STATE OF NORTH CAROLINA
v
.
Guilford County
No. 01 CRS 23649, 76797
RANDY REHM
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).
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