An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 7 November 2006
STATE OF NORTH CAROLINA
No. 02 CRS 213637
DONNIE RAY WINSTON
Appeal by defendant from judgment entered 10 December 2002 by
Judge James E. Lanning in Mecklenburg County Superior Court. Heard
in the Court of Appeals 11 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
James C. Holloway, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Julie Ramseur Lewis, for defendant-appellant.
Donnie Ray Winston (defendant) appeals from judgment entered
after a jury found him to be guilty of trafficking in cocaine by
transportation and trafficking in cocaine by possession. We find
In March 2002, as defendant walked toward his home, Dave
drove by defendant and stopped his car. Defendant had known Dave
for ten years, but had not seen him in eight or nine years.
Defendant entered Dave's car and rode with him toward defendant's
house. While in transit, Dave asked defendant if he wanted to
travel to Jamaica and offered to pay for one-half of the cost of
his ticket. A few days later, Dave drove defendant to an U.S.Airways' ticket office. Dave paid $300.00 toward defendant's
$615.00 airplane ticket. Dave also supplied defendant with
On 15 March 2002, Dave drove defendant to the airport to
travel to Montego Bay, Jamaica. Dave gave defendant $400.00 and
told him to meet a man named, Andre, at the airport upon arrival.
Dave described Andre to defendant.
Defendant arrived in Jamaica and two men, Andre and Bodou,
met defendant at the airport. Andre and Bodou asked defendant if
he was Dave's boy. Andre paid for defendant to stay in a cottage
in Jamaica. Defendant, Andre, and Bodou consumed alcohol and
smoked marijuana. Defendant admitted Andre and Bodou possessed
marijuana in pound quantities.
On 27 March 2002, Andre and Bodou drove defendant to the
airport to return to North Carolina. While in transit to the
airport, the men stopped at a residence. Bodou got a shopping bag
out of a vehicle parked at the residence. He told defendant it was
coffee for Dave and packed the bag inside defendant's luggage.
Defendant boarded an airplane bound for Charlotte.
Defendant arrived at Charlotte-Douglas International Airport
and waited to collect his luggage from the baggage carousel.
United States Customs Senior Inspector Dennis Knapp (Inspector
Knapp) observed and described defendant as somewhat confused and
kind of apprehensive. Defendant collected his luggage and
approached the United States Customs' checkpoint. Inspector Knapp
referred defendant to a secondary inspection checkpoint. Thisreferral was based upon Inspector Knapp's knowledge of the United
States Customs' travel records which showed: (1) defendant's
ticket was purchased three days in advance of travel; (2) the
tickets were paid for in cash; and (3) defendant had no previous
foreign travel. Inspector Knapp asked defendant routine questions
about his luggage. Defendant told Inspector Knapp that the luggage
belonged to him and that he had packed a couple of items given to
him in Jamaica.
Inspector Knapp opened defendant's luggage and noticed a
distinct smell of bleach. Defendant's clothes were damp.
Defendant explained he had washed them prior to leaving Jamaica,
but had not had time for them to dry. Inspector Knapp was
concerned the bleach odor was being used to mask the smell of
cocaine and further inspected the luggage.
Inspector Knapp found minimal amounts of marijuana residue in
the luggage. Inspector Knapp also found two coffee bags in
defendant's luggage which were vacuum sealed in metallic type
bags and enclosed by burlap bags and sealed with cardboard labels
at the opening. Inspector Knapp x-rayed these bags and discovered
a secondary object located inside each bag. Inspector Knapp opened
each bag with a knife and found a plastic liner located inside
containing a white substance he believed to be powder cocaine.
Inspector Knapp contacted United States Customs Inspector
Thomas George Shedd, who performed field tests on the substances
which tested positive for cocaine. The combined substances weighed
slightly over 1,000 grams. United States Customs officials placeddefendant in a holding room and handcuffed him to a bench.
Inspector Knapp contacted local law enforcement and Charlotte-
Mecklenburg Police Detective James Beaver (Detective Beaver)
responded. Detective Beaver visited defendant in the holding room.
Defendant waived his Miranda rights and gave a statement confessing
to the facts above. Detective Beaver took possession of the
cocaine and turned over custody of the cocaine to Property Control.
Property Control gave the cocaine to Charlotte-Mecklenburg Police
Department Crime Lab Chemist Tony A. Aldridge, who tested the
substance positively for cocaine and confirmed the cocaine weighed
slightly over 1,000 grams.
Defendant testified to and confirmed the above facts. The
sole discrepancies were: (1) defendant told Detective Beaver that
Dave had paid $300.00 for the ticket, when Dave actually paid the
entire cost of the ticket and (2) Detective Beaver testified
defendant told him he had previously sold cocaine for Dave, when,
in truth, defendant sold cocaine, but not for Dave.
On 8 April 2002, a grand jury indicted defendant on one count
of trafficking cocaine and one count of possession of cocaine. On
10 December 2002, a jury found defendant to be guilty of one count
of trafficking in cocaine by transportation and one count of
trafficking in cocaine by possession. The trial court sentenced
defendant to two concurrent terms of a minimum of 175 months to a
maximum of 219 months. On 29 July 2004, this Court allowed
defendant's petition for writ of certiorari.
Defendant argues the trial court erred by: (1) denying his
motion to dismiss both charges; (2) allowing Detective Beaver to
testify regarding defendant's statement that he had sold cocaine
for Dave; and (3) instructing the jury, over his objection, on
North Carolina Pattern Jury Instructions 105.21 on false,
contradictory, or conflicting statements of a defendant. Defendant
also argues he was denied effective assistance of counsel under the
Sixth and Fourteenth Amendments.
III. Motion to Dismiss
Defendant contends the trial court erred in denying his motion
to dismiss both charges where the evidence presented at trial was
insufficient for a rational trier of fact to find each and every
element of the crimes charged beyond a reasonable doubt.
A. Standard of Review
The standard for ruling on a motion to dismiss
is whether there is substantial evidence (1)
of each essential element of the offense
charged and (2) that defendant is the
perpetrator of the offense. Substantial
evidence is relevant evidence which a
reasonable mind might accept as adequate to
support a conclusion. In ruling on a motion
to dismiss, the trial court must consider all
of the evidence in the light most favorable to
the State, and the State is entitled to all
reasonable inferences which may be drawn from
the evidence. Any contradictions or
discrepancies arising from the evidence are
properly left for the jury to resolve and do
not warrant dismissal.
State v. Wood, ___ N.C. App. ___, ___, 622 S.E.2d 120, 123 (2005)
(internal quotations omitted).
Defendant was charged with: (1) possession of drugs under
N.C. Gen. Stat. § 90-95(h) and (2) feloniously transporting drugs
under N.C. Gen. Stat. § 90-95(h). N.C. Gen. Stat. § 90-95(h)(3)(c)
(h) Notwithstanding any other provision of
law, the following provisions apply except as
otherwise provided in this Article.
. . . .
(3) Any 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 and if the quantity of such substance
or mixture involved:
. . . .
c. Is 400 grams or more, such person shall be
punished as a Class D felon and shall be
sentenced to a minimum term of 175 months and
a maximum term of 219 months in the State's
prison and shall be fined at least two hundred
fifty thousand dollars ($250,000).
It is now well-established that convictions for the separate
offenses of transporting and possessing a controlled substance are
consistent with the intent of the legislature and do not violate
the constitutional prohibition against double jeopardy. State v.
, 90 N.C. App. 277, 285, 368 S.E.2d 424, 430 (1988), rev'd on
, 324 N.C. 190, 376 S.E.2d 745 (1989). To convict
defendant of [possession of a controlled substance and transporting
the controlled substance], the State [is] required to prove that
defendant knowingly possessed and transported the [controlledsubstance] . . . . Bogle
, 324 N.C. at 193, 346 S.E.2d at 746-47;
see State v. Weldon
, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985).
Defendant argues he did not knowingly possess and transport
cocaine. We disagree. Felonious possession of a controlled
substance has two essential elements. Weldon, 314 N.C. at 403,
333 S.E.2d at 702 (internal quotations and citations omitted).
The substance must be possessed, and the substance must be
'knowingly' possessed. State v. Rogers, 32 N.C. App. 274, 278,
231 S.E.2d 919, 922 (1977). An accused's possession of narcotics
may be actual or constructive. He has possession of the contraband
material . . . when he has both the power and intent to control its
disposition or use. State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d
706, 714 (1972). 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. State v. Davis,
20 N.C. App. 191, 192, 201 S.E.2d 61, 62 (1973), cert. denied, 284
N.C. 618, 202 S.E.2d 274 (1974). 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. Harvey, 281 N.C. at 12, 187 S.E.2d at
Sufficient evidence tended to show defendant had knowledge or
a reason to know he possessed and transported a controlled
substance. The State presented evidence, and defendant admitted: (1) he had not seen Dave for eight or nine years; (2) he had
previously sold cocaine for Dave; (3) Dave bought him an airplane
ticket and drove him to the airport; (4) Dave told him to meet
Andre, whom he had never met, at the Jamaica airport; (5) Andre and
Dave paid for his living expenses during his visit in Jamaica; (6)
Andre and Bodou possessed marijuana in pound quantities, and Andre,
Bodou, and he smoked marijuana together while in Jamaica; (7) in
transit to the airport in Jamaica, Bodou retrieved a package from
the trunk of a parked car and placed the package in defendant's
suitcase and told him to give the package to Dave; and (8) the
cocaine was found in defendant's luggage after his arrival in
Viewed in the light most favorable to the State, sufficient
evidence tends to show defendant possessed and had knowledge of his
possession of a controlled substance. The trial court did not err
in denying defendant's motion to dismiss both charges. This
assignment of error is overruled.
IV. Detective Beaver's Testimony
Defendant contends the trial court erred in allowing Detective
Beaver to testify regarding defendant's statement that he had
previously sold cocaine for Dave where this testimony was
inadmissible under Rule 403 and Rule 404 of the North Carolina
Rules of Evidence and defendant was highly prejudiced by the
admission of their testimony.
A. Standard of Review
Defendant failed to object to Detective Beaver's testimony.
Our review is limited to plain error. N.C.R. App. P. 10(b)(2)
(2006); State v. Allen, 339 N.C. 545, 554-56, 453 S.E.2d 150, 154-
55 (1995). Plain 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.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(internal quotations omitted). To be awarded a new trial due to
plain error, a defendant must show the error complained of was so
fundamental that a different result would have probably occurred
without the error. State v. Parker, 350 N.C. 411, 444, 516 S.E.2d
106, 127 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) states:
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.
Evidence of prior crimes, wrongs, or acts by a defendant is
inadmissible on the issue of guilt if its only relevancy is toshow the character of the accused or his disposition to commit an
offense of the nature of the one charged[.] State v. Young, 317
N.C. 396, 412, 346 S.E.2d 626, 635 (1986).
[E]vidence of other offenses is admissible so long as it is
relevant to any fact or issue other than the character of the
accused. State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793
(1986). Relevant evidence means 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). 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),
cert. denied, ___ N.C. ___, 421 S.E.2d 360 (1992).
During the State's direct examination of Detective Beaver, the
following colloquy occurred:
Prosecutor: Did [defendant] tell you anything
else about the occasion?
Beaver: Not about the actual trip that I
recall. He gave me some other information
Prosecutor: And what was that?
Beaver: Like originally I stated earlier he
said he had known Dave for approximately ten
years; he hadn't seen him in eight or nine
years before running into him on the street.
He said that back when he knew Dave headmitted he used to sell cocaine, [defendant].
[Defendant] admitted that he sold cocaine for
Dave. It was approximately a six-month period
of time and he got arrested in Raleigh for
selling cocaine to an undercover officer, at
which point he told me he stopped.
Prosecutor: Is there anything else that he
Beaver: He told me he never used cocaine.
Prosecutor: But he did admit to selling it for
Dave in the past.
Beaver: Yes, sir.
Detective Beaver's testimony that defendant admitted he had
previously sold cocaine for Dave is probative of defendant's
knowledge that Dave paid for and arranged defendant's trip to
Jamaica for the purpose of defendant possessing and transporting a
controlled substance. Detective Beaver's testimony is also
probative of defendant's knowledge that he transported a controlled
substance in his luggage. Presuming error, under plain error
review, defendant failed to show the error complained of was so
fundamental that a different result would have probably occurred
without the alleged error. This assignment of error is overruled.
V. Pattern Jury Instructions
Defendant contends the trial court erred in instructing the
jury, over defendant's objection, on North Carolina Pattern Jury
Instructions 105.21 for false, contradictory, or conflicting
statements of defendant. Defendant argues such instruction was not
supported by the evidence at trial and defendant was highly
prejudiced by the instruction.
A. Standard of Review
The standard of review for jury instructions is well-
This Court reviews jury instructions
contextually and in its entirety. The charge
will be held to be sufficient if it presents
the law of the case in such manner as to leave
no reasonable cause to believe the jury was
misled or misinformed[.] . . . Under such a
standard of review, it is not enough for the
appealing party to show that error occurred in
the jury instructions; rather, it must be
demonstrated that such error was likely, in
light of the entire charge, to mislead the
State v. Blizzard, 169 N.C. App. 285, 296-97, 610 S.E.2d 245, 253
(2005) (quotations omitted).
Pattern Jury Instruction Crim. 105.21 for False,
Contradictory, or Conflicting Statements of Defendant states:
Note Well: This instruction is ONLY proper
where the defendant's statements and/or trial
testimony is contradictory to highly relevant
facts proven at trial. HOWEVER, this
instruction should NOT be used if the
statements are completely irrelevant and
without substantial probative force in tending
to show a consciousness of guilt.
. . . .
The State contends (and the defendant denies)
that the defendant made false, contradictory,
or conflicting statements. If you find that
the defendant made such statements, they may
be considered by you as a circumstance tending
to reflect the mental process of a person
possessed of a guilty conscience, seeking to
divert suspicion or to exculpate himself, and
you should consider that evidence, along with
all the other believable evidence in this
case. However, if you find that the defendant
made such statements, they do not create a
presumption of guilt, and such evidencestanding alone is not sufficient to establish
guilt . . . .
1 N.C.P.I.--Crim. 105.21 (2005).
In reviewing jury instructions on false or misleading
statements, our Supreme Court has stated:
[i]t is established by our decisions that
false, contradictory or conflicting statements
made by an accused concerning the commission
of a crime may be considered as a circumstance
tending to reflect the mental processes of a
person possessed of a guilty conscience
seeking to divert suspicion and to exculpate
State v. Myers, 309 N.C. 78, 86, 305 S.E.2d 506, 511 (1983) (citing
State v. Redfern, 246 N.C. 293, 297-98, 98 S.E.2d 322, 326 (1957)).
The probative force of such evidence is that it tends to show
consciousness of guilt. Redfern, 246 N.C. at 297-98, 98 S.E.2d at
326. The instruction is proper not only where a defendant's
statements contradict each other, but also where a defendant's
statements flatly contradict the relevant evidence. State v.
Walker, 332 N.C. 520, 537-38, 422 S.E.2d 716, 722 (1992), cert.
denied, 508 U.S. 919, 124 L. Ed. 2d 271 (1993) (jury instruction
properly given because contradictory evidence that the defendant
embraced the victim after shooting her when there was no evidence
of blood on his clothes); see Myers, 309 N.C. at 88, 305 S.E.2d at
512 (jury instruction erroneously given because contradictory
evidence that the defendant had a dentist appointment the morning
the victim was killed when the defendant's dentist testified he was
not at an appointment).
The trial court gave the following instruction: The State contends that the defendant made
false, contradictory or conflicting
statements. If you find that the defendant
made these statements, they may be considered
by you as a circumstance tending to reflect
the mental process of a person possessed of a
guilty conscience seeking to divert suspicion
or to exculpate themselves. You should
consider that evidence along with other
believable evidence in this case.
However, if you find that the defendant
made such statements, they do not create a
presumption of guilt, and such evidence
standing alone is not sufficient to establish
The trial court gave the instruction because contradictory evidence
was presented that: (1) defendant told Detective Beaver he never
smoked crack cocaine, then changed his statement and testified he
had smoked crack cocaine, but not often and (2) defendant told
Detective Beaver that he had paid for one-half of the cost of the
airplane ticket, then changed his statement and testified Dave paid
the entire cost of the airplane ticket.
Defendant's contradictory statements were relevant because
they tended to show defendant knew Dave sold cocaine. The
statements were relevant to show Dave's motive for paying for
defendant's trip to Jamaica and defendant's knowledge of his
possession of cocaine.
The substantial probative force of the inconsistencies tended
to show defendant's consciousness of guilt. Defendant's statements
contradict earlier statements he had told Detective Beaver the day
he was arrested as compared with defendant's testimony at trial.
The trial court did not err by giving this instruction on false,contradictory, or conflicting statements by defendant. This
assignment of error is overruled.
VI. Effective Assistance of Counsel
Defendant asserts he was denied effective assistance of
counsel under the Sixth and Fourteenth Amendments to the United
States Constitution and under Article I, Section 19 and Section 23
of the North Carolina Constitution because defense counsel failed
to object to Detective Beaver's testimony that defendant admitted
he had sold cocaine for Dave in the past. Defendant argues this
testimony was inadmissible and he was highly prejudiced.
The test for determining whether a defendant in a criminal
case has received effective assistance of counsel is set forth in
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984),
and the test is the same under both the Federal and State
Constitutions. State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d
241, 248 (1985). When a defendant attacks his conviction on the
basis that counsel was ineffective, he must show that his counsel's
conduct fell below an objective standard of reasonableness. Id.
(citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674
(1984)). To establish that there was ineffective assistance of
counsel, a defendant must meet the two-prong test of Strickland:
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 that
counsel's errors were so serious as to deprivethe defendant of a fair trial, a trial whose
result is reliable.
State v. Lewis, 321 N.C. 42, 48-49, 361 S.E.2d 728, 732 (1987).
The burden of showing ineffective assistance of counsel is on the
defendant. State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d
719, 721 (1985).
Defense counsel failed to object to Detective Beaver's
testimony that defendant stated he had sold cocaine for Dave. As
discussed above, Detective Beaver's testimony is admissible under
Rule 404(b) because it is probative of defendant's knowledge,
motive, or plan. Defendant failed to show there would probably
have been a different result at trial, but for defense counsel's
failure to object. See Braswell, 312 N.C. at 563, 324 S.E.2d at
248 (The fact that counsel made an error, even 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.). Presuming
defense counsel erred by his failure to object, defendant has
failed to show his counsel's errors were so serious as to deprive
defendant of a fair trial, a trial whose result is reliable.
Lewis, 321 N.C. at 49, 361 S.E.2d at 732. Defendant failed to meet
his burden of proving ineffective assistance of counsel. This
assignment of error is overruled.
The trial court did not err in denying defendant's motion to
dismiss both charges. Sufficient evidence tended to show defendant
possessed and had knowledge he possessed and transported acontrolled substance. Defendant failed to show plain error
resulted from Detective Beaver's testimony that defendant had
previously sold cocaine for Dave. The trial court's jury
instruction on defendant's false, contradictory, or conflicting
statements was proper. Defendant failed to prove ineffective
assistance of counsel when defense counsel failed to object to
Detective Beaver's testimony that defendant said he sold cocaine
for Dave. Defendant received a fair trial, free from prejudicial
errors he preserved, assigned, and argued.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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