An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA 03-370

NORTH CAROLINA COURT OF APPEALS

Filed: 20 July 2004

STATE OF NORTH CAROLINA

v .                         Guilford County
                            No. 01 CRS 23649, 76797
RANDY REHM

    Appeal by defendant from judgment entered 8 August 2002 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 28 January 2004.

    Roy Cooper, Attorney General, by Alexandra M. Hightower, Assistant Attorney General, for the State.

    L. Jayne Stowers for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Randy Rehm, appeals convictions for possession of cocaine and being a habitual felon. For the reasons discussed herein, we find no error.
    Defendant was arrested on 18 January 2001 for possession with intent to sell or deliver cocaine and felony maintaining a dwelling for selling or keeping a controlled substance. He was released on his written promise to appear on 24 February 2001. Defendant failed to appear on 24 February 2001, and an order for his arrest was issued on 28 February 2001. On 5 March 2001, defendant was indicted by the grand jury for possession with intent to sell and deliver a controlled substance. The order for defendant's arrest was recalled on 6 March 2001. Defendant again failed to appear on18 April 2001 and another order for his arrest was issued and a secured bond of $10,000 was set. However, that order was recalled on 21 May 2001 with the State's consent.
    On 2 July 2001, defendant was indicted by the grand jury as a habitual felon. Upon motion of the State, the court set a secured bond of $25,000. It appears that defendant had other charges pending and that his bonds for all charges totaled $155,000. Defendant filed a motion to reduce his bond, which was denied following a hearing on 25 February 2002. At the hearing, defendant also requested that his appointed attorney be replaced by his own privately retained counsel. However, defendant had not retained private counsel at the time, and agreed that his appointed counsel should continue to represent him. Defendant subsequently posted bond and was released from pre-trial custody on 2 April 2002.
    Defendant was tried on 24 April 2002 before the Honorable Ronald E. Spivey on charges of possession with intent to sell and deliver cocaine, felony maintaining a dwelling for the purpose of keeping or selling cocaine, and being a habitual felon. At this trial, defendant made a motion to substitute counsel, which was denied by the trial court. The jury was unable to reach a verdict, and Judge Spivey declared a mistrial.
    Defendant was retried on 17 July 2002 before the Honorable Catherine C. Eagles on the charge of possession of cocaine and of being a habitual felon. The State proceeded on the lesser included offense of possession of cocaine in lieu of the original charge of possession with intent to sell and deliver cocaine. The jury founddefendant guilty of possession of cocaine on 18 July 2002. He then entered a plea of guilty to the habitual felon charge, reserving his right to appeal the underlying conviction. Defendant was sentenced as a habitual felon to an active sentence of 107 to 138 months. Defendant appealed.
    The State's evidence at the 17 July 2002 trial tended to show that on 18 January 2001, Officer C.T. Blaylock of the Greensboro Police Department and at least four other officers were dispatched to 3201 Bach Terrace. A caller identifying himself as Donnish Whitfield reported a burglary and shooting at the house, and stated he had jumped from a window to avoid being shot.
    At the house, Officer Blaylock noticed there was a broken window with curtains pulled outside and that the front door was open. Through the open door, Officer Blaylock saw down the hallway into the bathroom where a man was standing with a towel in his hand, wiping his face. Officer Blaylock ordered the man to come outside. The man, later identified as defendant, was visibly upset and physically ill. He vomited, and EMS was called to examine him.
    Through the open door, Officer Blaylock could not see the bathroom toilet, but he could see the bathtub with a shower curtain. The officers entered the house, and they noticed bullet holes in the kitchen and dining area and a closet near the bathroom. Officer Blaylock checked the bathroom for suspects. He noticed an object floating in the toilet, “moving in a circular fashion” as though the toilet had been flushed recently. Officer Blaylock recognized the object as a “corner baggie” with asubstance he believed was crack cocaine inside. A “corner baggie” is a sandwich bag with crack cocaine squeezed tightly into a corner and twisted until the corner becomes self-sealed and breaks away. Officer Blaylock finished checking the house for suspects, and retrieved the corner baggie from the toilet.
    Officer Blaylock questioned defendant about the shooting. Defendant indicated that the intruders had not gotten past the front room of the residence. He also stated that he rented the home and that his brother, Donnish Whitfield, was visiting him. Whitfield was located in the house next door. Shell casings were found on the porch and inside the front door in the living room. The front door frame was broken and the door had been forced open.     Officer Blaylock accused defendant of attempting to flush the cocaine when the police arrived. Defendant consented to a search of his house. Officers found no other drugs during the search. However, they found two small silver scales in the kitchen and two plastic sandwich baggies with a corner missing in the kitchen trash. Defendant was arrested and charged with possession with intent to sell and deliver cocaine.
    Officer Blaylock testified that he did not see defendant throw anything into the toilet, did not see him flush the toilet, and did not hear the toilet flush. Defendant denied the cocaine belonged to him. Officer Blaylock stated there was substantial evidence of a home invasion. He stated that he arrested defendant for possession of cocaine based upon his experience that home invasions were often committed by one drug dealer against another. Thisbelief was bolstered by the fact that he found scales commonly used in the drug trade as well as a form of packaging used to sell cocaine. The scales found in the kitchen were not tested for drug residue or fingerprints.
    Defendant offered no evidence at trial.
    In his first assignment of error, defendant argues the trial court erred in issuing an order for arrest based upon the ex parte motion of the prosecutor upon return of the habitual felon indictment and setting a bond of $25,000 without notice to defendant.
    Defendant does not cite to any objection raised by defendant at trial, nor have we been able to find any such objection in the record pertaining to this assignment of error. Error may not be asserted on appeal unless it has been brought before the trial court by an appropriate and timely objection or motion. N.C. Gen. Stat. § 15A-1446(a) (2003). Failure to do so constitutes a waiver of the right to assert the alleged error on appeal. N.C. Gen. Stat. § 15A-1446(b) (2003). Defendant has the burden of establishing his right to review by demonstrating that the exception was preserved by rule or law or that the alleged error constitutes plain error. State v. Gardner, 315 N.C. 444, 447, 340 S.E.2d 701, 705 (1986). This matter has not been assigned as plain error and this assignment of error is therefore waived.
    As to this assignment, defendant also makes constitutional arguments. These constitutional issues were not raised before the trial court. The appellate courts are not required to pass uponconstitutional issues unless the issue was raised and decided by the trial court. State v. Golphin, 352 N.C. 364, 439, 533 S.E.2d 168, 219 (2000). This assignment of error is dismissed.
    In his second assignment of error, defendant argues the trial court lacked jurisdiction over the habitual felon charge. We disagree.
    Defendant argues the trial court erred by accepting his guilty plea on the habitual felon charge after the return of a guilty verdict on the charge of felonious possession of cocaine, because the indictment charging felonious possession failed to reference the habitual felon charge. However, N.C. Gen. Stat. § 14-7.3 does not require that an indictment charging a substantive offense allege that the defendant is a habitual felon. N.C. Gen. Stat. § 14-7.3 (2003); See State v. Patton, 342 N.C. 633, 635, 466 S.E.2d 708, 710 (1996). This assignment of error is without merit.
    In his third assignment of error, defendant argues the trial court erred in allowing Officer Blaylock to state why defendant was arrested for possession of cocaine. We disagree.
    Testimony by a non-expert witness in the form of opinions or inferences is admissible if (a) rationally based on the perception of the witness and (b) helpful to an understanding of his testimony or the determination of a fact in issue. N.C. Gen. Stat. § 8C-1, Rule 701 (2003). The witness need not have observed the action described continuously, so long as he perceived the incident sufficiently to have gained a rational basis on which to formulatean opinion. Eason v. Barber, 89 N.C. App. 294, 298, 365 S.E.2d 672, 675 (1988).
    Officer Blaylock indicated that he had nearly thirty years of law enforcement experience, which included drug enforcement training and participation in over 100 arrests involving drugs. When asked why defendant was arrested, Officer Blaylock testified as follows:
        Based on my experience and police work, we respond to a lot of different calls, lot of shooting calls. As defense attorney indicated, a lot of home invasions. In my line of work we see a vast majority of home invasions are drug dealer against drug dealer. Based on the scenario as I knew it at the time, based on the evidence and based on what I observed in the toilet, it appeared to me that this could possibly be a drug dealer invading the home of another drug dealer.

This testimony indicates that Officer Blaylock had sufficient observation of the circumstances to formulate a rational opinion regarding the invasion of defendant's home. These statements were helpful to a clear understanding of his testimony about why he arrested defendant for possession of cocaine. Thus, his testimony was properly admitted by the trial court. See State v. Drewyore, 95 N.C. App. 283, 287, 382 S.E.2d 825, 826-27 (1989) (reasoning that the police officer's testimony detailing indicators of drug-related activity is properly admissible and helps the jury in understanding that officers' actions); State v. Diaz, 155 N.C. App. 307, 316, 575 S.E.2d 523, 529 (2002) (noting the police officer's testimony merely explained “why he was suspicious of defendantsafter observing their conduct”), cert. denied, 357 N.C. 464, 586 S.E.2d 271 (2003).
    The testimony was elicited from Officer Blaylock during the State's redirect examination. On cross-examination, defense counsel questioned Officer Blaylock concerning the evidence he found as to the home invasion and as to what he had observed concerning the cocaine found in the toilet. Specifically, testimony was elicited from Officer Blaylock that he did not see defendant flush the toilet and that he did not know when or how the cocaine came to be in the toilet. The trial court ruled that defendant had “opened the door” to the State's line of redirect examination. We agree. If the defense opens the door to an issue during questions he cannot object when the issue is later resurrected in further testimony. Middleton v. Russell Group Ltd., 126 N.C. App. 1, 23-24, 483 S.E.2d 727, 740 (1997). Here, counsel's cross-examination clearly raised the question of why the officer arrested defendant, since the officer did not observe defendant with the cocaine, and could not state how the cocaine got into the toilet. Defendant thus “opened the door” to the State's question upon re-direct examination. This assignment of error is without merit.     
    In his fourth assignment of error, defendant argues it was error for the court to deny his motion to dismiss the charges at the close of all the evidence. We disagree.
    In considering a motion to dismiss, the only issue for the trial court is whether there is substantial evidence of eachessential element of the charged offense and of the defendant being the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). “Substantial evidence is relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995).
    The court must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from that evidence. State v. Jaynes, 342 N.C. 249, 274, 464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). Contradictions and discrepancies in the evidence are to be resolved by the jury. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995). The State's evidence must be existing and real, not merely seeming or imaginary. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion should be granted. Id. at 98, 261 S.E.2d at 117. However, the trial court is not to consider the weight of the evidence, but only whether it is sufficient to carry the case to the jury. Id. at 99, 261 S.E.2d at 117. The test is the same whether the evidence is direct or circumstantial. Id.
    On a charge of possession of cocaine, the State bears the burden of proving two elements beyond a reasonable doubt: (1) defendant was in actual or constructive possession of cocaine; and (2) defendant knowingly possessed the cocaine. See State v.Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985). Constructive possession of contraband exists where there is intent and capability to maintain control and dominion over the contraband. State v. Brown, 310 N.C. 563, 568, 313 S.E.2d 585, 588 (1984). The State is not required to prove that the accused has exclusive possession of the premises where the contraband is found. Id. at 569, 313 S.E.2d at 588-89. However, if possession of the premises is not exclusive, constructive possession cannot be inferred without other incriminating circumstances. Id.
    The State's evidence tended to show that at the time the police arrived, defendant was the only person in the home and he was standing in the bathroom where the “corner baggie” of cocaine was found in the toilet, which appeared to have been flushed recently. Postal scales like those often used in the drug trade, as well as materials commonly used to package cocaine, were found in defendant's kitchen. The State also offered defendant's statement that the intruders had not come past the living room. In addition, defendant admitted that although his brother was visiting at the time of the incident, defendant was the sole renter and occupant of the home. These are sufficient incriminating circumstances from which a jury could find that defendant knowingly possessed the cocaine. See State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972) (holding that the State's evidence indicating defendant was found within three to four feet of the marijuana in his home and no one else was present supported a reasonable inference that the defendant was in possession of themarijuana); State v. Neal, 109 N.C. App. 684, 687-88, 428 S.E.2d 287, 290 (1993) (holding the evidence was sufficient to prove constructive possession of cocaine found in an apartment bathroom when officers saw two males in the bathroom, one male ran, and the other male was in the bathroom where the cocaine was found on top of the toilet). This assignment of error is without merit.
    In his fifth assignment of error, defendant argues the trial court erred in denying the defendant's request for new appointed counsel. We disagree.
    The standard of review of denial of a defendant's request to substitute counsel is abuse of discretion. State v. Sweezy, 291 N.C. 366, 371-72, 230 S.E.2d 524, 529 (1976). In order to be granted substitute counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust verdict. State v. Gary, 348 N.C. 510, 515-16, 501 S.E.2d 57, 61-62 (1998). New counsel will not be appointed simply because the defendant is dissatisfied with his attorney's services, and the effectiveness of counsel will not be gauged by the amount of time he spends with the defendant. State v. Hammonds, 105 N.C. App. 594, 596-97, 414 S.E.2d 55, 56-57 (1992). Moreover, a mere disagreement over trial tactics does not entitle defendant to new counsel. State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980).
    At the hearing on defendant's bond motion on 25 February 2002, defendant moved to substitute his own private counsel. However,because defendant had not hired other counsel, he agreed that his appointed counsel should remain in the case. At a subsequent hearing on 21 March 2002, defendant complained his appointed counsel had not spent enough time with him and had not given him sufficient notice that he would be in court that day. As a result, the trial court granted a continuance of one month to allow defendant and his attorney to adequately prepare for trial. At his first trial, on 24 April 2002, defendant asked for either another continuance or new counsel. The trial court denied this request. It is noteworthy that at his retrial on 17 July 2002, defendant did not object to representation by his appointed counsel.
    Defendant has not shown good cause that his request should have been granted, and we find that the trial court did not abuse its discretion in refusing to substitute defendants' appointed counsel. This assignment of error is without merit.
    Finally, we note that the underlying felony supporting defendant's habitual felon status was possession of cocaine. In State v. Jones, __ N.C. __, __ S.E.2d __ (2004), our Supreme Court ruled that possession of cocaine was a felony. Consequently, it was proper for possession of cocaine to serve as the underlying felony for purposes of habitual felon status.
    NO ERROR.    
    Chief Judge MARTIN and Judge GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***