An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-262

NORTH CAROLINA COURT OF APPEALS

Filed: 3 January 2006

STATE OF NORTH CAROLINA

v .                         Henderson County
                            No. 03 CRS 54076
DIANA MELTON LEWIS,                 03 CRS 54079    
    Defendant.

    Appeal by defendant from judgment entered 10 November 2004 by Judge J. Gentry Caudill in Henderson County Superior Court. Heard in the Court of Appeals 2 November 2005.

    Attorney General Roy Cooper, by Assistant Attorney General     Robert M. Curran, for the State.

    David G. Belser for defendant-appellant.

    SMITH, Judge.

    Diana Melton Lewis (“defendant”) appeals her convictions for trafficking in methamphetamine and maintaining a residence for keeping controlled substances. For the reasons discussed herein, we hold defendant received a trial free of prejudicial error.
    The State's evidence at trial tended to show the following: On 3 April 2003, defendant was riding on a motorcycle driven by her husband Bayles Lewis (“Billy Lewis”), when a patrol officer stopped the vehicle. The officer searched Billy Lewis and found a quantity of methamphetamine in his jeans pocket. Pursuant to a consensual search of the Lewis home, officers found additional methamphetamine in a desk in the basement.    On 23 June 2003, Henderson County law enforcement officers conducted a search of defendant's residence pursuant to the terms of Billy Lewis' probation. The residence is a single story structure with a basement and was shared by defendant, Billy Lewis, and two teenage children. Officers seized approximately 56.7 grams of methamphetamine from the Lewis residence. Officers found a Liz Claiborne perfume box on the shelf in the closet in the master bedroom. Inside the box were smaller containers with an aggregate of forty-six grams of methamphetamine. Officers also discovered ten grams of methamphetamine in the pockets of defendant's blue jean shirt hanging in the closet. The officers found a sawed-off shotgun, marijuana, a pipe, marijuana roaches, and rolling papers in the master bedroom as well. In the basement, officers found a quantity of plastic Ziploc bags, aluminum foil, and approximately $15,000.00 in cash in an office desk. As Billy Lewis was taken into custody, he gave defendant $4,000.00 in cash. Officers discovered an additional $1,210.00 in cash while transporting Billy Lewis. Defendant was not taken into custody that date but was allowed to surrender to authorities later. Defendant was charged with trafficking in methamphetamine and maintaining a residence for keeping controlled substances.
    Billy Lewis testified for the defense. He admitted being an habitual user of methamphetamine. He stated he had hidden the methamphetamine seized on 23 June 2003 in the basement office desk and in several of defendant's personal belongings in the master bedroom closet, including a shirt and perfume box. Billy Lewisclaimed the methamphetamine was his and that defendant had no knowledge the drugs were where he had placed them. He testified he had never seen his wife handle, touch, or use any methamphetamine.
    Defendant testified she did not know the methamphetamine was in her bedroom closet or in her shirt pocket and that she did not generally use the master bedroom closet. Defendant also testified she was not aware of the large sum of cash in the desk but would ask her husband for money when she needed to pay bills. The State questioned defendant concerning a 1 April 2004 search of her home. Defendant denied knowledge that a marijuana roach was found in her bedside stand but acknowledged she had marijuana in her purse on that date.
    On rebuttal, Detective Chris Denny (“Detective Denny”) of the Henderson County Sheriff's Department testified that officers conducted another search of the Lewis home on 1 April 2004. On that date, officers found marijuana in defendant's purse, and Endocet, Darvocet, and a marijuana roach in defendant's night stand drawer. Defendant was charged with possession of marijuana, possession of drug paraphernalia, possession of Endocet and Darvocet, and maintaining a dwelling for keeping controlled substances as a result of the 1 April 2004 search.
    On 10 November 2004, a jury found defendant guilty of the charges stemming from the 23 June 2003 search -_ trafficking in methamphetamine and maintaining a residence for keeping controlled substances. Defendant appeals.

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    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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