Defendant first asserts the trial court erred in allowing
Officer Woolard to testify, over objection, that he did not have
the purple bag checked for fingerprints because he had “no doubt in
[his] mind” that the marijuana was defendant's. Lay opinion
testimony that “embraces an ultimate issue to be decided by the
trier of fact” is not objectionable on that ground alone,
see N.C.
Gen. Stat. § 8C-1, Rule 704, so long as it is “helpful to a clear
understanding of [the witness'] testimony or the determination of
a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701. The official
commentary specifically states that nothing in Rule 701 precludes
evidence that is commonly referred to as a “shorthand statement of
fact.”
Id. (Official Commentary). These statements include “the
instantaneous conclusions of the mind as to the appearance,
condition, or mental or physical state of persons, animals, and
things, derived from observation of a variety of facts presented to
the senses at one and the same time.”
State v. Williams, 319 N.C.
73, 78, 352 S.E.2d 428, 432 (1987) (citation and internal quotation
marks omitted).
In the instant case, we are persuaded the challenged comments
fall within the category of shorthand statements of fact. Each of
the times Officer Woolard stated he had no doubt the bag containingthe marijuana was defendant's, it was in the context of explaining
why he did not perform fingerprint analysis on the bag. This was
because Officer Woolard had “canvass[ed]” the area prior to
defendant's arrival, had not seen a purple bag during that time,
and had subsequently found the purple bag after defendant's arrival
located where only defendant had been and where defendant had
leaned down in a manner consistent with placing something where the
bag was found. This assignment of error is overruled.
By his second assignment of error, defendant asserts the trial
court committed plain error in admitting irrelevant Rule 404(b)
evidence of (1) the drugs belonging to the driver of the car, (2)
the handgun belonging to the driver of the car, and (3) the car
mirror hitting Officer Woolard when the driver of the car did not
stop at Officer Woolard's signal. “Under plain error review,
'reversal is justified when the claimed error is so basic,
prejudicial, and lacking in its elements that justice was not
done[,]'”
see State v. Miller, 357 N.C. 583, 592, 588 S.E.2d 857,
864 (2003),
cert. denied, 542 U.S. 941, 159 L. Ed. 2d 819 (2004)
(quoting
State v. Prevatte, 356 N.C. 178, 258, 570 S.E.2d 440, 484
(2002)), and, “absent the [claimed] error, the jury probably would
have reached a different result.”
State v. Jones, 355 N.C. 117,
125, 558 S.E.2d 97, 103 (2002). Defendant is limited to plain
error review as a result of his failure to object at trial.
Our courts have held that “[e]vidence describing the chain of
events is properly admitted if linked in time and circumstances
with the charged crime, or [if it] forms an integral and naturalpart of an account of the crime, or is necessary to complete the
story of the crime for the jury.”
State v. Parker, 140 N.C. App.
169, 174, 539 S.E.2d 656, 660 (2000),
disc. rev. denied, 353 N.C.
394, 547 S.E.2d 37 (2001) (citations and internal quotation marks
omitted). In the instant case, the challenged testimony was not
used as character evidence of defendant or the driver. The
testimony concerning the mirror hitting Officer Woolard's hand when
the driver disregarded his signal tended to explain why he
subsequently pursued the vehicle. The remaining testimony
concerned Officer Woolard's subsequent detainment and further
investigation of the driver of the vehicle and defendant.
Accordingly, the testimony was properly admissible as describing
the surrounding circumstances prior and leading up to defendant's
arrest and the factors warranting Officer Woolard's involvement.
Even if we were to assume, however, that the admission of the
challenged testimony was error, defendant has failed to show plain
error because he has not shown a probability that the jury would
have reached a different result absent the error. With respect to
the gun and drugs belonging to the driver of the vehicle, the
testifying officers clearly indicated that the items belonged to
the driver of the car and not defendant. Similarly, with respect
to the car's mirror hitting Officer Woolard's hand, the testimony
at trial showed without dispute that defendant was not driving the
car at the time the contact occurred and, therefore, could not be
responsible for failing to stop the car or drive in a differing
manner. None of the inferences which might be drawn from thisevidence was sufficiently prejudicial to warrant the conclusion
that, absent the admission of the challenged portions of testimony,
the jury probably would have reached a different result.
Tellingly, defendant asserts in his brief that the challenged
testimony “may have” caused the jurors to “set aside reasonable
doubts about the nature of Defendant's involvement in this case[.]”
Probability, not possibility, is the requirement for a defendant to
show plain error. This assignment of error is overruled.
In his final assignment of error, defendant asserts his
conviction for possession with intent to manufacture or sell
marijuana must be vacated as a matter of law due to insufficient
evidence. Possession of marijuana with intent to manufacture or
sell consists of the following elements: a person (1) knowingly (2)
possesses (3) marijuana (4) with the intent to manufacture or sell
it. N.C. Gen. Stat. § 90-95 (2005). Defendants argue the State
produced insufficient evidence of possession and intent.
“When a defendant moves to dismiss a charge against him on the
ground of insufficiency of the evidence, the trial court must
determine whether there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of the offense.”
State v. Garcia, 358 N.C. 382, 412,
597 S.E.2d 724, 746 (2004),
cert. denied, 543 U.S. 1156, 161 L. Ed.
2d 122 (2005) (citation and internal quotation marks omitted).
“'Substantial evidence' is relevant evidence that a reasonable
person might accept as adequate or would consider necessary to
support a particular conclusion.”
Id. at 412, 597 S.E.2d at 746(citations omitted). “The reviewing court considers all evidence
in the light most favorable to the State, and the State receives
the benefit of every reasonable inference supported by that
evidence.”
Id. at 412-13, 597 S.E.2d at 746.
Regarding defendant's argument concerning the element of
possession, the State may prove either actual, physical possession
of the materials or constructive possession.
State v. McNeil, 359
N.C. 800, 809, 617 S.E.2d 271, 277 (2005). Constructive possession
exists when the defendant lacks actual possession, yet “has the
intent and capability to maintain control and dominion over the
narcotics.”
Id. (citations and internal quotation marks omitted).
In order for constructive possession to be properly inferable, the
State must show either exclusive possession of the place where
narcotics are found or nonexclusive possession coupled with other
incriminating circumstances.
Id. at 809-10, 617 S.E.2d at 277.
In the instant case, the evidence tends to show that, during
the relevant time period, defendant did have exclusive possession
of the place where the marijuana was found. Officer Woolard
testified he canvassed the area prior to defendant's arrival and no
bag containing drugs was present. After defendant and the driver
arrived, only defendant was in the area where the drugs were
subsequently found. During this time period, no other person was
present, and no other person could have placed the drugs in that
area. In the light most favorable to the State, we hold this
constituted sufficient evidence of the element of possession. Defendant also argues there was insufficient evidence of an
intent to manufacture or sell. Factors considered relevant in
determining whether a defendant had the requisite intent include
quantity, location, and packaging of the drugs as well as the
existence of paraphernalia used to measure and package drugs.
State v. Roseboro, 55 N.C. App. 205, 210, 284 S.E.2d 725, 728
(1981). In the instant case, the packaging of the marijuana in
eight individual small baggies constituted sufficient evidence from
which the jury could conclude an intent to sell or manufacture on
the part of defendant. Accordingly, this assignment of error is
overruled.
No error.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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