Appeal by Defendants from judgments entered 13 April 2006 by
Judge Cy Anthony Grant, Sr. in Superior Court, Dare County. Heard
in the Court of Appeals 6 June 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Marc Bernstein and Special Deputy Attorney General J.
Allen Jernigan, for the State.
Thomas R. Sallenger for Defendant-Appellant Kenneth James
Wiggins; William D. Spence for Defendant-Appellant Robert
Kenneth James Wiggins (Wiggins) and Robert Alphonso Cartwright
(Cartwright) (collectively Defendants) were arrested on various
drug-related charges after police found cocaine, drug
paraphernalia, and opium derivatives in the vehicle in which they
were riding and in their hotel rooms. Wiggins was convicted of (1)
trafficking in cocaine by possession; (2) trafficking in cocaine by
transportation; (3) possession of cocaine with intent to sell; (4)conspiracy to traffic cocaine by possession; (5) possession of drug
paraphernalia; and (6) trafficking in opium by possession.
Cartwright was convicted of (1) trafficking in cocaine by
possession; (2) trafficking in cocaine by transportation; (3)
possession of cocaine with intent to sell; and (4) conspiracy to
traffic in cocaine by possession. Defendants appeal.
Before pretrial motions on 12 April 2006, Cartwright moved for
a mistrial based upon comments made by a prospective juror during
jury selection. During jury selection, a prospective juror
commented that he knew Cartwright because he had "partied" with
Cartwright. The prospective juror was also asked if he knew
"anyone else within the bar" and the prospective juror indicated he
knew his probation officer and pointed to a probation officer.
Cartwright argued that these comments implied that the prospective
juror was on probation, and that the prospective juror "[hung] out
[and] partie[d] with" Cartwright, and that this implication tainted
the jury. The trial court denied Cartwright's motion.
At trial, Deputy Kevin Duprey (Deputy Duprey), a narcotics
investigator with the Dare County Sheriff's Department, testified
that on 18 October 2004, while training outside of Dare County, he
was contacted by a confidential informant (the informant). The
informant stated that Defendants would be going to a hotel room the
following day "to use and sell drugs." Deputy Duprey stated that
although he had spoken with the informant prior to that day, the
informant had not done any work with the Dare County Sheriff's
Department. The informant had, however, worked with the ChowanCounty Sheriff's Department, and had been "productive" and
Deputy Duprey testified that the informant called him again on
19 October 2004 and stated that Defendants were staying at the
Quality Inn in Kill Devil Hills in Rooms 208 and 209. The
informant described the vehicle Defendants were using as "a red
over black pickup truck." The informant described Wiggins as a
male "in his forties with short brown hair and skinny with some
facial hair." The informant described Cartwright as being "bald
with a goatee." Deputy Duprey testified that after receiving this
information, he contacted a sergeant to act on the information
while Deputy Duprey was out of the county.
Deputy Duprey testified that the informant called him again on
20 October 2004 and stated that Wiggins would be leaving Dare
County to travel to Gates County to pick up cocaine, and he would
then return to the Quality Inn. The informant was unsure as to
whether Cartwright would be accompanying Wiggins. The informant
also stated that Wiggins had a handgun, but he was unsure whether
Wiggins would take the gun with him. The informant again provided
Deputy Duprey with a physical description of both Defendants and a
description of Defendants' vehicle.
Deputy Duprey testified that he returned to Dare County at
approximately 7:30 p.m. on 20 October 2004 and waited in Currituck
to see if a red and black pickup truck would pass him, traveling
toward Dare County. At approximately 11:15 p.m., Deputy Duprey
observed a vehicle that matched the informant's description. Deputy Duprey testified that he observed two males in the vehicle
who matched the informant's description. Deputy Duprey followed
the vehicle from Currituck to the Quality Inn in Dare County.
Deputy Duprey and other law enforcement officers who were waiting
at the Quality Inn surrounded the vehicle. Wiggins was driving and
Cartwright was riding in the passenger seat. The officers informed
Defendants they were being stopped because of information the
officers had received that Defendants were bringing drugs into Dare
County. Deputy Duprey testified that Wiggins stated "he didn't
have anything" and that the officers "could look." Defendants were
separated and Deputy Duprey contacted a canine unit. Deputy Duprey
stated that when he spoke with Defendants separately, each gave a
different account of where they had been.
During this portion of Deputy Duprey's testimony, Defendants
objected to testimony regarding the statements made to Deputy
Duprey by the informant. Outside the presence of the jury,
Cartwright's attorney argued that the statements were hearsay and
requested a limiting instruction to avoid jury confusion. The
State argued that the statements were not hearsay because they were
not offered to prove the truth of the matter asserted, but rather,
were offered to explain the actions of Deputy Duprey. The trial
court agreed the testimony was not hearsay, but agreed to give a
limiting instruction. The trial court asked Cartwright's attorney
to draft the instruction he would like the trial court to give the
jury. The trial court ultimately included that instruction in its
charge to the jury. Deputy Duprey testified that a canine unit was deployed on the
vehicle. The dog was trained to alert officers by scratching
and/or biting at a specific area if the dog smelled a controlled
substance. Deputy Duprey testified that the dog scratched at the
passenger side of the vehicle and at the console area inside the
vehicle. The officers searched the inside of the vehicle. In the
console, the officers found digital scales and a .25 caliber
handgun magazine containing one bullet.
Deputy Duprey testified that he opened the hood of the vehicle
because the hood was a common place for drugs to be hidden. He saw
a plastic bag inside the right side of the fender well. He
described the bag as "very clean[.]" The officers brought the dog
back to the vehicle, and the dog "scratch[ed]" and "pull[ed]" at
the area where the bag was located. Deputy Duprey removed the bag
from the vehicle. He saw a "very clean" shirt inside the bag. He
unrolled the shirt, smelled the odor of cocaine, and saw a bag
containing white powder. Deputy Duprey testified that he then
placed Defendants under arrest.
Deputy Duprey asked Wiggins whether there was any contraband
in his hotel room, and Wiggins stated that there was "some
marijuana and paraphernalia." Cartwright told Deputy Duprey that
his room contained paraphernalia, but no drugs. Both Defendants
consented to a search of their rooms.
According to Deputy Duprey's testimony, Wiggins was staying in
Room 208 of the Quality Inn. When Deputy Duprey entered Room 208,
he found various items that had been converted into devices usedfor smoking drugs, including a pill bottle that had been converted
for use in smoking marijuana, and "a brass-type abrillo pad" used
for smoking crack cocaine. He also found several marijuana smoking
pipes, a bottle of Clear Eyes, a second pill bottle, push rods used
to clean out or pack a pipe, and a spoon containing white powder
and burn marks suggesting that it had been used to liquify cocaine
for injection. Deputy Duprey also recovered some white pills and
some red and white pills in a brown bag in Room 208. In the same
brown bag, Deputy Duprey recovered what he believed to be
marijuana. In a black bag, he found a .25 caliber handgun
containing six bullets. On a table, he found an open box of baking
soda, which he stated could be used to create a base to turn
cocaine into a solid, and a lighter. The State asked Deputy Duprey
whether he was able to determine if another individual was staying
with Wiggins. Deputy Duprey testified that some items in Room 208
could have belonged to another person, but the officers "never
physically saw [another] person inside that room."
Deputy Duprey testified that he next searched Room 209,
Cartwright's room. Deputy Duprey observed a crack pipe and a
needle. Deputy Duprey testified that he did not seize the items he
saw in Cartwright's room.
Deputy Duprey also testified that the reports received from
the State Bureau of Investigation revealed (1) that the bag found
in the vehicle contained 54.3 grams of cocaine hydrochloride; (2)
that the white pills found in Room 208 were oxycodone and weighed
5.2 grams; and (3) that the white and red pills were a"pharmaceutical preparation containing oxycodone[,]" an opium
derivative, and weighed 3.2 grams. He testified that the amount of
cocaine found in the vehicle was an amount of cocaine that a person
"would possess to sell."
On cross-examination by the attorney for Wiggins, Deputy
Duprey was asked whether an individual named Nicole Ballard was
staying in the hotel room with Wiggins. Deputy Duprey answered:
I have no clue [whether] she was staying in
the room. She was not seen in the room.
There [were] pictures found of her inside the
room but we [didn't] see that she was
actually inside the room.
Deputy Duprey was also asked:
[Attorney for Wiggins]: Investigator Duprey,
do you have any further knowledge of Nicole
Ballard staying in the hotel room with Mr.
[Deputy Duprey]: Except for his statement that
she stayed there. Other than that, I do not.
[Attorney for Wiggins]: She wasn't present at
the hotel during the arrest, is that correct?
[Deputy Duprey]: That's correct.
[Attorney for Wiggins]: But there was some of
her stuff in the hotel room?
. . .
[Deputy Duprey]: There [were] two pictures of
her. There [were] female clothing items in
Major Norman Johnson (Major Johnson), with the Dare County
Sheriff's Department, testified that at the time of Defendants'
arrest, Major Johnson was "the sergeant of narcotics" for the Dare
County Sheriff's Department. Major Johnson testified that he spokewith Deputy Duprey on 19 October 2004. Deputy Duprey asked Major
Johnson to verify the information Deputy Duprey had received from
the informant regarding the red and black pickup truck and the
hotel rooms at the Quality Inn. Major Johnson located the vehicle
in the parking lot of the Quality Inn, obtained the tag number, and
noted some specific stickers on the vehicle. Major Johnson
observed a white female go to Room 208 and knock on the door. He
saw a "skinny" white male with brown hair open the door, have a
short conversation with the female, and close the door. The female
then went to Room 209 and knocked on the door. A "bald" white male
answered the door, but he shut the door very quickly. The female
then knocked again on the door of Room 208, but she received no
answer. She then knocked again on the door of Room 209, but she
received no answer. She waited for a few minutes and then left.
Major Johnson testified that he recognized the woman as a known
drug user and seller. Although Major Johnson could not recall
whether he or Deputy Duprey ran the vehicle's tag, they learned the
vehicle was registered to Wiggins.
Major Johnson testified that he spoke with Deputy Duprey again
on 20 October 2004. Deputy Duprey told Major Johnson that he had
received further information that Defendants would be traveling to
Gates County that day to pick up cocaine. Major Johnson returned
to the Quality Inn and saw that the vehicle was still there. He
returned to the Quality Inn forty-five minutes later and the
vehicle was gone. After determining that the vehicle was not at a
local bar, Major Johnson returned to the Quality Inn to wait forthe vehicle to return. Major Johnson was present for the arrest of
Defendants and the search of their rooms.
Clint Friddle (Friddle), general manager of the Quality Inn,
testified that Cartwright paid for the rental of Rooms 208 and 209.
Friddle testified that both rooms contained two double beds, and
that two adults were registered in Room 208. The State rested its
Defendants moved to dismiss each of the charges against them.
The trial court denied Defendants' motions. Neither Wiggins nor
Cartwright presented any evidence. Cartwright also moved for a
mistrial based upon Deputy Duprey's testimony referencing the
statements made by the informant. Cartwright argued that, pursuant
to N.C. Gen. Stat. § 8C-1, Rule 403, admission of the statements
was "confusing and prejudicial to the jury." The trial court
denied the motion.
I. Joint Issues
Although Defendants filed separate briefs, they bring forward
several identical issues for our review, which we address together.
A. Statements of the informant
 Defendants argue that the trial court improperly admitted
testimony regarding the statements made by the informant to Deputy
Duprey in violation of Defendants' constitutional right to
confrontation under Crawford v. Washington
, 541 U.S. 36, 158 L. Ed.
2d 177 (2004), and under state evidence rules.
, the United States Supreme Court held that
"[w]here testimonial evidence is at issue . . . the Sixth Amendmentdemands what the common law required: unavailability and a prior
opportunity for cross-examination." Id.
at 68, 158 L. Ed. 2d at
203. However, where nontestimonial evidence is at issue, the
ordinary rules of evidence govern admissibility. Id.
analysis, the Court also noted that the Confrontation Clause does
not prohibit "the use of testimonial statements for purposes other
than establishing the truth of the matter asserted." Id.
n.9, 158 L. Ed. 2d at 198, n.9.
In State v. Leyva
, 181 N.C. App. 491, 640 S.E.2d 394 (2007),
our Court addressed an argument similar to the one before us now.
, the trial court admitted testimony by detectives
referencing statements made by a confidential informant. Id.
___, 640 S.E.2d at 398-99. The defendant argued that his right to
confrontation was violated by admission of that evidence. Id.
___, 640 S.E.2d at 399. We concluded that the defendant
incorrectly categorized the statements as testimonial because the
evidence was introduced to explain the officers' presence at the
location of a drug sale, not for the truth of the matter asserted.
at ___, 640 S.E.2d at 399.
to the present case, we find no
error in the admission of Deputy Duprey's testimony referencing the
statements of the informant. The State specifically noted that the
statements were not offered for their truth. Rather, the
statements were offered to explain how the investigation of
Defendants unfolded, why Defendants were under surveillance at the
Quality Inn, and why Deputy Duprey followed the vehicle to theQuality Inn. We further note that, as requested by Cartwright, the
trial court gave the jury a limiting instruction pertaining to
confidential informants. The instruction read:
Evidence has been received of statements made
by a confidential informant. You must not
consider this evidence as evidence of the
truth of what was said at that earlier time
because it was not made under oath at this
trial. If you believe that these statements
were made then you may consider this evidence
for the purpose of explaining the actions of
the investigating officers. Except as it
bears upon the actions of the investigating
officers, the statements made by the
confidential informant may not be used by you
in your determination of any fact in this
explicitly states that testimonial statements are not
barred by the Confrontation Clause if not offered for their truth.
, 541 U.S. at 59, n.9, 158 L. Ed. 2d at 198, n.9. Because
the challenged testimony was not offered for its truth, as was the
case in Leyva
, we conclude that no Crawford
 Wiggins also argues that the testimony was inadmissible
hearsay. We disagree.
N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005) defines hearsay as
"a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of
the matter asserted." Our Supreme Court has stated that
"[o]ut-of-court statements that are offered for purposes other than
to prove the truth of the matter asserted are not considered
hearsay. Specifically, statements are not hearsay if they are made
to explain the subsequent conduct of the person to whom the
statement was directed." State v. Gainey
, 355 N.C. 73, 87, 558S.E.2d 463, 473 (citations omitted), cert. denied
, Gainey v. North
, 537 U.S. 896, 154 L. Ed. 2d 165 (2002). Further, in
, this Court applied the same reasoning to find that
statements made to an officer by a confidential informant were
properly admitted as nonhearsay. Leyva
, 181 N.C. App. at ___, 640
S.E.2d at 399-400. As stated above, the challenged testimony was
not offered for its truth and was therefore not inadmissible
 Both Defendants argue that the statements were also
inadmissible under N.C. Gen. Stat. § 8C-1, Rule 403. We note that
our review of the transcript reveals that Wiggins did not object on
this basis at trial. By failing to obtain a ruling from the trial
court, Wiggins failed to properly preserve this issue for our
review pursuant to N.C.R. App. P. 10(b)(1). Further, even had
Wiggins properly preserved this issue, and as it applies to
Cartwright, we see no error in the trial court's decision.
 Pursuant to N.C. Gen. Stat. § 8C-1, Rule 403 (2005),
"[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." The decision regarding
"[w]hether to exclude relevant but prejudicial evidence under Rule
403 is a matter left to the sound discretion of the trial court."
State v. Handy
, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992).
Neither Defendant articulates an abuse of discretion, and we seenone. Therefore, we overrule the relevant assignments of error.
We also note that Cartwright moved for a mistrial based upon
the admission of this testimony. In his brief, Cartwright
incorporates his argument that the testimony was improperly
admitted under N.C. Gen. Stat. § 8C-1, Rule 403, to argue that the
trial court improperly denied his motion for a mistrial on this
basis. Because we have concluded that the trial court did not
abuse its discretion by admitting this evidence, we also overrule
this assignment of error.
B. Sufficiency of the State's evidence
Defendants next argue that the trial court erred by denying
their motions to dismiss the following charges: (1) trafficking in
cocaine by possession; (2) trafficking in cocaine by
transportation; (3) possession of cocaine with intent to sell; and
(4) conspiracy to traffic in cocaine by possession. We consider
each charge separately.
When a defendant moves to dismiss based on insufficiency of
the evidence, the trial court must determine whether there is
substantial evidence of each element of the crime charged and of
the defendant being the perpetrator. State v. Scott
, 356 N.C. 591,
595, 573 S.E.2d 866, 868 (2002). "'Substantial evidence is
evidence from which any rational trier of fact could find the fact
to be proved beyond a reasonable doubt.'" State v. Alston
N.C. App. 514, 518, 508 S.E.2d 315, 318 (1998) (quoting State v.
, 318 N.C. 102, 108, 347 S.E.2d 396, 399 (1986)). "The
evidence must be viewed in the light most favorable to the State,and the State must receive every reasonable inference to 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. King
, 343 N.C. 29, 36, 468 S.E.2d
232, 237 (1996) (citations omitted).
1. Trafficking in cocaine by possession
 N.C. Gen. Stat. § 90-95(h)(3) (2005) provides that "[a]ny
person who sells, manufactures, delivers, transports, or possesses
28 grams or more of cocaine . . . shall be guilty of a felony
. . . known as 'trafficking in cocaine[.]'" Further, "[s]ale,
manufacture, delivery, transportation, and possession of 28 grams
or more of cocaine as defined under N.C.G.S. § 90-95(h)(3) are
separate trafficking offenses for which a defendant may be
separately convicted and punished." State v. Garcia
, 111 N.C. App.
636, 641, 433 S.E.2d 187, 190 (1993). To establish trafficking by
possession, the State must show that a defendant (1) knowingly
possessed a given controlled substance; and (2) that the amount
possessed was greater than 28 grams. State v. Shelman
, 159 N.C.
App. 300, 305, 584 S.E.2d 88, 93, disc. review denied
, 357 N.C.
581, 589 S.E.2d 363 (2003).
Our Supreme Court has noted that
possession of a controlled substance may be
either actual or constructive. A person is
said to have constructive possession when he,
without actual physical possession of a
controlled substance, has both the intent and
the capability to maintain dominion and
control over it.
State v. Jackson
, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357(1991) (citations omitted), aff'd per curiam
, 331 N.C. 113, 413
S.E.2d 798 (1992). "Moreover, power to control [an] automobile
where a controlled substance was found is sufficient, in and of
itself, to give rise to the inference of knowledge and possession
sufficient to go to the jury." State v. Dow
, 70 N.C. App. 82, 85,
318 S.E.2d 883, 886 (1984). Further, we have held that "evidence
that [the defendant] owned the van and was present therein when the
controlled substance was found was sufficient to allow the jury to
infer that he had the power and intent to control the contraband
found there." State v. Thompson
, 37 N.C. App. 628, 636, 246 S.E.2d
827, 833 (1978), aff'd
, 296 N.C. 703, 252 S.E.2d 776, cert. denied
Thompson v. North Carolina
, 444 U.S. 907, 62 L. Ed. 2d 143 (1979).
"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. Davis
, 325 N.C. 693, 697, 386 S.E.2d 187, 190
In the present case, Wiggins argues there was no evidence that
he actually or constructively possessed any cocaine. We disagree.
We note that the State's evidence tended to show that the officers
recovered 54.3 grams of cocaine in the fender well of the vehicle,
which was registered to, and driven by, Wiggins. This evidence was
sufficient "to give rise to the inference of knowledge and
possession sufficient to go to the jury." Dow
, 70 N.C. App. at 85,
318 S.E.2d at 886. Further, digital scales were found in the
center console of the vehicle, and paraphernalia for use withcocaine was found in Wiggins' hotel room. Accordingly, we find
that the trial court did not err by denying Wiggins' motion to
dismiss the charge of trafficking in cocaine by possession.
 Cartwright argues that he was a mere passenger in a
vehicle in which cocaine was recovered and that this fact, without
more, was insufficient to submit the case to the jury. In support
of his argument, Defendant cites State v. Weems
, 31 N.C. App. 569,
230 S.E.2d 193 (1976). In Weems
, the defendant was sitting in the
right front seat of a vehicle which was stopped by police. Id.
570, 230 S.E.2d at 194. A search of the automobile revealed
packets of heroin in three different areas of the vehicle, two of
which were near the defendant's seat. Id.
There was no evidence
the defendant owned or controlled the vehicle, nor was there
evidence he had ever been in the vehicle prior to the short time
during which police observed him in the vehicle. Id.
at 571, 230
S.E.2d at 194. This Court noted that:
[P]ower and intent to control the contraband
material can exist only when one is aware of
its presence. Therefore, evidence which
places an accused within close juxtaposition
to a narcotic drug under circumstances giving
rise to a reasonable inference that he knew of
its presence may be sufficient to justify the
jury in concluding that it was in his
possession. 'However, mere proximity to
persons or locations with drugs about them is
usually insufficient, in the absence of other
incriminating circumstances to convict for
(quoting Annot., 91 A.L.R.2d 810, 811 (1963)). This Court held
that there was insufficient evidence to connect the defendant in
to the illegal substances. Id.
at 571, 230 S.E.2d at 195. In the present case, unlike in Weems
, there was sufficient
evidence to infer that Cartwright knowingly possessed the cocaine
in the vehicle. First, Cartwright was a passenger in the vehicle
in which the cocaine was found. Deputy Duprey testified that when
questioned as to their purpose for traveling, Wiggins and
Cartwright provided different explanations to the officers as to
why they had traveled to Gates County together. A drug-sniffing
dog located digital scales and a .25 caliber handgun in the console
between Wiggins' seat and Cartwright's seat. Further, the cocaine
found in the fender well was located in a clean plastic bag that
appeared to have been recently placed under the hood. Wiggins and
Cartwright were also staying in adjacent hotel rooms, both of which
Cartwright rented. A known drug seller and user visited the rooms
of both Wiggins and Cartwright the day before their arrest. Deputy
Duprey found drug paraphernalia associated with cocaine when he
searched Cartwright's room. Thus, unlike in Weems
, Cartwright was
not simply found in close proximity to the cocaine found in the
vehicle. Rather, the State presented evidence of other
incriminating circumstances which permitted the inference that
Cartwright had knowledge of the cocaine under the vehicle's hood.
Both Defendants' assignments of error pertaining to this charge are
2. Trafficking in cocaine by transportation
Both Defendants assigned error to the trial court's denial of
their motions to dismiss the charge of trafficking in cocaine by
transportation. Wiggins articulated no specific argument as tothis charge. Cartwright confined his argument on this point to the
contention that the State failed to show Cartwright's knowledge of
the cocaine. We concluded above that the State produced sufficient
evidence to support a finding of knowledge on the part of both
Defendants. Therefore, for the same reasons stated above, we
overrule the assignments of error pertaining to this charge.
3. Possession of cocaine with intent to sell
 "Under the charge of possession with the intent to sell or
deliver cocaine, the State has the burden of proving: (1) the
defendant possessed the controlled substance; and (2) with the
intent to sell or distribute it." State v. Diaz
, 155 N.C. App.
307, 319, 575 S.E.2d 523, 531 (2002), cert. denied
, 357 N.C. 464,
586 S.E.2d 271 (2003).
Defendants argue only that the State's evidence of possession
was insufficient as to this charge. For the same reasons stated
above, we conclude that the trial court did not err by denying
Defendants' motion to dismiss this charge.
4. Conspiracy to traffic in cocaine by possession
 To prove criminal conspiracy, the State must prove "an
agreement between two or more people to do an unlawful act or to do
a lawful act in an unlawful manner." State v. Worthington
, 84 N.C.
App. 150, 162, 352 S.E.2d 695, 703, disc. review denied
, 319 N.C.
677, 356 S.E.2d 785 (1987). The State need not prove an express
Evidence tending to establish a "mutual, implied
understanding will suffice to withstand a defendant's motion to
Further, "[d]irect proof of conspiracy is rarely
available, so the crime must generally be
proved by circumstantial evidence." State v.
, 131 N.C. App. 190, 199, 506 S.E.2d
278, 283 (1998). A conspiracy "may be, and
generally is, established by a number of
indefinite acts, each of which, standing
alone, might have little weight, but, taken
collectively, they point unerringly to the
existence of a conspiracy." State v.
, 204 N.C. 710, 712, 169 S.E.2d 711,
State v. Clark
, 137 N.C. App. 90, 95, 527 S.E.2d 319, 322 (2000).
When viewed in the light most favorable to the State, the
evidence in the present case tended to show that Defendants stayed
in two adjacent hotel rooms, both of which were rented and paid for
by Cartwright. Major Johnson testified that a known drug user and
seller knocked on Wiggins' door, then knocked on Cartwright's door.
At the time the cocaine was recovered, Defendants were together in
Wiggins' vehicle, after having traveled together into Dare County.
The hotel rooms of both Defendants contained drug paraphernalia,
and both rooms contained paraphernalia for use with cocaine. We
conclude that this evidence, taken collectively, permitted the
inference that Defendants had a "mutual implied understanding"
sufficient to survive Defendants' motion to dismiss the conspiracy
II. Wiggins' Remaining Issue
 Wiggins also argues that the State did not produce
substantial evidence of his possession of the opium derivative
recovered in his hotel room because he did not have exclusive
control of the room. We disagree.
N.C. Gen. Stat. § 90-95(h)(4) (2005) provides that "[a]nyperson who sells, manufactures, delivers, transports, or possesses
four grams or more of opium or opiate, or any salt, compound,
derivative, or preparation of opium or opiate" is guilty of
trafficking in opium or heroin. If a defendant does not maintain
exclusive control of the place where the controlled substance is
found, the State must show "other incriminating circumstances" to
permit the inference of constructive possession. State v. Butler
147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001), aff'd
, 356 N.C.
141, 567 S.E.2d 137 (2002). "'No single factor controls, but
ordinarily the questions will be for the jury[.]'" Id.
, 103 N.C. App. at 243, 405 S.E.2d at 357). Further, "[t]he
State is not required to prove that the defendant owned the
controlled substance, or that [the] defendant was the only person
with access to it." State v. Rich
, 87 N.C. App. 380, 382, 361
S.E.2d 321, 323 (1987) (citations omitted).
We first note that the evidence was conflicting as to whether
Wiggins maintained exclusive control over Room 208 of the Quality
Inn. Deputy Duprey testified that he was "not able to determine"
whether another individual was staying in Room 208 with Wiggins.
T.164. He further stated that the law enforcement officers
watching the room "never physically saw [another] person inside the
room." However, Deputy Duprey also testified that some items in
the room "possibly belonged to another person." Friddle's
testimony also established that the registration cards for the
hotel rooms indicated that there were two double beds and two
adults registered in Room 208. Therefore, we conclude that toestablish constructive possession, the State was required to show
evidence of "other incriminating circumstances." Butler
, 147 N.C.
App. at 11, 556 S.E.2d at 311.
Viewing the evidence in the light most favorable to the State,
we find the State produced sufficient evidence that Wiggins
constructively possessed the opium derivative. Wiggins consented
to a search of Room 208 where the pills were found and he admitted
to Deputy Duprey that marijuana and other paraphernalia would be
found in the room. The pills were found in the same brown bag as
the marijuana. Further, Major Johnson testified that he saw a man
matching the general description of Wiggins open the door to Room
208 the day before Wiggins was arrested and Room 208 was searched.
Based upon these circumstances, we conclude that the State produced
sufficient evidence that Wiggins constructively possessed the opium
derivative to survive Wiggins' motion to dismiss this charge. We
overrule this assignment of error.
III. Cartwright's Remaining Issues
Cartwright also brings the following issues before this Court:
(1) whether the trial court erred by denying his motion for a
mistrial based on remarks made during jury selection; and (2)
whether the trial court committed plain error by charging the jury
as to the statements of the informant.
A. Motion for mistrial based upon jury selection
 N.C. Gen. Stat. § 15A-1061 (2005) provides that:
Upon motion of a defendant or with his
concurrence the judge may declare a mistrial
at any time during the trial. The judge must
declare a mistrial upon the defendant's motionif there occurs during the trial an error or
legal defect in the proceedings, or conduct
inside or outside the courtroom, resulting in
substantial and irreparable prejudice to the
"The decision whether to grant a motion for mistrial rests within
the sound discretion of the trial judge and will not ordinarily be
disturbed on appeal absent a showing of abuse of that discretion."
State v. Primes
, 314 N.C. 202, 215, 333 S.E.2d 278, 286 (1985).
Cartwright argues that his motion for a mistrial should have
been granted because the statements made by the prospective juror
in the presence of the other prospective jurors tainted the jury.
At trial, Cartwright argued that the implications of the statements
were that Cartwright "partie[d]" with a person on probation for an
In support of this argument, Cartwright cites State v. Mobley
86 N.C. App. 528, 358 S.E.2d 689 (1987). We find Mobley
distinguishable from the present case. In Mobley
, during jury
selection, a potential juror "identified himself as a police
officer [and] stated that he had 'dealings with the defendant on
similar charges'" in the presence of the other potential jurors.
at 532, 358 S.E.2d at 691. The trial court then "excused the
juror and instructed the jury: . . . 'to strike from their mind any
reference the officer may have made to the defendant because it is
not evidence in the case.'" Id.
at 532-33, 358 S.E.2d at 691. On
appeal, this Court granted the defendant a new trial, holding that
"[a] statement by a police officer-juror that he knows the
defendant from 'similar charges' is likely to have a substantialeffect on other jurors. The potential prejudice to the defendant
is obvious." Id.
at 533, 358 S.E.2d at 692. This Court also noted
that "the trial court, at the least, should have made inquiry of
the other jurors as to the effect of the statement." Id.
358 S.E.2d at 692.
In State v. McAdoo
, 35 N.C. App. 364, 241 S.E.2d 336, disc.
, 295 N.C. 93, 244 S.E.2d 262 (1978), each of the
defendants argued that the trial court erred by failing to grant
their motions for a mistrial when a potential juror announced in
the presence of the other potential jurors that a defendant had
tried to steal a power saw from him. Id.
at 366, 241 S.E.2d at
The defendant's attorney was then permitted to ask if it was
true the defendant was found not guilty of the charge, to which the
juror answered, "yes." Id.
The trial court denied the defendant's
motion for a mistrial. Id.
On appeal, this Court affirmed the
trial court's decision, holding that the potential juror's
statement was not "so prejudicial as to require a new trial." Id.
at 366, 241 S.E.2d at 338.
Cartwright argues that, like the comments made in Mobley
prospective juror's comments had a substantial effect on the other
jurors and "tended to color [Cartwright] as the very type [of]
person who would deal (and had dealt) with unlawful drugs and
prejudiced his case from the very beginning of the trial." In the
present case, however, the prospective juror's statements did not
contain the same potential for prejudice as the police officer's
comments in Mobley
. None of the statements indicated Cartwright
had been involved in the use or sale of unlawful drugs. Moreover,
the fact that the prospective juror had a probation officer was notenough to infer that Cartwright was involved with illegal drugs,
nor did it result in "substantial and irreparable prejudice" to
Cartwright's case. N.C.G.S. § 15A-1061. We hold that the
prospective juror's statements in the present case, like McAdoo
were not "so prejudicial as to require a new trial." McAdoo
N.C. App. at 366, 241 S.E.2d at 338. Thus, this assignment of
error is overruled.
B. Jury charge on informant's statements
 Lastly, Cartwright argues that the trial court committed
plain error by charging the jury on the out-of-court statements
made by the informant to Deputy Duprey. We point out that the
trial court's inclusion of this instruction was at Cartwright's
request. Further, the trial court asked Cartwright's attorney to
draft the instruction he desired, and the trial court then included
that language in its final instructions. "A criminal defendant
will not be heard to complain of a jury instruction given in
response to his own request." State v. McPhail
, 329 N.C. 636, 643,
406 S.E.2d 591, 596 (1991). While we express no opinion as to
whether giving the instruction was error, "[a]ny error in the
giving of this jury instruction was invited by [Cartwright.]"
State v. Duke
, 360 N.C. 110, 124, 623 S.E.2d 11, 21 (2005), cert.
, Duke v. North Carolina
, ___ U.S. ___, 166 L. Ed. 2d 96
(2006). We therefore overrule Cartwright's assignment of error on
Defendants do not argue their remaining assignments of error
and we therefore deem them abandoned pursuant to N.C.R. App.
No error. Judges STEPHENS and SMITH concur.
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