STATE OF NORTH CAROLINA

v .                         Pitt County
                            Nos. 01 CRS 18273, 01 CRS
JEFFREY LYNN WILLIAMS            18274

    Appeal by defendant from judgments dated 23 July 2003 by Judge Cy A. Grant in Superior Court, Pitt County. Heard in the Court of Appeals 13 October 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Charles J. Murray, for the State.

    Hosford & Hosford, P.L.L.C., by Sofie W. Hosford, for defendant.

    McGEE, Judge.

    Jeffrey Lynn Williams (defendant) was convicted of trafficking in methadone by possession of 28 grams or more, in violation of N.C. Gen. Stat. § 90-95, and maintaining a building for the purpose of keeping and/or selling controlled substances, in violation of N.C. Gen. Stat. § 90-108(a)(7). Defendant appeals.
    The State's evidence at trial tended to show that defendant rented a storage unit at Pitt Mini Storage in Greenville on 7 August 2000. Defendant rented the storage unit using a fictitious driver's license with defendant's picture but with the name listed as "John Lee Bradley."
    Defendant's former girlfriend, Wendy Masters (Masters), testified at trial. She stated that defendant told her he keptillegal drugs in the storage unit. Masters also testified that she had been to the storage unit with defendant once in early December 2000 when he drove to the storage unit, entered through a security gate using a security code, and unlocked the door to the storage unit. Defendant did not allow Masters to leave the vehicle or enter the storage unit, but Masters did see defendant retrieve methadone tablets from the storage unit.
    The Pitt County Sheriff's Office talked with Masters in late December 2000 while investigating defendant's criminal activity. Masters told Sergeant James Marsal (Sergeant Marsal) that defendant kept controlled substances in a storage unit that defendant had rented under a fictitious name. Sergeant Marsal obtained a search warrant to search the storage unit and executed the warrant on 11 January 2001. At the storage unit, Sergeant Marsal seized 458 five-milligram methadone tablets, eleven ten-milligram methadone tablets, and four boxes of ten-milligram rectal morphine sulfate suppositories, all of which are Schedule II narcotics.
    Defendant borrowed Masters's car on 1 January 2001 for a trip to Colorado. Defendant left his truck and a key chain with a key to his truck and the key to the storage unit with Masters. On the way to Colorado, defendant was incarcerated in Tennessee on other charges. During his incarceration, defendant wrote letters to Masters in which he asked her to go to the storage unit and dispose of items described as "toxic waste." Masters testified that she never went to the storage unit as requested by defendant. She also testified that in one of the letters, defendant gave her thesecurity code to the storage unit's security gate, but she did not receive this letter and the code until after police executed the search warrant.

    Defendant assigns error to the trial court's denial of his motion to dismiss both of the charges against him. Defendant argues that the State failed to present sufficient evidence of either charge.
    When evaluating a defendant's motion to dismiss on the ground of insufficiency of the evidence, we "must consider all the evidence in the light most favorable to the [S]tate, giving the [S]tate the benefit of every reasonable inference that the evidence permits." State v. White, 322 N.C. 770, 779, 370 S.E.2d 390, 395- 96, cert. denied, 488 U.S. 958, 102 L. Ed. 2d 387 (1988). The evidence favorable to the State must be considered as a whole. State v. Thorpe, 326 N.C. 451, 455, 390 S.E.2d 311, 314 (1990). We must then determine "whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Ocasio, 344 N.C. 568, 574, 476 S.E.2d 281, 284 (1996). The test for determining the sufficiency of the evidence is "whether a reasonable inference of the defendant's guilt may be drawn from the evidence." State v. Malloy, 309 N.C. 176, 178-79, 305 S.E.2d 718, 720 (1983). If substantial evidence supports a finding that the offense was committed, a motion to dismiss should be denied and the case should be sent to the jury, even when evidence exists in support of thedefendant's innocence. State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 140 (2002).
    
    The elements of maintaining a building for the purpose of keeping and/or selling controlled substances are (1) knowingly (2) keeping or maintaining (3) a building (4) which is used for the keeping or selling (5) of controlled substances. See N.C. Gen. Stat. § 90-108(a)(7) (2003); State v. Mitchell, 336 N.C. 22, 31, 442 S.E.2d 24, 29 (1994).
    Defendant only argues that the State did not present sufficient evidence that defendant "kept" controlled substances in the storage unit. Our Supreme Court has held that for the purposes of N.C. Gen. Stat. § 90-108(a)(7), the word "'[k]eep' . . . denotes not just possession, but possession that occurs over a duration of time." Mitchell, 336 N.C. at 32, 442 S.E.2d at 30. Furthermore, "[t]he determination of whether a . . .  building . . . is used for keeping or selling controlled substances will depend on the totality of the circumstances." Id. at 34, 442 S.E.2d at 30.
    Defendant argues that the State's evidence showed at most that he only possessed controlled substances in the storage unit on one day. Defendant argues that, as a result, the State did not present sufficient evidence that he "kept" controlled substances over a duration of time. In support of his argument, defendant points to cases that held that possession of controlled substances in a vehicle on one occasion was insufficient to show that a defendant "kept" controlled substances in the vehicle. See Mitchell, 336N.C. at 33, 442 S.E.2d at 30 (finding that possessing marijuana in a car on one day and finding a marijuana cigarette in the car during a search on the next day was insufficient to establish the element that the defendant "kept" marijuana in the car); State v. Dickerson, 152 N.C. App. 714, 716-17, 568 S.E.2d 281, 282 (2002) (holding that when the State only presented evidence that a defendant was seated in a vehicle when a cocaine transaction occurred, the evidence was insufficient to show that the vehicle was used to "keep" controlled substances).
    Taking the evidence in the light most favorable to the State, we find that the evidence showed that defendant kept controlled substances over a duration of time, and not just on one occasion. The evidence showed that defendant rented the storage unit in August 2000. Masters saw defendant obtain methadone tablets from the storage unit in early December 2000. Police found methadone inside the storage unit on 11 January 2001. Considering the totality of the circumstances, we find that this is substantial evidence to establish that defendant kept controlled substances in the storage unit over the duration of time from early December 2000 to 11 January 2001.

    The elements of trafficking in excess of 28 grams of methadone by possession are: (1) knowing possession (either actual or constructive) of (2) more than 28 grams of methadone. State v. Keys, 87 N.C. App. 349, 352, 361 S.E.2d 286, 288 (1987); see N.C. Gen. Stat. § 90-95 (h)(4) (2003). Defendant only argues that theState did not present sufficient evidence to prove that defendant had possession of the methadone found in the storage unit. Defendant contends that since Masters had the key to the storage unit, and that defendant was incarcerated at the time police obtained methadone from the storage unit, only Masters was in possession of the methadone. In support of his argument, defendant points to evidence that Masters knew the contents of the storage unit, that Masters was a heroin addict with a "good reason to want methadone," and that some of Masters's possessions were found inside the storage unit.
    Trafficking in controlled substances by possession can be proven by showing either actual or constructive possession. State v. Baldwin, 161 N.C. App. 382, 391, 588 S.E.2d 497, 504 (2003). Constructive possession is shown when a defendant has the power and intent to control the controlled substances. Thorpe, 326 N.C. at 454, 390 S.E.2d at 313. In addition, "[w]here control of the premises is nonexclusive, . . . constructive possession may not be inferred 'without other incriminating circumstances.'" State v. Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987) (quoting State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984)).
    Taking the evidence in the light most favorable to the State, the evidence showed that defendant rented the storage unit, drove Masters to the unit, used a security code and key to enter the unit, did not let Masters in the unit, and obtained methadone from within the storage unit. Moreover, while incarcerated on other charges, defendant wrote letters to Masters and asked her to go tothe storage unit, gave her the security code for the security gate, and asked her to get rid of "toxic waste." Masters further testified that she never returned to the storage unit after the one time she had gone there with defendant; nor did she receive the security code for the storage unit's security gate until after police had executed the search warrant. This is substantial evidence that defendant had the power and intent to control, and therefore had constructive possession of, the methadone in the storage unit. Although some evidence indicates that Masters may have been in possession of the methadone as well, when substantial evidence supports a finding of a defendant's guilt, a motion to dismiss should be denied despite evidence supporting the defendant's innocence. Butler, 356 N.C. at 145, 567 S.E.2d at 140. Assuming arguendo that defendant's control of the storage unit was nonexclusive, we find that this evidence provides significant incriminating circumstances to infer such constructive possession.
    We note that under this assignment of error, defendant argues that the trial court should not have allowed Sergeant Marsal to opine that the photograph in the fictitious driver's license was a photograph of defendant. The record shows that defendant did not assign error to this evidence, yet our "scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal." N.C.R. App. P. 10(a); see also State v. Smith, 160 N.C. App. 107, 122, 584 S.E.2d 830, 840 (2003). Furthermore, defendant did not object to this testimony at trial, nor does he allege plain error. Therefore, defendant "has failedto properly preserve this issue for appeal." State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996); see also N.C.R. App. P. 10(b)(1), 10(c)(4).

    Defendant next assigns error to the trial court's failure to give a limiting instruction to the jury when Sergeant Marsal testified that Masters told him that defendant's storage unit contained drugs. Defendant concedes that the trial court permitted Sergeant Marsal to testify about these prior consistent statements in order to corroborate Masters's later in-court testimony and that generally such testimony is admissible. See State v. Guice, 141 N.C. App. 177, 201, 541 S.E.2d 474, 489 (2000). Nevertheless, defendant argues that the trial court committed reversible error by not instructing the jury that such evidence was permitted solely for the purpose of corroborating Masters's testimony.
    We first note that defendant did not request a limiting instruction about Masters's statements at the time Sergeant Marsal testified. Our Supreme Court has stated that "[i]t would seem to be the better practice for a party wishing to limit the use of evidence offered by his opponent to request a limiting instruction at the time of its admission." State v. Kuplen, 316 N.C. 387, 417- 18, 343 S.E.2d 793, 810 (1986); see also State v. Ray, 212 N.C. 725, 729, 194 S.E. 482, 484 (1938) (stating that "when evidence competent for one purpose only and not for another is offered it is incumbent upon the objecting party to request the [trial] court to restrict the consideration of the jury to that aspect of theevidence which is competent."). Our Supreme Court has further instructed that "[w]hen the defendant does not request such a limiting instruction, it is not reversible error on appeal if the limiting instruction is not given." State v. Herbin, 298 N.C. 441, 452, 259 S.E.2d 263, 271 (1979). Therefore, in the absence of a request for a limiting instruction, we do not find that the trial court committed reversible error.
    We also note that despite defendant's failure to request a limiting instruction at the time the evidence was admitted, defendant did receive such an instruction in the trial court's charge to the jury:
        Now, when evidence has been received tending to show that at an earlier time a witness made a statement which may be consistent or may conflict with her testimony at this trial, you must not consider such earlier statement as evidence of the truth of what was said at that earlier time because it was not made under oath at this trial.

        If you believe that such earlier statement was made, and that it is consistent or does conflict with the testimony of the witness at this trial, then you may consider this, together with all facts and circumstances bearing upon the witness's truthfulness, in deciding whether you will believe or disbelieve her testimony at trial.

    As a result, we find that defendant received a proper limiting instruction despite his failure to request one.

    Defendant next assigns error to the trial court's admission of Masters's testimony indicating that defendant shot Masters's nephew. Masters testified on direct examination that police firstcontacted her because they suspected defendant of shooting her nephew. After speaking with police, Masters questioned defendant and defendant admitted to her that he had shot her nephew. Masters subsequently became a confidential informant for the police.

    Defendant first argues that the trial court erred by allowing Masters to testify that defendant told her that he shot her nephew. Defendant argues that such testimony was not relevant and that the only purpose for offering the testimony was to discredit defendant's character and to show his violent nature. We disagree.
    "'Relevant evidence' means evidence having any tendency to make the existence of any 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). Our Supreme Court has held that, in order to be relevant, evidence need not "'bear directly on the question in issue, and [evidence] is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known to properly understand their conduct or motives, or to weigh the reasonableness of their contentions.'" State v. Stanley, 310 N.C. 353, 365, 312 S.E.2d 482, 490 (1984) (quoting Bank of Union v. Stack, 179 N.C. 514, 516, 103 S.E. 6, 7 (1920)); see also State v. Hill, 347 N.C. 275, 294, 493 S.E.2d 264, 274-75 (1997), cert. denied, 523 U.S. 1142, 140 L. Ed. 2d 1099 (1998), and cert. denied, 354 N.C. 577, 559 S.E.2d 189 (2001).
    Masters testified that after she confronted defendant aboutshooting her nephew, she became a confidential informant for the police. Masters's testimony was necessary to understand her conduct or motive in becoming a confidential informant against defendant, her boyfriend. We therefore find that Masters's testimony was relevant evidence.

    Defendant next argues that the trial court erred in allowing Masters to testify that the police suspected defendant of shooting her nephew. Defendant argues that such testimony was offered to prove that the police did in fact suspect defendant of shooting Masters's nephew and therefore constitutes inadmissible hearsay.
    "'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). Although hearsay is generally inadmissible evidence, N.C. Gen. Stat. § 8C-1, Rule 802 (2003), "[t]he statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made" and are not hearsay. State v. White, 298 N.C. 430, 437- 38, 259 S.E.2d 281, 286 (1979).
    Although Masters testified about out-of-court statements made to her by the police, we hold that Masters's testimony did not constitute inadmissible hearsay. Masters's testimony that the police suspected defendant of shooting her nephew was elicited in the context of establishing how she became a confidential informant for the police. Therefore, her testimony that the police believeddefendant shot her nephew was not offered to prove the truth of the matter but was offered to show how Masters came in contact with the police and to explain her subsequent conduct in becoming a confidential informant for the police.

    Defendant argues in the alternative that Masters's testimony that defendant told her he shot her nephew and that the police suspected defendant of shooting her nephew should have been excluded because it was unfairly prejudicial under Rule 403 of the North Carolina Rules of Evidence.
    Rule 403 permits a trial court to exclude relevant evidence when "its probative value is substantially outweighed by the danger of unfair prejudice." N.C. Gen. Stat. § 8C-1, Rule 403 (2003). Since all evidence against a defendant is necessarily prejudicial, evidence may only be excluded when it is unfairly prejudicial. See State v. Mercer, 317 N.C. 87, 94, 343 S.E.2d 885, 889 (1986). Our Supreme Court has held that evidence is not unfairly prejudicial when there is other extensive similar evidence as well as considerable additional evidence pointing to a defendant's guilt. State v. Moseley, 338 N.C. 1, 33, 449 S.E.2d 412, 432 (1994), cert. denied, 514 U.S. 1091, 131 L. Ed. 2d (1995). In Moseley, the defendant objected to a witness's testimony at a murder trial. Id. at 30, 449 S.E.2d at 430. The witness testified that he saw on television that the defendant had been charged with a second murder. Id. at 30, 449 S.E.2d at 430. The defendant argued that the evidence was unfairly prejudicial. Id. at 31, 449 S.E.2d at430. Our Supreme Court held that the testimony was not unfairly prejudicial since other extensive evidence about the second murder was presented at trial. Id. at 33, 449 S.E.2d at 432. The Court also found that considerable additional evidence tending to show the defendant's guilt of the charged crime prevented the testimony from being unfairly prejudicial. Id. at 33, 449 S.E.2d at 432.
    As in Moseley, other extensive evidence about the shooting of Masters's nephew was presented at trial. Defendant himself elicited testimony three times on Masters's cross-examination that defendant shot Masters's nephew. There was also considerable other evidence linking defendant to the charges for which defendant was tried. Defendant rented the storage unit where the controlled substances were found, defendant possessed a key and security code to access the storage unit, and defendant was observed retrieving controlled substances from the storage unit. Due to the extensive evidence that defendant shot Masters's nephew, and the considerable additional evidence linking defendant to the charged offenses, we find that the challenged testimony was not unfairly prejudicial.

    In his final assignment of error, defendant argues that the trial court erred by denying defendant's request for permission to remove his jail wristband. N.C. Gen. Stat. § 15-176 (2003) states that it is unlawful to require an incarcerated defendant to appear for trial "dressed in the uniform or dress of a prisoner or convict, or in any uniform or apparel other than ordinary civilian's dress." Defendant concedes that we have previously heldthat a jail wristband is not a "uniform," "dress," or "apparel," and that wearing a jail wristband at trial is not prohibited by the statute. State v. Johnson, 128 N.C. App. 361, 365, 496 S.E.2d 805, 808 (1998), cert. denied, 350 N.C. 842, 538 S.E.2d 581 (1999). However, defendant asks us to reconsider our position on the issue "because of the likely impact the appearance of the jail wristband had on the jury's finding of guilt."
    Defendant fails to point to any evidence that his jail wristband had an effect on the outcome of the case. He merely makes the bald assertion that the jail wristband affected the jury in its finding of guilt. Absent any evidence that the appearance of the jail wristband had any effect on the outcome of the trial, we do not find any error in the trial court's denial of defendant's request to remove his jail wristband. See State v. Smith, 155 N.C. App. 500, 507, 573 S.E.2d 618, 623 (2002), disc. review denied, 357 N.C. 255, 583 S.E.2d 287 (2003).

    As defendant has failed to address his remaining assignments of error, we deem them abandoned. N.C.R. App. P. 28(b)(6).
    No error.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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