STATE OF NORTH CAROLINA
v
.
Wake County
No. 03 CRS 119948
MARCO L. BAILEY
Attorney General Roy Cooper, by Special Deputy Attorney
General John R. Corne, for the State.
Brian Michael Aus, for defendant-appellant.
CALABRIA, Judge.
Marco L. Bailey (“defendant”) appeals a judgment upon a jury
verdict finding him guilty of felony possession of cocaine. We
find no error.
On the afternoon of 7 March 2003, Sergeant K.S. Craighead
(“Sgt. Craighead”), Officer F.K. Heineman (“Officer Heineman”),
Officer W.L. Norville (“Officer Norville”), and Officer Boone
(collectively the “officers”) were in two unmarked police cars
patrolling an area where the officers testified drug sales were
known to occur. After turning onto the 100 block of Maple Street,
Raleigh, Sgt. Craighead observed defendant standing on the curb and
leaning inside a red vehicle in the middle of the block. Sgt.
Craighead stopped his car ten to fifteen feet from defendant andOfficer Norville stopped directly behind Sgt. Craighead. No other
persons were near defendant and the individuals in the vehicle.
Sgt. Craighead observed defendant stand up from the vehicle with
money in his left hand. A moment later the vehicle sped away.
Defendant looked toward the police cars, placed the money in his
pocket, and turned away from the police cars. As defendant turned
away, Officer Norville noticed that his right hand moved across his
body as if he was discarding something. However, Officer Norville
could not discern whether anything left defendant's hand.
As the officers exited their patrol cars and approached
defendant, he took two steps to his left then turned to face them.
Sgt. Craighead instructed defendant to kneel, searched him, and
determined he had no weapons. Officer Norville searched the area
in the same direction that he had observed defendant's hand move.
In that area, he found a plastic package containing four rocks,
totaling .5 grams of crack cocaine, located approximately ten to
twelve feet away from defendant. Notably, the area Officer
Norville observed was an area of the street curb that was otherwise
free of debris. A search of defendant incident to arrest revealed
no drugs on his person and thirty-seven dollars in one of his
pockets.
Defendant was charged and indicted for felonious possession of
cocaine with intent to sell and deliver. On 17 July 2003, a jury
found defendant guilty of the lesser included offense of felony
possession of cocaine, and the trial court sentenced defendant in
the presumptive range to a minimum term of nine months and amaximum term of eleven months in the custody of the North Carolina
Department of Correction. Defendant appeals.
In his first assignment of error, defendant asserts the trial
court erred by denying his motion to dismiss for insufficient
evidence. “In considering a motion to dismiss, the evidence must
be considered in the light most favorable to the State, and the
State is entitled to every reasonable inference to be drawn
therefrom.” State v. Gainey, 343 N.C. 79, 85, 468 S.E.2d 227, 231
(1996). In ruling on the motion, the trial court must “determine
whether there is substantial evidence (a) of each essential element
of the offense charged, or of a lesser offense included therein,
and (b) of defendant's being the perpetrator of the offense.”
State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State v.
Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980). “If there is
substantial evidence - whether direct, circumstantial or both - to
support a finding that the offense charged has been committed and
that the defendant committed it, the case is for the jury and the
motion to dismiss should be denied.” State v. Locklear, 322 N.C.
349, 358, 368 S.E.2d 377, 383 (1988). “In order to establish that
defendant possessed crack cocaine with intent to sell or deliver,
the State [is] required to prove that (1) defendant possessed the
crack cocaine and that (2) defendant intended to sell or deliver
the narcotics to others.” State v. McNeil, __ N.C. __, __,
__S.E.2d __, __ (2005). Defendant specifically argues there was no substantial
evidence that he possessed cocaine. In order to prove possession
“the State is not required to show defendant had actual possession
of the contraband.” State v. Nettles, __N.C. App. __, __, 612
S.E.2d 172, 175 (2005). Consequently, “[p]ossession of contraband
can be either actual or constructive.” McNeil, __ N.C. at __, __
S.E.2d at __. Thus, “[a] defendant can be charged with
constructively possessing contraband when the defendant has the
intent and ability to exhibit control and dominion over the
contraband.” Nettles, __ N.C. App. at __, 612 S.E.2d at 175.
“[P]roof of constructive possession usually involves proof by
circumstantial evidence.” State v. Beaver, 317 N.C. 643, 648, 346
S.E.2d 476, 480 (1986). Nevertheless, “unless the person has
exclusive possession of the place where narcotics are found, the
State must show other incriminating circumstances before
constructive possession may be inferred.” State v. Davis, 325 N.C.
693, 697, 386 S.E.2d 187, 190 (1989) (emphasis added).
State v. Acolatse, 158 N.C. App. 485, 581 S.E.2d 807 (2003)
is instructive as a contrast to the facts presented in this case.
In Acolatse, police chased the defendant on foot, but during the
chase eventually lost sight of him. Id., 158 N.C. App. at 487, 581
S.E.2d at 809. Once law enforcement located the defendant again,
one officer witnessed the defendant make a throwing-type motion
towards an area of bushes. Id. When the defendant was placed
under arrest, the officers searched the immediate area and were
unable to locate any contraband. However, a further searchuncovered contraband on the roof of a nearby detached garage that
was not located in the same area as the bushes. Id. In reversing
the trial court's denial of defendant's motion to dismiss, this
Court stated such “evidence only raise[d] a suspicion of
possession,” Id., 158 N.C. App. at 490, 581 S.E.2d at 811, further
adding “[i]f the evidence is sufficient merely to raise a
suspicion...as to any element of the offense,...the motion to
dismiss should be allowed.” Id. (quoting State v. Thomas, 329 N.C.
423, 433, 407 S.E.2d 141, 148 (1991)).
In the instant case, although defendant did not actually
possess the crack cocaine, other incriminating circumstances
existed to substantiate such an inference. The State presented
evidence showing that after the police witnessed defendant lean up
from the window of a car with money in his hand, defendant,
immediately after the car sped off, looked at police, turned away,
and with no one else near his person or location, proceeded to make
a discarding motion with his right hand. The police, who never
lost sight of defendant, witnessed the discarding motion and
subsequently searched the immediate area where defendant made his
throwing motion. This search revealed the plastic package
containing the crack cocaine. Unlike Acolatse, the police in this
case maintained consistent and uninterrupted visual contact of
defendant, searched the area where the throwing motion occurred and
discovered the contraband in the same area. Therefore, from the
evidence presented, the trial court could reasonably conclude there
was substantial evidence defendant possessed cocaine in order tosubmit the question to the jury. This assignment of error is
overruled.
In his next assignment of error, defendant asserts the trial
court committed plain error by allowing testimony from Sgt.
Craighead and Officer Norville that Maple Street was considered a
“drug area” on the grounds that such testimony was inadmissible
hearsay. “[T]he plain error rule...holds that errors or defects
affecting substantial rights may be addressed even though they were
not brought to the attention of the trial court” and thus were not
properly preserved under N.C. R. App. P. 10(b)(2) (2005). State v.
Cummings, 346 N.C. 291, 313, 488 S.E.2d 550, 563 (1997). Our
appellate courts review such unpreserved issues when specifically
assigned as plain error pursuant to N.C. R. App. P. 10(c)(4)
(2005), “and when the issue involves either errors in the trial
judge's instructions to the jury or rulings on the admissibility of
evidence.” Id., 346 N.C. at 313-14, 488 S.E.2d at 563. “In order
to rise to the level of plain error, the error . . . must be so
fundamental that (i) absent the error, the jury probably would have
reached a different verdict; or (ii) the error would constitute a
miscarriage of justice if not corrected.” State v. Holden, 346
N.C. 404, 435, 488 S.E.2d 514, 531 (1997).
It is well established “that in a criminal prosecution
evidence of the reputation of a place or neighborhood is ordinarily
inadmissible hearsay.” State v. Weldon, 314 N.C. 401, 408, 333
S.E.2d 701, 706 (1985); see also State v. Williams, 164 N.C. App.
638, 644, 596 S.E.2d 313, 317 (2004) (holding “the trial courterroneously allowed the admission of testimony regarding the
reputation of the Freeman and Martin Street area of Raleigh, North
Carolina”). In the instant case, defendant challenges the
following testimony elicited from Officer Craighead by the
prosecution:
Q: Could you tell me where you were on duty on
March 7, 2003?
A: Yes, ma'am. I was on duty . We were patrolling
drug locations in the southeast side of Raleigh.
Q: On what criteria do you base this allegation of
drug area or label of drug area on?
A: Criterias [sic] based on past arrests, and
through experience of policemen you realize what
your known areas. You see street level drug dealers
on the street. You see them make contact with
drivers in cars. You'll see them walk and make
sales . . . There are numerous areas. Maple Street
is one of these areas.
Q: Okay
A: . . . We had proceeded off, it would be Boyer
Street, returned northbound on Maple Street. Maple
Street is one of those areas that's very difficult
to control as far as police perspective. We've
made numerous arrests. My unit has done. I've
personally been involved in 8 to 10 entries in
residences on this street in the 100, 200, and 300
blocks. This is one of our problem areas that
quite frankly our police department has not got a
hold on yet. It is very difficult to enforce. And
basically what happens is when you turn this
corner, 100 block of Maple Street, is basically any
time there's a lot of drug activity.
We agree with defendant that the admission of testimony by
Officer Craighead concerning the reputation of Maple Street as a
“drug area” was error on the grounds that such testimony was
inadmissible hearsay. However, defendant has failed to show the
admission of this testimony amounted to plain error. Defendant
contends “that absent repeated references to Maple Street being adrug area, there was little, if any, evidence presented that he
possessed the cocaine.” However, as noted supra, the State
presented substantial evidence that defendant possessed the cocaine
separate and apart from the admitted testimony. Therefore, the
testimony was not critical to the State's evidence against
defendant and defendant has failed to show the jury would probably
have reached a different result had the trial court barred these
statements. Moreover, in reviewing the record, we determine such
error would not constitute a miscarriage of justice. Accordingly,
we hold the trial court's admission of the testimony concerning the
reputation of Maple Street did not rise to the level of plain
error. This assignment of error is overruled.
Defendant next argues the trial court erred by admitting, over
his objection, opinion testimony by Officer Norville that the
motion of defendant's right hand appeared to be “a discard motion”
and by allowing Officer Norville to later refer to this motion as
“the discard motion.” A witness “not testifying as an expert” may
testify as to his opinions or inferences if “those opinions or
inferences . . . are (a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of his testimony
or the determination of a fact in issue.” N.C. Gen. Stat. § 8C-1,
Rule 701 (2003). “This rule permits evidence which can be
characterized as a 'shorthand statement of fact.'” State v.
Johnston, 344 N.C. 596, 609, 476 S.E.2d 289, 296 (1996). Our
Supreme Court has defined “shorthand statements of facts” as a
witness' statement of “'instantaneous conclusions of the mind as tothe appearance, condition, or mental or physical state of persons,
animals, and things, derived from observation of a variety of facts
presented to the senses at one and the same time.'” State v.
Williams, 319 N.C. 73, 78, 352 S.E.2d 428, 432 (1987) (quoting
State v. Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975)).
Accord Johnston, 344 N.C. at 609, 476 S.E.2d at 296 (holding
“testimony that defendant was 'going to do something'” admissible
as “an instantaneous conclusion based on [the witness'] observation
of a variety of facts”).
Officer Norville's testimony terming the motion of defendant's
right hand “a discard motion” was a statement of his instantaneous
conclusion based on an observation of defendant's movement. As
such, Officer Norville's testimony that the motion of defendant's
hand appeared to be “a discard motion” and subsequent references to
this motion as “the discard motion” constituted a shorthand
statements of facts. Accordingly, we hold the trial court did not
err in admitting this testimony under N.C. Gen. Stat. § 8C-1, Rule
701. This assignment of error is overruled.
Finally, defendant contends that pursuant to Rule 701, the
trial court committed plain error in admitting opinion testimony
from Sgt. Craighead that: (1) “[t]here was some type of transaction
made”; (2) he “immediately knew that [defendant] was going to run”;
and (3) “defendant took two steps to the left as if he was going to
run.” Similar to Officer Norville's testimony, Sgt. Craighead's
testimony that “some type of transaction” had occurred was a
statement of an instantaneous conclusion based on his observationof defendant leaning away from the vehicle holding money just prior
to the vehicle speeding away. Additionally, although defendant did
not in fact run, Sgt. Craighead's testimony that he “immediately
knew” defendant was about to run and that defendant looked “as if
he was going to run” constituted statements regarding instantaneous
conclusions based on observing defendant turning away from the
police cars and later taking two steps to the left just before
facing the officers. Therefore, Sgt. Craighead's opinion testimony
constituted shorthand statements of facts, and we hold the trial
court did not err in admitting his testimony.
For the foregoing reasons, we hold defendant received a fair
trial free from error.
No prejudicial error.
Judges HUNTER and JACKSON concur.
Report per Rule 30(e).
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