State v Dawson, (03-1199) 10/19/2004

Appeal by defendant from judgment entered 26 March 2003 by Judge Jay D. Hockenbury in Wayne County Superior Court. Heard in the Court of Appeals 27 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Lisa C. Glover, for the State.

    Parish & Cooke, by James R. Parish, for defendant-appellant.

GEER, Judge.

Defendant Willie Junior Dawson appeals from his convictions for possession of cocaine, maintaining a dwelling for the use of controlled substances, and attaining the status of habitual felon, contending primarily that the trial court erred in admitting (1) testimony about reports received by a police officer regarding drug activity in defendant's neighborhood and drugs at defendant's house; (2) testimony by a realty management company regarding the reputation of the neighborhood; and (3) testimony about a drug- related arrest of a person leaving defendant's house. We hold that the officer's testimony about reports of drugs and drug activity was admissible for the non-hearsay purpose of explaining the officer's subsequent conduct, while the evidence of a drug arrestwas relevant to the charge of maintaining a dwelling for the use of controlled substances. We hold that evidence of the reputation of defendant's neighborhood was inadmissible hearsay, but the error was harmless in light of defendant's admissions and evidence uncovered during the search of defendant's residence. Finally, we hold that the State offered substantial evidence of constructive possession of cocaine.

    The evidence, viewed in the light most favorable to the State, tended to show the following. On 27 June 2002, officers from the Goldsboro Police Department, acting on a tip from a confidential informant, went to 415B North Carolina Street in Goldsboro to execute a search warrant. As they approached the door of the residence, they could hear deadbolts being "thrown." Two of the officers knocked and announced their presence, then forced their way into the house. Upon entering the residence, one of the officers, Investigator Michael Horstmann, heard the toilet flushing and saw two men, later identified as O'Leslie Freeman and a man by the name of Outerbridge, exiting the bathroom with their hands dripping wet. The officers found defendant _ who required crutches to walk _ in the only bedroom of the apartment.
    The three men were brought into the living room of the apartment. Investigator Horstmann asked who lived in the apartment and defendant responded that he did. Evidence at trial confirmed that defendant rented the apartment. Investigator Horstmann thenpresented defendant with the search warrant and officers began searching the apartment.
    On top of the sink in the bathroom, officers found a small plastic bag containing a small amount of powder (later identified as cocaine), along with a spoon constituting drug paraphernalia. In the bedroom, the officers found letters addressed to defendant, including a notice of eviction, and a large plastic bag containing several smaller plastic bags located in the top drawer of the nightstand. The officers also found two "walkie-talkie" radios, one on the kitchen table and one on the bed where defendant had been when the officers entered. In the bushes outside the building, about ten feet from the apartment's front door, Investigator Horstmann found a needle, a brown paper bag containing a needle and a "crack" pipe, and a small pouch containing three needles, a book of matches, and a "crack" pipe.
    Defendant, Freeman, and Outerbridge were arrested that day. While in jail, defendant asked to speak with Investigator Horstmann. Investigator Horstmann and a colleague met with defendant and advised him of his Miranda rights. Defendant informed them that he had been allowing two people from New York, "Wise" and "AD," to use his home in exchange for drugs, and that "Wise," also known as Outerbridge, sold drugs from defendant's home. Defendant admitted he had also sold drugs in the past and had flushed the drugs when he thought police were coming. Defendant signed a written statement admitting that "Wise" sold drugs to a woman on the morning of 27 June 2002 at defendant'shouse and had been living with him for a month or so; that "AD" gave him heroin in exchange for allowing him to use the apartment; that "Wise" flushed drugs down the toilet when the police arrived; that defendant knew about "the dope you found on the sink in the bathroom"; and that sometimes he let people use heroin in the house.
    Defendant was indicted on 2 December 2002 on charges of possession of a Schedule I controlled substance (heroin), possession of a Schedule II controlled substance (cocaine), and maintaining a dwelling for the use of controlled substances. Defendant was separately indicted for having attained the status of habitual felon. Prior to trial at the 24 March 2003 Criminal Session of Wayne County Superior Court, the State voluntarily dismissed the heroin possession charge.
    A jury found defendant guilty of possession of cocaine and of maintaining a dwelling for the use of controlled substances. Defendant entered a plea of guilty to attaining habitual felon status. The charges were consolidated and defendant was sentenced in the presumptive range as a habitual felon to a minimum of 84 months and a maximum of 110 months imprisonment. Defendant gave oral notice of appeal to this Court.

    In two related assignments of error, defendant contends that the trial court erred in allowing Investigator Horstmann to testify regarding complaints of drug activity in the neighborhood where defendant lived and regarding information from a confidential andreliable informant that drugs were stored at defendant's home. The following testimony is at issue:
        Q.    How is it that you first . . . became acquainted with or knowledgeable about the residence at 415B North Carolina Street?

        A.    I received complaints about it.

        Q.    What do you mean received complaints?

                 [DEFENSE COUNSEL]: Okay. I'm going to object, your Honor.

                THE COURT: Well, overruled. So far.

        Q.    What do you mean you received complaints about it?

        A.    Just various phone calls and citizen complaints. Just that [it] was an area where they-- it was told to us of selling drugs.

                [DEFENSE COUNSEL]: Objection.

                 THE COURT: I didn't hear what he said. Overruled. What did you say?

        A.    I said that was just an area that people were calling and complaining about saying that they were selling drugs.

                THE COURT: All right.

        Q.    Were those other police officers calling you letting you know about this or were these citizen calls?

        A.    It was actually both.

        Q.    Did you do anything in response to those complaints?

        A.    Yes, we conducted surveillance on the house.
In addition, after Investigator Horstmann testified that he and other officers went to the residence at 415B North Carolina Street at 11:15 a.m. on 27 June 2002, the following exchange occurred:
        Q.    Why did you go to the residence on that day at that time?

        A.    We had received information from a confidential or reliable informant that drugs were being kept and stored there.

Defendant argues that the above-quoted testimony was inadmissible hearsay.   (See footnote 1)
     "'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) (2003). If the statement is offered for any other purpose, it is not hearsay. State v. White, 298 N.C. 430, 437, 259 S.E.2d 281, 286 (1979). Accordingly, "[t]he statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement is made." Id.
    This Court applied this principle in State v. Saunders, 64 N.C. App. 350, 307 S.E.2d 197 (1983), when an officer testified that he began an investigation of defendant's residence after learning from confidential, reliable sources of drug activities atthe residence. This Court held that the testimony was not hearsay, because "[the officer's] testimony was not offered to prove that drug activities were being conducted at defendant's residence. Rather, it was offered to explain the officer's subsequent conduct . . . ." Id. at 352, 307 S.E.2d at 199. See also State v. Ligon, 332 N.C. 224, 235-36, 420 S.E.2d 136, 142 (1992) (testimony concerning reputation of neighborhood admissible to explain why victim went there and why defendant was present).
    Here, Investigator Horstmann's testimony regarding the complaints of neighbors and the information from an informant was not offered to prove the truth of the matters asserted in the statements, but rather to explain why he was investigating the residence. His testimony thus was not hearsay. Neither State v. Spillars, 280 N.C. 341, 351, 185 S.E.2d 881, 888 (1972) nor State v. Oakes, 249 N.C. 282, 284-85, 106 S.E.2d 206, 208 (1958), cited by defendant, require a different result. In each case, the Supreme Court held that a search warrant and its supporting affidavit constituted inadmissible hearsay. The cases did not involve evidence offered for a non-hearsay purpose, as happened here. Accordingly, these assignments of error are overruled.

    Defendant next assigns error to the trial court's admission of portions of the testimony of Shirley Weaver, an employee of the property management company responsible for defendant's apartment. Ms. Weaver testified that she had problems keeping apartments filled on defendant's street, that she investigated the reason forthe problem, and that she "found that prospective tenants did not want to move into that neighborhood due to their knowledge of illegal activity."   (See footnote 2) Defendant argues that Ms. Weaver's testimony regarding problems renting the apartments because of illegal activity in the neighborhood was inadmissible hearsay evidence of the reputation of the neighborhood.   (See footnote 3)
    Our Supreme Court has held that "in a criminal prosecution evidence of the reputation of a place or neighborhood is ordinarily inadmissible hearsay." State v. Weldon, 314 N.C. 401, 408, 333 S.E.2d 701, 705 (1985) (trial court erred in admitting evidence that defendant's house had a reputation as a place where illegal drugs could be bought and sold). See also State v. Williams, __ N.C. App. __, __, 596 S.E.2d 313, 317 (2004) ("evidence of the reputation of Defendant's home or neighborhood in drug cases constitutes inadmissible hearsay"). We hold that the trial court erred in admitting Ms. Weaver's testimony regarding the negative reputation of defendant's neighborhood.
    Although the trial court erred in admitting this evidence, "errors not amounting to constitutional errors do not warrant the granting of a new trial unless 'there is a reasonable possibilitythat, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.'" State v. Crawford, 104 N.C. App. 591, 598, 410 S.E.2d 499, 503 (1991) (quoting N.C. Gen. Stat. § 15A-1443(a) (1988)). In this case, in light of defendant's admissions that he allowed people to sell and use drugs in his apartment, that he had sold drugs, and that he knew about the drugs in the bathroom, we conclude that admission of the testimony regarding the reputation of defendant's neighborhood was harmless error. See id. (admission of evidence of house's reputation as a "drug house" harmless error where there was evidence of a high volume of brief visitors to the house, the arrest of persons for drug possession while exiting the apartment, and the discovery of drugs and paraphernalia in a house leased by defendant). Compare Williams, __ N.C. App. at __, 596 S.E.2d at 319 (admission of reputation evidence not harmless in trial on charge of sale or delivery of counterfeit crack cocaine when "the evidence tends to show only that defendant possessed an unbroken dosage unit of a counterfeit substance while sitting on the front porch of a house socializing with five or six people").
    We cannot conclude that there is a reasonable possibility that the exclusion of the neighborhood reputation evidence would have resulted in a different verdict. We, therefore, overrule defendant's assignment of error on this issue.

    Defendant next contends that Investigator Horstmann's testimony regarding a prior drug-related arrest at defendant'sresidence was not relevant and that any probative value was outweighed by the danger of unfair prejudice. "Relevant evidence" means evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401 (2003).
    In this case, Investigator Horstmann testified that he "made a drug paraphernalia arrest of somebody coming from [defendant's] residence . . . ." This testimony had a logical tendency to prove that defendant, the sole tenant of the apartment, was maintaining a dwelling for the use of controlled substances. Crawford, 104 N.C. App. at 598, 410 S.E.2d at 503 (trial court properly admitted "evidence of those persons who were arrested for possessing drugs while exiting her residence" when defendant was charged with maintaining a building for keeping or selling drugs); State v. Alston, 91 N.C. App. 707, 713-14, 373 S.E.2d 306, 311 (1988) (evidence of drug-related arrests "at the building during this time is relevant to the charge of maintaining a building for the purpose of keeping or selling a controlled substance").
    Defendant also contends that the admission of this testimony was unfairly prejudicial. Defendant made only a general objection at trial, however, and did not argue that the trial court should exclude the evidence under Rule 403. He cannot make that argument for the first time on appeal. Moreover, defendant has not explained in what way the admission of the testimony was unfairly prejudicial. See Matthews v. James, 88 N.C. App. 32, 39, 362S.E.2d 594, 599 (1987) (All evidence favorable to the opposing party "will be, by definition, prejudicial to defendants. The test under Rule 403 is whether that prejudice to defendants is unfair."), disc. review denied, 322 N.C. 112, 367 S.E.2d 913 (1988). This assignment of error is overruled.

    Defendant next argues that the State failed to establish actual or constructive possession by defendant of the cocaine found in the residence and that the trial court, therefore, erred in denying his motion to dismiss the charge of possession of a Schedule II controlled substance. An accused's possession of narcotics may be actual or constructive. State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).
    Our Supreme Court has recently summarized the law regarding constructive possession:
        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. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). "Where such materials are found on the premises under the control of an 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 a 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." Davis, 325 N.C. at 697, 386 S.E.2d at 190[.]

State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 (2001).    Here, the State did not show that defendant had exclusive possession of the apartment. See State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (defendant not in exclusive control of mobile home despite his name on the bill of sale "because other persons were present and defendant was disabled"). As a result, the issue is whether the evidence discloses other incriminating circumstances sufficient for the jury to find that defendant had constructive possession of the cocaine. Id.
    The State offered evidence that defendant leased and lived in the apartment where the cocaine was found, a fact that gives rise to an inference of constructive possession. State v. Tate, 105 N.C. App. 175, 179, 412 S.E.2d 368, 370-71 (1992) ("In North Carolina, an inference of constructive possession arises against an owner or lessee who occupies the premises where contraband is found, regardless of whether the owner or lessee has exclusive or nonexclusive control of the premises."). In addition, defendant admitted that he knew about "the dope [the police] found on the sink in the bathroom." When the officers searched the bedroom where defendant was lying when they entered, they found a large plastic bag containing several smaller plastic bags in the night table, the blinds on the window were adjusted so that someone in the bedroom could look out of them without anyone seeing in, and there was a walkie-talkie radio. A second walkie-talkie was in the kitchen. The evidence that defendant rented and lived in this apartment, his knowledge of the cocaine, and the evidence uncovered in the search was sufficient to show constructive possession of thecocaine on the part of defendant. See Davis, 325 N.C. at 697-98, 386 S.E.2d at 190 (evidence that defendant's name was on the bill of sale for the mobile home, that a bottle of prescription medicine with defendant's name on it was near where defendant was sitting in the living room of the mobile home, and that defendant had illegal pills in his pants pockets was sufficient to defeat a motion to dismiss a charge of possession of cocaine found in the bathroom toilet). Accordingly, this assignment of error is overruled.

Defendant's next two assignments of error contend that the trial court erred in admitting testimony of Investigator Horstmann (1) that the cases of the other two men arrested with defendant had "been disposed of" and (2) that the blinds in the bedroom were adjusted in a manner that officers call a "felony shade." Defendant did not object to either portion of testimony at trial.
"In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(c)(4). Our courts have construed this rule to require a defendant to specifically assert plain error in the assignment of error. If the defendant fails to do so, then he has waived his right to appellate review of the issue. State v. Truesdale, 340 N.C. 229, 233, 456 S.E.2d 299, 301 (1995). Although defendant argues in his brief that the admission of the testimonyconstituted plain error, he did not assert plain error in either assignment of error. We, therefore, decline to address these issues.

Finally, defendant contends that one of the convictions alleged to support his status of habitual felon, a September 1995 conviction for possession of cocaine, was a misdemeanor that cannot serve as a predicate felony for habitual felon status. He argues that his sentence should, therefore, be vacated and the case remanded for resentencing. The Supreme Court recently rejected this argument in State v. Jones, 358 N.C. 473, 486, 598 S.E.2d 125, 133 (2004) ("[W]e conclude that under N.C.G.S. § 90-95(d)(2), the offense of possession of cocaine is classified as a felony for all purposes."). The trial court, therefore, properly sentenced defendant as a habitual felon.

    No error.
    Judges HUDSON and THORNBURG concur.
    Report per Rule 30(e).

Footnote: 1