An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-839


Filed: 7 March 2006


v .                         Cumberland County
                            No. 03 CRS 59676

    Appeal by defendant from judgment entered 19 January 2005 by Judge B. Craig Ellis in Cumberland County Superior Court. Heard in the Court of Appeals 8 February 2006.

    Roy Cooper, Attorney General, by Stormie D. Forte, Assistant Attorney General, for the State.

    Linda B. Weisel for defendant-appellant.

    MARTIN, Chief Judge.

    John Willie Autry (“defendant”) appeals from a judgment entered on a jury verdict finding him guilty of possession with intent to manufacture or sell marijuana. We find no error.
    The State's evidence at trial tends to show the following: on 29 July 2003, Officer Robert Woolard (“Officer Woolard”) was investigating a stabbing incident when he observed an approaching car. Given the remoteness of the location of the stabbing and Officer Woolard's desire to determine whether the driver of the car was involved in the stabbing, he attempted to flag down the car. The car passed without stopping, and the mirror hit Officer Woolard's hand. Officer Woolard returned to his vehicle and followed the car, which then stopped.     Officer Woolard approached the car and asked for the driver's identification. Defendant was occupying the passenger's seat and produced identification. Officer Woolard advised defendant and the driver of the stabbing incident and became suspicious because of their activities. The driver and, later, the defendant exited the car. When defendant exited the vehicle, Officer Woolard observed him walk and then lean down towards the rear passenger-side tire but could not tell if defendant had anything in his hand. Nonetheless, Officer Woolard's impression was that defendant had put something down in the area near the tire.
    Officer Woolard conducted a check of the driver's name and discovered his status as a missing person. Officer Woolard placed the driver in handcuffs, and the driver admitted to having cocaine in the vehicle. A search of the car also revealed a handgun on the driver's side of the vehicle. Officer Woolard then retrieved his police dog for a narcotics search of the vehicle, and when the dog went around the trunk of the vehicle towards the passenger side, the dog began “keying in on” a smell and “went past the tire going towards the back passenger door and placed her head under the vehicle . . . near the back tire under the car and pulled out a purple bag” in the “exact area” Officer Woolard had seen defendant lean over. The bag contained eight small packages of marijuana totaling 3.8 grams, and defendant was subsequently arrested.
    Defendant was charged with one count of possession with intent to manufacture or sell marijuana and one count of manufacturing marijuana. The jury returned a verdict of guilty of possessionwith intent to manufacture or sell and a verdict of not guilty of manufacturing. Defendant was sentenced in the mitigated range as a prior record level six habitual felon to a term of 101 to 131 months imprisonment. Defendant appeals.

    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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