The issues on appeal are whether: (I) the trial court erred in
admitting “other crimes” evidence; (II) defendant was denied her
right to effective assistance of counsel; (III) the trial court
committed plain error by allowing testimony regarding the general
nature of methamphetamine investigations and the presence of other
drugs and drug paraphernalia in defendant's home; and (IV) the
trial court erred by denying defendant's motion to dismiss.
Defendant first contends the trial court erred in admitting
evidence of (1) defendant's husband's possession of methamphetamine
on 3 April 2003; and (2) defendant having been charged with drug-
related crimes on 1 April 2004. Defendant asserts the evidence
violated Rule 404(b) of the Rules of Evidence. We disagree.
Rule 404(b) states, in pertinent part:
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.R. Evid. 404.
This rule is “a clear general rule of
inclusion of relevant evidence of other
crimes, wrongs or acts by a defendant, subject
to but one exception requiring its exclusion
if its only probative value is to show that
the defendant has the propensity or
disposition to commit an offense of the nature
of the crime charged.” The list of permissible
purposes for admission of “other crimes”
evidence is not exclusive, and such evidence
is admissible as long as it is relevant to any
fact or issue other than the defendant's
propensity to commit the crime.
State v. Brewington, ___ N.C. ___, ___, 612 S.E.2d 648, 656
(2005)(quoting
State v. White, 340 N.C. 264, 284, 457 S.E.2d 841,
852-53 (1995)).
Sargent James Patterson (“Sargent Patterson”) of the Henderson
County Sheriff's office testified concerning a search of the Lewis
residence on 3 April 2003. He testified a patrol officer stopped
Billy Lewis while he was riding a motorcycle with defendant as a
passenger on 3 April 2003. The officer found methamphetamine in
Billy Lewis' pocket and a handgun in the saddlebag of the
motorcycle. Officers conducted a consensual search of the Lewis
residence and found methamphetamine in a desk drawer in the
basement. Billy Lewis was arrested, charged, and convicted of
possession of methamphetamine, carrying a concealed weapon, and
maintaining a dwelling for controlled substances. Pursuant to the
terms of Billy Lewis' probation, officers conducted a search of the
Lewis residence on 23 June 2003. As a result of the 23 June 2003
search of the Lewis residence, defendant was charged with
trafficking in methamphetamine in violation of N.C. Gen. Stat. §
90-95(h)(3b) and maintaining a place used for keeping controlled
substances under N.C. Gen. Stat. § 90-108(a)(7). The essential
elements of the offense of trafficking in methamphetamine are: (1)
knowingly possessing or transporting methamphetamine, and (2)
possessing an amount greater than 28 grams.
State v. Shelman, 159
N.C. App. 300, 305, 584 S.E.2d 88, 93,
review denied, 357 N.C. 581,
589 S.E.2d 363 (2003). The essential elements of maintaining a
place used for keeping controlled substances under N.C. Gen. Stat.§ 90-108(a)(7) are that 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).
“Where guilty knowledge is an essential element of the crime
charged, evidence may be offered of such acts or declarations of
the accused as tend to establish the requisite guilty knowledge,
even though the evidence reveals the commission of another offense
by the accused.”
State v. McClain, 240 N.C. 171, 175, 81 S.E.2d
364, 367 (1954). “Guilty knowledge, being a state of mind, is
almost never provable by direct evidence. Its existence almost
always must be proved, if at all, by circumstantial evidence.”
State v. Weldon, 314 N.C. 401, 406, 333 S.E.2d 701, 704 (1985).
In the case
sub judice, the evidence defendant challenges is
probative of her guilty knowledge in connection with the crimes for
which she was tried. On two separate occasions, one which occurred
before defendant's arrest and another which occurred nine months
after her arrest on the present charge, police found
methamphetamine in defendant's house. “The likelihood of
defendant's knowledge of the drugs at her premises increases as the
instances of discovery of drugs there accumulate. . . . The
evidence is strongly probative on the major contested issue in the
case, defendant's guilty knowledge.”
Weldon, 314 N.C. at 407, 333
S.E.2d at 705. We conclude the trial court did not err inadmitting the evidence concerning the 3 April 2003 and 1 April 2004
searches of defendant's residence.
We next consider defendant's contention that she “was denied
her right to the effective assistance of counsel where trial
counsel unreasonably requested that the court not give a 404(b)
limiting instruction to the jury.”
“When a defendant attacks [her] conviction on the basis that
counsel was ineffective, [s]he must show that h[er] counsel's
conduct fell below an objective standard of reasonableness.”
State
v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). To
meet this burden, defendant must satisfy a two-part test:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693
(1984). “Counsel is given wide latitude in matters of strategy,
and the burden to show that counsel's performance fell short of the
required standard is a heavy one for defendant to bear.”
State v.
Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001).
“Moreover, this Court engages in a presumption that trial counsel's
representation is within the boundaries of acceptable professional
conduct.”
State v. Roache, 358 N.C. 243, 280, 595 S.E.2d 381, 406
(2004). This Court will not “second-guess” trial counsel'sdecisions regarding trial tactics and strategy when reviewing a
claim of ineffective counsel.
State v. Lowery, 318 N.C. 54, 68,
347 S.E.2d 729, 739 (1986).
During the charge conference in the instant case, defense
counsel objected to the State's request that the court give a
limiting instruction on evidence of other crimes, wrongs, or acts.
The State subsequently withdrew its request. Defendant now
contends her counsel's objection amounts to ineffective assistance
of counsel. As noted above
, the evidence of other searches of
defendant's home was properly admitted under Rule 404(b) for the
purpose of establishing defendant's guilty knowledge. Defendant's
counsel stated the objection to a limiting instruction was that it
“would be prejudicial to” defendant. Accordingly, the objection
was counsel's reasoned decision concerning trial strategy. Based
on the facts in the instant case, we cannot say that counsel's
objection, if error at all, was so serious as to deprive the
defendant of a fair trial.
See State v. Sutton, 169 N.C. App. 90,
96, 609 S.E.2d 270, 274 (2005). The assignment of error is
overruled.
Defendant next asserts the trial court committed plain error
in admitting “cumulative irrelevant evidence that was grossly
prejudicial.” Defendant argues the trial court erred in admitting
Sargent Patterson's testimony regarding (1) the general nature of
federal drug crimes; (2) the prevalence of methamphetamine in
Henderson County; (3) methamphetamine labs and the manufacturing
process; (4) the presence of High Times magazines in the Lewishome; (5) the presence of marijuana and marijuana-related
paraphernalia in the home; (6) the presence of a sawed-off shotgun
in the home; and (7) the significance of $15,000.00 in cash seized
from basement office desk. We disagree.
Because defendant failed to object at trial she has waived
review of this assignment of error unless it is found to be plain
error. N.C.R. App. P. 10(b)(2). “A plain error is one so
fundamental as to amount to a miscarriage of justice or which
probably resulted in the jury reaching a different verdict than it
otherwise would have reached.”
State v. Fowler, 157 N.C. App. 564,
566, 579 S.E.2d 499, 501 (2003) (quotation and citations omitted).
“A prerequisite to our engaging in a 'plain error' analysis is the
determination that the [evidence] complained of constitutes 'error'
at all.”
State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468
(1986). “Before deciding that an error by the trial court amounts
to 'plain error,' the appellate court must be convinced that absent
the error the jury probably would have reached a different
verdict.”
State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83
(1986) (citation omitted).
Defendant argues that the evidence of: (1) the general nature
of federal drug crimes; (2) the prevalence of methamphetamine in
Henderson County; (3) methamphetamine labs and the manufacturing
process; (4) the presence of High Times magazines in the Lewis
home; (5) the presence of marijuana and marijuana-related
paraphernalia in the home; (6) the presence of a sawed-off shotgun
in the home; and (7) the significance of $15,000.00 in cash seizedfrom a basement office desk is not relevant. “'Relevant evidence'
means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
N.C.R. Evid. 401. Relevant evidence is generally admissible.
N.C.R. Evid. 402.
In the instant case, defendant was charged with trafficking in
methamphetamine and maintaining a place used for keeping
controlled substances. The State had to prove defendant knowingly
maintained a dwelling for keeping controlled substances and that
she knowingly possessed a specified quantity of methamphetamine.
As previously discussed
, guilty knowledge is a matter which
generally may only be shown by circumstantial evidence.
“Any fact
or facts tending to prove defendant's guilty knowledge may be
offered against defendant when guilty knowledge is, as here, an
issue in the case.”
Weldon, 314 N.C. at 406, 333 S.E.2d at 704.
To determine whether the residence was
used for keeping and selling a controlled
substance depends on the totality of the
circumstances. . . . Factors that might be
considered include: a large amount of cash
being found in the place; a defendant
admitting to selling controlled substances;
and the place containing numerous amounts of
drug paraphernalia.
State v. Shine, ___ N.C. App. ___, ___, 619 S.E.2d 895, ___ (Filed
October 8, 2005) (quotation and citation omitted) (a set of
digital scales found on the same dresser as two plastic bags of
cocaine, which officer testified was of same type frequently used
to weigh controlled substances, was evidence indicating controlledsubstances were being sold from the residence);
see State v.
Frazier, 142 N.C. App. 368, 542 S.E.2d 682 (2001) (presence of a
crack pipe, a leather wallet containing $1,493.00 in cash and a
number of pagers are factors which tend to prove that dwelling was
being used for keeping controlled substances). In the instant
case, the evidence of the presence of a sawed-off shotgun, large
amounts of cash, marijuana, marijuana-related paraphernalia, and
High Times magazines is relevant concerning the issue of whether
defendant knowingly possessed the methamphetamine and whether the
residence was used for keeping a controlled substance.
Assuming
arguendo, that the trial court erred in admitting the
evidence concerning the general nature of federal drug crimes, the
prevalence of methamphetamine in Henderson County, methamphetamine
labs and the manufacturing process because the evidence is not
relevant, defendant has still failed to meet the heavy burden of
plain error review. After carefully reviewing the evidence of
record, we are not convinced that absent the trial court's alleged
error, the jury probably would have reached a different verdict.
Accordingly, defendant's third argument is overruled.
We next consider defendant's contention that the trial court
erred by failing to dismiss the charges against her. Defendant
argues the State failed to present substantial evidence of each
element of the offenses. We do not agree.
In ruling upon a motion to dismiss, the trial court must view
the evidence in the light most favorable to the State, which is
entitled to every reasonable inference to be drawn therefrom.
State v. Hyatt, 355 N.C. 642, 666, 566 S.E.2d 61, 77 (2002),
cert.
denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003). If there is
“substantial evidence” of each element of the charged offense and
of defendant being the perpetrator of the offense, the motion
should be denied.
State v. Bell, 359 N.C. 1, 23, 603 S.E.2d 93,
109,
cert. denied, __ U.S. __, 161 L. Ed. 2d 1094 (2004).
“Substantial evidence is that amount of evidence which a reasonable
mind might accept as adequate to support a conclusion.”
State v.
Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987) (citing
State v. Cox, 303 N.C. 75, 277 S.E.2d 376 (1981)).
In the instant case, defendant was charged with trafficking in
methamphetamine in violation of N.C. Gen. Stat. § 90-95(h)(3b). As
stated hereinbefore, the essential elements of the offense are:
(1) knowingly possessing or transporting methamphetamine, and (2)
possessing an amount greater than 28 grams.
Shelman, 159 N.C. App.
at 305, 584 S.E.2d at 93. Defendant argues the State's evidence
did not show she possessed the methamphetamine. Therefore, our
analysis is restricted to that element.
Possession may be actual or constructive.
State v. Perry, 316
N.C. 87, 96, 340 S.E.2d 450, 456 (1986). A person constructively
possesses a substance when “[s]he has both the power and intent to
control its disposition or use.”
State v. Harvey, 281 N.C. 1, 12,
187 S.E.2d 706, 714 (1972). “As with other questions of intent,
proof of constructive possession usually involves proof by
circumstantial evidence.”
State v. Beaver, 317 N.C. 643, 648, 346
S.E.2d 476, 480 (1986). “Where [controlled substances] are foundon 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.”
Harvey, 281 N.C. at 12, 187 S.E.2d at
714.
“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 the instant case, defendant shared the house with her
husband and their teenage children, so her possession was
nonexclusive. However, there were other incriminating
circumstances showing defendant's intent and capability to control
the methamphetamine. The methamphetamine was found in the closet
in the master bedroom shared by defendant and her husband.
Furthermore, forty-six grams of methamphetamine were found in a
perfume box that defendant admitted belonged to her and an
additional ten grams were found in the pockets of a denim shirt
that defendant also admits was hers. During the search of
defendant's home on 23 June 2003, officers also seized a pink bag
containing marijuana, marijuana roaches, and drug paraphernalia.
A letter written to defendant was also found in the bedroom. The
foregoing evidence is sufficient for the jury to infer defendant
constructively possessed the methamphetamine. Therefore, we
conclude the trial court did not err in denying defendant's motion
to dismiss. No error.
Judges TYSON and JACKSON concur.
Report per Rule 30(e).
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