STATE OF NORTH CAROLINA

v .                         Mecklenburg County
                            Nos. 04 CRS 239984-85
JOSE EDUARDO CASTANO
        Defendant

    Appeal by defendant from judgments dated 27 April 2005 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 May 2006.

    Attorney General Roy Cooper, by Assistant Attorney General J. Bruce McKinney, for the State.

    Public Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant.

    BRYANT, Judge.

    Jose Eduardo Castano (defendant) appeals from judgments dated 27 April 2005, entered consistent with jury verdicts finding him guilty of trafficking in cocaine by possession and trafficking in cocaine by transportation. For the reasons below, we find no prejudicial error.

    On 30 August 2004, a confidential informant met with James Almond and Steve Whitesel, detectives with the Vice and Narcotics Division of the Charlotte-Mecklenburg Police Department. Under Detective Almond's supervision, the informant had initiated contact with Jose Leyva in an attempt to purchase a large quantity of cocaine. The informant had arranged to meet with Leyva at 5:00p.m. that day at a local restaurant to discuss the details of the purchase, which would take place at a later time. Whitesel set up surveillance of the restaurant and observed Leyva arriving at 5:17 p.m. At the meeting, the informant set up a deal in which Leyva would sell 500 grams of cocaine for $12,150 to an undercover officer, Detective Kelly Little. The purchase was scheduled to occur the next day at the informant's apartment complex. After the meeting, Whitesel followed Leyva to his apartment complex and then discontinued his surveillance for the night.
    On 31 August 2004, Whitesel and Detective Andrea Briggs went
to Leyva's apartment in separate vehicles at about 6:00 p.m. to initiate surveillance of Leyva prior to the purchase. Leyva was seen arriving at his apartment at approximately 7:00 p.m., driving a gray pickup truck. Leyva and two unidentified Latino males unloaded furniture from the pickup truck and Leyva left the apartment around 7:45 p.m., driving the pickup truck.
    Briggs and Whitesel individually followed Leyva but both lost him in traffic. Whitesel discontinued his search for Leyva and went to the informant's apartment complex to provide surveillance for the drug deal. Briggs continued searching for Leyva and located the pickup truck in a shopping center parking lot in front of the “1010” restaurant. The pickup truck was empty and Briggs parked her vehicle and watched the pickup truck until the deal was completed.
    At the informant's apartment complex, Detective Little and the informant were seated in Little's car waiting for Leyva to arriveto complete the deal. Leyva did not appear at the scheduled time and the informant telephoned Leyva several times attempting to set up the deal. At approximately 10:30 p.m., Little observed a Pontiac Grand Prix with a dealer's license tag drive into the lot and park about seven spaces from Little's car. Three individuals were in the Grand Prix: defendant, who was driving; Leyva, seated in the back seat; and another male seated in the front passenger seat.
    Leyva left the Grand Prix and got into the back seat of Little's car. Meanwhile, defendant and the other occupant got out of the Grand Prix and stood in front of the car. Leyva told Little that he had the cocaine but that he wanted to complete the deal in the informant's apartment or over at his apartment. Little refused to change the location of the deal and asked Leyva if he could see the cocaine. Little, Leyva, and the informant then walked over to the Grand Prix and Little got into the back seat. Defendant and the other occupant remained standing at the front of the Grand Prix approximately ten to twelve feet away from the front of the car. Little saw a bag in the back seat and asked if that was the cocaine. Leyva said it was not and retrieved a McDonald's bag from the right front passenger seat which he tossed into the back seat to Little.
    Inside the McDonald's bag, Little saw a blue bag which contained a block of powder later determined to be 499 grams of cocaine. Little took the blue bag and walked back to his car with Leyva and the informant. Defendant and the other passenger gotback into the Grand Prix. Little then signaled the other officers observing the deal to come in and make the arrest. Shortly thereafter, the arrest team arrived and took all the men into custody, including Little and the informant. At the time of the arrest, Leyva was found to be carrying a box cutter, defendant had $248 on his person, and the other passenger was in possession of $1,249.
    After the arrest, Detective Almond interviewed defendant with the aid of an interpreter. Defendant told Almond that he worked at a car dealership and that he was with Leyva because Leyva had asked him for a ride and to help move furniture. The Grand Prix driven by defendant was registered to the car dealership at which he worked. Defendant stated he had only been with Leyva for approximately five to ten minutes and that they were waiting on a woman to arrive and open a storage unit at the “1010” restaurant and then the men would go and get a truck. Defendant further stated he had not seen a McDonald's bag on the front passenger seat.

    Defendant was indicted on 13 September 2004 on felonious charges of trafficking in cocaine by possession of 400 grams or more of cocaine and trafficking in cocaine by transportation of 400 grams or more of cocaine. Defendant was tried before a jury at the 25 April 2005 Criminal Session of the Superior Court for Mecklenburg County, the Honorable Richard D. Boner, presiding. At the close of the State's evidence, defendant made a “motion forjudgment of acquittal” for insufficiency of the evidence, which the trial court denied. Defendant did not put on any evidence.
    On 27 April 2005, the jury returned verdicts finding defendant guilty of trafficking in cocaine by possession and trafficking in cocaine by transportation. The trial court subsequently entered judgment consistent with the jury verdicts, sentencing defendant to two concurrent terms of 175 to 219 months imprisonment and fines of $250,000 for each offense. Defendant appeals.

    Defendant raises the issues of whether: (I) the trial court erred in denying defendant's motion to dismiss; (II) the trial court committed plain error in admitting evidence regarding complaints about and the reputation of the business where defendant was employed; and (III) defendant was denied effective assistance of counsel.

    Defendant first argues the trial court erred in denying his “motion for judgment of acquittal” for insufficiency of the evidence. Defendant contends the State did not present sufficient evidence that he possessed the cocaine at issue in this case such that the trial court could send the charges of trafficking in cocaine by possession and trafficking in cocaine by transportation to the jury. “[W]hen 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 beingthe perpetrator of the offense.'” State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005).
        'Substantial evidence' is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion. A 'substantial evidence' inquiry examines the sufficiency of the evidence presented but not its weight. 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. Evidentiary 'contradictions and discrepancies are for the jury to resolve and do not warrant dismissal.'

Garcia, 358 N.C. at 412-13, 597 S.E.2d at 746 (citations omitted). “However, if the evidence 'is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed.'” State v. Grooms, 353 N.C. 50, 79, 540 S.E.2d 713, 731 (2000) (quoting State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983)).
    Defendant was convicted of trafficking in cocaine pursuant to N.C. Gen. Stat. § 90-95(h)(3) which states that “[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine and any salt, isomer, salts of isomers, compound, derivative, or preparation thereof . . . shall be guilty of a felony, which felony shall be known as 'trafficking in cocaine' . . . .” N.C. Gen. Stat. § 90-95(h)(3) (2005). “Trafficking in cocaine by possession and trafficking in cocaine by transportation. . . require the State to prove that the substance was knowingly possessed and transported.” State v. Baldwin, 161 N.C. App. 382, 391, 588 S.E.2d 497, 504 (2003) (citing State v. Munoz, 141 N.C. App. 675, 684, 541 S.E.2d 218, 224 (2001)). Our Supreme Court has held that:
        In a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials. Proof of nonexclusive, constructive possession is sufficient. Constructive possession exists when the defendant, while not having actual possession, . . . has the intent and capability to maintain control and dominion over the narcotics. Where such materials are found on 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. 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. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 (2001) (internal citations and quotations omitted).
    In the case at hand, the State relied upon a theory of constructive possession to prove defendant “knowingly possessed” the cocaine. “[W]hen the State's evidence shows a defendant was the 'custodian of the vehicle where the controlled substance was found[,]'” this Court has held that an inference of constructive possession arises. State v. Nettles, 170 N.C. App. 100, 103-04, 612 S.E.2d 172, 175 (quoting State v. Tisdale, 153 N.C. App. 294, 297-98, 569 S.E.2d 680, 682 (2002)), disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). However, as defendant's possession ofthe Grand Prix was nonexclusive, the State must show other incriminating circumstances before constructive possession may be inferred.
    The State's evidence showed that defendant had custody and control of the car and that he drove Leyva and another passenger to the parking lot of the informant's apartment complex, where Leyva had arranged to sell 500 grams of cocaine. Upon arrival, defendant and a passenger exited the Grand Prix and stood in front of the vehicle while Leyva completed the deal with Detective Little. The cocaine involved in the sale was kept in a bag retrieved from the front passenger seat. Further, Detectives Whitesel, Briggs, and Little all testified that it was common in drug trafficking cases for more than one person to be present at the deal, often to provide protection to the seller. We hold these are sufficient incriminating circumstances from which constructive possession may be inferred. The trial court did not err in denying defendant's “motion for judgment of acquittal” for insufficiency of the evidence. This assignment of error is overruled.

    Defendant next argues the trial court committed plain error in admitting evidence regarding complaints about and the reputation of the business where defendant was employed. At trial, the State solicited testimony from Detectives Almond and Whitesel concerning the reputation of Bum-Bum Auto Sales, where defendant was employed and to which the Grand Prix was registered. Specifically, Detective Almond stated: “During my time in vice and narcotics, Ihave received information from various sources that management, as well as employees of that location were involved in selling large amounts of cocaine.” Detective Whitesel further testified that “[w]e have had numerous concerned citizen complaints about large quantities of cocaine being dealt out of that business.” This testimony was admitted without objection by defendant's trial counsel. Defendant argues the trial court erred in admitting this testimony because it violated his constitutional right to confront witnesses against him, was inadmissible hearsay, and was irrelevant and highly prejudicial.

    Where evidence is admitted without objection, and subsequently contested as error on appeal, this Court must review the issue under the plain error standard of review. See State v. Odom, 307 N.C. 655, 656, 300 S.E.2d 375, 376 (1983); N.C. R. App. P. 10(b)(1), (c)(4). The North Carolina Supreme Court has adopted the following test for plain error:
        [T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.
Odom, 307 N.C. at 660, 300 S.E.2d at 378 (omission and modifications in original, citations and quotations omitted). Thus, in addition to showing that the admission of the testimony of Almond and Whitesel was error, “[d]efendant has the burden of showing . . . (i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000) (citation and quotations omitted).

    Defendant argues the trial court erred in admitting the testimony of Detectives Almond and Whitesel concerning the reputation of defendant's place of employment because it violated his constitutional right to confront witnesses against him. Defendant's right to confrontation is protected by the Sixth Amendment to the United States Constitution and the Declaration of Rights of the North Carolina State Constitution. U.S. Const. amend. VI; N.C. Const. art. I, § 23. The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” U.S. Const. amend. VI. The constitutional protections provided under the Sixth Amendment are made applicable to the states through the Fourteenth Amendment. State v. Lewis, 360 N.C. 1, 8, 619 S.E.2d 830, 835 (2005) (citing Pointer v. Texas,380 U.S. 400, 403, 13 L. Ed. 2d 923 (1965)). Similar protections are provided under Article I, § 23 of the North Carolina Constitution. “In all criminal prosecutions, every person charged with [a] crime has the right to . . . confront the accusers and witnesses with other testimony[.]” N.C. Const. art. I, § 23.
    Recently, the United States Supreme Court categorized the right to confront witnesses as a “procedural” guarantee, and not a “substantive guarantee.” Lewis, 360 N.C. at 13, 619 S.E.2d at 838 (citing Crawford v. Washington, 541 U.S. 36, 61, 158 L. Ed. 2d 177, 199 (2004) (“To be sure, the [Confrontation] Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”)). The United States Supreme Court held that, “[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203.
    “Following Crawford, the determinative question with respect to confrontation analysis is whether the challenged hearsay statement is testimonial.” Lewis, 360 N.C. at 14, 619 S.E.2d at 839. “[T]estimonial evidence is inadmissible against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.” Id. Statements which are non-testimonial do not implicate theConfrontation Clause and “the statement's admissibility is merely a matter of applying evidentiary rules regarding hearsay and various hearsay exceptions.” State v. Forrest, 164 N.C. App. 272, 278, 596 S.E.2d 22, 26 (2004) (citation and quotations omitted), aff'd per curiam, 359 N.C. 424, 611 S.E.2d 833 (2005).
    In the instant case, the State presented testimony through Detectives Almond and Whitesel that “various sources” and “numerous concerned citizens” had informed them that the management and employees of the automobile dealership where defendant was employed were involved in selling large amounts of cocaine. None of these “sources” or “citizens” were identified by Almond or Whitesel, and none testified at the trial below. Defendant, however, presents no argument as to whether the statements made by the “sources” and “citizens” are testimonial. Further, from the record before this Court, there is no indication that the statements made to Almond or Whitesel were testimonial in nature. Accordingly, we hold the statements made by the “sources” and “citizens” were non- testimonial and the trial court's admission of the testimony of Almond and Whitesel concerning the reputation of defendant's place of employment did not violate defendant's constitutional right to confront the witnesses against him.

    Defendant also argues the testimony of Almond and Whitesel was reputation evidence regarding defendant's place of employment and thus hearsay which should not have been admitted. Hearsay “is a statement, other than one made by the declarant while testifying atthe trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005). In North Carolina, the “general rule is that in a criminal prosecution evidence of the reputation of a place or neighborhood is ordinarily inadmissible hearsay.” State v. Weldon, 314 N.C. 401, 408, 333 S.E.2d 701, 705 (1985) (citation omitted). The State does not argue that the statements concerning the reputation of defendant's place of employment were made for reasons other than the truth of the matter asserted. Thus, we conclude this testimony was inadmissible hearsay, the admission of which was error.

    Defendant next argues the testimony of Almond and Whitesel concerning the reputation of defendant's place of employment was irrelevant and prejudicial pursuant to Rules 401, 402 and 403 of the North Carolina Rules of Evidence. Relevant evidence, is that 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. Gen. Stat. § 8C-1, Rule 401 (2005). “All relevant evidence is admissible . . . . Evidence which is not relevant is not admissible.” N.C. Gen. Stat. § 8C-1, Rule 402 (2005). Relevant evidence may, be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice[.]” N.C. Gen. Stat. § 8C-1, Rule 403 (2005).
    Defendant contends the testimony was not probative as to whether he committed the charged offenses. Defendant furtherargues that there was absolutely no evidence presented that he was aware of the reputation of his employer or that he was involved in any way in his employer's alleged illegal dealings. The State does not respond to defendant's argument that the testimony of Almond and Whitesel concerning the reputation of defendant's place of employment is irrelevant.
    We agree with defendant that this testimony was irrelevant to the charges at the trial below. The reputation of defendant's place of employment is not probative of whether defendant trafficked in cocaine by either possession or transportation based on the events established at trial, and its admission was error.

    While we conclude that the admission of the testimony of Detectives Almond and Whitesel concerning the reputation of defendant's place of employment was error, defendant has failed to show the jury would probably have reached a different result had the trial court barred these statements. There was sufficient other evidence of defendant's guilt to support the jury verdicts. Further, upon a review of the full record before this Court, we hold any error in admitting this testimony does not constitute a miscarriage of justice. Accordingly, we hold the trial court's admission of this testimony did not rise to the level of plain error. These assignments of error are overruled.

    Defendant finally argues he was denied effective assistance of counsel at trial when his counsel failed to object to the testimonyof Detectives Almond and Whitesel concerning the reputation of defendant's place of employment. Defendant contends that “there can be no legitimate reason or strategy in a trafficking case based on constructive possession . . . for failing to object to inadmissible evidence that the employees and management alike at defendant's place of employment are well known to be involved in selling large quantities of controlled substances.”
    This Court's review of ineffective assistance of counsel (IAC) claims “will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Based on our review of the record before this Court, we conclude that we may address defendant's IAC claim on the merits.
    To prevail on his IAC claim, defendant “must show that his 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) (citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984)). Defendant must satisfy the following two-prong 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 thatcounsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Id. at 562, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693). “[E]ven an unreasonable error[] does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings.” Id. at 563, 324 S.E.2d at 248 (citing Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698). Further, our Supreme Court has held:
        In analyzing the reasonableness under the performance prong, the material inquiry is whether the actions were reasonable considering the totality of the circumstances at the time of performance. Reviewing courts should avoid the temptation to second-guess the actions of trial counsel, and judicial review of counsel's performance must be highly deferential.

State v. Gainey, 355 N.C. 73, 112-13, 558 S.E.2d 463, 488 (internal citations omitted), cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002).
    While defendant argues his trial counsel “was not functioning as 'counsel' within the meaning of the Sixth Amendment when he sat idly by while the State” elicited testimony concerning the reputation of defendant's place of employment, it is just as possible that the strategy of defendant's trial counsel judged the admission of this testimony as supportive of his case to show that defendant had no idea a drug deal was occurring and was merely a patsy used by his employer and Leyva. Further, as discussed in Issue II, supra, we hold that there is not a reasonable probabilitythat, but for the admission of the testimony admitted without objection by defendant's trial counsel, there would have been a different result in the proceedings. This assignment of error is overruled.
    No prejudicial error.
    Judges HUNTER and CALABRIA concur.
    Report per Rule 30(e).

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