An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1029


Filed: 16 August 2005


v .                                 Buncombe County
                                    Nos. 03CRS004450-53

    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.

    HUNTER, Judge.

    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 was sold.
    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 evidence.
    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, 481 (1989).
            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 omitted).

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's driveway.
    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 charged.

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 manufacture offense.
    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 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. 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. Williams, 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 case.
    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. Locklear, 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 dollars ($25,000)[.]

    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. Goforth, 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's actions:
        [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 grown.

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 charge.
    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. McRae, 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. Butler, 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 (1989).
    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 this testimony.
    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.

Id. (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) (citations omitted).
    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).

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