Appeal by defendant from judgment entered 7 June 2004 by Judge
Jesse B. Caldwell, III in Mecklenburg County Superior Court. Heard
in the Court of Appeals 17 October 2005.
Roy A. Cooper, III, Attorney General, by Ted R. Williams,
Special Deputy Attorney General, for the State.
Michael E. Casterline for defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals from a judgment entered upon his convictions
by a jury of intentionally keeping or maintaining a dwelling house
for keeping or selling a controlled substance; possession of drug
paraphernalia; and trafficking by possession of cocaine. We find
no error.
At trial, the State's evidence included the testimony of
Detective J.C. Long of Charlotte-Mecklenburg Police Department.
Detective Long testified that on 3 April 2002, an informant whom he
had arrested placed a telephone call at Detective Long's request.
Detective Long was positioned so as to be able to hear both sides
of the telephone conversation, and he heard the other party tell
the informant that he “had it” and that the informant should meethim at a house with a Century 21 sign in front of it on Old Plank
Road in Charlotte, North Carolina. Detective Long then went to the
house described in the telephone conversation and knocked on the
back door. He noticed, on the trash can on the porch, ziploc bags
that appeared to have the residue of a white powdery substance,
later tested to be cocaine. When no one answered the door,
Detective Long called the last number dialed on the informant's
cell phone, which the officer then had in his possession. He
informed the person who answered that he was at the house waiting.
The person on the other end replied that he would be there in
twenty minutes.
Twenty minutes later, defendant arrived at the house in a
pickup truck. Detective Long approached defendant, identified
himself as a police officer, and showed defendant the bags
containing the residue. Detective Long again used the informant's
phone to dial the number he had called previously. A cell phone in
defendant's possession rang. Detective Long testified that he
recognized defendant's voice as the one from the earlier phone
calls. When Detective Long asked defendant for identification,
defendant presented an out-of-state driver's license bearing the
name Roger Dale Prayther. Defendant told Long that he did not live
at Old Plank Road, although he did have a key to the residence, and
therefore he could not give consent for Detective Long to search.
Detective Long secured a search warrant and returned to the
residence. He used defendant's key to enter the house; defendant
deactivated the alarm. Long stated that the house smelled stronglyof cocaine and there was cocaine residue in the stove. In a desk
in the bedroom, officers found a breathing apparatus, a heat lamp,
a bag of cocaine, some Inositol (a cutting agent), and ziploc bags.
Elsewhere in the home, officers found an oatmeal container
containing cocaine, a press machine, scale, vacuum sealer and
vacuum seal bags. In a closet, officers discovered a safe built
into the wall, which contained additional cocaine. There was mail
in the home addressed to defendant and also mail bearing the name
of Roger Prayther, the name on the out-of-state driver's license
which defendant had initially shown Detective Long.
Defendant told Detective Long that his actual residence was on
Beagle Club Road, and gave the officer consent to search that
residence. The Beagle Club Road residence was a mobile home with
very little furniture or clothing. During that search, a duct
taped package which appeared to have been cut open was found in a
trash can. The package was similar in size to the size of a
kilogram package of cocaine. No other incriminating items were
found there.
Defendant presented evidence tending to show that he had moved
out of the Old Plank Road residence in January of 2002. Three of
his friends, including his neighbor at the Old Plank Road address,
testified that they had helped defendant move, and that they had
not seen any of the drug equipment which the officers discovered
there. They also testified that they had never seen any cocaine or
drug activity in their frequent interactions with defendant.
_____________________
On appeal, defendant argues the trial court 1) erroneously
permitted Detective Long to give expert opinion testimony even
though he had not been qualified as such; 2) erred by allowing the
prosecutor to make improper closing arguments; and 3) erred in
denying his motion to dismiss based on insufficient evidence. We
have carefully considered each of the arguments and find no merit
in any of them.
Defendant maintains that Detective Long's testimony regarding
the procedure and equipment required to process and package cocaine
was inadmissible because he had not been qualified as an expert.
A finding that a witness is an expert is implied by the admission
of expert opinion testimony by a trial court, where the defendant
has only made a general objection to the testimony.
State v.
Tyler, 346 N.C. 187, 203, 485 S.E.2d 599, 608,
cert. denied, 522
U.S. 1001, 139 L. Ed. 2d 411 (1997); N.C.R. App. P. 10 (b)(1).
Testimony by a lay witness “in the form of opinions or inferences
is limited to those opinions or inferences which 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). “As long as the
lay witness has a basis of personal knowledge for his opinion, the
evidence is admissible.”
State v. Bunch, 104 N.C. App. 106, 110,
408 S.E.2d 191, 194 (1991) (holding testimony by police officer
regarding common practice in drug transactions in a particular
community admissible). Detective Long's testimony regarding the press, scales, and
manner of packing cocaine was not opinion testimony requiring that
he be qualified as an expert witness because of his personal
knowledge based on his experience as a law enforcement officer.
Even so, Detective Long testified to his specialized training and
experience regarding narcotics, and the 500 to 600 cocaine arrests
he had made. Such testimony was clearly sufficient to show his
specialized knowledge of the subject so as to assist the jury in
understanding the significance of the items found during the
search. N.C. Gen. Stat. § 8C-1, Rule 702(a) (2003). This
assignment of error is overruled.
By his second argument, defendant contends the trial court
erred in overruling his objection to statements by the prosecutor
in his closing argument which defendant contends referred to
matters not in evidence. He also contends that the prosecutor's
argument implicated defendant's constitutional right not to testify
and that the trial court erred by not intervening
ex mero motu to
stop the improper argument. Defendant maintains these errors
require that he be granted a new trial. Again, we disagree.
“When, in a closing argument, an objection was made and
overruled, the standard of review on appeal is whether the trial
court abused its discretion by failing to sustain the objection.”
State v. Millsaps, 169 N.C. App 340, 347, 610 S.E.2d 437, 442
(2005). We must then determine whether the remarks were so
improper that they prejudiced the defendant.
Id. Where a
defendant has not objected to the argument by the prosecutor, wedetermine if the trial court erred in failing to intervene
ex mero
motu, to protect the rights of the parties and the sanctity of the
proceedings.
State v. Walters,
357 N.C. 68, 101-02, 588 S.E.2d
344, 364,
cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003).
Closing arguments are considered in context.
State v. Augustine,
359 N.C. 709, 725-26, 616 S.E.2d 515, 528 (2005).
Defendant contends the prosecutor referred to facts not in
evidence by stating, “We don't have that evidence but you can infer
that he said, 'I will talk to him right now. I will call
[defendant]. I know he has the keys and the code to that house.'”
Our examination of the record leads us to conclude that the
argument was based on the prosecutor's analysis of Detective Long's
testimony and there was no abuse of the trial court's discretion in
overruling defendant's objection to it. N.C. Gen. Stat. § 15A-1230
(2003).
Defendant also maintains the prosecutor directly commented on
defendant's failure to testify by stating:
Why wouldn't [defendant] just say, “I live at”
whatever place he lived at? What is the big
deal? Who knows. I don't know and I know you
don't know because you didn't hear any
evidence about it. . . . Why wouldn't he say
he lived with a law-abiding citizen? I don't
know.
Taken in context, however, these statements are not impermissible
comments on defendant's failure to testify; rather, they relate to
defendant's statements to Detective Long when defendant arrived at
the house on Old Plank Road. “[E]ven assuming that the
prosecutor's rhetorical question can be perceived as touching ondefendant's decision not to testify,” we do not believe the
argument was so grossly improper as to undermine defendant's right
to a fair trial; therefore, “the trial court did not commit error
by failing to intervene
ex mero motu.”
State v. Barden, 356 N.C.
316, 356, 572 S.E.2d 108, 134 (2002),
cert. denied, 538 U.S. 1040,
155 L. Ed. 2d 1074 (2003).
In defendant's final argument, he contends the trial court
should have granted his motions to dismiss all of the charges
against him due to insufficient evidence. When considering a
motion to dismiss for insufficiency of the evidence, the trial
court must consider whether there is substantial evidence of each
essential element of the crime charged.
State v. Holland, 161 N.C.
App. 326, 328, 588 S.E.2d 32, 34 (2003). Substantial evidence is
relevant evidence “that a
reasonable mind might accept as adequate
to support a conclusion,”
State v. Porter, 303 N.C. 680, 685, 281
S.E.2d 377, 381 (1981), and can be either direct or circumstantial.
State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
This evidence must be considered “in the light most favorable to
the State,” and the State is entitled to every reasonable inference
to be drawn from it.
State v. Bright, 301 N.C. 243, 257, 271
S.E.2d 368, 377 (1980). “The trial court in considering a motion
to dismiss is concerned only with the sufficiency of the evidence
to carry the case to the jury; it is not concerned with the weight
of the evidence.”
State v. Lowery, 309 N.C. 763, 766, 309 S.E.2d
232, 236 (1983). Defendant first argues the trial court should have granted his
motion to dismiss the charge of maintaining a dwelling for keeping
or selling a controlled substance. The “State has the burden of
proving the defendant: (1) knowingly or intentionally kept or
maintained; (2) a building or other place; (3) being used for the
keeping or selling of a controlled substance.”
State v. Frazier,
142 N.C. App. 361, 365, 542 S.E.2d 682, 686 (2001). Cocaine is a
controlled substance. N.C. Gen. Stat. § 90-90(1)(d) (2003).
Factors to be considered in determining whether defendant kept or
maintained the property include occupancy of the property; payment
of rent, utilities, or repair expenses; and possession of a key to
access the property.
Frazier, 142 N.C. App. at 365, 542 S.E.2d at
686.
“[B]oth actual and constructive possession will support a
finding of 'possession' within the meaning of our statutes.”
State
v. McNeil, 359 N.C. 800, 813, 617 S.E.2d 271, 279 (2005). 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). The State may show a defendant had constructive
possession by producing evidence that a defendant “maintained the
premises as a residence, or had some apparent proprietary interest
in the premises or the controlled substance.”
State v. Hamilton,
145 N.C. App. 152, 156, 549 S.E.2d 233, 235 (2001). Here, the State presented evidence from which the jury could
infer that defendant kept or maintained the Old Plank Road
residence for keeping or selling cocaine. There was little
furniture and no clothing or personal possessions in the home.
There was testimony that the home appeared to be what is commonly
referred to as a “stash house.” It did, however, contain mail
addressed to defendant or Roger Prayther. Defendant not only met
Detective Long at the house after the informant telephoned him, but
also had a key and was able to disarm the alarm. This evidence,
taken in light most favorable to the State, is sufficient to permit
the jury to conclude that defendant maintained the house for the
purpose of keeping cocaine.
Defendant also argues the trial court should have dismissed
the charge of trafficking in cocaine, which is knowing possession
of 28 or more grams of cocaine.
State v. White, 104 N.C. App. 165,
168, 408 S.E.2d 871, 873 (1991); N.C. Gen. Stat. § 90-95(h)(3)(b)
(2003). Discovery of contraband materials “on the premises under
the control of an accused . . . in and of itself, gives rise to an
inference of knowledge and possession which may be sufficient to
carry the case to the jury.”
State v. Harvey, 281 N.C. 1, 12, 187
S.E.2d 706, 714 (1972).
We have already determined there was substantial evidence that
defendant controlled the premises; there was also substantial
evidence from which the jury could find that defendant possessed
the cocaine found upon the premises. Defendant met Detective Long
at a remote residence after receiving a phone call from the informant. The cocaine was found in three separate amounts: 1) the
bag of cocaine from the dresser in the bedroom weighed 81.57 grams;
2) the cocaine in the oatmeal container weighed 204.58 grams; and
3) the cocaine recovered from the wall safe weighed 251.09 grams,
providing a total weight of more than 200 grams of cocaine. In
addition, there was evidence that two bottles of Inosital powder,
a cutting agent used to repackage the cocaine at a greater weight,
were found in a desk drawer.
Finally, defendant argues there was insufficient evidence that
he knowingly used, or possessed “with intent to use, drug
paraphernalia to . . . manufacture, compound, convert, produce,
process, prepare, test, analyze, package, repackage, store,
contain, or conceal a controlled substance. . . .” N.C. Gen. Stat.
§ 90-113.22 (2003). The State must show that defendant 1)
possessed the processing equipment found in the house and 2)
intended to use it to process cocaine.
See State v. Hedgecoe, 106
N.C. App. 157, 164, 415 S.E.2d 777, 781 (1992).
Again, because there was sufficient evidence that defendant
maintained the house under his control, the jury could infer that
the defendant possessed the breathing apparatus, heat lamp, bags
with cocaine residue, cutting agent, ziploc bags, press machine,
scale, vacuum sealer and vacuum seal bags, and oatmeal container
found therein. There was testimony that these items are commonly
used to process cocaine.
We hold the evidence, taken in light most favorable to the
State, was sufficient to allow the jury to determine that defendantmaintained the dwelling house for the purpose of keeping cocaine,
trafficked in cocaine, and possessed drug paraphernalia.
Accordingly, the trial court did not err in denying defendant's
motion to dismiss.
No error.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
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