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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. CELESTIO LEFRANZ HARRINGTON, and CHRIS
Filed: 21 June 2005
1. Criminal Law--joinder--common scheme to distribute marijuana
The trial court did not abuse its discretion in a drug case by joining defendants' cases for
trial over their objections, because: (1) defendants failed to show that they were deprived of a
fair trial when evidence presented by the State including marijuana, large amounts of money, and
drug paraphernalia, found at both an apartment and a house was ample evidence to convict both
defendants of the marijuana charges individually or jointly; (2) a coparticipant's testimony was
relevant to the conspiracy charge and would have been admissible against defendants
individually in separate trials; and (3) the State sought to hold defendants accountable for the
same crimes that arose at the same time, and the State's evidence was sufficient to show that
defendants were involved in a common scheme to distribute marijuana.
2. Drugs_-trafficking in marijuana by possession, manufacture, and transportation-
_conspiracy to traffic marijuana--maintaining a place to keep a controlled
substance--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendants' motions to dismiss the charges of
trafficking in marijuana by possession and manufacture, the conspiracy charges, and the charge
of maintaining a place to keep and sell marijuana, but erred by denying defendants' motion to
dismiss the charges of trafficking in marijuana by transportation, because: (1) the evidence of
drug paraphernalia found in various areas of the house where both defendants resided and the
testimony of a coparticipant that both defendants were engaged in the sale of marijuana and that
both had access to the garage was sufficient for the issue of possession to survive a motion to
dismiss; (2) evidence of scales and plastic bags found with marijuana is sufficient evidence for
the issue of manufacturing to be submitted to the jury; (3) there was insufficient evidence that
defendants had carried or moved the marijuana from one place to another for the transportation
charges; (4) the State presented a number of different acts which when taken together amount to
substantial evidence that defendants had agreed to distribute marijuana for the conspiracy
charge; and (5) although one defendant contends that neither the jury nor the trial court
specifically found that he intentionally violated N.C.G.S. § 90-108(a) and thus the violation
should have only been a Class 1 misdemeanor instead of a Class 1 felony, defendant did not
present an argument in support of this assignment of error, defendant did not object to the jury
instructions at trial nor did he assign them as error, and by finding defendant guilty of
maintaining a place for keeping controlled substances, the jury inherently found defendant did so
3. Evidence--prior crimes or bad acts-_relevant to conspiracy charge
The trial court did not abuse its discretion in a drug case by admitting evidence of
defendant's other crimes or wrongs under N.C.G.S. § 8C-1, Rule 403, because: (1) the evidence
was relevant to an issue other than defendant's propensity to commit the crime; (2) the State
offered the prior acts as being relevant to the issue of conspiracy since testimony offered
included facts that were sufficiently similar to facts involved in the present charges including
that he lived at the pertinent house address and had scales similar to those found in the
apartment; and (3) defendant does not show that a different result would have been reached by
the jury if this evidence had been excluded or that he was prejudiced in any way.
4. Sentencing--decision to have jury trial_-statutory minimum time
The trial court did not err or commit plain error in a drug case by allegedly considering
defendant's decision to have a jury trial when imposing his sentence, because: (1) defendant was
sentenced to the statutory minimum amount of time for each conviction; and (2) the trial court
consolidated the charges of maintaining a place for keeping a controlled substance and
conspiracy to traffic in marijuana for sentencing.
5. Constitutional Law--effective assistance of counsel--concession of guilt
Defendant did not receive ineffective assistance of counsel in a drug case even though he
contends his counsel allegedly conceded his guilt in the closing argument without having
defendant's consent, because: (1) the pertinent statement when viewed in context does not
concede any crime; (2) counsel's statement to the jury suggested that defendant may have been
guilty of lesser offenses involving marijuana in the past, such as smoking marijuana, but was not
guilty of trafficking in marijuana; (3) counsel's statement taken in context was consistent with
the overall theory of his closing argument that defendant was not guilty of trafficking in
marijuana; and (4) defendant was not prejudiced since both the trial court and defense counsel
took adequate measures to correct any prejudicial effect of counsel's statement.
6. Appeal and Error--preservation of issues--failure to argue
Defendant's remaining assignments of error are deemed abandoned under N.C. R. App.
P. 28(b)(6) because defendant failed to argue them.
Appeal by defendants from judgments entered 29 September 2003
by Judge James Floyd Ammons, Jr. in Superior Court, Cumberland
County. Heard in the Court of Appeals 11 January 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General E. Burke Haywood and Assistant Attorney General Steven
Armstrong, for the State.
Jeffrey Evan Noecker for defendant Celestio Lefranz
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and
Kirby H. Smith, III, for defendant Chris Rattis.
Celestio Lefranz Harrington (Harrington) and Chris Rattis
(Rattis) (collectively defendants)
were convicted of trafficking in
marijuana by possession, trafficking in marijuana by manufacture,trafficking in marijuana by transportation, conspiracy to traffic
marijuana, and maintaining a place to keep a controlled substance.
Defendants were each sentenced to four consecutive terms of thirty-
five to forty-two months.
The State's evidence at trial showed that on 10 April 2002,
S.B.I. Special Agent Errol Jarman (Agent Jarman) intercepted a
United Parcel Service package that he believed contained marijuana.
Based on a canine inspection, Agent Jarman obtained a search
warrant for the package and discovered marijuana therein. The
package was addressed to a woman at 405-B Monza Court (the
Agent Jarman and the Fayetteville Police Department
conducted a controlled delivery of the package to the apartment.
The apartment was leased to Charles Veal (Veal). Rattis was the
only person at the apartment when Agent Jarman, working undercover,
After the package was delivered, the police entered the
apartment to conduct a search pursuant to a warrant. They found
scales, packages of sandwich bags, a .38 caliber revolver, bullets,
and a block of marijuana. Rattis was detained by the police, after
trying to exit the rear of the apartment.
The police also searched a vehicle located outside of the
apartment that Rattis said belonged to a friend. Police found a
rental agreement in the vehicle in the name of Joi Norfleet
(Norfleet), for a house located at 6313 Rhemish Drive (
Police officers went to the house, which was five miles from the
apartment. Norfleet answered the door and permitted the police tosearch the house, except for Harrington's bedroom. Defendants were
both residents of the house, along with Norfleet.
In the garage of the house
, police found a locked cardboard
container, a large plastic outdoor trash bag filled with one to two
thousand "dime bags" generally used for storing small amounts of
marijuana, and a trash can with marijuana residue and seeds in it.
Inside the house, police found a small bag of marijuana in one of
Norfleet's dressers. In the kitchen, the police found a bag of
marijuana, a digital scale, and a vacuum sealer, which is often
used to package marijuana. In the bedroom shared by Rattis and
Norfleet, the police found guns, a book on drug enforcement, large
amounts of money, and multiple identification documents with
Rattis's picture but with different names.
The police also found
a key to the locked cardboard container they had seen in the
garage. When they opened the locked container, they found more
than fifty-eight pounds of marijuana bricks, along with a note from
Norfleet dated 7 April 2002, which indicated Norfleet had opened
one of the bricks of marijuana, had sold a couple of ounces, and
had kept some for herself.
Since Harrington was not present at the house, the police
obtained a warrant to search his bedroom. In the bedroom, police
found a set of scales, plastic bags containing marijuana residue,
a bullet-proof vest, approximately $2,000 in cash, some credit
cards bearing various names, and a large amount of marijuana.
Defendants, Norfleet, and Veal were arrested. Norfleet was
offered a lesser sentence to testify against Veal and defendants. She testified that Veal and defendants had previously lived
together in a house located at 6121 Conoway Drive, and that she
thought Veal and defendants had engaged in distributing drugs.
Norfleet further testified that she and defendants later lived
together at the house located at 6313 Rhemish Drive, and that Veal
lived at the apartment, but occasionally came to the house.
Norfleet testified that defendants were selling marijuana, that the
house was used for storing marijuana, and that the apartment was
used for distribution.
During the trial, Veal changed his plea of not guilty to
guilty. Defendants were given the same opportunity to change their
pleas but chose to continue their jury trial.
Harrington did not
present any evidence, but Rattis testified on his own behalf.
Rattis testified that he was involved in many moneymaking
enterprises, including buying and selling vehicles at auctions,
working in the restaurant business, and working as a music
promoter. He also testified that he had been unable to open a bank
account in the United States because he was a Jamaican citizen, so
he had to keep his money in his bedroom. Rattis further testified
that he had been thinking about moving out of the house, and that
he had gone to talk with a rental agent on 10 April 2002. When the
agent was unavailable, Rattis went to the apartment to watch
television while he waited for the rental agent to return. He also
testified that he met women at the apartment because he did not
want to tell people where he lived, and he did not want to bring
other women to the house where he lived with Norfleet. Rattistestified that he was watching the news when a man arrived with a
package. He stated that he refused to accept the package because
it was not addressed to Veal or Veal's girlfriend, but that
nevertheless, the delivery person left the package on the floor.
Rattis testified that soon after the delivery, people banged on the
door, entered the apartment, and pointed a firearm at his chest,
which is why he went to the rear sliding door. He also testified
that he did not know about the marijuana in the garage of the house
because he had been out of town for several weeks.
 Defendants first argue that the trial court erred in
joining defendants' cases for trial, over their objections.
Defendants filed a motion for severance, which was argued at a pre-
trial hearing. Harrington renewed his motion to sever at the close
of the State's evidence, and at the close of all of the evidence.
The trial court allowed joinder and denied all motions to sever.
Defendants argue that by joining their cases, the trial court
denied defendants a fair trial.
Upon written motion of the State, a trial court may join the
trials for two or more defendants "[w]hen each of the defendants is
charged with accountability for each offense," or when the several
offenses charged were "part of a common scheme or plan; . . . part
of the same act or transaction; or . . . so closely connected in
time, place, and occasion that it would be difficult to separate
proof of one charge from proof of the others." N.C. Gen. Stat. §
15A-926(b)(2) (2003). The State, in the present case, moved tojoin defendants' trials because each defendant was charged with the
accountability of each offense, and because the evidence tended to
show that defendants were engaged in a common scheme or plan to
Defendants each assert that the State's public policy
interests "cannot stand in the way of a fair determination of guilt
See State v. Hucks, 323 N.C. 574, 582, 374 S.E.2d
240, 245 (1988)
. The trial court must, upon motion, "deny a
joinder for trial or grant a severance of defendants" when
necessary to fairly determine "the guilt or innocence of one or
more of the defendants." N.C. Gen. Stat. § 15A-927(c)(2) (2003).
However, "[t]he trial court's decision as to whether to grant a
motion for severance under the statute is an exercise of
discretion, and its ruling will not be disturbed on appeal unless
the defendant demonstrates an abuse of discretion which effectively
deprived him of a fair trial." Hucks, 323 N.C. at 582, 374 S.E.2d
"An appellate court should affirm a discretionary decision
by the trial court that is supported by the record, and reverse
only where the decision is manifestly unsupported by reason and so
arbitrary that it could not have been the result of a reasoned
decision." State v. Morgan, 359 N.C. 131, 148-49, 604 S.E.2d 886,
897 (2004) (internal quotations and citations omitted).
Defendants argue that by joining their cases, the trial court
forced defendants to defend themselves against each other, rather
than against the charges. They argue that while examining
witnesses, each of their defense counsel had to deflect the blamefrom his respective client by casting blame on the other.
Defendants further argue that their defenses were inherently
antagonistic and that evidence was admitted at trial that would
have been excluded had defendants been tried separately. See State
v. Foster, 33 N.C. App. 145, 149, 234 S.E.2d 443, 446 (1977)
(stating "the existence of antagonistic defenses, or the admission
of evidence[,] which would be excluded on a separate trial," was
evidence that "a joint trial would be prejudicial and unfair").
Specifically, Rattis argues that the evidence of other crimes or
wrongful acts committed by Harrington had no probative value for
Rattis, and therefore prejudiced Rattis. Harrington similarly
argues that there was no evidence linking him to the apartment, and
that in a separate trial this evidence would not have been admitted
against him. We note, however, that Norfleet's testimony that
defendants would sometimes go to the apartment and that defendants
used the apartment to distribute marijuana, linked Harrington to
The admission of evidence that would not be admitted in
separate trials or the presence of antagonistic defenses does not
necessarily require severance. See State v. Nelson, 298 N.C. 573,
587, 260 S.E.2d 629, 640 (1979), cert. denied, Jolly v. North
Carolina, 446 U.S. 929, 64 L. Ed. 2d 282 (1980). Rather, "[t]he
test is whether the conflict in defendants' respective positions at
trial is of such a nature that, considering all of the other
evidence in the case, defendants were denied a fair trial." Id.
In the present case, defendants fail to show that they weredeprived of a fair trial. Evidence presented by the State,
including marijuana, large amounts of money, and drug
paraphernalia, found at both the apartment and the house was ample
evidence to convict both defendants of the marijuana charges,
individually or jointly. Furthermore, Norfleet's testimony was
relevant to the conspiracy charge, and would have been admissible
against defendants individually in separate trials. Therefore,
defendants' arguments of possible prejudice are insufficient to
show that the trial court abused its discretion in joining the
cases for trial. The State sought to hold defendants accountable
for the same crimes that arose at the same time, and the State's
evidence was sufficient to show that defendants were involved in a
common scheme to distribute marijuana. The trial court did not err
in joining defendants' cases for trial.
 Defendants next argue that the trial court erred in
denying their motions to dismiss the charges against them.
Defendants moved to dismiss all charges against each of them at the
close of the State's evidence, and at the close of all of the
evidence. These motions were denied. A defendant's motion to
dismiss is properly denied when "there is substantial evidence (1)
of each essential element of the offense charged, or of a lesser
offense included therein, and (2) of defendant's being the
perpetrator of such offense." State v. Powell, 299 N.C. 95, 98,
261 S.E.2d 114, 117 (1980). Substantial evidence is such "relevant
evidence that a reasonable mind might accept as adequate to supporta conclusion." State v. Fletcher, 301 N.C. 709, 712, 272 S.E.2d
859, 861 (1981). In ruling on a defendant's motion to dismiss, the
trial court must consider the evidence in the light most favorable
to the State, and the State is entitled to every reasonable
inference that can be drawn from the evidence. Powell, 299 N.C. at
99, 261 S.E.2d at 117. "Any contradictions or discrepancies in the
evidence are for resolution by the jury." State v. Brown, 310 N.C.
563, 566, 313 S.E.2d 585, 587 (1984).
Defendants were each charged with three counts of trafficking
in marijuana: by possession, by manufacture, and by transportation.
The State had to prove that defendants respectively possessed,
manufactured, and transported more than fifty pounds but less than
2,000 pounds of marijuana. N.C. Gen. Stat. § 90-95(h)(1)(b)
(2003). Neither Harrington nor Rattis disputes the amount or
weight of the marijuana found in the garage of the house. Rather,
they argue that there was insufficient evidence on the issues of
possession, manufacturing and transportation.
Possession of a controlled substance may be actual or
constructive. State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714
(1972). "An accused has possession of contraband material within
the meaning of the law when he has both the power and the intent to
control its disposition or use." State v. Davis, 25 N.C. App. 181,
183, 212 S.E.2d 516, 517 (1975). When narcotics "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 possessionwhich may be sufficient to carry the case to the jury on a charge
of unlawful possession." Harvey, 281 N.C. at 12, 187 S.E.2d at
714. "[W]here possession of the premises is nonexclusive,
constructive possession of the contraband materials may not be
inferred without other incriminating circumstances." Brown, 310
N.C. at 569, 313 S.E.2d at 589.
In the present case, neither Harrington nor Rattis had
exclusive possession of the marijuana found in the garage of the
house. For this reason, each argues that there was insufficient
evidence that he had dominion or control over the marijuana.
However, the State presented other incriminating evidence that was
sufficient to allow the charge of possession for each defendant to
go to the jury. In particular, the evidence of drug paraphernalia
found in various areas of the house where both defendants resided,
and the testimony of Norfleet that both defendants were engaged in
the sale of marijuana and both had access to the garage, was
sufficient for the issue of possession to survive a motion to
Similarly, defendants each assert that the trial court erred
when it denied their motions to dismiss on the charge of
trafficking in marijuana by manufacture. Under the Controlled
Substances Act, "manufacture . . . includes any packaging or
repackaging of the substance or labeling or relabeling of its
container[.]" N.C. Gen. Stat. § 90-87(15) (2003). Defendants
concede that the police found a large plastic trash bag containing
one to two thousand plastic "dime bags" near the marijuana in thegarage, and found a scale and a vacuum sealer in the kitchen.
Rattis argues, however, that the above definition of "manufacture"
requires the active manufacturing of a controlled substance, i.e.,
that a defendant be actively engaged in packaging, repackaging, or
labeling, rather than merely prepared to manufacture. Rattis
contends that the trial court erred because no evidence was offered
to show that defendants were engaged in manufacturing, only that
defendants were equipped to manufacture marijuana, but had not
begun to do so. However, our Court has held that evidence of
scales and plastic bags found with marijuana is sufficient evidence
for the issue of manufacturing to be submitted to a jury. State v.
Roseboro, 55 N.C. App. 205, 210, 284 S.E.2d 725, 728 (1981), disc.
review denied, 305 N.C. 155, 289 S.E.2d 566 (1982). Moreover, in
the present case, Norfleet testified that Rattis used the scale and
vacuum sealer found in the kitchen to weigh and package marijuana
for distribution. We overrule Rattis's assignment of error on this
Harrington argues that there was insufficient evidence that he
ever manufactured the marijuana found in the garage. Harrington
argues that while Norfleet testified that Rattis used a vacuum
sealer to package the marijuana, no evidence suggested that
Harrington was ever present while the marijuana was being packaged
or that he ever engaged in the packaging. However, Norfleet
testified that both defendants had access to the garage where one
to two thousand "dime bags" were found, and certainly both
defendants had access to the kitchen where the scale and vacuumsealer were found. Norfleet also identified the bags found in the
garage as bags that were used by defendants to distribute
marijuana. Additionally, police
found, among other things, a set
of scales and plastic bags containing marijuana residue
Harrington's bedroom. There was substantial evidence of
manufacture, and the trial court properly denied Harrington's
motion to dismiss this charge.
Defendants also assign as error the trial court's denial of
their motions to dismiss the charge of trafficking in marijuana by
transportation. "Transportation" is the "real carrying about or
movement from one place to another." State v. Outlaw, 96 N.C. App.
192, 197, 385 S.E.2d 165, 168 (1989) (citation omitted), disc.
review denied, 326 N.C. 266, 389 S.E.2d 118 (1990). We agree with
defendants that the trial court erred in submitting this issue to
the jury when there was insufficient evidence that defendants had
carried or moved the marijuana from one place to another.
The State argues that according to Norfleet's testimony,
defendants stored the marijuana at the house and used the apartment
for distribution, thus implying that defendants had to move the
marijuana from the house to the apartment. However, absent other
evidence of transportation, this implication is insufficient to
overcome a motion to dismiss. See State v. Lorenzo, 147 N.C. App.
728, 732-33, 556 S.E.2d 625, 627 (2001) ("[W]e have found no case
in North Carolina that recognizes the doctrine of constructive
transportation."). Our Courts have previously found sufficient
evidence of transportation of a controlled substance only when adefendant can be shown to have actively moved or carried the
For example, we have held that there was sufficient evidence
of transportation when a defendant was observed moving a controlled
substance from one place to another in a vehicle, even for a
minimal distance. See Outlaw, 96 N.C. App. at 197, 385 S.E.2d at
168-69 (holding that there was sufficient evidence of transporting
cocaine when the defendant carried cocaine from his home to his
truck, got into the truck, and had begun backing down his driveway
when the police stopped him); see also State v. McRae, 110 N.C.
App. 643, 646, 430 S.E.2d 434, 437 (holding that evidence that the
"defendant removed the drugs from a dwelling house and carried them
to a car by which he left the premises" was "sufficient to sustain
the charge of trafficking by transporting in violation of G.S. §
90-95(h)(3)"), disc. review denied, 334 N.C. 625, 435 S.E.2d 347
(1993). Additionally, our Court has held that a defendant
personally tossing a bag or package containing a controlled
substance may constitute real movement to support a charge of
trafficking by transportation. See State v. Wilder, 124 N.C. App.
136, 140, 476 S.E.2d 394, 397 (1996); State v. Greenidge, 102 N.C.
App. 447, 450-51, 402 S.E.2d 639, 641 (1991).
In the present case, however, no one testified to observing
Harrington or Rattis personally or actively moving or carrying any
controlled substance. There was therefore insufficient evidence to
support the charge of trafficking by transportation, and the trial
court erred in submitting this issue to the jury. Since defendantswere convicted of this charge and were sentenced to an additional
thirty-five to forty-two months for the charge, the error was not
harmless. We therefore vacate defendants' convictions of
trafficking in marijuana by transportation.
Defendants next assign as error the trial court's denial of
their motions to dismiss the conspiracy charges against them. "'A
criminal conspiracy is an agreement, express or implied, between
two or more persons to do an unlawful act or to do a lawful act by
unlawful means.'" State v. Clark, 137 N.C. App. 90, 95, 527 S.E.2d
319, 322 (2000) (citations omitted). In the present case, there is
no direct evidence of an agreement to traffic in marijuana, but
"'[d]irect proof of conspiracy is rarely available, so the crime
must generally be proved by circumstantial evidence.'" Id.
(citation omitted). "A conspiracy 'may be, and generally is,
established by a number of indefinite acts, each of which, standing
alone, might have little weight, but, taken collectively, they
point unerringly to the existence of a conspiracy.'" Id. (quoting
State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933)).
The State presented a number of different acts, which, when
taken together, amount to substantial evidence that defendants had
agreed to distribute marijuana. Norfleet testified that
defendants and Veal were engaged in distributing marijuana as early
as 2000, and that Harrington and Rattis each had access to the
fifty-eight pounds of marijuana in the garage. Norfleet further
testified that the house where both defendants lived, was used tostore marijuana and that the apartment, where Veal lived, was used
to distribute marijuana. Rattis was at the apartment when Agent
Jarman made a controlled delivery of a package containing
marijuana. Marijuana, scales, packaging materials, and weapons
were found at both the apartment and the house. This incriminating
evidence was found in each of defendants' bedrooms, as well as in
public areas of the house.
Based on this evidence, the trial court
did not err in denying defendants' motions to dismiss the
Rattis also assigns as error the trial court's denial of his
motion to dismiss the charge of maintaining a place to keep and
sell marijuana. N.C. Gen. Stat. § 90-108(a)(7) (2003) states that
it is unlawful for a person "[t]o knowingly keep or maintain any
. . . dwelling house, . . . or any place . . . for the purpose of
using [controlled] substances, or which is used for the keeping or
selling of the same[.]" A person who violates N.C.G.S. § 90-108(a)
"shall be guilty of a Class 1 misdemeanor[,]" unless "the criminal
pleading alleges that the violation was committed intentionally,
and upon trial it is specifically found that the violation was
committed intentionally," then the violation "shall be a Class 1
felony." N.C. Gen. Stat. § 90-108(b) (2003).
Rattis does not argue that the State failed to present
substantial evidence of all of the elements of this charge.
Rather, he contends that neither the jury nor the trial court
specifically found that Rattis intentionally violated N.C.G.S. §90-108(a), and thus the violation of N.C.G.S. § 90-108(a) should
have only been a Class 1 misdemeanor, not a Class 1 felony.
Because Rattis does not present an argument in support of this
assignment of error, the assignment of error is deemed abandoned
pursuant to N.C.R. App. P. 28(b)(6).
Furthermore, though Rattis did not object to the jury
instructions at trial and did not assign them as error, we note
that the trial court's instruction to the jury on maintaining a
place to keep controlled substances included intent as one of the
elements of the crime. Specifically, the trial court stated:
[Rattis] has also been charged with
intentionally keeping or maintaining a
building, which is used for the purpose of
unlawfully keeping or selling controlled
substances. For you to find [Rattis] guilty
of this offense, the State must prove two
things beyond a reasonable doubt. First, that
[Rattis] kept or maintained a building, which
was for the purpose of unlawfully keeping or
selling marijuana. Marijuana is a controlled
substance, the keeping or selling of which is
unlawful. And, second, that [Rattis] did this
Since intent was an element of the crime, the jury had to find this
element beyond a reasonable doubt to convict Rattis of maintaining
a place for keeping a controlled substance. Thus, by finding
Rattis guilty of maintaining a place for keeping controlled
substances, the jury inherently found that Rattis did so
intentionally. The trial court did not err in treating Rattis's
violation of N.C.G.S. § 90-108(a) as a felony.
 Rattis presents no additional assignments of error, butHarrington argues that the trial court erred in admitting evidence
of Harrington's other crimes or wrongs pursuant to Rules 403 and
404 of the North Carolina Rules of Evidence. Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident. Admissible
evidence may include evidence of an offense
committed by a juvenile if it would have been
a Class A, B1, B2, C, D, or E felony if
committed by an adult.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). "The list of
permissible purposes for admission of 'other crimes' evidence is
not exclusive, and such evidence is admissible as long as it is
relevant to any fact or issue other than the defendant's propensity
to commit the crime." State v. White, 340 N.C. 264, 284, 457
S.E.2d 841, 852-53, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436
(1995). "Once the trial court determines evidence is properly
admissible under Rule 404(b), it must still determine if the
probative value of the evidence is substantially outweighed by the
danger of unfair prejudice." State v. Bidgood, 144 N.C. App. 267,
272, 550 S.E.2d 198, 202 (citing N.C. Gen. Stat. § 8C-1, Rule 403),
cert. denied, 354 N.C. 222, 554 S.E.2d 647 (2001). "That
determination is within the sound discretion of the trial court,
whose ruling will be reversed on appeal only when it is shown that
the ruling was so arbitrary that it could not have resulted from a
reasoned decision." Bidgood, 144 N.C. App. at 272, 550 S.E.2d at
202. The State presented evidence of two prior wrongs or acts
committed by Harrington. The first occurred a year and a half
prior to the present charges. Harrington was a passenger in a
vehicle that had been stopped for a traffic violation and the
officer testified at the present trial that he had smelled
marijuana coming from the vehicle. Harrington was not charged with
any marijuana offense and all other charges against him were
dismissed. The second prior act that was admitted into evidence
occurred more than a year before the present charges. An officer
had found Harrington asleep at the wheel of a vehicle, and a bag of
marijuana and a set of scales had been plainly visible inside the
Though neither of these prior incidents involved Rattis or
Veal, the State offered these prior acts as evidence of conspiracy.
In each incident, the officers had asked Harrington where he was
living, and Harrington had responded that he lived at 6121 Conoway
Drive. In the present case, the State argued that this evidence
should be admissible as evidence of conspiracy because it
corroborated Norfleet's testimony that defendants and Veal had
previously lived together at 6121 Conoway Drive. Moreover, the
State argued that the evidence was relevant to the conspiracy
charge because the scales seized during the second prior act were
the same type of scales found at the apartment. Since this
evidence of prior acts by Harrington was relevant to an issue other
than his propensity to commit the crime, the trial court did not
err in determining that this evidence was admissible under Rule404(b) of the North Carolina Rules of Evidence. N.C. Gen. Stat. §
8C-1, Rule 404(b) (2003). The question before us is whether the
trial court abused its discretion in determining that the probative
value of this evidence of prior bad acts outweighed the possible
prejudicial effect. See N.C. Gen. Stat. § 8C-1, Rule 403 (2003).
In engaging in a Rule 403 analysis, "'the ultimate test of
admissibility is whether [the prior acts] are sufficiently similar
and not so remote'" to the charges or acts presently at issue.
State v. Ferguson, 145 N.C. App. 302, 305, 549 S.E.2d 889, 892
(quoting State v. West, 103 N.C. App. 1, 9, 404 S.E.2d 191, 197
(1991)), disc. review denied, 354 N.C. 223, 554 S.E.2d 650 (2001).
Harrington argues that the prejudicial effect of this evidence
outweighed the probative value because neither of the prior acts
was sufficiently similar to the current charges. He argues that
both of these prior incidents occurred in vehicles in which he was
either a passenger or driver. He further argues that the prior
acts involved only the odor of marijuana, or a small bag of
marijuana, while the current charges involve a trafficking amount
of marijuana found in a residence. Harrington also argues that as
these prior acts occurred at least a year before the current
charges, they were too remote in time to be probative.
Our Court has held that "[t]he similarities between the other
crime, wrong or act and the crime charged need not, however, 'rise
to the level of the unique and bizarre in order for the evidence to
be admitted under Rule 404(b).'" Ferguson, 145 N.C. App. at 306,
549 S.E.2d at 892 (quoting State v. Thomas, 350 N.C. 315, 356, 514S.E.2d 486, 511 (1999)). Furthermore, "remoteness in time
generally goes to the weight of the evidence not its
admissibility." Ferguson, 145 N.C. App. at 306, 549 S.E.2d at 892.
The trial court admitted evidence of the prior acts as being
relevant to the issue of conspiracy because the testimony offered
included facts that were sufficiently similar to facts involved in
the present charges. Those similar facts were that Harrington had
lived at 6121 Conoway Drive and had scales similar to those found
at the apartment. Thus, the trial court's Rule 403 determination
was not "so arbitrary that it could not have resulted from a
reasoned decision." See Bidgood, 144 N.C. App. at 272, 550 S.E.2d
Moreover, Harrington does not show that a different result
would have been reached by the jury if this evidence had been
excluded. "The party who asserts that evidence was improperly
admitted usually has the burden to show the error and that he was
prejudiced by its admission." State v. Anthony, 133 N.C. App. 573,
579, 516 S.E.2d 195, 199 (1999), aff'd, 351 N.C. 611, 528 S.E.2d
321 (2000). Furthermore, "evidentiary errors are harmless unless
defendant proves that absent the error, a different result would
have been reached." State v. Campbell, 133 N.C. App. 531, 540, 515
S.E.2d 732, 738, disc. review denied, 351 N.C. 111, 540 S.E.2d 370
(1999). Even assuming arguendo that the trial court erred, given
the physical evidence found at the house showing that Harrington
was trafficking in marijuana, and Norfleet's testimony linking
Harrington to Rattis, Veal, and to the apartment, Harrington hasfailed to show that he was prejudiced by the admission of his prior
acts. We overrule this assignment of error.
 Harrington next argues that the trial court erred in
considering Harrington's decision to have a jury trial when
imposing Harrington's sentence. A trial court, at sentencing, may
not punish a defendant for exercising his constitutional right to
a jury trial. State v. Cannon, 326 N.C. 37, 39, 387 S.E.2d 450,
451 (1990). However, for us to properly review this assignment of
error, Harrington must have presented this argument to the trial
court. The record shows that Harrington did not object at trial to
what he now deems to be improper statements by the trial court. He
therefore failed to preserve this issue for appeal. See N.C.R.
App. P. 10(b)(1). Though an issue not properly preserved at trial
may be reviewed as plain error, N.C.R. App. P. 10(c)(4), Harrington
does not argue plain error, and therefore waives his right to plain
We note that in our review of the record, we see no error or
plain error in the trial court's statements to Harrington. To the
contrary, the trial court ensured that defendants were informed of
the implications of their pleas in light of the substantial
evidence against them. During the trial, when Veal changed his
plea, the trial court offered defendants the opportunity to receive
less than the minimum sentences they would receive if convicted if
they chose to change their pleas. The trial court further
explained to defendants: If you are convicted, there are minimum
sentences that you'll have to serve. And I'm
not saying that you'll get more than this.
You certainly won't get any less because of
the minimum sentences. If you are found
guilty, I'll make a judgment at that time.
When Harrington was convicted, the trial court sentenced him to the
statutory minimum amount of time in prison for each conviction,
being thirty-five to forty-two months. See N.C. Gen. Stat. § 90-
95(h)(1)(b) (2003). The trial court also consolidated the charges
against Harrington of maintaining a place for keeping a controlled
substance and conspiracy to traffic in marijuana for sentencing.
The trial court did not err.
 Finally, Harrington argues that he received ineffective
assistance of counsel and was thereby denied his Sixth Amendment
right to a jury trial when his counsel conceded Harrington's guilt
in the closing argument without having Harrington's consent.
ssistance of counsel is deemed ineffective when a
defendant shows that "counsel's performance was deficient" and that
"the deficient performance prejudiced the defense." Strickland v.
, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984).
However, in certain circumstances, the deficiency of the counsel's
performance is so great that prejudice need not be argued. United
States v. Cronic
, 466 U.S. 648, 658, 80 L. Ed. 2d 657, 667 (1984).
, our Supreme Court determined that
a defendant receives per se
ineffective assistance of counsel when
"the defendant's counsel admits the defendant's guilt to the jury
without the defendant's consent." State v. Harbison
, 315 N.C. 175,180, 337 S.E.2d 504, 507-08 (1985), cert. denied
, 476 U.S. 1123, 90
L. Ed. 2d 672 (1986). However, our Supreme Court also held in
State v. Gainey
argument that "the defendant is innocent of
all charges, but if he is found guilty of any
of the charges it should be of a lesser crime
because the evidence came closer to proving
that crime than any of the greater crimes
charged, is not an admission that the
defendant is guilty of anything, and the rule
does not apply."
, 355 N.C. 73, 92-93, 558 S.E.2d 463, 476 (quoting State v.
, 334 N.C. 356, 361, 432 S.E.2d 125, 128 (1993)), cert.
, 537 U.S. 896, 154 L. Ed. 2d 165 (2002).
Harrington argues that his counsel conceded Harrington's guilt
in front of the jury during the closing argument without
Harrington's permission, when his counsel said: "I'd submit to you
that [Harrington] is a small time player in this operation. He
hadn't fully moved [into] the league that [Rattis] was in."
However, when viewed in context, we do not find that this statement
conceded any crime. Harrington's counsel was recalling Norfleet's
testimony to the jury when he made the above statement.
Harrington's counsel was using Norfleet's testimony that she and
Harrington had smoked marijuana together to demonstrate that
Harrington was not in the business of selling or trafficking
marijuana by contrasting it with Norfleet's testimony that Rattis
did not smoke marijuana because he did not want to reduce his
profits. Specifically, counsel said: "If you're a dealer, you're
not going to be using your own product and wasting it. You're
going to be trying to turn a profit, make as much money off of it. That's not what [Harrington] was doing." Counsel's next statement
was the challenged statement:
I'd submit to you that [Harrington] is a small
player in this operation. He hadn't fully
moved [into] the league that [Rattis] was in.
Just like [Harrington] hadn't fully moved
[into the house]. He was still on the outside
looking in. And I don't think he knew _ or I
submit to you, based on the evidence, that he
knew what was in those barrels and _ all the
weapons in this house.
The trial court interrupted counsel's closing argument at this
point and asked the jury to leave the courtroom.
Rather than being a concession of Harrington's guilt,
counsel's statement to the jury suggested that Harrington may have
been guilty of lesser offenses involving marijuana in the past,
such as smoking marijuana, but was not guilty of trafficking in
marijuana. Taken in context, counsel's statement was consistent
with the overall theory of his closing argument that Harrington was
not guilty of trafficking in marijuana. See Gainey
, 355 N.C. at
93, 558 S.E.2d at 476 (finding no error when the defense counsel
stated that the defendant was guilty of a lesser crime if guilty of
anything, and when the consistent theory presented to the jury was
that the defendant was not guilty).
Furthermore, Harrington was not prejudiced, because both the
trial court and Harrington's counsel took adequate measures to
correct any prejudicial effect of counsel's statement. See State
, 159 N.C. App. 691, 693-94, 583 S.E.2d 410, 411-12 (2003)
(stating that any prejudice to the defendant when the defense
counsel mistakenly said that his client should not be foundinnocent "was cured by additional argument made by defense counsel
emphasizing defendant's innocence"). As mentioned above, the trial
court stopped counsel's closing argument as soon as the challenged
statement was made, and excused the jury. The trial court then
gave Harrington an opportunity to object to his counsel's
statement, gave a correcting instruction to the jury when it
returned, and allowed Harrington's counsel the opportunity to
explain his statement to the jury. Counsel explained:
The lawyer is supposed to be very careful with
the words he chooses and uses in the
courtroom. And when I said that [Harrington]
was a small player in this, I was referring to
the testimony of Ms. Norfleet. That's
basically what she said. I'm not saying he's
guilty of what he's charged with in any way.
I'm saying that he wasn't living at that place
on a permanent basis. He didn't know that the
marijuana was out in the garage. He didn't
know all the paraphernalia, the guns and
everything else that's been introduced into
evidence was in that house.
What I was trying to imply and a bit clumsily,
I guess, was that [Harrington] _ he may have
smoked marijuana in the past. And he may have
hung out with _ with friends who you wouldn't
want your son or daughter to hang out with.
But he hadn't fully moved in with them to the
point that he was guilty of what he's charged
with, that he was in conspiracy with [Rattis].
Thus, Harrington has failed to show he received ineffective
assistance of counsel, and we overrule this assignment of error.
 Harrington's remaining assignments of error are deemed
abandoned pursuant to N.C.R. App. P. 28(b)(6) for lack of argument.
We vacate defendants' convictions of trafficking in marijuana
by transportation. We find no error in defendants' additional
convictions. Vacated in part, no error in part.
Judges WYNN and TYSON concur.
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