Defendant presents the following arguments on appeal: (1) the
trial court violated Rules 404(b) and 403 of the North Carolina
Evidence Code by allowing testimony by defendant's probation
officer; (2) the trial court committed plain error by failing to
instruct the jury on non-exclusive possession of the premises; (3)
the trial court erred by denying defendant's motion to dismiss all
the charges against him at the close of the State's evidence for
insufficiency of the evidence; and (4) the trial court erred by
finding that defendant committed the offense while on probation,
thereby enhancing defendant's sentence, without submitting thatquestion to the jury. For the reasons which follow, we find no
error in the rulings of the trial court but remand for
resentencing.
[1] Defendant contends the trial court's admission of
testimony by his probation officer violated N.C. Gen. Stat. § 8C-1,
Rule 404(b) because the testimony indicated that defendant had
committed a previous crime. Rule 404(b) states, in pertinent part:
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.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). Our Supreme Court has
recently stated:
This rule is 'a clear general rule of
inclusion of relevant evidence of other
crimes, wrongs or acts by a defendant, subject
to but one exception requiring its exclusion
if its only probative value is to show that
the defendant has the propensity or
disposition to commit an offense of the nature
of the crime charged.' 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. Brewington, 170 N.C. 264, 276-77, 612 S.E.2d 648, 656
(2005)
(quoting
State v. White, 340 N.C. 264, 284, 457 S.E.2d 841,
852-53 (1995)).
In this case, the testimony of Officer Stephens was not
admitted to show defendant had the “propensity or disposition”
to
commit the crime charged. The State did not ask Officer Stephensany questions regarding the reason for which defendant was on
probation; the trial court admitted the evidence in order to show
“that the defendant occupied or controlled the premises in
question,” giving him the requisite knowledge and opportunity to
commit the crime. The evidence was relevant and was properly
admitted pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b).
The trial court also gave the following limiting instruction
regarding the testimony of Officer Stephens:
Evidence has been received tending to show
that the defendant was placed on probation _
was on probation at the time of the offense
and made statements about his address and was
seen at the address by his probation officer.
This evidence was received solely for the
following purposes: One, of showing the
defendant had knowledge, which is a necessary
element of the crimes charged in this case;
and that the defendant occupied or controlled
the premises in question and thus had the
opportunity to commit the crime.
If you believe this evidence, you may consider
it, but only for the limited purposes for
which it was received. You may not convict
him on the present charge because he had been
placed on probation in the past.
Defendant argues the wording of this instruction constituted “a
mandate that the State had actually established these elements [of
knowledge and opportunity] beyond a reasonable doubt.” We
disagree. The trial court clearly indicated that (1) the jurors
could decide whether or not they found Officer Stephens' testimony
to be credible, (2) their consideration of the testimony was
limited to defendant's knowledge and opportunity to commit the
crime, and (3) they could not “convict [defendant] on the presentcharge because he had been placed on probation in the past.” This
argument is without merit.
Defendant also argues Officer Stephen's testimony should have
been excluded under N.C. Gen. Stat. § 8C-1, Rule 403. Rule 403
allows relevant evidence to be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury[.]” N.C. Gen.
Stat. § 8C-1, Rule 403 (2003). Other evidence linking defendant to
the residence included a cable receipt for 10701 Lee Road bearing
defendant's name, the fact that defendant's ID card was found in
the residence (although the card itself listed a different
address), and the possibility that individuals on the video-tape
spoke defendant's nickname. Given the relative weakness of such
evidence, the trial court correctly concluded that the probative
value of Officer Stephen's testimony, which tended to show that
defendant occupied the premises in question, substantially
outweighed its prejudicial effect. This argument is overruled.
[2] Defendant's next argument is that the trial court
committed plain error by failing to instruct the jury with respect
to constructive possession of a controlled substance where
possession of the premises is non-exclusive. “'Constructive
possession exists when a person,' although not having actual
possession of the controlled substance, 'has the intent and
capability to maintain control and dominion over [the] controlled
substance.'”
State v. Frazier, 142 N.C. App. 361, 367, 542 S.E.2d
682, 687 (2001)(quoting
State v. Neal, 109 N.C. App. 684, 686, 428S.E.2d 287, 289 (1993)). Constructive possession of drugs may be
established by evidence the defendant has exclusive possession of
the property where the drugs are located.
Id.
However, our
Supreme Court has stated that “where possession of the premises is
nonexclusive, constructive possession of the contraband materials
may not be inferred without other incriminating circumstances.”
State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984).
Defendant argues the trial court should have instructed the jury
regarding the need to find “other incriminating circumstances” if
it concluded defendant did not possess the premises exclusively.
Defendant did not object to the instructions as given or request a
special instruction. He therefore is entitled to relief only if
the court's failure to give such an instruction
sua sponte
constitutes plain error.
N.C. R. App. P. 10(c)(4) (2004). Plain
error occurs
where, “after reviewing the entire record, it can be
said the claimed error is a 'fundamental error, something so basic,
so prejudicial, so lacking in its elements that justice cannot have
been done.'”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983) (citation omitted). Thus, “
the appellate court must examine
the entire record and determine if the instructional error had a
probable impact on the jury's finding of guilt.”
Id. at 661, 300
S.E.2d at 378-79.
The trial court properly instructed the jury on the elements
of each crime charged, and it gave the following pattern jury
instruction regarding constructive possession:
A person has constructive possession of a
substance if he does not have it on hisperson, but is aware of its presence, and has
either by himself, or together with others,
both the power and the intent to control its
disposition or use. A person's awareness of
the presence of a substance and his power,
intent to control its disposition or use may
be shown by direct evidence, or may be
inferred from the circumstances.
If you find from the evidence beyond a
reasonable doubt that a substance was found in
or at certain premises, and the defendant
exercised control over those premises, whether
or not he owned it, this would be a
circumstance from which you may infer that the
defendant was aware of the presence of the
substance, and had the power and the intent to
control its disposition or use.
We conclude the trial court's instructions with respect to
constructive possession, coupled with other evidence of
incriminating circumstances, such as the discovery of defendant's
ID card six inches from the cocaine, is sufficient to allow the
jury to determine whether defendant constructively possessed the
cocaine. We do not believe the jury was likely to have reached a
different verdict had a special instruction been given.
See id.
This argument is overruled.
Defendant's next argument is that the trial court erred by
denying his motion to dismiss all the charges against him at the
close of the State's evidence for insufficiency of the evidence.
Upon a motion to dismiss criminal charges for insufficiency of the
evidence, the trial court must determine whether there is
substantial evidence of defendant's guilt of each essential element
of the crime.
State v. Holland, 161 N.C. App. 326, 328, 588 S.E.2d
32, 34 (2003). “'Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to support aconclusion.'”
Id. at 328, 588 S.E.2d at 34-35 (quoting
State v.
Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). The
evidence is considered in the light most favorable to the State,
and the State is entitled to every reasonable inference arising
from it.
Id. The trial court does not weigh the evidence or
determine witnesses' credibility. “It is concerned 'only with the
sufficiency of the evidence to carry the case to the jury.'”
State
v. Thaggard, 168 N.C. App. 263, 281, 608 S.E.2d 774, 786 (2005)
(quoting
State v. Lowery, 309 N.C. 763, 766, 309 S.E.2d 232, 236
(1983)).
[3] Defendant argues the trial court should have granted his
motion to dismiss the charges of trafficking in cocaine by
possession and possession with intent to sell and deliver cocaine
due to insufficient evidence of his constructive possession of the
cocaine.
We disagree. The testimony of defendant's probation
officer that he lived at 10701 Lee Road, which we have deemed
properly admitted, was sufficient to allow the jury to determine
whether defendant lived at that address.
See State v. James, 60
N.C. App. 529, 532, 299 S.E.2d 451, 453 (1983)(stating that “[t]he
weight and credibility of the testimony are matters for the jury”).
Although defendant may not have possessed the premises exclusively,
there was evidence of other incriminating circumstances, including
(1) defendant's ID card found on the same dresser as the cocaine
and the digital scales, and (2) the video of a party at the
premises in which people spoke defendant's nickname. We conclude
there was sufficient evidence of defendant's possession of thepremises and “other incriminating circumstances,”
Brown, 310 N.C.
at 569, 313 S.E.2d at 589, to allow the jury to determine whether
defendant constructively possessed the cocaine. This argument is
overruled.
[4] Defendant also argues the trial court should have granted
his motion to dismiss the charge of maintaining a dwelling for the
keeping or selling of cocaine.
To obtain a conviction for knowingly and
intentionally maintaining a place used for
keeping and/or selling controlled substances
under N.C. Gen. Stat. § 90-108(a)(7), the
State has the burden of proving the defendant:
(1) knowingly or intentionally kept or
maintained; (2) a building or other place; (3)
being used for the keeping or selling of a
controlled substance.
Frazier, 142 N.C. App. at 365, 542 S.E.2d at 686. According to
Frazier, to determine whether a person keeps or maintains a place
under N.C. Gen. Stat. § 90-108(a)(7), we must consider the
following factors, none of which are dispositive: “occupancy of the
property; payment of rent; possession over a duration of time;
possession of a key used to enter or exit the property; and payment
of utility or repair expenses.”
Id. Here, there was evidence that
defendant occupied the property for a period of time and paid for
cable services. His probation officer visited him at the property
five weeks prior to the execution of the search warrant, and
defendant confirmed it was his residence. Considering this
evidence in the light most favorable to the State, the trial judge
properly found that a reasonable jury could conclude that defendant
kept or maintained this property. To determine whether the residence was used for keeping and
selling a controlled substance depends on “'the totality of the
circumstances.'”
Id. at 366, 542 S.E.2d at 686 (quoting
State v.
Mitchell, 336 N.C. 22, 34, 442 S.E.2d 24, 30 (1994)). Factors that
might be considered include: “a large amount of cash being found in
the place; a defendant admitting to selling controlled substances;
and the place containing numerous amounts of drug paraphernalia.”
Id. Here, although neither a large amount of cash was found in the
residence nor did defendant admit to selling cocaine, there was
other evidence indicating controlled substances were being sold
from the residence. A set of digital scales was found on the same
dresser as the two plastic bags of cocaine, which Officer Johnson
testified were of the type frequently used to weigh controlled
substances for sale. Defendant's ID card was found on the dresser
six inches away from the two bags of cocaine. Three pieces of
scrap paper were found in the bedroom listing initials and
corresponding dollar amounts, which the jury could infer was a list
of customers and their orders or debts. These circumstances would
allow a reasonable jury to conclude that the residence in question
was being used for keeping or selling controlled substances. The
trial court therefore properly denied defendant's motion to dismiss
the charge of maintaining a dwelling for keeping or selling
cocaine.
[5] Finally, defendant argues the trial court erroneously
enhanced his sentence based on its finding that he committed the
crime while on probation. In
Blakely v. Washington,
542 U.S. 296,159 L. Ed. 2d 403 (2004)
, and in the North Carolina Supreme Court's
recent ruling in
State v. Allen, 359 N.C. 425, 615 S.E.2d 256
(2005), “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed presumptive
range must be submitted to a jury and proved beyond a reasonable
doubt.”
Allen, 359 N.C. at 437, 615 S.E.2d at 265. This Court has
recently held that a defendant's probationary status, used to
increase a defendant's prior record level, was “a fact other than
a prior conviction” and therefore was required to be submitted to
a jury and proved beyond a reasonable doubt.
State v. Wissink, 172
N.C. App. 829, __ S.E.2d __ (2005),
temp. stay allowed, 360 N.C.
77, __ S.E.2d __, (2005). While we believe the same “procedural
safeguards” which attach to the “fact” of a prior conviction,
see
Apprendi v. New Jersey, 530 U.S. 466, 488-90, 147 L. Ed. 2d 435,
454-55 (2000), also attach to the “fact” of whether a defendant is
on supervised probation, we are bound by the decision in
Wissink,
In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379
S.E.2d 30, 37 (1989), and must hold that the
trial court erred “by
adding a point to defendant's prior record level without first
submitting the issue to a jury.”
Wissink, 172 N.C. App. at 837, __
S.E.2d at __. Therefore, we must remand these cases to the trial
court for resentencing.
No error in the trial.
Remanded for resentencing.
Judges BRYANT and GEER concur.
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