Appeal by defendant from judgment entered 5 April 2005 by
Judge W. David Lee in Davidson County Superior Court. Heard in the
Court of Appeals 21 September 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Douglas A. Johnston, for the State.
Eric A. Bach for defendant-appellant.
Martin Luther Eller (defendant) appeals from a judgment
entered following a jury verdict finding him guilty of
intentionally maintaining a dwelling used for the purpose of
unlawfully keeping and selling controlled substances, possession
with the intent to sell or deliver cocaine, and possession of drug
paraphernalia. Defendant received consecutive sentences of twelve
to fifteen months for the offense of possession with the intent to
sell or deliver cocaine and seven to nine months for the possession
of drug paraphernalia and maintaining a dwelling charges. We find
In early November 2003,
Detective Beth Clodfelter, a vice and
narcotics detective for the Lexington Police Department, DetectiveKenneth Causey, a vice and narcotics detective for the Davidson
County Sheriff's Department, and a confidential informant planned
and successfully conducted three buys of crack cocaine at
defendant's residence in Lexington, North Carolina.
On 26 November 2003, Detective Causey assembled an entry team
to execute a search warrant at defendant's house. Upon entry of
the house, the police discovered two men inside--an unidentified
man and Luther Eller, defendant's nephew. Defendant was not
present when the police initiated the search but arrived during the
course of the search. The police discovered
the following items
during their search of the house: two plastic bags containing 9.3
grams of crack cocaine, which was found behind a clock in the
living room of the house
several video cameras, a handgun, a
shotgun, and a rent receipt bearing defendant's name.
cameras served as a surveillance system for the inhabitants of the
house. The cameras were actually set up on the outside of the
residence, [one at] the front door coming in from the driveway and,
also, [one] on the side of the driveway. Detective Causey
testifed that each one of them had a separate small monitor . . .
in the living room close to the television set[.] The monitors
were activated and working when Detective Causey entered the house.
Detective Causey also testified that the rent receipt, dated 25
September 2003, contained the following information: [It] says,
'received from Martin Eller,' [and] has a quantity of $400.00. It
[also says] for rent at [defendant's address] from September 1 to
September 30th, 2003[.]
Approximately fifteen minutes after the policemen began the
search of the house, defendant drove down the road[,] then
turned around and came back to the residence. Detective Causey
asked him if he lived in the residence, and defendant said, no
he didn't. Then, Detective Causey showed him the rent
receipt[,] after which defendant admitted, yes, [it's] my house,
I rent the house.
At the close of the State's evidence, defendant moved to
dismiss all of the charges against him. The trial court denied the
motions. Defendant did not testify and presented no evidence at
I: Motion to Dismiss
Defendant first argues that the trial court erred in denying
defendant's motion to dismiss the charge of possession with the
intent to sell or deliver cocaine for insufficiency of evidence.
We note that defendant's assignment of error pertaining to the
denial of his motion to dismiss encompassed both the possession
charge and the maintaining a dwelling charge. Since defendant
fails to argue as to the maintaining a dwelling charge in his
brief, this assignment of error is deemed abandoned. N.C. R. App.
28(b)(6) (2006); see also State v. McNeill
, 360 N.C. 231, 241,
624 S.E.2d 329, 336 (2006).
In considering a motion to dismiss, the trial court is
concerned only with sufficiency of the evidence to carry the case
to the jury and not its weight. State v. Crawford
, 344 N.C. 65,73, 472 S.E.2d 920, 925
(citing State v. Mercer
, 317 N.C.
87, 96, 343 S.E.2d 885, 891 (1986)). The only issue for the trial
court is whether there is substantial evidence of each essential
element of the charged offense and of the defendant being the
, 344 N.C. at 73, 472 S.E.2d at 925.
evidence may be direct, circumstantial, or both. State v.
359 N.C. 328, 374, 611 S.E.2d 794, 827 (2005) (citing
State v. Warren
, 348 N.C. 80, 102, 499 S.E.2d 431, 443, cert.
, 525 U.S. 915, 142 L. Ed. 2d 216 (1998)).
The court must
consider the evidence in the light most favorable to the State and
give the State the benefit of every reasonable inference from that
evidence. State v. Jaynes
, 342 N.C. 249, 274, 464 S.E.2d 448, 463
(1995), cert. denied
, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996).
In the instant case, defendant contends that the State failed
to present substantial evidence of his possession of the cocaine.
Possession of a controlled substance may be either actual or
State v. Morgan
, 111 N.C. App. 662, 665, 432 S.E.2d
877, 879 (1993) (citing State v. Harvey
, 281 N.C. 1, 12, 187 S.E.2d
706, 714 (1972)). Under the theory of constructive possession, a
person may be charged with possession of an item such as narcotics
when he has both 'the power and intent to control its disposition
or use,' . . . even though he does not have actual possession.
State v. Davis
, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989)
, 281 N.C. at 12, 187 S.E.2d at 714
). 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 ofknowledge and possession which may be sufficient to carry the case
to the jury on a charge of unlawful possession. Id.
, 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. Id.
added) (citing State v. Brown
, 310 N.C. 563, 569, 313 S.E.2d 585,
589 (1984)). This Court has held that the State may show a
defendant had constructive possession by producing evidence that a
defendant maintained the premises as a residence, or had some
apparent proprietary interest in the premises or the controlled
substance.' State v. Hamilton
, 145 N.C. App. 152, 156, 549 S.E.2d
233, 235 (2001).
At trial, the State did not show that defendant had exclusive
possession of the house. The evidence tends to show that two other
people were present when the police searched the home, one of whom
lived there. However,
Detective Causey observed defendant at or
near the house on two separate occasions, at which times defendant
personally escorted the State's informant into the house to
complete the purchase of crack cocaine. Further, Detective
Causey's search of the house produced a rent receipt bearing
defendant's name, and defendant admitted to Detective Causey, yes,
[it's] my house, I rent the house.
The evidence submitted by the
State amounts to more than a strong suspicion that defendant
maintained the house as a residence
. This, coupled with
defendant's apparent participation in the controlled buys, hisinitial denial of his residency, and other evidence found in the
house, including the quantity of crack cocaine, a shotgun and a
handgun located in defendant's bedroom, and a surveillance system
installed in defendant's house, is sufficient to establish other
incriminating circumstances, so that constructive possession may
be inferred, even though defendant did not have exclusive
possession of the house when the controlled substance was
, 325 N.C. at 697, 386 S.E.2d at 190
When all the evidence is examined in a light most favorable to
we conclude that the State submitted substantial
evidence of incriminating circumstances
sufficient to submit the
possession with the intent to sell or deliver cocaine
the jury based upon constructive possession.
This argument is
II: Jury Instructions
Defendant next argues that the trial court committed plain
error by failing to properly instruct the jury with regard to
constructive possession of a controlled substance where possession
of the premises is nonexclusive. Specifically, defendant argues
that the trial court erred by not instructing the jury as to the
requirement of scienter. We disagree.
Felonious possession of a controlled substance has two
essential elements. The substance must be possessed, and the
substance must be knowingly
possessed. State v. Weldon
, 314 N.C.
401, 403, 333 S.E.2d 701, 702 (1985) (emphasis added) (quoting
State v. Rogers
, 32 N.C. App. 274, 278, 231 S.E.2d 919, 922(1977)). An accused has possession of the contraband material .
. . when he has both the power and intent to control its
disposition or use. Id.
, 281 N.C. at 12, 187
S.E.2d at 714). The requirements of power and intent necessarily
imply that a defendant must be aware of the presence of an illegal
drug if he is to be convicted of possessing it. Weldon
, 314 N.C.
at 403, 333 S.E.2d at 702-03 (quoting State v. Davis
, 20 N.C. App.
191, 192, 201 S.E.2d 61, 62 (1973), disc. rev. denied
, 284 N.C.
618, 202 S.E.2d 274 (1974)). When such materials are found on the
premises under the control of the 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. Weldon
, 314 N.C. at 403, 333 S.E.2d at
, 281 N.C. at 12, 187 S.E.2d at 714).
To preserve a question regarding jury instructions for
appellate review, Rule 10(b)(2) of the North Carolina Rules of
Appellate Procedure provides:
A party may not assign as error any portion of
the jury charge or omission therefrom unless
he objects thereto before the jury retires to
consider its verdict, stating distinctly that
to which he objects and the grounds of his
objection; provided, that opportunity was
given to the party to make the objection out
of the hearing of the jury, and, on request of
any party, out of the presence of the jury.
N.C. R. App. P. 10(b)(2) (2006).
In the instant case, defendant did not object to the
instructions as given or request a special instruction. In fact,
when the trial court asked counsel for defendant, [w]hat says thedefendant to those instructions[,] defense counsel responded,
[w]e are satisfied with those instructions.
therefore, is entitled to relief only if the court's failure to
give such an instruction sua sponte
constitutes plain error.
State v. Shine
, __ N.C. App. __, __, 619 S.E.2d 895, 899 (2005)
(citing N.C. R. App. P. 10(c)(4) (2004)). Plain error occurs
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.' Id.
(quoting State v. Odom,
307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983) (internal citations omitted)). Defendant
must show not only that the instruction was error, but that the
instruction probably impacted the jury's finding defendant guilty.
State v. Martinez
, 150 N.C. App. 364, 372, 562 S.E.2d 914, 918-19
(2002) (citing Odom
, 307 N.C. at 660, 300 S.E.2d at 378).
The State presented sufficient evidence to allow a jury to
decide whether defendant had the intent and capability to exercise
control and dominion over the cocaine based on constructive
possession. We do not believe that the jury was likely to have
reached a different verdict had the instructions been as defendant
now asserts they should have been. Defendant has failed to show
that the instruction constituted plain error.
Defendant fails to argue his remaining assignments of error in
his brief, and they are deemed abandoned. N.C. R. App. P. 28(b)(6)
For the forgoing reasons, we find no error.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
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