Appeal by Defendant from judgments dated 27 September 2005 by
Judge Ronald K. Payne in Superior Court, McDowell County. Heard in
the Court of Appeals 10 April 2007.
Attorney General Roy Cooper, by Special Counsel to Attorney
General Jay J. Chaudhuri, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for
Christopher Boyce Loftis (Defendant) was indicted on 17 May
2005 on charges of trafficking in more than 400 grams of
methamphetamine by possession; trafficking in more than 400 grams
of methamphetamine by manufacture; possession of a precursor
chemical, pseudoephedrine, with intent to manufacture
methamphetamine; possession of a precursor chemical, iodine, with
intent to manufacture methamphetamine; and possession of a
precursor chemical, red phosphorus, with intent to manufacture
At trial, the State presented evidence that shortly before
midnight on 3 April 2004, Max Boyd (Mr. Boyd) noticed that a light
was on in a shed on his property. The shed was located near a
house where Mr. Boyd's daughter, Elizabeth Boyd Brinkley (Ms.
Brinkley) lived. The house was owned by Mr. Boyd. When Mr. Boyd
saw movement in the shed, he tried to open the door, but the door
was locked from the inside with a chain. Mr. Boyd yelled for the
person inside the shed to open the door. A person opened the doorand stepped out and Mr. Boyd recognized that person as Defendant.
Mr. Boyd told Defendant to leave, and Defendant left. Mr. Boyd
then looked inside the shed and saw objects that "looked like
something that wasn't supposed to be in there" and immediately used
his cell phone to contact law enforcement. Mr. Boyd further
testified that on previous occasions he had seen Defendant on his
property when Defendant visited one of Mr. Boyd's tenants.
Lieutenant Jackie Turner, Jr. (Lieutenant Turner) of the
McDowell County Sheriff's Office testified that he responded to a
call at Mr. Boyd's property late on the evening of 3 April 2004.
Lieutenant Turner stated that he met with Mr. Boyd, who showed him
the shed on his property. Lieutenant Turner looked inside the shed
and saw what he believed to be a methamphetamine lab. Lieutenant
Turner then developed a log to ensure that an officer remained by
the site until agents arrived from the North Carolina State Bureau
of Investigation (SBI).
SBI agents searched the shed at approximately noon on 5 April
2004. The agents found many items commonly used in the manufacture
of methamphetamine, including iodine, pseudoephedrine, and red
phosphorus. They also found two bottles containing a total of
2,090 grams of liquid later determined to contain methamphetamine.
The agents also discovered a jar containing an unknown liquid on a
heater that was still warm to the touch, and other materials
commonly used in the manufacturing of methamphetamine.
Shannon Smith, a narcotics investigator for the McDowell
County Sheriff's Office (Officer Smith), testified that she did notconduct a fingerprint examination of the shed because it was
difficult to obtain fingerprints from some of the materials.
Officer Smith admitted that she could have requested the SBI to
perform a fingerprint examination of the shed and its contents, but
did not do so. Officer Smith had previously investigated Mr.
Boyd's property, and she believed Mr. Boyd's daughter, Ms.
Brinkley, to be a suspect, though Ms. Brinkley was not charged.
Officer Smith further testified as follows:
Q. After the crime scene was processed on the
5th, what was your next involvement with this
A. Next involvement was, I guess, probably
several months later. I was contacted by one
of the deputies there, they had [Defendant] in
custody. And I came back to the Sheriff's
Office in an attempt to do an interview.
Q. And did you read [Defendant] his rights?
A. Yes, I did.
Q. And did [Defendant] indicate to you that
he understood each of those rights?
A. Yes, he did.
Q. And did [Defendant] make any further
statements at that point?
A. No, he did not want to make any
Q. Did you have any other involvement with
the case at that point?
A. No, sir.
Officer Smith identified a letter found inside the shed. The
envelope was addressed to Defendant at 6276 Buck Creek Road inMarion, North Carolina; not to Mr. Boyd's address, nor to the
address where Defendant was arrested. The envelope was postmarked
20 January 2004 and contained a 2003 tax document of Defendant's
from the Employment Security Commission.
At the close of the State's evidence, Defendant moved to
dismiss all charges, and the trial court denied the motion.
Defendant did not present evidence and again moved to dismiss the
charges. The trial court again denied Defendant's motion. The
jury found Defendant guilty of all charges. The trial court
sentenced Defendant to a term of 225 months to 279 months in prison
on the two trafficking charges. The trial court suspended the
sentences on the remaining charges and sentenced Defendant to
thirty-six months of supervised probation to begin at the
expiration of Defendant's prison sentence. Defendant appeals.
 Defendant argues the trial court committed plain error by
allowing Officer Smith to testify that after she read Defendant his
rights, Defendant "did not want to make any statements."
Defendant argues the evidence that Defendant invoked his
constitutional right to remain silent constituted plain error
because it had a probable impact on the jury's finding of guilt.
In a criminal proceeding, appellate review of questions not
objected to at trial is limited to plain error. N.C.R. App. P.
10(c)(4). In evaluating whether or not "an error by the trial
court amounts to 'plain error,' the appellate court must beconvinced that absent the error the jury probably would have
reached a different verdict." State v. Walker
, 316 N.C. 33, 39,
340 S.E.2d 80, 83 (1986) (citing State v. Odom
, 307 N.C. 655, 661,
300 S.E.2d 375, 378-79 (1983)).
"We have consistently held that the State may not introduce
evidence that a defendant exercised his fifth amendment right to
remain silent." State v. Ladd
, 308 N.C. 272, 283, 302 S.E.2d 164,
171 (1983). However, even assuming arguendo
that the admission of
this testimony was error in the present case, we hold that it did
not amount to plain error.
In support of his argument that the admission of this evidence
amounted to plain error, Defendant cites State v. Hoyle
, 325 N.C.
232, 382 S.E.2d 752 (1989), and State v. Castor
, 285 N.C. 286, 204
S.E.2d 848 (1974). However, these cases are distinguishable.
, police advised the defendant of his Miranda
and the defendant answered some of their questions. Hoyle
N.C. at 234, 382 S.E.2d at 753. However, when police asked the
defendant what occurred when the victim followed the defendant back
to the defendant's truck, the defendant invoked his constitutional
right not to answer. Id.
At trial, the defendant testified that
after the victim followed him back to the defendant's truck, the
victim attacked him, and after a struggle for a gun, the gun
discharged, killing the victim. Id.
The State attempted to
impeach this theory by making three references to the defendant's
post-arrest silence. Id.
at 235-36, 382 S.E.2d at 753-54. The
State first referenced the defendant's post-arrest silence duringdirect examination of a police detective; the State next referenced
the defendant's post-arrest silence during cross-examination of the
defendant; and the State also referenced the defendant's silence
during its closing argument. Id.
The defendant timely objected to
the State's questions at trial. Id.
The Court recognized that because there was no eyewitness to
the shooting other than the defendant, the defendant's defense
"depended on the jury's acceptance of his version of the event."
at 237, 382 S.E.2d at 754. Therefore, the Court held that the
State could not demonstrate that it was harmless error to allow the
State to attack the defendant's version of events by improper
evidence, which the State reinforced by jury argument. Id.
In the present case, unlike in Hoyle
, the State made only one
brief reference to Defendant's post-arrest silence. Furthermore,
the State did not reinforce this improper evidence in its closing
argument. Moreover, the reference to Defendant's post-arrest
silence was not a direct attack on Defendant's version of events,
as was the case in Hoyle
; it was merely a passing reference that
was likely disregarded by the jury.
Defendant also cites Castor
in his argument that the admission
of Officer Smith's testimony constituted plain error. In Castor
an SBI agent testified over the defendant's objection that a
witness made a statement in the defendant's presence, accusing the
defendant of the crime charged, and the defendant did not deny or
object to the statement. Castor
, 285 N.C. at 289, 204 S.E.2d at
851. A jury instruction also allowed the jury to "consider thedefendant's silence together with all other facts and circumstances
in this case in determining the defendant's guilt or innocence."
the Court held that the erroneous admission of this
testimony was prejudicial, noting that if true, the statements
"were sufficient to establish that [the] defendant was the person
who committed the crime charged in the indictment." Id.
204 S.E.2d at 853. The Court further recognized that "[i]f
considered an admission of the truthfulness of these statements,
[the] defendant's silence would be the equivalent of a confession
of guilt." Id.
"Under [the] circumstances, it seem[ed] probable
the challenged evidence contributed substantially to the conviction
of [the] defendant." Id.
at 292-93, 204 S.E.2d at 853.
Officer Smith's testimony in the case before us was not of the
same nature as the testimony in Castor
, the defendant
remained silent in the presence of a witness who implicated the
defendant in the crime with which the defendant was charged. Id.
at 289, 204 S.E.2d at 851. Moreover, if the jury had accepted the
defendant's silence as an admission, the defendant's silence would
have been the equivalent of a confession of guilt. Id.
at 292, 204
S.E.2d at 853. In the present case, the State did not offer
evidence that Defendant invoked his right to remain silent in the
face of an accusation. Accordingly, the invocation of Defendant's
right to remain silent could not have been viewed as a confession
of guilt. We further note that in both Hoyle
defendants made timely objections at trial to the improperevidence. Thus, they were not held to the plain error standard of
review. Applying the plain error standard to the present case, we
cannot hold that absent the admission of Officer Smith's testimony,
"the jury probably would have reached a different verdict."
, 316 N.C. at 39, 340 S.E.2d at 83. This assignment of error
 In his next assignment of error, Defendant argues the
trial court erred by denying his motions to dismiss. Specifically,
Defendant argues the State failed to prove that he had constructive
possession of the methamphetamine or precursor chemicals. We
When a defendant makes a motion to dismiss, "the question for
the Court is whether there is substantial evidence (1) of each
essential element of the offense charged, or of a lesser offense
included therein, and (2) of [the] defendant's being the
perpetrator of such offense. If so, the motion is properly
denied." State v. Powell
, 299 N.C. 95, 98, 261 S.E.2d 114, 117
The evidence is to be considered in the light
most favorable to the State; the State is
entitled to every reasonable intendment and
every reasonable inference to be drawn
therefrom; contradictions and discrepancies
are for the jury to resolve and do not warrant
dismissal; and all of the evidence actually
admitted, whether competent or incompetent,
which is favorable to the State is to be
considered by the court in ruling on the
at 99, 261 S.E.2d at 117. However, "[i]f the evidence issufficient only to raise a suspicion or conjecture as to either the
commission of the offense or the identity of the defendant as the
perpetrator of it, the motion should be allowed." Id.
at 98, 261
S.E.2d at 117.
"[C]onviction of drug trafficking requires proof that the
defendant (1) knowingly (2) possessed or transported a given
controlled substance, and also that (3) the amount transported was
greater than the statutory threshold amount." State v. Shelman
159 N.C. App. 300, 307, 584 S.E.2d 88, 94, disc. review denied
N.C. 581, 589 S.E.2d 363 (2003). To prove that a defendant
possessed contraband materials, the State must prove beyond a
reasonable doubt that the defendant had either actual or
constructive possession of the materials. State v. Perry
, 316 N.C.
87, 96, 340 S.E.2d 450, 456 (1986).
A person has actual possession of a substance
if it is on his person, he is aware of its
presence, and either by himself or together
with others he has the power and intent to
control its disposition or use. Constructive
possession, on the other hand, exists when the
defendant, while not having actual possession,
. . . has the intent and capability to
maintain control and dominion over the
narcotics. When the defendant does not have
exclusive possession of the location where the
drugs were found, the State must make a
showing of other incriminating circumstances
in order to establish constructive possession.
State v. Boyd
, 177 N.C. App. 165, 175, 628 S.E.2d 796, 805 (2006)
(citations and quotations omitted).
In the present case, the State relied on the doctrine of
constructive possession. Defendant argues that he did not have
constructive possession of the methamphetamine or the precursorchemicals. Defendant contends that he was only briefly in the
shed, and that he never had exclusive possession of the shed.
Furthermore, Defendant did not flee when the owner of the shed
approached. Defendant did not own the shed which was located only
fifty feet from the house of the State's primary suspect, Ms.
Brinkley. Lastly, Defendant points out that local law enforcement
officers did not collect any fingerprints from the crime scene.
In the present case, the parties agree that Defendant did not
have exclusive possession of the premises. Without exclusive
possession, the State had to prove the presence of other
incriminating circumstances for constructive possession to be
inferred. See Boyd
, 177 N.C. App. at 175, 628 S.E.2d at 805. We
hold that the State sufficiently proved other incriminating
circumstances to establish that Defendant had constructive
possession of methamphetamine and precursor chemicals.
The State presented evidence that Mr. Boyd found Defendant
alone in the shed where the methamphetamine and precursor chemicals
used in the manufacture of methamphetamine were located, with the
door locked from the inside. Defendant left the premises only
after being confronted by Mr. Boyd, the owner of the shed. Mr.
Boyd testified that he recognized Defendant as a frequent visitor
of a former tenant. The State's evidence also showed that SBI
agents found the following materials in the shed: two bottles
containing a total of 2,090 grams of liquid later determined to
contain methamphetamine, along with iodine, pseudoephedrine, red
phosphorus, and other materials commonly used in the manufacturingof methamphetamine. Investigators also found a jar of unknown
liquid sitting on a heater that was on and warm to the touch.
Moreover, investigators found in the shed an envelope addressed to
Defendant that contained a 2003 tax document of Defendant's from
the Employment Security Commission. Viewed in the light most
favorable to the State, this is sufficient evidence of other
incriminating circumstances necessary for inferring that Defendant
had constructive possession of the methamphetamine and precursor
Defendant cites State v. Alcolatse
, 158 N.C. App. 485, 581
S.E.2d 807 (2003), State v. McLaurin
, 320 N.C. 143, 357 S.E.2d 636
(1987), and State v. Chavis
, 270 N.C. 306, 154 S.E.2d 340 (1967),
in support of his argument that the State did not prove he had
constructive possession of the materials. However, these cases are
, this Court reversed the defendant's convictions
for possession with intent to sell and deliver cocaine and
trafficking in cocaine by possession because the State failed to
prove sufficient incriminating circumstances so as to create an
inference of constructive possession. Acolatse
, 158 N.C. App. at
490-91, 581 S.E.2d at 811. In Acolatse
, the defendant, who had been
driving with a revoked license, fled on foot from police officers
when they approached. Id.
at 486, 581 S.E.2d at 808-09. During the
chase, a detective saw the defendant make a throwing motion towards
some nearby bushes. Id.
at 487, 581 S.E.2d at 809. The detectives
found five bags of cocaine on the roof of a nearby detached garage,which was not located near the bushes. Id.
The defendant did not
reside in, or own, the property where the cocaine was found. Id.
The defendant had $830.00 on his person. Id.
This Court held the
above evidence to be insufficient to establish the other
incriminating circumstances necessary to establish an inference of
constructive possession. Id.
at 490, 581 S.E.2d at 811.
differs from the instant case. None of the evidence
directly connected the defendant to the specific
location where the cocaine was found. In contrast, in the present
case, Defendant was found inside the locked shed with the
methamphetamine and precursor chemicals. Furthermore, a jar of
unknown liquid was on a heater that was still warm to the touch.
Finally, a letter was found in the shed that was addressed to
Defendant and that contained confidential tax information. This
evidence showed other incriminating circumstances necessary to infer
, the defendant was convicted of possession of drug
paraphernalia that police found during a search of the defendant's
, 320 N.C. at 144-45, 357 S.E.2d at 637. Our
Supreme Court held that the evidence indicating the defendant's
control over the premises was "patently nonexclusive[.]" Id.
146, 357 S.E.2d at 638. The Court based this holding on the fact
that two other parties had been seen entering and leaving the
premises that day. Id.
Also, children's clothing and adult male
clothing had been found in the closets and bureaus, indicating the
defendant did not reside there alone. Id.
The Court held thisevidence to be insufficient to establish the other incriminating
circumstances necessary to prove constructive possession. Id.
147, 357 S.E.2d at 638-39.
differs from the present case in that the State's
evidence indicated that Defendant was the only person seen in the
shed, and no one else entered the shed after the arrival of police.
Unlike in McLaurin
, Defendant was the only person seen entering and
leaving the shed that evening, and there was no evidence that anyone
else's belongings were found inside the shed.
, police saw the defendant wearing a hat. Chavis
N.C. at 307, 154 S.E.2d at 341. The defendant and his companion
were later stopped by police, and the defendant was no longer
wearing a hat, nor were any drugs found on the defendant. Id.
308, 154 S.E.2d at 342. Police later returned to the area where the
defendant had been stopped, and they found the hat the defendant had
originally been seen wearing. Id.
Eleven envelopes were found
inside the hat containing a total of 27.01 grams of marijuana. Id.
Our Supreme Court held that although "the evidence raise[d] a strong
suspicion as to [the] defendant's guilt," it "[fell] short of being
sufficient to support a finding that the marijuana found by the
officers in and on a hat in the high grass was in the possession of
[the] defendant when he was first observed and followed by the
at 311, 154 S.E.2d at 344.
is distinguishable. In Chavis
, another person was in
close enough proximity to the defendant that the evidence did not
rule out the possibility that the marijuana belonged to a thirdparty. Id.
at 310, 154 S.E.2d at 344. In the present case, there
was no other person in the shed with Defendant. Defendant was found
alone in the shed with the methamphetamine and precursor chemicals.
For the above reasons, we hold that the State produced
sufficient evidence of other incriminating circumstances to
establish Defendant's constructive possession of the methamphetamine
and precursor chemicals. We hold the trial court did not err by
denying Defendant's motions to dismiss.
 Defendant next argues the trial court erred by excluding
evidence of law enforcement's suspicions of the involvement of
another person, and evidence of Defendant's address at the time of
his arrest. We disagree.
Defendant argues that excluding evidence of Ms. Brinkley's
prior use of methamphetamine and her prior violation of probation
violated Defendant's constitutional right to present a defense.
However, N.C.R. App. P. 10(b)(1) provides that "[i]n order to
preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion,
stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the
context." "This Court will not consider arguments based upon
matters not presented to or adjudicated by the trial tribunal."
State v. Eason
, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991). "It
is well settled that an error, even one of constitutional magnitude,that [a] defendant does not bring to the trial court's attention is
waived and will not be considered on appeal." State v. Wiley
N.C. 592, 615, 565 S.E.2d 22, 39 (2002), cert. denied
, Wiley v.
, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003).
At trial, Defendant did not argue that exclusion of this
evidence violated his constitutional right to present a defense.
Thus, this constitutional argument was not properly preserved at
trial and is not properly before us.
Nevertheless, even had this assignment of error been properly
preserved, the trial court did not err by excluding the evidence.
"Few rights are more fundamental than that of an accused to present
witnesses in his own defense." Chambers v. Mississippi
, 410 U.S.
284, 302, 35 L. Ed. 2d 297, 312 (1973). "Just as an accused has the
right to confront the prosecution's witnesses for the purpose of
challenging their testimony, he has the right to present his own
witnesses to establish a defense." Washington v. Texas
, 388 U.S.
14, 19, 18 L. Ed. 2d 1019, 1023 (1967).
"'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). "Although a trial court's rulings on relevancy are not
discretionary and we do not review them for an abuse of discretion,
we give them great deference on appeal." State v. Grant
, 178 N.C.
App. 565, 573, 632 S.E.2d 258, 265 (2006), disc. review denied
N.C. 223, 642 S.E.2d 712 (2007). "'The admissibility of evidence of the guilt of one other than
the defendant is governed now by the general principle of relevancy
[stated in Rule 401.]'" State v. Israel
, 353 N.C. 211, 217, 539
S.E.2d 633, 637 (2000) (quoting State v. Cotton
, 318 N.C. 663, 667,
351 S.E.2d 277, 280 (1987)).
"Evidence that another committed the crime for
which the defendant is charged generally is
relevant and admissible as long as it does more
than create an inference or conjecture in this
regard. It must point directly to the guilt of
the other party. Under Rule 401 such evidence
must tend both
to implicate another and
inconsistent with the guilt of the defendant."
, 318 N.C. at 667, 351 S.E.2d at 279-80).
At trial, Defendant attempted to introduce evidence of Ms.
Brinkley's prior use of methamphetamine and of a probation
violation, but the trial court excluded this evidence. Defendant
cites Holmes v. South Carolina
, 547 U.S. 319, 164 L. Ed. 2d 503
(2006), in support of his argument that it was error to exclude the
aforementioned evidence. However, Holmes
, the state trial and appellate courts had excluded
evidence offered by the defendant indicating a third person
committed the crimes. Id
. at ___, 164 L. Ed. 2d at 508. The state
courts had excluded the evidence based on a rule that "'where there
is strong evidence of [a defendant's] guilt, especially where there
is strong forensic evidence, the proffered evidence about a third
party's alleged guilt [did] not raise a reasonable inference as to
the [defendant's] own innocence.'" Id.
at __, 164 L. Ed. 2d at 508
(citation omitted). The United States Supreme Court reversed this
conviction, holding that the state court rule was "'arbitrary' inthe sense that it [did] not rationally serve the end that the
rule and other similar third-party guilt rules were designed
to further." Id.
at __, 164 L. Ed. 2d at 513.
Unlike in Holmes
, evidence of Ms. Brinkley's past involvement
with methamphetamine was not inconsistent with Defendant's guilt and
did not exculpate him in any way. Evidence of Ms. Brinkley's
involvement did not disprove any of the evidence against Defendant.
The weight of the evidence indicating that Defendant had
constructive possession of the shed and its contents is in no way
diminished by evidence of Ms. Brinkley's own involvement with
The North Carolina rule is not "arbitrary" as South Carolina's
rule in Holmes
was held to be. As the Court acknowledged in Holmes
proferred evidence "'may be excluded where it does not sufficiently
connect the other person to the crime, as, for example, where the
evidence is speculative or remote, or does not tend to prove or
disprove a material fact in issue at the defendant's trial.'"
, 547 U.S. at ___, 164 L. Ed. 2d at 510-11 (quoting 40A Am.
Jur. 2d, Homicide § 286, pp. 136-38 (1999)).
Furthermore, in the present case, the evidence of Ms.
Brinkley's probation violation had not yet been adjudicated at the
time of Defendant's trial. As such, it was merely an allegation of
her involvement with methamphetamine, and was not conclusive.
Moreover, as we have already determined, the excluded evidence
relating to Ms. Brinkley's prior involvement with methamphetamine
was not inconsistent with Defendant's guilt. Therefore, we hold thetrial court did not err by excluding this evidence.
Defendant also argues that it was error for the trial court to
exclude evidence that he was arrested at 11 Locust Cove Road, a
different address than appeared on the envelope introduced by the
State. The trial court noted that evidence that the address on the
envelope differed from Defendant's address at the time of his arrest
only proved Defendant had moved between January 2004 and April 2004.
We hold the trial court did not err by excluding this evidence as
 Defendant also argues that to the extent we determine the
trial court did not commit plain error by allowing testimony
regarding Defendant's post-arrest silence, "this matter should be
remanded to the trial court for inquiry into the effectiveness of
[trial] counsel's representation."
"'[Ineffective assistance of counsel] claims brought on direct
review 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.
, 359 N.C. 741, 752, 616 S.E.2d 500, 509 (2005) (quoting
State v. Fair
, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert.
, Fair v. North Carolina
, 535 U.S. 1114, 153 L. Ed. 2d 162
(2002) (citations omitted)). In the present case, we do not have
sufficient information regarding trial counsel's strategy, and we
therefore dismiss this issue without prejudice to Defendant's rightto file a motion for appropriate relief. See Al-Bayyinah
, 359 N.C.
at 753, 616 S.E.2d at 509-10 (holding that "[t]rial counsel's
strategy and the reasons therefor are not readily apparent from the
record, and more information must be developed to determine [the
issue]. Therefore, this issue is dismissed without prejudice to
[the] defendant's right to raise this claim in a post-conviction
motion for appropriate relief.").
Judges ELMORE and STEPHENS concur.
*** Converted from WordPerfect ***