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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. TONY LEE WEAKLEY
Filed: 21 March 2006
1. Search and Seizure--motion to suppress evidence--probable cause--plain view
The trial court did not err in a possession of stolen property, possession of a stolen
firearm, possession of Valium, possession of marijuana, possession of drug paraphernalia, and
possession of methamphetamine case by denying defendant's motion to suppress items found
pursuant to the search of his residence, because: (1) a detective was lawfully inside defendant's
premises to monitor the movements of a suspect who needed to return inside the house to get
fully dressed when she observed a shower curtain belonging to a larceny victim; (2) the discovery
of the shower curtain was inadvertent when it just caught the detective's eye in one of the
bedroom windows, and there was no evidence the officer was looking for the shower curtain; (3)
it was immediately apparent to the detective that the shower curtain constituted evidence of a
crime when the curtain matched pictures she had seen provided by the victims of items taken
from their bathroom with a border in the bathroom matching the curtain; and (4) based on the
detective's observation of the shower curtain, she had probable cause to believe defendant's
residence contained stolen items entitling her to get a search warrant.
2. Constitutional Law_-right against self-incrimination--no standing to assert rights of
Although defendant contends the trial court committed plain error in a prosecution for
possession of stolen property and other crimes by allowing the State to cross-examine
defendant's girlfriend regarding her failure to give a statement to a detective, this assignment of
error is dismissed because defendant does not have standing to assert the constitutional right
against self-incrimination of a third party.
3. Possession of Stolen Property--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of
possession of stolen property under N.C.G.S. § 14-71.1, because: (1) the evidence tended to
show that stolen goods were found throughout defendant's residence; and (2) the circumstantial
evidence tended to show defendant knew or should have known the goods his girlfriend brought
into his residence were stolen.
4. Firearms and Other Weapons--possession of stolen firearm--motion to dismiss--
sufficiency of evidence
The trial court erred by denying defendant's motion to dismiss the charge of possession of
a stolen firearm under N.C.G.S. § 14-71.1, and this conviction is reversed, because: (1) the State
presented no evidence that the firearms were stolen pursuant to a breaking or entering or that
defendant knew or should have known the firearms were stolen; (2) the trial court dismissed
defendant's charges of breaking and entering and larceny after breaking and entering; and (3) the
State presented no evidence of when the firearms were stolen or how long they had been in
5. Drugs--possession of Valium--possession of marijuana--possession of drug
paraphernalia--possession of methamphetamine--motion to dismiss--sufficiency of
The trial court did not err by denying defendant's motion to dismiss the charges of
possession of Valium, possession of marijuana, possession of drug paraphernalia, and possession
of methamphetamine, because: (1) an accused has possession of contraband when he has both the
power and the intent to control its disposition or use; (2) defendant leased and resided in the
house where the controlled substances and drug paraphernalia were found, and our Supreme
Court has found constructive possession to exist where possession is not exclusive but defendant
exercises sole or joint physical custody of the premises; and (3) the State presented sufficient
evidence placing defendant within such close juxtaposition to the narcotic drugs to justify the
jury in concluding that they were his possession.
Appeal by defendant from judgments entered 6 January 2005 by
Judge J. Marlene Hyatt in Watauga County Superior Court. Heard in
the Court of Appeals 23 February 2006.
Attorney General Roy Cooper, by Assistant Attorney General
James M. Stanley, Jr., for the State.
William D. Auman, for defendant-appellant.
Tony Lee Weakley (defendant) appeals from judgement entered
after a jury found him to be guilty of possession of stolen
property, possession of a stolen firearm, possession of Valium,
possession of marijuana, possession of drug paraphernalia, and
possession of methamphetamine. We reverse defendant's conviction
for possession of a stolen firearm. We find no error in the
judgment entered on all other charges, and remand for re-
A. State's Evidence
Sandra Kay Byrum (Byrum) and her two sisters owned a house
on Broadstone Road in Watauga County. In May 2003, Byrum arrived
at the house and discovered it had been broken into and that many
items were missing. The telephones had been stolen, so Byrum went
to use the neighbor's telephone at the mobile home next door.
Byrum knocked on the door of the mobile home and looked inside to
see if anyone was home. When Byrum looked inside she saw some of
the items missing from her house located on the floor.
Byrum spoke with the Sheriff's Department and prepared a list
of the items missing from her house. The Sheriff's Department
obtained a search warrant for the mobile home. Sheriff's deputies
executed the search warrant and found several items reported stolen
from Byrum's house located on the floor of the mobile home and
documents identifying Denise Brannigan (Brannigan) as the
resident of the mobile home.
The next day Detective Dee Dee Rominger (Detective Rominger)
obtained a warrant for Brannigan's arrest. Detective Rominger,
along with Detective Darren Tolbert (Detective Tolbert) and
Detective Shane Robbins (Detective Robbins), went to Brannigan's
mobile home to execute the warrant. Brannigan was not home.
Detective Rominger remained at the mobile home while Detectives
Tolbert and Robbins went to a nearby construction site and spoke
with someone who advised them Brannigan might be at defendant's
residence on Swamp Box Road.
Detectives Rominger, Tolbert, and Robbins traveled to Swamp
Box Road and spoke with defendant's landlord and employer, MikePerry (Perry). Perry testified he knew Brannigan and stated she
had worked with a friend and would help us some. Perry further
testified that Brannigan was dating defendant and had been staying
at defendant's home off and on. Perry accompanied the detectives
to defendant's residence and knocked on the door. Brannigan opened
the door and Detective Rominger advised her of the warrants for her
arrest. Brannigan was not fully clothed, and Detective Rominger
accompanied her into the residence while Brannigan dressed.
Detective Rominger noticed a green and brown leaf-print shower
curtain across a window in one of the bedrooms. Detective Rominger
recognized the shower curtain from pictures Byrum had provided of
items stolen from her bathroom. Detective Rominger obtained a
search warrant for defendant's residence. Upon executing the
search warrant, the detectives found numerous other items taken
from Byrum's home, three stolen firearms, illegal narcotics, and
The next day Detective Rominger obtained an arrest warrant for
defendant. Defendant provided Detective Rominger a statement in
which he claimed he was unaware any items were stolen, and his
belief that the items, other than the firearms, were placed in his
home by Brannigan. Defendant stated Brannigan had told him that a
lady was moving out of a house and was giving her all this stuff.
B. Defendant's Evidence
Defendant testified at trial that at the time he was arrested
he lived on Swamp Box Road with another guy named Derrick, I don't
recall what his last name was . . . . Derrick had lived withdefendant for approximately a month. Defendant had been dating
Brannigan for about two weeks at the time of his arrest. Brannigan
spent the night at defendant's residence a couple of nights a
week. Defendant testified Brannigan brought some items to his
residence and told defendant she had been cleaning houses and
people had given her the items.
Defendant testified that the firearms were brought to his
residence by a man named Robert Deluka (Deluka) as collateral for
a loan, and that he was unaware the firearms were stolen.
Defendant further testified that the drug items found in his
residence did not belong to him and that he did not allow illegal
drug use in his home.
Brannigan testified that she brought the stolen items to
defendant's residence and defendant never had any idea that any of
it was stolen. Brannigan further testified she told defendant she
was cleaning someone's house because they were moving and that
person had given her the items. She also testified that she never
saw defendant use drugs and that defendant did not like to be
around anyone using drugs.
On 6 January 2006, the jury found defendant to be guilty of:
possession of stolen property; possession of a stolen firearm;
possession of a schedule IV controlled substance (Valium);
possession of marijuana; possession of drug paraphernalia; and
possession of methamphetamine. Defendant was sentenced as a Prior
Record Level II. Defendant received a suspended sentence of a
minimum of six months and a maximum of eight months incarcerationfor the possession of stolen property and possession of a stolen
firearm convictions. He received a suspended sentence of a minimum
of six months and a maximum of eight months incarceration for the
drug convictions to run consecutively with the possession of stolen
property offenses. Defendant appeals.
Defendant argues the trial court erred in: (1) denying
defendant's motion to suppress items found pursuant to the search
of his residence; (2) allowing the State to cross-examine Brannigan
regarding her failure to give a statement to Detective Rominger;
and (3) failing to dismiss all charges due to insufficient
III. Motion to Suppress
 Defendant argues the items seized from his residence
should have been suppressed from evidence because (1) Detective
Rominger's initial entry into his residence does not satisfy any
exception to the search warrant requirement, and (2) no probable
cause justified issuance of the search warrant.
In Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576,
585 (1967), the United States Supreme Court stated, . . . searches
conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth
Amendment -- subject only to a few specifically established and
well-delineated exceptions. (Citations omitted).
[I]n Coolidge v. New Hampshire, 403 U.S. 443,
29 L. Ed. 2d 564, reh'g denied, 404 U.S. 874,
30 L. Ed. 2d 120 (1971), the U.S. Supreme
Court held that the police may seize without awarrant the instrumentalities, fruits, or
evidence of crime which is in plain view if
three requirements are met. First, the
initial intrusion which brings the evidence
into plain view must be lawful. Id. at 465,
29 L. Ed. 2d at 582. Second, the discovery of
the incriminating evidence must be
inadvertent. Id. at 469, 29 L. Ed. 2d at 585.
Third, it must be immediately apparent to the
police that the items observed constitute
evidence of a crime, are contraband, or are
otherwise subject to seizure. Id. at 466, 29
L. Ed. 2d at 583.
State v. Williams, 315 N.C. 310, 317, 338 S.E.2d 75, 80 (1986).
Here, all three elements of the plain view exception to the
search warrant requirement are present.
A. Lawful Presence
First, Detective Rominger was lawfully inside defendant's
premises when she observed the shower curtain. Id. Detective
Rominger and other members of the Watauga County Sheriff's
Department, along with Perry, went to defendant's residence to find
Brannigan and execute the warrant for her arrest. [O]fficers are
entitled to go to a door to inquire about a matter; they are not
trespassers under these circumstances. State v. Prevette, 43 N.C.
App. 450, 455, 259 S.E.2d 595, 600 (1979) (citing Ellison v. United
States, 206 F. 2d 476 (D.C. Cir. 1953)). Perry, defendant's
employer and owner of the premises, knocked on the door of
defendant's residence. Brannigan opened the door, at which time
she was advised of the warrants for her arrest.
Brannigan was not fully clothed when law enforcement arrived.
Detective Rominger accompanied her into the residence to get
dressed before she was transported. Detective Rominger waslawfully entitled to monitor Brannigan's movements while she got
dressed. The United States Supreme Court's decision in Washington
v. Chrisman, 455 U.S. 1, 70 L. Ed. 2d 778 (1982) is instructive on
Every arrest must be presumed to present a
risk of danger to the arresting officer.
There is no way for an officer to predict
reliably how a particular subject will react
to arrest or the degree of the potential
danger. Moreover, the possibility that an
arrested person will attempt to escape if not
properly supervised is obvious.
. . . .
We hold, therefore, that it is not
unreasonable under the Fourth Amendment for
a police officer, as a matter of routine, to
monitor the movements of an arrested person,
as his judgment dictates, following the
arrest. The officer's need to ensure his own
safety -- as well as the integrity of the
arrest -- is compelling. Such surveillance is
not an impermissible invasion of the privacy
or personal liberty of an individual who has
Id. at 7, 70 L. Ed. 2d at 785 (internal citations omitted); see
also United States v. Wilson, 306 F.3d 231, 241 (5th Cir. 2002)
(Even without considering any issue of 'common decency' in
transporting a person in underwear to a jailhouse or police
station, we hold that in a situation such as this, the potential of
a personal safety hazard to the arrestee places a duty on law
enforcement officers to obtain appropriate clothing.), cert.
denied, 537 U.S. 1240, 123 155 L. Ed. 2d 211.
Similarly, in State v. Richards, 294 N.C. 474, 242 S.E.2d 844
(1978), the police entered the residence where defendant had been
living with her accomplice and placed defendant under arrest. Id.at 484-85, 242 S.E.2d at 851-52. An officer accompanied defendant
into her bedroom to obtain clothing and personal effects. Id. at
485, 242 S.E.2d at 852. When the officer followed defendant into
her bedroom, he observed a gun in the open top drawer of a dresser.
Id. Our Supreme Court upheld the seizure of the gun, holding, It
has long been settled that objects falling in the plain view of an
officer who has a right to be in the position to have that view are
subject to seizure and may be introduced in evidence. Id. at 488,
242 S.E.2d at 853 (quoting Harris v. United States, 390 U.S. 234,
236, 19 L. Ed. 2d 1067, 1069 (1968)).
B. Inadvertent Discovery
Second, Detective Rominger discovered the shower curtain
inadvertently. Williams, 315 N.C. at 317, 338 S.E.2d at 80.
Detective Rominger testified, what caught my eye was in one of the
bedrooms there was a window and there was a rod across the window
with a green and brown leaf print shower curtain. No evidence was
presented that Detective Rominger was specifically looking for the
shower curtain. She simply observed it in plain view in one of the
bedrooms while accompanying Brannigan to get dressed.
C. Immediately Apparent
Third, it was immediately apparent to Detective Rominger that
the shower curtain constituted evidence of a crime. Id. Detective
Rominger testified that curtain matched pictures that I had seen,
victims has provided me of items that were taken from their
bathroom, they had a border in their bathroom that matched this
curtain. Detective Rominger was lawfully in defendant's residence when
she observed the shower curtain in plain view. 'The substance of
all the definitions [of probable cause] is a reasonable ground for
belief in guilt.' State v. Hicks, 60 N.C. App. 116, 119, 298
S.E.2d 180, 182 (1982) (quoting Carroll v. United States, 267 U.S.
132, 161, 69 L. Ed. 543, 555 (1925)). Based on her observation of
the shower curtain, which matched pictures of a shower curtain
stolen from Byrum's house, Detective Rominger had probable cause to
believe defendant's residence contained stolen items. The search
warrant was properly issued and the items seized thereunder were
properly admitted. The trial court's denial of defendant's motion
to suppress items found pursuant to the search of his residence was
proper. This assignment of error is overruled.
IV. Cross-Examination of Brannigan
 Defendant argues the trial court committed plain error in
allowing the State to cross-examine Brannigan regarding her failure
to give a statement to Detective Rominger in violation of her
constitutional rights. We disagree. Under these facts, defendant
cannot assert a third party's rights.
In State v. Lipford, 81 N.C. App. 464, 467-68, 344 S.E.2d 307,
310 (1986), this Court held, Defendant has no standing to argue
the inadmissibility of the statement on the ground that [the co-
defendant's] constitutional rights were violated. As with Fourth
Amendment rights, Fifth Amendment rights are personal and may not
be vicariously asserted. (citing N.C. Gen. Stat. 15A-972 (a
defendant who is aggrieved may move to suppress evidence . . .);State v. Ford, 71 N.C. App. 748, 751, 323 S.E.2d 358, 361 (1984),
disc. rev. denied, 313 N.C. 511, 329 S.E. 2d 397 (1985) ('Fourth
Amendment rights are personal rights which . . . may not be
vicariously asserted.' . . . Only an 'aggrieved' party may move to
suppress evidence under G.S. 15A-972 by demonstrating that his
personal rights and not those of some third party have been
violated.); United States v. Handley, 763 F. 2d 1401, 1404 (11th
Cir.), cert. denied, 474 U.S. 951, 88 L. Ed. 2d 301, (1985) (A
defendant has standing to object on the ground of the fifth
amendment self-incrimination privilege to the admission only of his
own statements.); United States v. Shaffner, 524 F. 2d 1021, 1022
(7th Cir. 1975), cert. denied, 424 U.S. 920, 47 L. Ed. 2d 327,
(1976) (defendant had no standing to object to introduction of
co-defendant's confession on the grounds that it was not
voluntarily given)). Clear and long-standing precedents show
defendant has no standing to assert Brannigan's constitutional
right against self-incrimination. This assignment of error is
V. Motion to Dismiss
Defendant argues the trial court erred in denying his motion
to dismiss all charges where insufficient evidence supports each of
the essential elements of the charges.
A. Standard of Review
The standard for ruling on a motion to dismiss
is whether there is substantial evidence (1)
of each essential element of the offense
charged and (2) that defendant is the
perpetrator of the offense. Substantial
evidence is relevant evidence which areasonable mind might accept as adequate to
support a conclusion. In ruling on a motion
to dismiss, the trial court must consider all
of the evidence in the light most favorable to
the State, and the State is entitled to all
reasonable inferences which may be drawn from
the evidence. Any contradictions or
discrepancies arising from the evidence are
properly left for the jury to resolve and do
not warrant dismissal.
State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005)
(citations and quotation marks omitted).
B. Possession of Stolen Property Conviction
 Defendant was convicted of possessing stolen goods under
N.C. Gen. Stat. § 14-71.1 (2003) (If any person shall possess any
. . . property . . . , the stealing or taking whereof amounts to
larceny or a felony, . . . such person knowing or having reasonable
grounds to believe the same to have been feloniously stolen or
taken, he shall be guilty of a Class H felony . . . .).
The essential elements of felonious possession
of stolen property are: (1) possession of
personal property, (2) which was stolen
pursuant to a breaking or entering, (3) the
possessor knowing or having reasonable grounds
to believe the property to have been stolen
pursuant to a breaking or entering, and (4)
the possessor acting with a dishonest purpose.
State v. McQueen, 165 N.C. App. 454, 459, 598 S.E.2d 672, 676
(2004), disc. rev. denied, 359 N.C. 285, 610 S.E.2d 385-86 (2005).
Defendant challenges evidence to sustain the first and third
elements of the felony possession of stolen goods conviction.
Regarding the possession element, [o]ne has possession of stolen
property when one has both the power and intent to control its
disposition or use. In re Dulaney, 74 N.C. App. 587, 588, 328S.E.2d 904, 906 (1985) (citation omitted). One who has the
requisite power to control and intent to control access to and use
of a vehicle or a house has also the possession of the known
contents thereof. State v. Eppley, 282 N.C. 249, 254, 192 S.E.2d
441, 445 (1972). The evidence tends to show stolen goods were
found throughout defendant's residence. Detective Rominger
testified the stolen items were out on the shelves, the house had
been decorated with the items, the rugs were on the floor, the
items were sitting on the shelves, the towels were hanging on the
towel racks, the utensils were in the drawers, food in the
freezer. Sufficient evidence was presented to meet the requisite
possession element of the offense.
Defendant argues the State presented insufficient evidence
that defendant knew or had reasonable grounds to know the goods
brought into his residence by Brannigan were stolen to satisfy the
third element of the offense. We disagree.
Whether the defendant knew or had reasonable grounds to
believe that the [property was] stolen must necessarily be proved
through inferences drawn from the evidence. State v. Brown, 85
N.C. App. 583, 589, 355 S.E.2d 225, 229 (1987). Our Supreme Court
has held the legislature intended for the reasonable man standard
to apply to the offense of possession of stolen goods. State v.
Parker, 316 N.C. 295, 304, 341 S.E.2d 555, 560 (1986).
Here, the State presented no direct evidence that defendant
had actual knowledge the goods Brannigan brought into his home were
stolen and relies wholly on circumstantial evidence of possession. Perry assisted Brannigan in unloading some of the stolen goods
in defendant's home. When Perry was asked whether he had any
reason to believe the items had been stolen, he replied, Well, it
began to look suspicious. She was suppose [sic] to be cleaning
people's houses, she had a ladder, and stuff like that, why would
people be giving away something that could be used in cleaning
with, nice stuff, you know. Further, defendant referred to the
stolen goods as nice stuff and told Brannigan there better not
be no stolen stuff in my house. Viewed in the light most
favorable to the State, the circumstantial evidence tends to show
defendant knew or should have known the goods Brannigan brought
into his residence were stolen and is sufficient to withstand a
motion to dismiss. McQueen, 165 N.C. App. at 459, 598 S.E.2d at
676; Wood, 174 N.C. App. at 795, 622 S.E.2d at 123. Despite
defendant's and Brannigan's testimony to the contrary, this issue
became a factual dispute for the jury to decide. This assignment
of error is overruled.
C. Possession of Stolen Firearm Conviction
 Defendant was also convicted of felony possession of a
stolen firearm pursuant to N.C. Gen. Stat. § 14-71.1. The only
evidence presented regarding defendant's knowledge the firearms
were stolen came from defendant's testimony. Defendant testified
he loaned Deluka money to pay rent and took the firearms as
collateral without knowing the firearms were stolen. Deluka did
not testify at trial. Perry was asked whether he was aware thatdefendant had loaned Deluka money, to which he responded, I'm sure
it went both ways all the time.
The State argues defendant's constructive possession of the
stolen firearms in his residence is sufficient to withstand
defendant's motion to dismiss. The second and third elements of
felony possession of stolen goods require that the goods were
stolen pursuant to a breaking or entering, and defendant knew or
had reasonable grounds to believe the property to have been stolen
pursuant to a breaking or entering. McQueen, 165 N.C. App. at 459,
598 S.E.2d at 676.
The State presented no evidence the firearms were stolen
pursuant to a breaking or entering or that defendant knew or should
have known the firearms were stolen. The trial court dismissed
defendant's charges of breaking and entering and larceny after
breaking and entering. The State presented no evidence of when the
firearms were stolen or how long they had been in defendant's
possession. Insufficient evidence on this charge was presented to
withstand defendant's motion to dismiss. The trial court should
have dismissed the felonious possession of stolen firearms charge
and erred in submitting defendant's possession of a stolen firearm
charge to the jury.
D. Drug Related Convictions
 Defendant was also convicted of (1) simple possession of
Valium, a schedule IV controlled substance; (2) possession of
methamphetamine, a schedule II controlled substance; (3) possessionof marijuana up to 1/2 ounce; and (4) possession of drug
Detective Tolbert testified controlled substances and drug
paraphernalia were found when he and the other detectives executed
the search warrant at defendant's residence. Detective Tolbert
testified that a black box was found under the love-seat in
defendant's residence containing a blue pill, the barrel part of a
pen, and a small plastic bag containing a white residue. Detective
Tolbert testified that a pen barrel is often used to inhale
methamphetamine into the body.
Two boxes found under the bathroom sink contained marijuana
pipes, a glass vile containing white residue, several other glass
vials, a yellow capsule, a blue Valium pill, rolling papers, a
plastic bag, a pen barrel, half of a marijuana cigarette, six
pieces of aluminum foil with black residue, and a small pocket
knife. Detective Tolbert testified that aluminum foil is used to
heat methamphetamine and inhale it into the body. Defendant's
residence contained only one bathroom. A pocket knife with black
residue on the tip was found on a night-stand in a bedroom to the
left as you walk in the door. Detective Tolbert testified it is
common for the tip of a knife to be used to clean pipes used to
smoke marijuana or other controlled substances. Rolling papers and
a roach clip was found in the bedroom to the right. North
Carolina State Bureau of Investigations Agent Joe Revis (Agent
Revis) analyzed the items seized from defendant's residence.
Agent Revis found methamphetamine residue on two plastic bags. Defendant argues the State failed to establish the possession
element of the drug offenses and asserts the State failed to
establish defendant had custody and control of the contraband to
the exclusion of others or that defendant knew of the contraband.
An accused has possession of [contraband] . . . when he has
both the power and the intent to control its disposition or use.
Where direct evidence of power and intent to control are absent,
however, these manifestations of actual possession must be inferred
from the circumstances. State v. Thorpe, 326 N.C. 451, 454, 390
S.E.2d 311, 313 (1990) (citation omitted).
Where such materials are found on the premises
under the control of an accused, this fact, in
and of itself, gives rise to an inference of
knowledge and possession which may be
sufficient to carry the case to the jury on a
charge of unlawful possession. [T]he State
may overcome a motion to dismiss or motion for
judgment as of nonsuit by presenting evidence
which places the accused 'within such close
juxtaposition to the narcotic drugs as to
justify the jury in concluding that the same
was in his possession.'
Id. (quoting State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589
(1984)) (emphasis supplied).
[C]onstructive possession can be reasonably
inferred from the fact of ownership of
premises where contraband is found. Such
ownership is strong evidence of control and
gives rise to an inference of knowledge and
possession which may be sufficient to carry
the case to the jury on a charge of unlawful
Id. at 455, 390 S.E.2d at 314 (quoting State v. Harvey, 281 N.C. 1,
12, 187 S.E.2d 706, 714). Here, undisputed evidence was presented that defendant leased
and resided in the house where the controlled substances and drug
paraphernalia were found. When the search warrant was executed,
another man also lived in the residence and Brannigan had stayed
there a couple of nights a week. Our Supreme Court has found
constructive possession to exist where possession is not exclusive
but defendant exercises sole or joint physical custody of the
premises. Id. at 455, 390 S.E.2d at 313 (citing State v. Brown,
310 N.C. 563, 313 S.E.2d 585 (defendant had key and was seen
repeatedly at apartment where contraband was found)). The State
presented sufficient evidence within such close juxtaposition to
the narcotic drugs as to justify the jury in concluding that the
same was in his possession to overcome defendant's motion to
dismiss. Id. at 454, 390 S.E.2d at 313. This assignment of error
The trial court did not err in denying defendant's motion to
suppress items found pursuant to the search of defendant's
residence. Defendant has no standing to object to the State's
cross-examination of Brannigan on the grounds that it violated her
constitutional rights. The trial court properly denied defendant's
motion to dismiss the possession of stolen goods and drug related
The trial court erred in denying defendant's motion to dismiss
the possession of a stolen firearm charge. Defendant's conviction
for possession of a stolen firearm is reversed. In all otherrespects defendant received a fair trial free from prejudicial
errors he assigned and argued.
No error in part, Reversed in part, Remanded for re-
Judges MCCULLOUGH and LEVINSON concur.
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