An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-1004


Filed: 4 January 2005


v .                         Cumberland County
                            No. 00 CRS 056201

    Appeal by defendant from judgment dated 13 March 2003 by Judge Gary L. Locklear in Superior Court, Cumberland County. Heard in the Court of Appeals 19 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Karen A. Blum, for the State.

    Marilyn G. Ozer for defendant-appellant.

    McGEE, Judge.

    Gerald Wayne Adams (defendant) was convicted on 14 March 2003 of felonious possession of cocaine, possession of drug paraphernalia, fictitious information to officer, driving while license revoked and expired inspection sticker. Defendant pled guilty to the status of habitual felon. The trial court entered judgment, finding defendant to have a prior record level VI, and sentenced defendant to a minimum term of 135 months and a maximum term of 171 months. Defendant appeals.
    The State's evidence at trial tended to show that on 6 April 2000, at around 1:30 a.m., Officer Victor Starling (Officer Starling) of the Fayetteville Police Department was stopped at a red light on Sandalwood Drive in Fayetteville, North Carolina. Officer Starling observed a truck, driven by defendant, turn right off Raeford Road onto Sandalwood Drive. The truck, which was carrying a long ladder, looked like a construction truck. Officer Starling noticed the truck because there had been recent thefts of ladders and other equipment from construction sites in the area.
    After the truck passed Officer Starling's marked patrol car, Officer Starling backed up his car, made a U-turn and began to follow the truck. As Officer Starling made the U-turn, the truck accelerated. The truck made two turns and then pulled into a driveway. Officer Starling testified that the route chosen by defendant was suspicious because there was an easier alternative route defendant could have taken.
    Officer Starling drove past the parked truck, traveled up the road, and then turned around and stopped at the edge of the road with his headlights turned off to observe defendant's truck. A few seconds after Officer Starling turned off his headlights, defendant pulled out of the driveway and drove toward Officer Starling's patrol car. When Officer Starling turned on his headlights to resume following the truck, defendant quickly made several more turns and then turned into a second driveway. A total of three or four minutes elapsed between the time Officer Starling first observed the truck until defendant pulled into the second driveway.
    Officer Starling stopped his patrol car in the road, turned on his emergency hazard lights and stepped out of his patrol car. Officer Starling did not activate his blue lights. Defendant stepped out of the truck from the driver's seat, but defendant'spassenger (the passenger) remained in the truck. Officer Starling approached defendant and told him that driving a construction truck with a ladder in the early morning hours was suspicious because there had been recent thefts around construction sites in the area. Officer Starling testified that defendant told him that "he pulled over because he thought [Officer Starling] was pulling him for his expired inspection sticker."
    Defendant did not have any proof of identification but identified himself to Officer Starling as Billy Ray Adams. Defendant stated that he lived at 4904 Walnut Drive, the home where he had pulled into the second driveway. Defendant also gave Officer Starling his date of birth and social security number. Officer Starling was unable to match the name defendant provided with either the date of birth or the social security number. In a further attempt to identify defendant, Officer Starling asked defendant for his address. In response, defendant indicated he lived at 102 Rio Dosa. Officer Starling told defendant, "Well, you told me that you lived at [4904 Walnut Drive] . . . ." Defendant then claimed that a friend lived at 4904 Walnut Drive; however, the residents at that address did not know defendant. Officer Starling placed defendant under arrest for not having a driver's license. Officer Starling asked the passenger for his name and the passenger responded that he was Jamie Hunt. Officer Starling testified that "I knew Jamie Hunt from where I grew up over the east side of town and [the passenger] wasn't Jamie Hunt."
    Officer Starling testified that defendant was unkempt and hada "burnt smell of crack cocaine on him." Officer Starling believed defendant had drugs with him and therefore called Officer Paul Fondren (Officer Fondren), a canine officer, to assist in a search of the truck. Officer Starling described the interior of the truck as "a cluttered work truck" with "old rags, tools, flashlights" and "a lot of papers and tools and stuff like that." Officer Starling did not see any contraband.
    Officer Starling testified that pursuant to procedure, he would have made sure the passenger was out of the vehicle when he called Officer Fondren. However, Officer Starling also testified that he had the passenger exit the vehicle when Officer Fondren arrived. When defense counsel asked Officer Starling if he "may have allowed [the passenger] to return to the vehicle before the search was conducted[,]" Officer Starling responded, "[i]t's possible."
    Officer Starling testified that Officer Fondren searched the vehicle with his canine and found two plastic baggies on the dashboard with what appeared to be the residue of crack cocaine inside. Officer Fondren also found a Brillo pad, which Officer Starling testified was commonly used as a filtering device for smoking crack cocaine through a pipe. No crack pipes or other instruments to "shoot, snort, [or] smoke" crack were found in the truck.
    Officer Starling saw Officer Fondren remove the baggies and the Brillo pad. One baggie was located on the dashboard near the steering wheel, and the other baggie was on the dashboardapproximately eighteen inches to the right of the steering wheel. Officer Starling testified that the location of the Brillo pad was approximately in the middle of the bench-type seat, but he was unable to see exactly from where Officer Fondren removed the Brillo pad.
    Officer Fondren gave Officer Starling an identification card he found in the truck. The card had a photograph of defendant with the name "Jerry Wayne Adams." Officer Starling retrieved defendant's driving record and determined that defendant's driver's license had been revoked approximately six weeks earlier.
    Officer Starling also remembered that someone named Jerry Wayne Adams had "hung out with" a person by the name of Kent Hunt. Officer Starling asked the passenger for his real name. The passenger stated that it was "Kent Hunt." Officer Starling released the passenger and secured the truck defendant was driving. The truck did not belong to defendant, but rather was registered to a female. Officer Starling testified that the owner of the truck "was rumored to be [the passenger's] girlfriend."
    Officer Starling left the truck at 4904 Walnut Drive and transported defendant to the law enforcement center for processing. Retired State Bureau of Investigation Agent J.D. Sparks (Agent Sparks), a forensic chemist, analyzed the baggies collected from the truck and detected the presence of cocaine in each bag. Agent Sparks classified it as powder residue.
    The State also introduced Rule 404(b) evidence over the objection of defendant. Officer Marshall Gautier (Officer Gautier)testified that he had been at defendant's residence on 26 July 1996 where he discovered eighteen used needles scattered in and around defendant's bed, three aluminum cans used to smoke crack, and a spoon covered with cocaine residue. Defendant had been charged with possession of drug paraphernalia and possession of cocaine. In addition, Officer Stephen Briggs (Officer Briggs) with the Fayetteville Police Department testified that on 30 September 2002, he stopped a car in which defendant was a passenger and found two metal crack pipes under defendant's seat.
    Defendant did not present any evidence.
    We first note that defendant has failed to present an argument in support of assignments of error numbers one through five, seven, nine through eleven, fourteen through twenty, and twenty-five. Those assignments of error are therefore deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).
    Defendant first argues that the trial court erred in denying his motion to dismiss the charge of possession of cocaine based on insufficiency of the evidence. Specifically, he contends the State failed to show defendant had exclusive control of the truck, thus requiring a showing of other incriminating circumstances.
    In determining a motion to dismiss, the trial court must decide whether substantial evidence of each element of the offense charged has been presented, and that the defendant was the perpetrator of the offense. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). "Substantial evidence is such relevantevidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). All the evidence, both direct and circumstantial, must be considered by the trial court in the light most favorable to the State, with all reasonable inferences from the evidence being drawn in favor of the State.
    Possession of a controlled substance and drug paraphernalia can be either actual or constructive. State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989). Defendant in this case did not physically possess the controlled substance and drug paraphernalia found in the truck and the State therefore relied on evidence of constructive possession. "Constructive possession occurs when a person lacks actual physical possession, but nonetheless has the intent and power to maintain control over the disposition and use of the substance." State v. Wilder, 124 N.C. App. 136, 139-40, 476 S.E.2d 394, 397 (1996). "Although it is not necessary to show that an accused has exclusive possession of the premises where contraband is found, 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, 588-89 (1984).
    In this case, the State presented substantial evidence that defendant was driving the truck, that he smelled of burnt cocaine, that one baggie with cocaine residue was found next to the steering wheel, another baggie was found within reach of defendant'sdriver's seat, and a partially pulled apart Brillo pad was found in the middle of the seat in the cab of the truck. The State also presented substantial evidence that defendant sped up when he saw the officer's car turn around to follow defendant. Defendant then drove a circuitous route to two houses. When the officer questioned defendant, defendant gave the officer false information. Considering the evidence in the light most favorable to the State, these facts provide sufficient incriminating circumstances to allow the reasonable inference that defendant had the intent and capability to exercise control and dominion over the drugs and paraphernalia. The trial court did not err in denying defendant's motion to dismiss.     
    Defendant argues in assignments of error numbers six and eight that the trial court erred in allowing the State to introduce evidence relating to prior instances of defendant's possession of cocaine and drug paraphernalia. Defendant asserts that this evidence "unfairly prejudiced the jury against [him] by painting him as a long time drug addict and added nothing to the jurors' knowledge of whether [defendant] had constructive possession of the emptied plastic bags buried in the clutter of the borrowed truck."     Rule 404(b) of the North Carolina Rules of Evidence provides that "[e]vidence of other crimes, wrongs, or acts" committed by a defendant is inadmissible to prove the character of the defendant, but may be admitted for other purposes, including "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, orabsence of mistake, entrapment or accident." N.C. Gen. Stat. § 8C- 1, Rule 404(b)(2003). Evidence is admissible under Rule 404(b) "'so long as it is relevant to any fact or issue other than the character of the accused.'" State v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247 (1987) (quoting State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986)), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).
    The decision of whether a trial court should admit evidence pursuant to Rule 404(b) involves multiple steps. "The trial court must first make the determination that the evidence is of the type and offered for a proper purpose under the rule." State v. Bynum, 111 N.C. App. 845, 848, 433 S.E.2d 778, 780, disc. review denied, 335 N.C. 239, 439 S.E.2d 153 (1993).
        There 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."

Id. (quoting State v. Coffey, 326 N.C. 268, 278, 389 S.E.2d 48, 54 (1980). In the case before this Court, the trial court conducted an extensive voir dire regarding whether the evidence of these prior incidents should be admitted. During voir dire, the State asserted that it was introducing the evidence of these prior incidents to show that defendant "had possession and knowledge of [the] controlled substance, which [defendant] knows what it is to possess a controlled substance."
    "Where guilty knowledge is an essential element of the crimecharged evidence may be offered of such acts or declarations of the accused as tend to establish the requisite guilty knowledge, even though the evidence reveals the commission of another offense by the accused." State v. McClain, 240 N.C. 171, 175, 81 S.E.2d 364, 367 (1954). Based on the fact that prior drug violations are relevant to show knowledge on the part of defendant, we hold that the first step regarding admission of this evidence was satisfied.
    Once the trial court determines that the evidence is being offered for a proper purpose, it should then determine whether the evidence is relevant. Bynum, 111 N.C. App. at 848, 433 S.E.2d at 780. Relevant evidence is defined as "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). "When prior incidents are offered for a proper purpose, the ultimate test of admissibility is whether they are sufficiently similar and not so remote as to run afoul of the balancing test between probative value and prejudicial effect set out in Rule 403." State v. West, 103 N.C. App. 1, 9, 404 S.E.2d 191, 197 (1991). See also State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988). "It is not necessary that the similarities between the two situations rise to the level of the unique and bizarre." State v. Aldridge, 139 N.C. App. 706, 714, 534 S.E.2d 629, 635, disc. review denied, 353 N.C. 269, 546 S.E.2d 114 (2000). However, "our Supreme Court has defined 'similar' to mean 'some unusual facts present' or 'particularly similar acts' in the prior bad act of thedefendant which indicates the same person committed the act at issue." State v. Bush, ___ N.C. App. ___, ___, 595 S.E.2d 715, 720 (2004) (quoting State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 890-91 (1991) (citations omitted)).
    The trial court is required to "balance the probative value of the extrinsic conduct evidence against its prejudicial effect," Bynum, 111 N.C. App. at 848-49, 433 S.E.2d at 780, after "finding that the evidence offered is of the type intended, that its purpose is other than to show propensity, and that it is relevant[.]" Bynum, 111 N.C. App. at 848, 433 S.E.2d at 780. Evidence may be excluded, even if relevant, "if its probative value is substantially outweighed by the danger of unfair prejudice[.]" N.C. Gen. Stat. § 8C-1, Rule 403 (2003). It is within the sound discretion of the trial court whether to exclude evidence under Rule 403. Bynum, 111 N.C. App. at 849, 433 S.E.2d at 781. Absent abuse of that discretion, the trial court's decision will not be reversed. Id. at 849, 433 S.E.2d at 781.
    In this case, the State offered evidence tending to show that Officer Gautier went to defendant's residence on 26 July 1996 and discovered eighteen used needles scattered in and around defendant's bed, three aluminum cans used to smoke crack, and a spoon covered with cocaine residue. As a result, defendant was charged with possession of drug paraphernalia and possession of cocaine, two of the same charges involved in this case. In addition, the State offered evidence that Officer Briggs stopped a car in which defendant was a passenger on 30 September 2002 and 12found two metal crack pipes under defendant's seat.
     The purpose of this evidence was to demonstrate that defendant had "knowledge of the presence of [the] controlled substance and knowledge of intent to control its disposition and use." Both officers described circumstances factually similar to the scenario at issue in this case. First, Officer Gautier testified about his search of defendant's bedroom in 1996 when he found both cocaine residue and numerous implements for ingesting the drug, including eighteen used needles and three aluminum cans. Although there were differences between the 1996 incident and the search at issue here as pointed out by defendant, including that the items in 1996 were found in defendant's bedroom, not in a truck used by defendant, and no implements for ingesting cocaine were seized in this case, there were definite similarities. A key commonality between the scenarios was the presence of cocaine residue. A spoon with cocaine residue was seized in the 1996 incident, as were two baggies containing cocaine residue and a Brillo pad in this case. Officer Gautier testified that pieces of a Brillo pad can be placed in the end of a crack pipe to hold the drug in place. It is a reasonable inference that defendant intended to use the Brillo pad to ingest cocaine, just as he had previously used cans, needles and a spoon to ingest cocaine. We hold that based on these facts, there were sufficient similarities to allow the testimony relating to the 1996 incident.
    Second, Officer Briggs testified about the 30 September 2002 incident when he stopped a car in which defendant was a passengerand found two metal crack pipes under defendant's seat. In the 2002 incident, items seized included implements to ingest crack. In the search at issue in this case, cocaine residue and a Brillo pad found in the truck were seized. We therefore again hold that the requisite "substantial evidence of similarity" was present and the trial court did not err in admitting this evidence. The trial court did not abuse its discretion in admitting the testimony of both officers regarding the prior searches.
    Defendant next argues that the trial court's jury instruction on constructive possession violated his constitutional rights to due process, and that the instruction was prejudicial because it was the last instruction heard before the jury retired and because it was read more than once.
    Constitutional challenges to instructions not made at trial are considered waived. State v. Anderson, 355 N.C. 136, 140, 558 S.E.2d 87, 91 (2002). See N.C.R. App. P. 10(b)(1). As defendant did not raise a constitutional challenge to the trial court's instructions, the only question properly before us is whether the trial court abused its discretion in the instruction read to the jury over defendant's objection. Anderson, 355 N.C. at 140, 558 S.E.2d at 91. We conclude it did not.
    "[T]he purpose of an instruction to the jury is to clarify issues so that the jury can apply the law to the facts of the case." State v. Williams, 136 N.C. App. 218, 222, 523 S.E.2d 428, 432 (1999). In determining if an instruction is proper, the trialcourt must "consider whether there is any evidence in the record which might convince a rational trier of fact to convict defendant of the offense." State v. Moore, 75 N.C. App. 543, 546, 331 S.E.2d 251, 253, disc. review denied, 315 N.C. 188, 337 S.E.2d 862 (1985). "It is within the discretion of the trial judge as to how much of a charge to give the jury." State v. Ayers, 11 N.C. App. 333, 336, 181 S.E.2d 250, 253 (1971). "The preferred method of instructing the jury is the use of the approved guidelines of the North Carlina Pattern Jury Instructions." State v. Solomon, 117 N.C. App. 701, 706, 453 S.E.2d 201, 205, disc. review denied, 340 N.C. 117, 456 S.E.2d 325 (1995).
    In this case, the trial court instructed the jury explaining actual and constructive possession. In giving this instruction initially, the trial court read the two basic paragraphs of the pattern jury instruction, and then the first optional paragraph, which discusses constructive possession with respect to items found in close proximity to a defendant. Upon completion of this charge, an off-the-record discussion took place at the State's request. The trial court then re-instructed the jurors, repeating the previous instructions about possession, and additionally reading the second optional paragraph, which explains constructive possession regarding items not found in close proximity to a defendant. Based on the inclusion of the second optional paragraph, defendant moved for a mistrial "because it doesn't fit the fact pattern[,]" because that particular instruction "was the last thing [the jury] heard[,]" and because defendant contended "itprejudice[d] the defendant." The trial court denied defendant's motion, stating:
        I don't think this is crucial . . . . I don't think [defendant] has been unduly prejudiced . . . . I think the argument by the State could be made that the close proximity meant [defendant]-- while he may have driven the vehicle up there, he was not in the vehicle then. He was some distance away from it when the -- when the items were found. The testimony was he was in a -- he was in the patrol car.
    The jurors requested the trial court to read again a number of instructions, including the instruction regarding possession. The trial court re-read the instruction including both optional paragraphs. Defendant renewed his objection to the reading of the second optional paragraph regarding constructive possession of items not found in close proximity to a defendant. The trial court again denied defendant's objection. Defendant renewed this objection again prior to the reading of the verdict and moved for dismissal after the verdict, pursuant to N.C. Gen. Stat. § 15A- 1227. The trial court again overruled defendant's objection and denied defendant's motion for dismissal.
    The evidence presented supported the instructions read by the trial court. Because the State argued that possession occurred while defendant was in the truck, and because the baggies and Brillo pad were found while defendant was away from the truck, the proximity of defendant to the baggies and Brillo pad was an issue to be decided by the jury. Therefore, the trial court did not abuse its discretion in reading the instruction regarding constructive possession for items both in close proximity and foritems not in close proximity.
    Furthermore, the instruction was not prejudicial on the basis that it was the last instruction heard before the jury retired and that it was read more than once. In Williams, supra, the defendant argued that the trial court "unduly emphasized its instruction on possession by clarifying the instruction to the jury three times." Williams, 136 N.C. App. at 222, 523 S.E.2d at 432. This Court found that the trial judge was responding "to the jury's request for clarification fairly and accurately and the repetition did not prejudice defendant." Id. at 222, 523 S.E.2d at 432. Similarly, the trial court in this case was simply responding to the jury's request for clarification. The trial court responded fairly and accurately, and we find the repetition of the charge was not prejudicial. Defendant's assignments of error numbers 21, 22, 23 and 24 are without merit.
     Defendant last argues that his sentence of a minimum term of 135 months and a maximum term of 171 months violates his constitutional rights under the Eighth Amendment. However, defendant has failed to preserve this issue for appellate review because the record reveals no objection by defendant at trial to the sentencing on constitutional grounds. "This Court will not consider arguments based upon matters not presented to or adjudicated by the trial court." State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600, cert. denied, 540 U.S. 988, 157 L. Ed. 2d 382 (2003); see N.C.R. App. P. 10(b)(1). "'Even alleged errorsarising under the Constitution of the United States are waived if defendant does not raise them in the trial court.'" Haselden, 357 N.C. at 10, 577 S.E.2d at 600 (quoting State v. Jaynes, 342 N.C. 249, 263, 464 S.E.2d 448, 457 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996)).
    Furthermore, defendant is not entitled to review of this contention under the plain error rule. Our Supreme Court has applied the plain error rule only to issues relating to jury instructions or the admissibility of evidence. State v. Carpenter, 147 N.C. App. 386, 397, 556 S.E.2d 316, 323 (2001), disc. review denied, 355 N.C. 217, 560 S.E.2d 143, cert. denied, 536 U.S. 967, 153 L. Ed. 2d 851 (2002). Therefore, this assignment of error is procedurally barred and without merit.
    No error.
    Judges TIMMONS-GOODSON and TYSON concur.
    Report per Rule 30(e).

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