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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 15 May 2007
STATE OF NORTH CAROLINA
No. 05 CRS 29401
MICHAEL JUNIOR ROBERTS No. 05 CRS 29402
Appeal by defendant from judgment entered 8 March 2006 by
Judge Stafford G. Bullock in Wake County Superior Court. Heard in
the Court of Appeals 20 February 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Michael D. Youth, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, and
Terri W. Sharp, for defendant-appellant.
A jury is presumed to follow a trial court's instruction to
disregard improper testimony, and the trial court did not err in
denying defendant's motion for a mistrial. Defendant's flight from
the residence when officers approached it and the finding of
cocaine and a shotgun under defendant's bed were sufficient
incriminating circumstances to support the submission of charges of
possession of cocaine and possession of a firearm by a felon to the
jury under a theory of constructive possession.
On 9 April 2005, detectives executed a search warrant for the
defendant's residence, a mobile home located in Wake County.
Michael Junior Roberts (defendant) was on probation at the time
and under electronic house arrest. Defendant was alerted to thedetectives' approach when his dog began barking. Defendant bolted
out of the front door and ran towards the woods behind the home.
Detective Stan Wilson, who led the entry team, testified that he
yelled, Sheriff's office, stop, at the defendant, but defendant
The detectives' team then entered the mobile home where they
met defendant's father, also named Michael Roberts, and another
unidentified person. The search revealed approximately five
individually wrapped rocks of crack cocaine under a bed in the
living room. Less than two feet away from the cocaine, also under
the bed, detectives found a shotgun. Detectives found mail
addressed to variants of defendant's name and several cell phones
in the dresser near the living room bed. Detective Wilson spoke
with defendant's father and learned that he did not regularly
occupy the living room area. Rather, he stayed in one of the
residence's two back bedrooms.
Detective Wilson followed the path that defendant had taken
into the woods. The detective found a bag of marijuana on the path
near where defendant entered the woods.
Detective Wilson spotted defendant sneaking towards the home
about fifteen minutes after he ran into the woods. Wilson's
lieutenant yelled at defendant to get on the ground, but he would
not comply. Defendant was forcibly taken into custody and later
charged with possession of a firearm by a felon and possession with
intent to sell and deliver cocaine. At the close of the State's evidence, defendant moved for
dismissal of the charges. Defendant argued he could not be found
in possession of the gun or the cocaine because there was no
evidence that defendant had exclusive control over the premises
where the cocaine and shotgun were found. The motion to dismiss
was denied. At the jury charge conference, defendant objected to
a jury instruction on flight. This objection was overruled, and
the judge gave a flight instruction to the jury.
A jury found defendant guilty of possession of a firearm by a
felon and possession of cocaine. Defendant was sentenced to a
minimum of thirteen months and a maximum of sixteen months in the
North Carolina Department of Correction. Defendant appeals.
I: Motion for Mistrial
In his first argument, defendant contends the trial court
erred in denying his motion for a mistrial. Defendant specifically
argues Detective Wilson's testimony that defendant carrie[d] a lot
of dope on him substantially and irreparably prejudiced defendant.
Whether a motion for mistrial should be granted is a matter
which rests within the sound discretion of the trial court, and a
mistrial is appropriate only when there are such serious
improprieties as would make it impossible to achieve a fair and
impartial verdict under the law. State v. Black, 328 N.C. 191,
200, 400 S.E.2d 398, 403 (1991) (citing State v. Calloway, 305 N.C.
747, 754, 291 S.E.2d 622, 627 (1982)). The decision of the trial
judge is entitled to great deference since he is in a far betterposition than an appellate court to determine whether the degree of
influence on the jury was irreparable. State v. Williamson, 333
N.C. 128, 138, 423 S.E.2d 766, 772 (1992) (citing State v.
Hightower, 331 N.C. 636, 643, 417 S.E.2d 237, 241 (1992) (Meyer, J.
dissenting)). When the trial court withdraws incompetent evidence
and instructs the jury not to consider it, any prejudice is
ordinarily cured. Black, 328 N.C. at 200, 400 S.E.2d at 404.
This Court assumes that the jury obeyed the trial court's limiting
instruction. State v. Glover, 77 N.C. App. 418, 421, 335 S.E.2d
86, 88 (1985).
In the instant case, once the jury was empaneled, the trial
court instructed the jury as follows:
It is the right of the lawyers to object when
testimony or other evidence is offered that
the lawyer believes is not admissible. When
the Court sustains an objection to a question,
the jurors must disregard the question and
answer . . . and draw no inference from the
question or answer[.] . . . If the Court
grants a motion to strike all or part of the
answer of a witness to a question, you must
disregard and not consider the evidence that
has been stricken.
Detective Wilson later testified that he did not follow the
defendant further into the woods because a K-9 unit German Shepherd
was coming up behind him. He then explained, after the search of
the home was complete, he had the K-9 unit backtrack behind
[defendant] because we know he carries a lot of dope on him.
Defense counsel objected, and the court sustained his objection and
granted his motion to strike. The jury was cautioned, Ladies and
gentlemen, you are not to consider in your deliberations the laststatement by the witness. Defendant moved for a mistrial based on
the stricken testimony, arguing defendant had been unduly
prejudiced by the testimony. This motion was denied.
Defendant argues on appeal that the error in this case was
extraordinarily prejudicial such that it was not cured by exclusion
and the trial court's instruction. Defendant contends that this
question is controlled by the case of State v. Aycoth, 270 N.C.
270, 154 S.E.2d 59 (1967). In Aycoth, the Supreme Court ordered a
new trial despite the trial court's instruction to disregard
testimony that the defendant, who was charged with armed robbery,
had been under indictment for an unrelated murder. Id. at 271-73,
154 S.E.2d at 60-61. The court reasoned that the incompetent
evidence . . . was of such serious nature that its prejudicial
effect was not erased by the court's quoted instruction. Id. at
273, 154 S.E.2d at 61. The court looked to the nature of the
evidence and its probable influence upon the minds of the jury in
reaching a verdict, the serious character and gravity of the
incompetent evidence, and the obvious difficulty in erasing it from
the mind to reach its decision. Id.
The instant case is distinguishable from Aycoth. Here,
defendant argues that the jurors may have drawn the improper
inference that defendant had drugs under his control because of his
history with narcotics. However, this inference could just as
easily have been drawn from other testimony in evidence, which was
neither objected to at its admission nor claimed as error in this
appeal. Wake County Probation Officer Tina Turner testified thatshe had placed defendant on house arrest as part of defendant's
sentence for a felony conviction of maintaining a dwelling place
for the storage of drugs. In contrast, in Aycoth, there was no
other admissible evidence linking the defendant to a murder
indictment, and thus the limiting instruction was insufficient to
erase the prejudicial effect of the testimony.
Any prejudice was cured when the trial court excluded the
evidence and gave a limiting instruction to the jury. Defendant's
argument that Detective Wilson's statement was prejudicial is not
compelling in light of other evidence implicating defendant. We
hold that the trial court did not err in denying the motion for
mistrial. This assignment of error is overruled.
II: Constructive Possession
In his second argument, defendant contends that the trial
court erred in denying his motion to dismiss the charges of (1)
possession of a firearm by a felon, and (2) possession of cocaine
with intent to sell and deliver, because the evidence was
insufficient to support nonexclusive constructive possession. We
When ruling on a defendant's motion to dismiss, the evidence
must be considered in the light most favorable to the State. State
v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 581 (1975). [T]he
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 (1996) (citing State v.
Mercer, 317 N.C. 87, 96-97, 343 S.E.2d 885, 891 (1986)). In'borderline' or close cases, our courts have consistently expressed
a preference for submitting issues to the jury. State v. Jenkins,
167 N.C. App. 696, 701, 606 S.E.2d 430, 433, aff'd, 359 N.C. 423,
611 S.E.2d 833 (2005) (citing State v. Jackson, 103 N.C. App. 239,
244, 405 S.E.2d 354, 357 (1991)).
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) (quoting State v.
Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)). This Court
has held that the State may produce evidence that a defendant
maintained the premises as a residence, or had some apparent
proprietary interest in the premises or the controlled
substance[,] in order to show constructive possession. State v.
Hamilton, 145 N.C. App. 152, 156, 549 S.E.2d 233, 235 (2001). When
the defendant does not have exclusive possession of the place where
the narcotics are found, the State must show other incriminating
circumstances before constructive possession may be inferred. Id.;
see also State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589
(1984). The issue is whether the evidence revealed sufficient
incriminating circumstances for a jury to find the defendant had
constructive possession of the narcotics and the weapon.
The following evidence reveals incriminating circumstances
that supports the State's assertion that defendant had constructive
possession of the cocaine and the shotgun. Defendant's counselconceded at trial that the evidence indicated that defendant lived
at the residence where the search warrant was executed. The
evidence shows that defendant's father also lived in the home with
him. When the detectives arrived at the residence, defendant ran
from the home via the kitchen door, which was not very far at all
from the bed where the cocaine and shotgun were found.
The cocaine and shotgun were found less than two feet from
each other, under the bed in the living room. Shotgun shells of
the same caliber as the shotgun were found nearby. Incriminating
circumstances, such as evidence placing the accused within close
proximity to the [item] . . . may support a conclusion that the
[item] was in the constructive possession of the accused. State
v. McNeil, 165 N.C. App. 777, 781, 600 S.E.2d 31, 34 (2004), aff'd,
359 N.C. 800, 617 S.E.2d 271 (2005).
The hallway leads to a bathroom and two bedrooms, one of which
is inaccessible because it is used for storage. Detective Wilson
testified that he spoke to the defendant's father and determined
that he stayed in a back bedroom. Thus, the jury could infer that
the defendant slept on the bed in the living room.
In the dresser near the living room bed, detectives found
several cell phones and large amounts of mail addressed to some
variation of [Michael] Robert, [Michael] Robertson or [Michael]
Though defendant's father is also named Michael
Roberts, this evidence, considered with the rest of the facts and
circumstances, and viewed in the light most favorable to the State,
could reasonably be construed to connect defendant, rather than hisfather, to the dresser and the contraband. Finally, of the three
people in the home, only defendant ran for the woods when law
enforcement officers approached the mobile home.
Considering the evidence in the light most favorable to the
State, we hold that a reasonable mind could conclude that there was
substantial evidence of incriminating circumstances to show that
defendant had constructive possession of the shotgun and cocaine.
The trial court did not err in denying the motion to dismiss. This
assignment of error is overruled.
III: Jury Instruction on Flight
In his third argument, defendant contends that the trial court
erred by submitting to the jury an instruction on flight. We
A trial judge may instruct a jury on defendant's flight so
long as there is some evidence in the record reasonably supporting
the theory that defendant fled after commission of the crime
charged. State v. Thompson,
328 N.C. 477, 489, 402 S.E.2d 386,
392 (1991) (quoting State v. Levan,
326 N.C. 155, 164-65, 388
S.E.2d 429, 434 (1990)). Mere evidence that defendant left the
scene of the crime is not enough to support an instruction on
flight. There must also be some evidence that defendant took steps
to avoid apprehension. Id.
at 490, 402 S.E.2d at 392. However,
long as there is some evidence in the record reasonably
supporting the theory that defendant fled after commission of the
crime charged, the instruction is properly given. State v. Irick,
291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)
; see also State v.Ethridge,
168 N.C. App. 359, 362-63, 607 S.E.2d 325, 327-28 (2005),
, 360 N.C. 359, 625 S.E.2d 777 (2006).
Detective Wilson testified that defendant bolted out the
front door when the entry team came around the corner of the
mobile home. Detective Wilson testified he yelled 'Sheriff's
office, stop,' and [the defendant] kept on rolling. The detective
testified he was running right behind the defendant.
We hold that this was sufficient evidence for the court to
instruct the jury on flight, and the court did not err by giving
such instruction. This assignment of error is overruled.
Defendant failed to argue his remaining assignment of error in
his brief, and it is deemed abandoned. N.C. R. App. P. 28(b)(6).
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
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