Appeal by defendant from judgments entered 9 October 2003 by
Judge J. Marlene Hyatt in Buncombe County Superior Court. Heard in
the Court of Appeals 24 March 2005.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General David N. Kirkman, for the State.
Hyler & Lopez, P.A., by George B. Hyler, Jr. and Robert J.
Lopez, for defendant-appellant.
William Alexander Richards (defendant) presents the
following issues for our consideration: Did the trial court (I)
erroneously admit evidence of other crimes, wrongs, and acts under
Rule 404(b); and (II) erroneously deny defendant's motion to
dismiss the charges of trafficking in marijuana by manufacturing,
conspiracy to traffic in marijuana by manufacturing, trafficking in
marijuana by possession, and trafficking in marijuana by
transportation for lack of sufficient evidence. After careful
review, we find no prejudicial error in defendant's convictions.
The State contended at trial that defendant and Thomas West
(West) operated an indoor marijuana grow on West's property in
Buncombe County for three years. Defendant allegedly paid for allexpenses, taught West how to grow marijuana, helped harvest the
marijuana, and found electricians to help with the conversion of a
building on West's property into a marijuana grow room. West
supervised the marijuana grow and tended to the plants daily.
The evidence tends to show that in the early 1990s, West began
operating a paint and body shop on his property, which defendant
had helped build. After operating the paint and body shop for
eight years, West testified that defendant convinced him to convert
the paint and body shop into an indoor marijuana grow room, in
order to grow and sell marijuana to make money for retirement.
West and defendant began growing marijuana in 1999 and would
harvest between ten and twenty pounds of marijuana approximately
every three months. West estimated they harvested eight crops
during the three year time period. After the harvest, defendant
would weigh and bag the marijuana and would take it from the
premises. West was paid $1,000.00 per pound after the marijuana
West's testimony was corroborated by the testimony of three
electricians who testified they hooked up the electricity to the
building used for the marijuana grow. David Caldwell (Caldwell),
an electrician, testified that defendant asked him to do the
electrical work on West's building. Caldwell located two other
individuals to help with the work. John Peterson (Peterson), who
lived on West's property, testified he was provided living quarters
on West's property, and in exchange, he was required to work in the
grow room -- watering the plants and conducting other activities tohelp the plants grow. These men also testified that they saw
defendant on West's property near the marijuana grow. However,
defendant's fingerprints were not found on West's property and a
search of defendant's property did not reveal any incriminating
In August 2002, the police searched West's property pursuant
to a tip and discovered the marijuana grow. Further testing
determined that the recovered marijuana plants weighed 121 pounds.
Defendant was convicted of conspiracy to traffic in marijuana by
manufacture, trafficking in marijuana by possession, trafficking in
marijuana by transport, and trafficking in marijuana by
manufacture. Defendant was sentenced to thirty-five to forty-two
months imprisonment for conspiracy to traffic in marijuana and
received three concurrent sentences of thirty-five to forty-two
months for the remaining charges. The three concurrent sentences
were to begin after defendant served the thirty-five to forty-two
months on the conspiracy charge. Defendant also received a
$100,000.00 fine. Defendant appeals.
Defendant first contends that the trial court erroneously
admitted three alleged prior bad acts pursuant to N.C. Gen. Stat.
§ 8C-1, Rule 404(b). Specifically, defendant contends the
following evidence was inadmissible: (1) Testimony that defendant
had two outdoor marijuana crops that had been torn down by the
police, and (2) testimony describing an altercation between
defendant and another woman at a car wash during which the woman
pointed a gun at defendant. N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003) provides:
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.
Id. Rule 404(b) is one of inclusion. State v. Coffey, 326 N.C.
268, 278-79, 389 S.E.2d 48, 54 (1990).
Where [prior bad act] evidence reasonably
tends to prove a material fact in issue in the
crime charged, it will not be rejected merely
because it incidentally proves the defendant
guilty of another crime, but [it will be
rejected] if the sole logical relevancy of
that evidence is to suggest defendant's
predisposition to commit the type of offense
with which he is presently charged.
State v. Jeter, 326 N.C. 457, 458, 389 S.E.2d 805, 806 (1990)
(citation omitted). This exception is grounded in the logic of
inferring from the sequence of events comprising an offense or from
its particular features that the same person committed the offense
more than once, aware on at least the latter occasion of its
consequences. State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470,
The use of evidence as permitted under
Rule 404(b) is guided by two constraints:
similarity and temporal proximity. When the
features of the earlier act are dissimilar
from those of the offense with which the
defendant is currently charged, such evidence
lacks probative value. When otherwise similar
offenses are distanced by significant
stretches of time, commonalities become less
striking, and the probative value of the
analogy attaches less to the acts than to the
character of the actor.
Although evidence may be admissible under Rule 404(b), the
probative value of the evidence must still outweigh the danger of
undue prejudice to the defendant to be admissible under Rule 403.
State v. Frazier, 319 N.C. 388, 390, 354 S.E.2d 475, 477 (1987).
This issue is a matter within the sound discretion of the trial
court, 'and his ruling may be reversed for an abuse of discretion
only upon a showing that it was so arbitrary that it could not
have been the result of a reasoned decision.' State v. Jones, 89
N.C. App. 584, 594, 367 S.E.2d 139, 145 (1988) (citation omitted).
We note, however, that our Supreme Court has stated that '[t]he
dangerous tendency of this class of evidence to mislead and raise
a legally spurious presumption of guilt requires that its
admissibility should be subjected to strict scrutiny by the
courts.' Jeter, 326 N.C. at 458, 389 S.E.2d at 806 (citation
A. Other Marijuana Crops
Defendant challenges the admission into evidence of West's
testimony regarding two prior incriminating statements allegedly
made by defendant. West testified that defendant told him about an
outdoor marijuana patch eradicated by the police. Allegedly,
defendant told him that this patch belonged to him and was located
near defendant's driveway. Deputy Sheriff Alfred Bottego (Deputy
Bottego) testified that the sheriff's department had received a
phone call regarding some marijuana growing on the caller's
property. Deputy Bottego testified the marijuana patch consistedof approximately 180 plants and was located near the base of
Defendant contends this evidence was inadmissible because
there was no evidence linking defendant to the outdoor grow.
[E]vidence is admissible under Rule 404(b) of
the North Carolina Rules of Evidence if it is
substantial evidence tending to support a
reasonable finding by the jury that the
defendant committed a similar act or crime and
its probative value is not limited solely to
tending to establish the defendant's
propensity to commit a crime such as the crime
State v. Stager
, 329 N.C. 278, 303-04, 406 S.E.2d 876, 890 (1991)
(emphasis omitted). There must be sufficient evidence to support
a jury finding that the defendant committed the similar act; no
preliminary finding by the trial court that the defendant actually
committed such an act is required. Id
. at 303, 406 S.E.2d at 890.
In this case, West's testimony that defendant stated his
marijuana patch located near his home had been eradicated by the
police after its discovery by a neighbor was corroborated by Deputy
Bottego's testimony. Deputy Bottego testified that a resident
discovered a marijuana patch that consisted of 180 plants located
near defendant's driveway. Therefore, there was substantial
evidence from which the jury could reasonably conclude defendant
committed an uncharged prior trafficking in marijuana by
As to the similarity between the uncharged prior offense and
the present conduct, [e]vidence of other drug violations is not
admissible if its only relevance is to show disposition to deal inillicit drugs. However, such evidence is properly admissible to
show specific mental intent or state or to show guilty knowledge.
State v. Rozier
, 69 N.C. App. 38, 56, 316 S.E.2d 893, 904 (1984)
(citation omitted). Defendant argues on appeal that the evidence
only indicated that defendant was a drug dealer, and not a drug
manufacturer. The uncharged prior trafficking in marijuana by
manufacture offense shows defendant had guilty knowledge or the
mental intent to manufacture marijuana. Accordingly, we conclude
the testimony regarding an outdoor marijuana grow near defendant's
property was properly admitted.
Defendant also challenges West's testimony that defendant had
an outdoor marijuana crop in the Leicester area that was torn down
by the police. Specifically, defendant contends this evidence
should not have been allowed under Rule 404(b) because the only
evidence linking him to the Leicester outdoor marijuana grow was
West's uncertain testimony. Even assuming the trial court
erroneously admitted the evidence of a second outdoor marijuana
grow in the Leicester area, such admission was harmless.
Evidentiary errors are harmless unless defendant proves that absent
the error, a different result would have been reached. N.C. Gen.
Stat. § 15A-1443(a). In light of the other evidence in this case,
no such finding is available here. See infra
B. Car Wash incident
Defendant also challenges the testimony of Sheriff's Deputy A.
J. Fox (Deputy Fox) who testified regarding an incident he
witnessed on 5 December 1997, two years prior to the beginning ofthe indoor marijuana grow. On this date, Deputy Fox observed a
woman pointing a gun at defendant. During a search, the police
discovered three small bags of marijuana in defendant's possession
and a large sum of money. During his arrest, defendant told the
police that he grew marijuana and sold it. Defendant was charged
and convicted of possession with intent to sell and deliver as a
result of what occurred at the car wash in 1997. Even assuming the
trial court erroneously admitted this evidence, such admission was
Evidentiary errors are harmless unless defendant proves that
absent the error, a different result would have been reached. N.C.
Gen. Stat. § 15A-1443(a). In light of the other evidence in this
case, no such finding is available here. Indeed, the testimony of
West and Peterson indicated defendant was involved in the indoor
marijuana grow. Their testimony indicated that defendant paid for
all of the expenses and handled the sale of marijuana. West and
Peterson oversaw the marijuana grow. West's and Peterson's
testimony was corroborated by the testimony of Caldwell, who
testified that defendant contacted him and asked him to illegally
connect the electricity to the grow rooms. Defendant also asked
him to come out and correct problems that arose with the
electricity. The State also offered evidence that defendant's
assets exceeded what defendant could afford with his yearly income.
These assets included several acres of land, additions to his home,
several vehicles, and a 5,000 foot fence that defendant paid
$17,375.00 for in cash. The State also offered evidence thatdefendant conducted many financial transactions, including monthly
mortgage payments, with money orders even though defendant had a
checking account. This evidence was sufficient to convict
defendant as explained in further detail below. Accordingly, even
assuming evidence was improperly admitted under Rule 404(b), such
admission was harmless error.
Defendant also argues that the trial court erroneously
admitted Rule 404(b) evidence without a limiting instruction.
'[T]he admission of evidence, competent for a restricted purpose,
will not be held error in the absence of a request by defendant for
a limiting instruction. Such an instruction is not required to be
given unless specifically requested by counsel.' State v.
, 355 N.C. 501, 562, 565 S.E.2d 609, 645 (2002) (citation
omitted). The record indicates defendant did not request a
limiting instruction. Nonetheless, defendant contends that it was
plain error to admit the evidence without the limiting instruction.
[T]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
case 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,' or 'where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,'
or the error has 'resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial' or where the error is such as to
'seriously affect the fairness, integrity or
public reputation of judicial proceedings' or
where it can be fairly said 'the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.'
State v. Walters
, 357 N.C. 68, 84-85, 588 S.E.2d 344, 354 (2003)
(citations omitted) (emphasis omitted). We conclude the failure to
give the limiting instruction did not amount to plain error in this
Next, defendant contends the trial court erroneously denied
his motion to dismiss, for lack of sufficient evidence, the charges
of trafficking in marijuana by manufacturing, conspiracy to traffic
in marijuana by manufacturing, trafficking in marijuana by
possession, and trafficking in marijuana by transportation.
In reviewing the sufficiency of the evidence, we must
determine whether there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of the offense. State v. Crawford
, 344 N.C. 65, 73,
472 S.E.2d 920, 925 (1996). Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support
a conclusion. State v. Vick
, 341 N.C. 569, 583-84, 461 S.E.2d
655, 663 (1995). The trial court's review of a motion to dismiss
should only be concerned 'with the legal sufficiency of the
evidence to support a verdict, not its weight, which is a matter
for the jury.' State v. Sokolowski
, 351 N.C. 137, 143, 522 S.E.2d
65, 69 (1999) (citation omitted). The evidence must be considered
in the light most favorable to the State and the State must be
given the benefit of every reasonable inference from that evidence.
State v. Lucas
, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). If
there is substantial evidence -- whether direct, circumstantial, or
both -- to support a finding that the offense charged has beencommitted and that the defendant committed it, the case is for the
jury and the motion to dismiss should be denied. State v.
, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
Under N.C. Gen. Stat. § 90-95(h)(1)(b) (2003),
Any person who sells, manufactures, delivers,
transports, or possesses in excess of 10
pounds (avoirdupois) of marijuana shall be
guilty of a felony which felony shall be known
as trafficking in marijuana and if the
quantity of such substance involved:
. . .
b. Is 50 pounds or more, but less than 2,000
pounds, such person shall be punished as a
Class G felon and shall be sentenced to a
minimum term of 35 months and a maximum term
of 42 months in the State's prison and shall
be fined not less than twenty-five thousand
The [s]ale, manufacture, delivery, transportation, and
possession of 50 pounds or more of marijuana are separate
trafficking offenses for which a defendant may be separately
convicted and punished. State v. Diaz
, 317 N.C. 545, 554, 346
S.E.2d 488, 494 (1986). Weight of the marijuana is an essential
element of trafficking in marijuana under G.S. 90-95(h). State v.
, 65 N.C. App. 302, 306, 309 S.E.2d 488, 492 (1983). In
this case, defendant does not challenge the sufficiency of the
evidence regarding the weight of the marijuana. Rather, defendant
argues the State presented insufficient evidence of the
manufacture, transportation, and possession of the marijuana.
As defined by statute: 'Manufacture' means the production,
preparation, propagation, compounding, conversion, or processing of
a controlled substance by any means, whether directly orindirectly, artificially or naturally, or by extraction from
substances of a natural origin, or independently by means of
chemical synthesis[.] N.C. Gen. Stat. § 90-87(15) (2003).
Defendant concedes in his brief that growing marijuana constitutes
manufacturing under N.C. Gen. Stat. § 90-87(15). However,
defendant contends that because the trial court failed to instruct
the jury on acting in concert, there is insufficient evidence that
defendant's alleged actions amounted to manufacturing. Rather,
defendant contends that the evidence indicates he purchased
marijuana from West for $1,000.00.
In this case, West gave the following testimony regarding
[Defendant] brought in the dirt in five-gallon
buckets and a big wooden box that was probably
four feet wide and six feet long. The sides
of it was [sic] about six inches. He brought
dirt in five-gallon buckets, which was in
sheetrock-type mud buckets. With that, he
brought chicken manure and he was mixing it,
the best I can remember -- I can't remember
exactly how much the box held. But he would
put a half of cup of chicken manure in that
box of soil. This was regular outside soil.
It wasn't like your Peters Professional or
Miracle-Gro or nothing like that. It was just
regular outside soil that he said that he had
gotten out of a crop where he had growed [sic]
pot before and he knowed [sic] the soil was
good and rich and was suitable for this
situation. And he mixed it and put it in
buckets and planted the seeds, showed me how
to plant the seeds. Gave me material to read
to educate me on how the seeds should be
West's testimony provided substantial evidence upon which the jury
could reasonably conclude defendant manufactured marijuana. As
defendant does not contest that the amount seized by the policeofficers was sufficient to establish a trafficking offense, we
conclude the trial court did not erroneously deny defendant's
motion to dismiss the trafficking in marijuana by manufacturing
Defendant also argues the trial court erroneously denied his
motion to dismiss the trafficking in marijuana by transportation
charge. A conviction for trafficking in [marijuana] by
transportation requires that the State show a 'substantial
movement.' Determining whether there has been a 'substantial
movement' involves a consideration of all the circumstances
surrounding the movement, including its purpose and the
characteristics of the areas involved. State v. Wilder
, 124 N.C.
App. 136, 140, 476 S.E.2d 394, 397 (1996) (citation omitted)
(discussing trafficking in cocaine by transportation).
Transportation is shown by evidence of carrying or movement of an
illegal substance from one place to another. See, e.g., State v.
, 110 N.C. App. 643, 646, 430 S.E.2d 434, 436-37 (1993)
(finding transport where defendant removed cocaine from a dwelling
house and carried it to a car by which he left the premises with an
undercover agent); State v. Outlaw
, 96 N.C. App. 192, 197, 385
S.E.2d 165, 168-69 (1989) (holding that moving cocaine down a
driveway was sufficient to constitute transport).
In this case, West testified that after he harvested and
bagged the marijuana crop, defendant would come to the grow room on
West's property, take the bags, and would return on a later date
and pay West $1,000.00 per pound. This testimony providedsubstantial evidence upon which the jury could reasonably conclude
defendant transported marijuana. As defendant does not contest
that the amount seized by the police officers was sufficient to
establish a trafficking offense, we conclude the trial court did
not erroneously deny defendant's motion to dismiss the trafficking
in marijuana by transportation charge.
Defendant also challenges the sufficiency of the evidence
supporting the trafficking in marijuana by possession charge. To
show possession, the State must provide substantial evidence that:
(1) Defendant had actual possession; (2) defendant had constructive
possession; or (3) defendant acted in concert with another to
commit the crime. State v. Reid
, 151 N.C. App. 420, 428, 566
S.E.2d 186, 192 (2002); State v. Garcia
, 111 N.C. App. 636, 639-40,
433 S.E.2d 187, 189 (1993). Defendant did not have actual
possession of the marijuana found by the police and the trial court
did not instruct the jury on acting in concert. Thus, in order for
defendant's conviction for trafficking in marijuana by possession
to be sustained, the State must have presented sufficient evidence
of defendant's constructive possession of the marijuana.
Constructive possession exists when the defendant, 'while not
having actual possession, . . . has the intent and capability to
maintain control and dominion over' the narcotics. State v.
, 356 N.C. 141, 146, 567 S.E.2d 137, 140 (2002) (citation
omitted). Where such [drugs] are found on the premises under the
control of the accused, this fact, in and of itself, gives rise to
an inference of knowledge and possession which may be sufficient tocarry the case to the jury on a charge of unlawful possession.
State v. Harvey
, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).
However, unless the person has exclusive possession of the place
where the 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
In this case, the marijuana was not located on property owned
by defendant. Indeed, the marijuana was grown in a converted paint
and body shop owned by West. The building was located behind the
home in which West resided. However, West testified that defendant
periodically visited the marijuana grow to check on progress and
would advise West regarding any problems with the grow that arose.
The electricians testified that defendant directed them as to the
electrical work to be conducted on the building where the marijuana
was grown, and they testified that defendant was seen in close
proximity to the marijuana. West further testified that defendant
would help with the marijuana harvest, would weigh and bag the
marijuana, and would take the marijuana from the premises to be
sold. A reasonable juror can infer constructive possession from
Next, we consider the denial of defendant's motion to dismiss
the conspiracy to traffic in marijuana charge. As explained by
this Court in Rozier
, 69 N.C. App. at 49, 316 S.E.2d at 900-01:
A criminal conspiracy is an agreement by
two or more persons to perform an unlawful act
or to perform a lawful act in an unlawful
manner. It is a separate crime from theunderlying substantive offense. The crime is
complete once the agreement has been reached;
no overt act is necessary to establish
criminal liability. Once a criminal
conspiracy has been proven, punishment is
according to the law governing the conspiracy,
not the substantive offense. The penalty for
conspiracy to traffic in controlled substances
is the same as for the substantive offense of
trafficking. G.S. 90-95(i). . . . [I]t is
the amount of contraband agreed upon, not the
amount actually delivered, which is
determinative in a narcotics conspiracy
case. . . . If the evidence showed an
agreement to deliver more than the statutory
minimum, that agreement will control.
. (citations omitted) (emphasis omitted).
In order for a defendant to be found guilty of
a conspiracy, it must be established by
competent evidence that the defendant entered
into an unlawful confederation for the
criminal purposes alleged. While a conspiracy
may be established from circumstantial
evidence, there must be such evidence to prove
the agreement directly or such a state of
facts that an agreement may be legally
inferred. Conspiracies cannot be established
by a mere suspicion, nor does a mere
relationship between the parties or
association show a conspiracy. If the
conspiracy is to be proved by inferences drawn
from the evidence, such evidence must point
unerringly to the existence of a conspiracy.
State v. Massey
, 76 N.C. App. 660, 662, 334 S.E.2d 71, 72 (1985)
As previously addressed in this opinion, sufficient evidence
supports defendant's convictions for trafficking in marijuana by
manufacturing, possession, and transportation. Therefore, we only
review whether there was sufficient evidence that defendant
conspired to traffic in marijuana. In this case, West testified
that he and defendant agreed in the late 1990s to convert West'spaint and body shop into an indoor marijuana grow in order to make
money for retirement. West further testified that over a three
year time period, he and defendant harvested marijuana at least
eight times from the indoor marijuana grow. West's testimony was
corroborated by Caldwell's testimony. Caldwell testified that
defendant asked him to connect the illegal electricity to the
converted paint and body shop, to install the lighting in the
marijuana grow room, and to fix any problems that arose with the
electrical connections. Thus, there was sufficient evidence from
which a reasonable juror could determine defendant conspired to
traffic in marijuana.
In sum, we conclude the trial court did not erroneously admit,
under Rule 404(b), evidence of an uncharged prior bad act -- an
outdoor marijuana grow near defendant's property. Even assuming
the trial court did erroneously admit, under Rule 404(b), evidence
of a second outdoor marijuana grow and an altercation at a car
wash, the admission of said evidence was harmless error. Finally,
we have reviewed defendant's convictions for trafficking in
marijuana by manufacturing, trafficking in marijuana by possession,
trafficking in marijuana by transportation, and conspiracy to
traffic in marijuana by manufacture, and conclude that they were
supported by sufficient evidence.
No prejudicial error.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***