STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 03 CRS 63172
HENRY LEE SCALES
Attorney General Roy Cooper, by Assistant Attorney General
Jason T. Campbell, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott
Holmes, for defendant-appellant.
ELMORE, Judge.
Henry Lee Scales (defendant) was indicted for possession with
intent to sell or deliver cocaine, trafficking in cocaine by
possession, trafficking in cocaine by transportation, and
trafficking in cocaine by sale. The State's evidence tended to
establish the following: On 30 September 2003 Detective Jeffrey
Royall was a member of the narcotics unit of the Forsyth County
Sheriff's Office. Using a confidential informant, Detective Royall
arranged to purchase two ounces of cocaine for $1,900.00.
Detective Royall testified that he arrived at Pete's Grocery
Store at approximately 4:00 p.m. He pulled ten feet in front of a
black Isuzu truck and another vehicle parked side-by-side. The
truck was occupied by a person later identified as defendant. Thesecond vehicle was occupied by Keith and Brock Speas. Detective
Royall offered Keith Speas $2,000.00 to purchase two ounces of
cocaine. Keith Speas walked over to the back of defendant's pickup
truck and reached down into the bed of the truck to retrieve a
package wrapped in plastic. Detective Royall described the
substance as a “hard, off-white, rock-like substance, which I
believed to be crack cocaine.”
Defendant was sitting in the truck observing the exchange
between Detective Royall and Keith Speas. Defendant did not say
anything or get out of the truck at any point. After the
transaction, Keith Speas returned to the vehicle occupied by Brock
Speas. Defendant followed behind this vehicle as it left the
parking lot. Detective Royall ran the tag number of defendant's
truck and obtained a DMV photograph. The vehicle was registered to
defendant. Also, Detective Royall testified that he was able to
observe defendant inside the truck because the windshield was not
tinted.
The State proffered evidence of another incident involving
defendant that occurred on 24 November 2003, two months after the
incident in the present case. The trial court overruled
defendant's objection to the admission of this evidence. Officer
Gerald Lovejoy testified that he encountered defendant at an
apartment complex at Wabash Boulevard on 24 November 2003. Officer
Lovejoy stated that he responded to a call about a suspicious
person at the apartment complex, which was known for automobile
break-ins. When he arrived, Officer Lovejoy observed defendantsitting in a black Isuzu truck in the parking lot. Defendant was
lying down in the seat and moving around inside the vehicle. When
defendant noticed the officer, he jumped out of the truck and asked
why he was being stopped.
Officer Lovejoy testified that he recovered a glass pipe with
a Brillo pad stuffed in the end of it and a hard, rock-like
substance that field tested positive for crack cocaine. After the
field test showed the presence of crack cocaine, defendant was
arrested. During his discussion with Officer Lovejoy, defendant
stated that he had been dropped off in the parking lot by Keith
Speas.
Defendant presented the testimony of the confidential
informant, David George. Mr. George testified that he went to a
“crack house” to arrange for Detective Royall to purchase cocaine
from Keith Speas and Brock Speas. Defendant, a cousin of Keith and
Brock Speas, was present at the house. Keith and Brock Speas
agreed to meet at Pete's Grocery to complete the transaction.
Defendant testified that he was at his cousin's house to help
his other cousin, Brock Speas, move furniture. Defendant admitted
that he knew Brock Speas had sold drugs in the past but denied he
was aware of a pending drug deal. Defendant stated that he
followed Keith and Brock Speas to Pete's Grocery because he thought
he was going to move furniture.
The jury returned verdicts of guilty on all charges. The
trial court sentenced defendant to 35 months to 42 monthsimprisonment and a fine of $50,000.00. Defendant gave notice of
appeal in open court.
By his first assignment of error, defendant contends that the
trial court erred in admitting evidence under Rule 404(b) that
defendant committed a subsequent act, offered to show that
defendant knew one of the co-conspirators. Rule 404(b) of the
North Carolina Rules of Evidence provides:
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) (2005). Rule 404(b) is a
“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.” State v. Coffey, 326
N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). The list of
permissible purposes is not exclusive; evidence of other acts is
admissible where it is “relevant to any fact or issue other than
the defendant's propensity to commit the crime [charged].” State
v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852-53 (1995).
Foremost, we note that evidence of subsequent crimes, wrongs,
or acts is admissible under Rule 404(b) so long as they are not too
remote in time. See State v. Hutchinson, 139 N.C. App. 132, 136,
532 S.E.2d 569, 572 (2000). Defendant contends that the evidencethat he possessed a substance the officer thought was cocaine two
months after the offense date at issue during trial lacked
sufficient temporal proximity to the date of the offense to be
admissible under Rule 404(b). Our case law does not support
defendant's contention. In Hutchinson, the State offered evidence
of the subsequent crimes of shoplifting, larceny, and car theft to
show the defendant's intent at the time of the alleged burglary.
Also, evidence that the defendant sold some of the stolen goods
from these subsequent larcenies for drugs tended to show the
defendant's motive for committing the burglary offense.
Significantly, the Court held that a “time span of one to two
months between the burglary and the subsequent larcenies does not
render [those subsequent crimes] too remote in time” under Rule
404(b). Id. at 137, 532 S.E.2d at 573 (citing State v. Biggs, 224
N.C. 722, 726, 32 S.E.2d 352, 354-55 (1944)).
Here, the incident involving Officer Lovejoy, which occurred
two months after the charged crime, was not too remote to be
admissible under Rule 404(b). See id.; see also State v. Stager,
329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991) (remoteness in time
is more significant when evidence of other crime or conduct used to
show both crimes arose out of a common scheme or plan; remoteness
in time is less significant when evidence of other conduct used to
show intent, motive, knowledge, or lack of accident).
The State offered the evidence of the subsequent transaction,
during which defendant admitted knowing Keith Speas, in order to
rebut defendant's denial that he knew Keith or Brock Speas. Morespecifically, it tended to show that it was not an accident that
defendant was parked next to Keith and Brock Speas at Pete's
Grocery at the time of the drug transaction. As it appeared on the
record that defendant was going to deny knowledge of Keith or Brock
Speas and any drug transaction, this was a permissible purpose for
admitting the evidence of defendant's subsequent arrest in November
2003. The fact that defendant later acknowledged knowing both of
his co-conspirators, when he testified that he was helping them
move furniture, is inconsequential to our analysis; the evidence
was proffered to show knowledge and lack of accident, permissible
purposes under Rule 404(b).
Defendant argues that, even if the evidence was admissible
under Rule 404(b), the trial court erred in failing to give a
limiting instruction at the time the evidence was admitted. But
defendant did not request such an instruction. Therefore, he
cannot challenge the lack of an instruction on appeal. See Stager,
329 N.C. at 310, 406 S.E.2d at 894 (“The defendant, having failed
to specifically request or tender a limiting instruction at the
time the evidence was admitted, is not entitled to have the trial
court's failure to give limiting instructions reviewed on
appeal.”). Additionally, the trial court gave a limiting
instruction to the jury before deliberations:
Evidence has been received tending to show
that at . . . a time subsequent to this
offense the Defendant was stopped in a parking
lot -- you recall the testimony of Officer
Lovejoy, and he approached the Defendant and
noticed a crack pipe, as he describe it, in
his, on the floor board, and found somecontrolled substance that, what, in his
opinion to be cocaine.
This evidence was received solely for the
purpose of showing that the Defendant had
knowledge, which is a necessary element of the
crime charged in this case; that there existed
in the mind of the Defendant a plan, scheme,
system or design involving the crime charged
in this case.
If you believe this evidence you may consider
it only for the limited purpose for which it
was received. In other words, you cannot find
him guilty of this offense because of some
other incident that he has been described to
have participated in.
Defendant's assignment of error is overruled.
Next, defendant contends that the trial court erred in
allowing an officer to testify to the composition of an alleged
controlled substance where no report was introduced to support the
officer's opinion and no qualifications shown for the officer to
conduct such a test. We hold that any error in allowing the
testimony of Officer Lovejoy concerning the field test was harmless
because of the overwhelming evidence of defendant's guilt. See
State v. Moore, 152 N.C. App. 156, 162, 566 S.E.2d 713, 717 (2002)
(an erroneous admission of evidence is not prejudicial to the
defendant where there is overwhelming evidence presented of the
defendant's guilt). Here, the State introduced evidence that
defendant was sitting in the truck and observed the drug
transaction between Keith Speas and Detective Royall. Keith Speas
retrieved the cocaine from the bed of defendant's truck. Defendant
did not step out of the vehicle at any point to go into the store.
Defendant's vehicle followed behind the vehicle occupied by Keithand Brock Speas as it exited the parking lot of Pete's Grocery.
Defendant simply fails to establish that there is a reasonable
possibility that had the field test of the alleged controlled
substance possessed by defendant in November 2003 not been
admitted, a different result would have been reached at trial. See
N.C. Gen. Stat. § 15A-1443(a) (2005).
Next, defendant assigns error to the trial court's ruling to
allow the prosecutor to refer to the house where defendant and
Keith and Brock Speas left from as a “crack house.” On cross-
examination of defendant, defense counsel objected as follows:
Q. What I mean is, you met them at a crack
house?
[defense counsel]: Objection to --
Q. Is that right?
[defense counsel]: -- crack house.
THE COURT: Overruled.
However, defendant made no objection when the house was described
as a “crack house” or “drug house” earlier in the trial
proceedings. Detective Royall testified on direct examination as
follows:
A. The informant and myself went to a known
drug house located . . . on Boiling Springs
Road . . . .
. . . .
A. The original deal was to take place at the
drug house on Boiling Springs Road. Due to
the fact that the first time I was there,
there were approximately eight people inside,
and a lot of them were high, and I knew I was
going to have like two thousand dollars in my
pocket, I didn't feel it would be safe for meto go in that situation. So I offered Keith
Speas an additional one hundred dollars to
bring the dope to the grocery store.
In addition, David George _ the confidential informant _ testified
on direct examination by defense counsel as follows:
A. At the, what we call a crack house on
Boiling Springs Road . . . .
Q. Whose house was it?
A. I just knowed it to be a crack house . . .
The record reveals that defendant did not object at any point
during the testimony of these witnesses. As such, he waived his
subsequent objection to the implication that the house where he met
Keith and Brock Speas was known as a “crack house.” See State v.
Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979) (“the
admission of evidence without objection waives prior or subsequent
objection to the admission of evidence of similar character”).
Next, defendant contends that the trial court erred in
refusing to dismiss the charges based upon insufficient evidence of
constructive possession. When ruling upon a defendant's motion to
dismiss for insufficiency of the evidence, the trial court must
view the evidence in the light most favorable to the State. State
v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455 (2000). The
court must give the State the benefit of all reasonable inferences,
and any contradictions in the evidence are to be resolved by the
jury. Id. A defendant has constructive possession of contraband
when the defendant “has the intent and capability to maintain
control and dominion over” the narcotics. State v. Beaver, 317
N.C. 643, 648, 346 S.E.2d 476, 480 (1986). When the defendant doesnot have exclusive possession of the premises where the contraband
was found, an inference of constructive possession may arise only
if the State shows other incriminating circumstances. State v.
Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 588-89 (1984).
We need not decide whether defendant was in exclusive
possession of the bed of his truck, as the State in the case sub
judice showed other incriminating circumstances to support an
inference of constructive possession. The confidential informant
testified that defendant followed Brock and Keith Speas to Pete's
Grocery in his own vehicle, and that they were going there for the
purpose of a drug deal. Detective Royall testified that defendant
observed the transaction between himself and Keith Speas. More
specifically, defendant watched as Keith Speas walked to the back
of defendant's truck and pulled out a package from the bed of the
truck. Detective Royall testified that, after the transaction was
complete, defendant left the parking lot in his vehicle following
behind the vehicle occupied by Keith and Brock Speas. The trial
court must view the evidence in the light most favorable to the
State, see Fritsch, 351 N.C. at 378-79, 526 S.E.2d at 455, and
thus could not consider defendant's testimony that he did not see
what Keith Speas was pulling out of the back of his truck. The
State's evidence of other incriminating circumstances was
sufficient to raise an inference of constructive possession.
Defendant's assignment of error on this point is overruled.
By his next assignment of error, defendant asserts that the
trial judge committed plain error when he “expressed his opinionabout the evidence.” Pursuant to N.C. Gen. Stat. § 15A-1222, a
trial judge must not express an opinion on any question of fact to
be determined by the jury. N.C. Gen. Stat. § 15A-1222 (2005).
However, an improper remark by the trial judge will not require a
new trial unless the remark goes to the heart of the case against
the defendant. See State v. Sidbury, 64 N.C. App. 177, 178-79, 306
S.E.2d 844, 845 (1983).
Defendant challenges the following portions of the trial
court's instruction to the jury:
Evidence has been received tending to show
that at . . . a time subsequent to this
offense the Defendant was stopped in a parking
lot -- you recall the testimony of Officer
Lovejoy, and he approached the Defendant and
noticed a crack pipe, as he describe it, in
his, on the floor board, and found some
controlled substance that, what, in his
opinion to be cocaine.
This evidence was received solely for the
purpose of showing that the Defendant had
knowledge, which is a necessary element of the
crime charged in this case; that there existed
in the mind of the Defendant a plan, scheme,
system or design involving the crime charged
in this case.
. . . .
Now, Officer Lovejoy testified that he field
tested something, but he also testified that
he was familiar with the substance. When
evidence has been received from a witness in
the form of an opinion, you may only consider
the opinion of a witness which is rationally
based on the perception of the witness and
helpful for the determination of a fact in
issue.
Defendant asserts that, taken together, these remarks by the trial
judge expressed an opinion about the evidence because the jurorscould have interpreted the judge as believing that the officer
found crack cocaine and a pipe. Defendant cites to State v.
Guffey, 39 N.C. App. 359, 250 S.E.2d 96 (1979). In Guffey, the
defendant made a pre-trial motion to dismiss the indictment. The
trial judge, in responding to the defendant's argument that the
indictment should have charged one count rather than two crimes,
remarked: “Well, it's two different _ two different people. He was
pretty busy that day.” Id. at 361, 250 S.E.2d at 97. The trial
judge's comment was made in the presence of prospective jurors.
This Court held the defendant was entitled to a new trial because
the comment expressed an opinion on the defendant's guilt. Id. at
361-62, 250 S.E.2d at 97-98. Here, unlike in Guffey, the trial
judge's comment did not bear upon defendant's guilt. Instead, the
remark was directed at a subsequent act of defendant offered to
show that he knew Keith Speas. The trial judge did not directly or
indirectly express an opinion on whether defendant knew that Keith
Speas retrieved a package of contraband from defendant's truck _ an
issue of fact to be decided by the jury.
Defendant also cites to State v. Hewett, 295 N.C. 640, 247
S.E.2d 886 (1978). There, the trial judge summarized the State's
contentions in the instructions to the jury, but not the
contentions of the defendant. This Court held that the trial
judge's expressing the State's contentions and failure to relate
any of the defendant's contentions was prejudicial error requiring
a new trial. Id. at 642-43, 247 S.E.2d at 887-88. Hewett is
inapposite to the instant case. Here, the trial judge did notstate either party's contentions in the instructions to the jury.
Indeed, the trial judge noted this as part of the instructions:
I have not reviewed the contentions of the
State or of the Defendant, but it is your duty
not only to consider all of the evidence, but
also to consider all of the arguments, the
contentions and positions urged by the State's
attorney and the Defendant's attorney in their
speeches to you, and any other contention that
arises from the evidence[.]
In sum, we hold that the statements by the trial judge do not
express an opinion by the court on an issue to be decided by the
jury, the guilt of defendant, or the credibility of defendant's
evidence. Defendant cannot show error in the trial court's
instructions. See State v. Blackstock, 314 N.C. 232, 236, 333
S.E.2d 245, 248 (1985) (no prejudicial error unless trial judge
intimates opinion on defendant's guilt, weight of evidence, or
factual issue).
Finally, defendant assigns as error the trial court's
instruction on the common elements of the three charges only once.
The trial court noted that these common elements applied to all
three charges. Defendant did not object to the instructions. He
asserts that the failure to instruct on the common elements of each
charge separately constitutes plain error. In State v. Evans, 162
N.C. App. 540, 591 S.E.2d 564 (2004), the defendant was indicted
for taking indecent liberties with a minor, statutory sex offense,
and sexual activity by a custodian on 28 May, 29 May, 31 May, and
2 June 2000. The trial court instructed the jury on the elements
of taking indecent liberties with a child with respect to the
alleged events of 28 May 2000; and the elements of statutory sexoffense and sexual activity by a custodian alleged to have occurred
on 29 May 2000. The defendant argued on appeal that the failure of
the trial judge to instruct on each charge for each date
constituted plain error. Id. at 543, 591 S.E.2d at 566. This
Court held “there was no reasonable possibility that, had the trial
court specifically instructed the jury on the same offense for each
date alleged, a different result would have ensued.” Id. at 544,
591 S.E.2d at 567.
Defendant argues that Evans is distinguishable because there
the trial court provided the jury with a written copy of the
instructions on each of the crimes on each date. In the instant
case, the trial judge did not provide a written copy of the
instructions. However, defendant's argument must fail in light of
State v. Parker, 119 N.C. App. 328, 459 S.E.2d 9 (1995). The trial
court in Parker did not instruct the jury on each count of the
indictments separately. But the court stated that it would be
submitting twelve separate verdict sheets and that the jury could
vote either guilty or not guilty on each verdict sheet. Id. at
339, 459 S.E.2d at 15. This Court held that, viewed in its
entirety, the instructions made clear that the jury should consider
each charge separately in its deliberations. Id. Here, as in
Parker, the instructions viewed in their entirety made clear that
the jury was to consider each charge separately in its
deliberations. The trial judge instructed, in relevant part, as
follows:
All right, Ladies and Gentlemen, now I
specifically went through the instruction fordrug trafficking by possession. The -- and it
speaks for itself, but to avoid any possible
confusion, there are two elements for
trafficking cocaine by sell, as there were two
elements for trafficking cocaine by
possession.
And as I said, for the first element for by
possession, that the [defendant] knowingly
possessed the relative amount of cocaine.
However, for sell, the way it differs is that
instead of the Defendant knowingly possessed,
that the Defendant knowingly sold . . . and
the amount that he sold, as I've stated.
That's the only way it differs. Is that
clear, Ladies and Gentlemen?
And for transportation it's two elements as
well: that the Defendant knowingly transported
and the amount that the Defendant transported
was at least twenty-eight grams, no more than
one hundred and ninety-nine grams. So the
only way those instructions differ is that in
one instruction you knowingly possess, another
one, you knowingly sell, and another one you
knowingly transport. That other element as it
concerns the amount and the substance remains
the same.
Defendant cannot show a reasonable possibility that, had the trial
court separately instructed on each count, the jury would have
reached a different result. See Evans, 162 N.C. App. at 544, 591
S.E.2d at 567.
No error.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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