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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-877


Filed: 15 May 2007


v .                         Wake County
                            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.

    STEELMAN, Judge.

    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 kept running.
    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. We disagree.
    “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 disagree.
    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] Robinson.” 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 disagree.
    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, “[s]o 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), aff'd, 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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