Converted WP file 041620-1

Appeal by defendant from judgment dated 1 July 2004 by Judge Steve A. Balog in Superior Court, Forsyth County. Heard in the Court of Appeals 1 November 2005.

Attorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman, for the State.

Robert T. Newman, Sr. for defendant.

McGEE, Judge.

    Ulysses Junior Hairston (defendant) was convicted of possession with intent to sell and deliver cocaine and manufacture of cocaine in violation of N.C. Gen. Stat. § 90-95(a)(1), and pleaded guilty to being an habitual felon.
    There were two proceedings held prior to defendant's trial that are relevant to the matter on appeal. First, a hearing on defense counsel's motion to withdraw was held on 2 February 2004. At the hearing, defendant explained to the trial court that he was unhappy with defense counsel's representation. In the course of defendant's explanation, defendant admitted to the trial court that he had "just got caught with two pieces of crack." The trial court allowed defense counsel's motion to withdraw and assigned newcounsel to represent defendant.
    Second, the trial court heard arguments outside the presence of the jury on the issue of whether to admit testimony of Detective Charles Bishop (Detective Bishop). Detective Bishop, a courtroom bailiff at the time of defendant's trial, had previously worked as an undercover narcotics agent with the Forsyth County Sheriff's Office. The State sought to introduce Detective Bishop's testimony that, while undercover in 1999, Detective Bishop purchased crack cocaine from defendant at the same address at which defendant was arrested in the present matter. Defense counsel objected to the proposed admission of Detective Bishop's testimony and made an oral motion in limine to exclude the evidence. Defendant's motion was denied.
    At trial, the State presented evidence tending to show the following: Pursuant to a search warrant, Winston-Salem police raided a single-family house on North Cleveland Avenue on the afternoon of 26 September 2003. When the police entered the house, defendant and his sister were sitting at the kitchen table. Laid out on the table were several pieces of what appeared to be crack cocaine in plastic bags, several empty plastic bags, wire twist ties, and a pair of scissors. Defendant stood up from the table and turned toward the rear kitchen door. Defendant's sister took a plate from the table to the sink and tried to rinse the plate. Police discovered a razor blade and residue of what appeared to be crack cocaine on the plate, and police recovered several large pieces of crack cocaine from the sink drain. Detective MichaelCardwell (Detective Cardwell) searched defendant and found in defendant's front pants pocket what appeared to be crack cocaine packaged in plastic bags and ties similar to the plastic bags and ties found on the kitchen table. The State Bureau of Investigation (SBI) tested the substances seized from the kitchen and from defendant's pocket, and determined the substances to be crack cocaine. A total of approximately seventy-one individual pieces of crack cocaine were seized from the house, with a value of about twenty dollars each.
    The State presented the testimony of Detective Bishop that he had purchased crack cocaine from defendant at the same Cleveland Avenue house in 1999. The trial court instructed the jury to consider Detective Bishop's testimony only for the limited purpose of showing defendant's intent and knowledge. The State also presented evidence of defendant's statement at the pre-trial hearing that he possessed two pieces of crack cocaine at the time of his arrest. At the close of the State's evidence, defendant moved to dismiss. The motion was denied. At the close of defendant's evidence, defendant renewed his motion to dismiss, and the trial court again denied the motion. Defendant appeals.
    Defendant first assigns error to the trial court's admission of Detective Bishop's testimony that defendant sold him crack cocaine from the same Cleveland Avenue house in 1999. Defendant argues that the testimony was more prejudicial than probative and therefore was admitted in violation of N.C. Gen. Stat. § 8C-1,Rules 404(b) and 403.
     Rule 404(b) states:
        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.

N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003).
    Rule 404(b) is a general rule of inclusion and allows the admission of evidence of other crimes or acts "so long as it is relevant to any fact or issue other than the character of the accused." State v. Lloyd, 354 N.C. 76, 88, 552 S.E.2d 596, 608 (2001) (internal quotations and citations omitted). The singular exception to Rule 404(b) requires the exclusion of evidence if its only probative value is to show defendant's propensity to commit the same offense. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
    Once the trial court determines evidence is properly admissible under Rule 404(b), it must still determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. State v. Bidgood, 144 N.C. App. 267, 272, 550 S.E.2d 198, 202 (citing N.C. Gen. Stat. § 8C-1, Rule 403), cert. denied, 354 N.C. 222, 554 S.E.2d 647 (2001). This determination is within the discretion of the trial court, "whose ruling will be reversed on appeal only when it is shown that the ruling was so arbitrary that it could not have resulted from a reasoned decision." Id. Under Rule 403, the admissibility ofevidence is determined by whether the incidents in question are sufficiently similar and not too remote in time as to be more probative than prejudicial. State v. Schultz, 88 N.C. App. 197, 202, 362 S.E.2d 853, 857 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386 (1988). Generally, remoteness in time goes to the weight of the evidence, not to its admissibility. Schultz, 88 N.C. App. at 203, 362 S.E.2d at 857.
    In the present case, the State introduced Detective Bishop's testimony to provide evidence of defendant's intent to sell and distribute cocaine, and defendant's knowledge of how to package and sell crack cocaine. Detective Bishop testified that in 1999, defendant sold him crack cocaine under circumstances nearly identical to those in the current case: both incidents occurred in the same room of the same house, in the same manner, and with the same accomplice. Taking all of these similarities together, we cannot say that the trial court abused its discretion in allowing Detective Bishop's testimony under Rule 404(b) for the purpose of showing intent and knowledge of defendant. Accordingly, we overrule this assignment of error.
    By his next assignment of error, defendant argues it was plain error for the trial court to admit the unsworn statement of defendant made during the hearing on defense counsel's motion to withdraw. Defendant correctly states that Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966) requires the State to inform a person in custodial interrogation of the right to counsel and the right to remain silent. Miranda at 444, 16 L. Ed. 2d at 706. However, Miranda warnings are required only when an individual is subjected to custodial interrogation. State v. Kincaid, 147 N.C. App. 94, 101, 555 S.E.2d 294, 300 (2001). "'Custodial interrogation' means questioning initiated by law enforcement officers[.]" Id. In the present case, defendant's statement was not in response to custodial questioning and was completely voluntary. While explaining his dissatisfaction with his defense counsel, defendant spontaneously admitted in open court that he had been caught with two pieces of crack cocaine. Therefore, defendant's reliance on Miranda is misplaced. Defendant's reliance on N.C. Gen. Stat. § 8C-1, Rule 410 is also erroneous. Rule 410 mandates that guilty pleas, or statements made in plea discussion, are inadmissible in criminal proceedings. N.C. Gen. Stat. § 8C-1, Rule 410 (2003). Here, defendant did not make a plea, nor was the motion hearing a part of any plea discussion. Defendant's statement was also unrelated to the purpose of the motion hearing. Cf. Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247 (1968) (holding that the defendant's testimony at a suppression hearing as to ownership of a suitcase found after a bank robbery could not be admitted against the defendant at trial on charge of armed robbery).
    Moreover, defendant has failed to meet the second part of his burden under plain error review. "To prevail under a plain error analysis, a defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different result." State v. Jones, 137 N.C. App.221, 226, 529 S.E.2d 700, 704, disc. review denied, 352 N.C. 153, 544 S.E.2d 235 (2000). In light of Detective Cardwell's corroborating testimony that two pieces of crack cocaine were found in defendant's pocket, defendant has failed to show that, absent the admission of defendant's statement that he was caught with two pieces of crack, the jury probably would have reached a different verdict. This assignment of error is overruled. Because we find no error in the trial court's admission of defendant's statement or of Detective Bishop's testimony, we overrule defendant's assignment of error that the trial court improperly instructed the jury on those two pieces of evidence.
    Defendant next assigns error to the trial court's denial of defendant's motion to dismiss. "In ruling on a motion to dismiss, the issue before the trial court is whether substantial evidence of each element of the offense charged has been presented, and that [the] defendant was the perpetrator of the offense." State v. Carr, 122 N.C. App. 369, 371-72, 470 S.E.2d 70, 72 (1996). The State is entitled to every reasonable inference that can be drawn from the evidence. State v. Bell, 311 N.C. 131, 138, 316 S.E.2d 611, 615 (1984). "If the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence." State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979).
    We hold that the evidence before the trial court wassufficient to support the charge of manufacturing cocaine. As used in the statute, the term "manufacture" includes packaging or repackaging a substance. N.C. Gen. Stat. § 90-87(15) (2003). In the present case, the police discovered crack cocaine and packaging materials, including empty plastic bags, wire twist ties, and a pair of scissors, on the kitchen table at which defendant was seated. The police also found a razor on the plate that defendant's sister removed from the table and attempted to wash. From this evidence, the jury could reasonably infer that defendant packaged or repackaged the cocaine. See State v. Outlaw, 96 N.C. App. 192, 199, 385 S.E.2d 165, 169 (1989) (holding that a charge of manufacturing cocaine was sufficiently supported by evidence that the defendant possessed cocaine at the time of arrest outside his home, and that cocaine packaging materials were found inside the home), disc. review denied, 326 N.C. 266, 389 S.E.2d 118 (1990).
    The evidence was also sufficient to support the charge of possession with intent to sell or deliver cocaine. The offense of possession with intent to sell or deliver has three elements: (1) possession of a substance; (2) the substance must be a controlled substance; and (3) there must be intent to sell or deliver the controlled substance. N.C. Gen. Stat. § 90-95(a)(1) (2003); State v. Fletcher, 92 N.C. App. 50, 55, 373 S.E.2d 681, 685 (1988). Defendant contends there was insufficient evidence that defendant possessed the cocaine or had the intent to sell or distribute the cocaine. We disagree.
    "Possession of controlled substances may be either actual orconstructive." Carr, 122 N.C. App. at 372, 470 S.E.2d at 73. "Constructive possession exists when a person, although not having actual possession of the controlled substance, has the intent and capability to maintain control and dominion over [the] controlled substance." State v. Shine, ___ N.C. App. ___, ___, 619 S.E.2d 895, 899 (2005) (internal quotations and citations omitted). However, "[t]he fact that a person is present in a room where drugs are located, nothing else appearing, does not mean that person has constructive possession of the drugs." State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 80 (1986) (citing State v. Baize, 71 N.C. App. 521, 529, 323 S.E.2d 36, 41 (1984)). Where a defendant's control of the premises is not exclusive, the State must show "'other incriminating circumstances before constructive possession may be inferred.'" State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001) (quoting State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989)).
    In the present case, the evidence showed that defendant was seated at a table on which there were several pieces of crack cocaine, as well as paraphernalia used to manufacture and package crack cocaine. Seventy-one pieces of crack cocaine were seized from the house, but there was no paraphernalia with which to smoke the crack. When the police officers entered the kitchen, defendant moved toward the rear door of the house. Moreover, police found two pieces of crack cocaine in defendant's pocket. See James, 81 N.C. App. at 95, 344 S.E.2d at 80-81 (holding that "evidence of [a defendant's] possession of cocaine on the same premises [as a saleof heroin] was part of the incriminating evidence" of the defendant's constructive possession of the heroin). We hold that this evidence, when considered in a light most favorable to the State, was sufficient for the jury to reasonably infer defendant had constructive possession of the crack cocaine. See State v. Harrison, 93 N.C. App. 496, 378 S.E.2d 190 (1989) (holding that the jury could reasonably infer constructive possession where the defendant was found in a closed room about three feet from a table containing cocaine and paraphernalia used to mix cocaine and where the defendant was standing near a newly-broken window).
    While intent may be shown by direct evidence, it is often proven by circumstantial evidence from which intent may be inferred. State v. Jackson, 145 N.C. App. 86, 90, 550 S.E.2d 225, 229 (2001). Circumstantial evidence of an intent to sell or distribute narcotics may include "[t]he amount of the controlled substance, the manner of its packaging, labeling, and storage, along with the activities of a defendant[.]" Carr, 122 N.C. App. at 373, 470 S.E.2d at 73. In the present case, there were seventy- one pieces of crack cocaine removed from the house, some of which were large pieces. Other smaller pieces were enclosed in plastic baggies. Defendant was seated at the kitchen table on which there was crack cocaine, empty plastic bags, wire twist ties, and a pair of scissors. When police entered the room, defendant stood up, backed away from the table, and turned toward the rear door. Defendant had in his pocket two pieces of crack cocaine packaged in plastic bags and ties similar to the plastic bags and ties found onthe kitchen table. This circumstantial evidence, when considered in a light most favorable to the State, is sufficient for a jury to reasonably infer that defendant intended to sell or distribute the cocaine. Accordingly, we overrule this assignment of error.
    Defendant next argues he was deprived of effective assistance of counsel. In order to prevail on an ineffective assistance of counsel claim, a defendant must satisfy a two-prong test. See Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d. 674, 693 (1984). "First, [a defendant] must show that counsel's performance fell below an objective standard of reasonableness. . . . Second, . . . [a defendant] must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error." State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001) (citing Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693 and State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985)).
    Defendant argues that his counsel's performance fell below an objective standard of reasonableness because counsel failed to object to the admission of evidence that defendant argues was inadmissible. Defendant contends that absent this error, the jury would have reached a different verdict. Defendant cites five pieces of evidence to which counsel failed to object: (1) Detective Bishop's testimony of a prior drug sale by defendant in 1999; (2)
Detective Bishop's reference to the substance sold by defendant in 1999 as "crack" where the substance had not been scientificallytested; (3) references by the State's witnesses to the substance seized from the Cleveland Avenue house as "crack" or "cocaine" before testimony was presented that the substance was tested and shown to be cocaine; (4) items seized from the house absent a demonstration of a proper chain of custody; and (5) defendant's statement made at the pretrial hearing on the motion for counsel to withdraw. Defendant argues that had defense counsel objected, the jury would have reached a different verdict. We disagree. Defendant has failed to show a reasonable probability of a different verdict "'sufficient to undermine confidence in the outcome.'" State v. Quick, 152 N.C. App. 220, 222, 566 S.E.2d 735, 737 (quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698), disc. review denied, 356 N.C. 311, 570 S.E.2d 896 (2002). The SBI forensic chemist testified that the substance seized from the house was crack cocaine, and that defendant was seated at a table on which the crack cocaine lay. Detective Cardwell testified that the packaging materials found on the table were maintained in the Winston-Salem Police Department's usual and customary chain-of- custody protocol. This evidence, along with the compelling evidence of constructive possession and intent discussed above, was sufficient for the jury to reasonably infer defendant's guilt.
    Defendant also contends that defense counsel was ineffective because counsel failed to poll the jury at the close of trial. However, the decision whether to poll a jury rests within the discretion of the trial court. State v. Clark, 159 N.C. App. 520, 532, 583 S.E.2d 680, 688 (2003). This assignment of error isoverruled.
    Defendant's final assignment of error is that there was insufficient evidence to convict him as an habitual felon. An habitual felon is "[a]ny person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States[.]" N.C. Gen. Stat. § 14-7.1 (2003). Referencing his prior assignment of error, defendant contends there was insufficient evidence to convict defendant of the predicate felonies, possession with intent to sell or deliver and manufacture of cocaine, and that therefore his habitual felon conviction should be vacated. Since we uphold defendant's predicate convictions, we overrule this argument. Moreover, even absent those two predicate convictions, the State presented evidence of five additional prior felony convictions. Defendant did not object to evidence of those prior convictions and pleaded guilty to the status of habitual felon. We overrule this assignment of error.
    No error.
    Judges WYNN and GEER concur.
    Report per Rule 30(e).

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