An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-650


Filed: 18 October 2005


v .                             Wake County
                                No. 03 CRS 119948

    Appeal by defendant from judgment entered 17 July 2003 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 2 March 2005.

    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 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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