identified three typical situations [in which constructive
possession has been established] regarding the premises where drugswere found: (1) some exclusive possessory interest in the defendant
and evidence of defendant's presence there, (2) sole or joint
physical custody of the premises of which defendant is not an
owner; and (3) in an area frequented by defendant, usually near
defendant's property). Accordingly, because we similarly conclude
there was insufficient evidence of Defendant's actual possession of
the cocaine, we vacate Defendant's conviction and sentence for
possession with the intent to sell and deliver cocaine. See State
v. Diaz, 155 N.C. App. 307, ___, 575 S.E.2d 523, 528 (2002)(stating
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).
[5] In sum, we vacate Defendant's conviction for possession of
drug paraphernalia and the suspended sentence of 120 days, and
reverse his conviction for possession with intent to sell and
deliver cocaine and the active sentence of 10 to 12 months.
However, Defendant's conviction and sentence for maintaining a
place to keep controlled substances remains intact as Defendant has
not challenged this conviction and sentence on appeal.
Vacated in part, reversed in part.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
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