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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 3 April 2007
STATE OF NORTH CAROLINA
v. Person County
No. 05 CRS 51900
Appeal by defendant from judgment entered 23 March 2006 by
Judge W. Osmond Smith, III, in Person County Superior Court. Heard
in the Court of Appeals 26 March 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Christine A. Goebel, for the State.
Glenn, Mills & Fisher, P.A., by Carlos E. Mahoney, for
On 14 November 2005, Nathaniel Leathers (defendant) was
indicted for felonious possession of cocaine.
The case was tried
at the 22 March 2006 Criminal Session of Person County Superior
The State presented evidence at trial which tended to show the
On 27 May 2005, Officers Dewey Jones and Don Mangum of
the Roxboro Police Department were traveling north on Highway 501.
As they passed Henry's Quick Stop (Henry's), they observed what
they believed to be suspicious activity. Specifically, they
believed that they saw defendant and another man engaged in either
a money or drug transaction. They returned to the area, parkedacross the street from Henry's, and began looking for defendant.
Shortly thereafter, they encountered defendant, who was walking
between residences and headed back towards Henry's.
As the officers approached defendant, they told him what they
observed in front of Henry's and asked him if he possessed anything
illegal. Defendant said no, and the officers asked for consent to
search him. Defendant told the officers they could [g]o ahead and
check; I have nothing on me. Officer Mangum testified that
defendant was acting nervous, so he took his left hand and placed
it on defendant's left hand and held it against the house so that
defendant could not run away. Meanwhile, Officer Jones patted
defendant down and checked his pockets. Initially, the officers
did not find anything. Then, they asked defendant to remove his
shoes, at which time he became increasingly nervous. When
defendant removed his shoes, the officers saw a package hit the
ground. Officer Jones seized the package, which he believed to
contain crack cocaine, and placed defendant under arrest.
Defendant was convicted of possession of cocaine and was
sentenced to a term of eight to ten months' imprisonment.
Defendant contends that the trial court erred by denying his
motion to dismiss the charge of possession of cocaine. Defendant
contends that there was no evidence that he either actually or
constructively possessed the cocaine.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434
(1997). 'Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.'
Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C.
557, 564, 411 S.E.2d 592, 595 (1992)).
Defendant was charged with possession of cocaine. To
withstand the motion to dismiss, the State must present evidence
that defendant had either actual or constructive possession of the
cocaine. See State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701,
702 (1985). Actual possession requires that a party have physical
or personal custody of the item. State v. Alston, 131 N.C. App.
514, 519, 508 S.E.2d 315, 318 (1998)
(citing 28 C.J.S. Drugs and
Narcotics § 170, at 773 (1996)). Here, Officer Jones testified
that, initially, he failed to find any contraband while patting
down defendant. However, Officer Jones further testified that
I asked him to remove his shoes at which time
the defendant became very nervous, and then at
that time when he was starting to slip his
shoes off is when I actually saw a package. I
can't tell you if it c[a]me from his shoes,
his sock, or the cuff of his pants, but I saw
a package that actually hit the ground when he
was removing his shoes . . . .
Officer Mangum likewise testified that the package fell out of
[defendant's] shoe or pants leg or what-not, although he did not
actually see it fall from defendant. Based on the officers'
testimony, a jury could reasonably infer that the cocaine fell fromdefendant when he removed his shoes. Defendant offers alternative
theories for the presence of the cocaine, including claims that it
could have fallen from the roof or porch of an adjoining home, or
possibly was kicked off the ground by defendant or one of the
officers during the search. However, these theories go to the
weight of the evidence, not its sufficiency, and were a matter for
the jury. See State v. Sokolowski, 351 N.C. 137, 143, 522 S.E.2d
65, 69 (1999). In the light most favorable to the State, we find
that a jury could rationally conclude that defendant actually
possessed the cocaine. See State v. Wilder, 124 N.C. App. 136,
140, 476 S.E.2d 394, 397 (1996).
Accordingly, we disagree with
Defendant contends that the trial court committed plain error
by allowing the State to offer testimony regarding the reputation
of the neighborhood where he was arrested.
Officer Jones testified that, when he and Officer Mangum
arrived at the scene and went looking for defendant, he was in an
area known for the presence of drugs. He further explained that
he was familiar with the area and that there were several houses
in that area that do deal in narcotics. Officer Jones also
testified when prompted on cross-examination that [a] few arrests
have been made in this area. Officer Mangum additionally
testified that there were several crack houses . . . that we're
Defendant contends that the trial court should have, sua
, excluded the testimony of the arresting officers thatdefendant was arrested in an area known for the presence of drugs
We are not persuaded.
A plain error is one 'so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have
reached.' State v. Carroll
, 356 N.C. 526, 539, 573 S.E.2d 899,
908 (2002)(quoting State v. Bagley
, 321 N.C. 201, 213, 362 S.E.2d
244, 251 (1987), cert. denied
, 485 U.S. 1036, 99 L. Ed. 2d 912
(1988)), cert. denied
, 539 U.S. 949, 156 L. Ed. 2d 640 (2003). It
is to be applied cautiously and only in the exceptional case where
the error is so prejudicial that justice cannot have been done.
State v. Baldwin
, 161 N.C. App. 382, 388, 588 S.E.2d 497, 503
In North Carolina, the general rule is that in a criminal
prosecution evidence of the reputation of a place or neighborhood
is ordinarily inadmissible hearsay. Weldon
, 314 N.C. at 408, 333
S.E.2d at 705. We agree with defendant that the admission of the
officers' testimony that the neighborhood was an area known for
drugs was error on the grounds that the testimony was inadmissible
hearsay. See State v. Williams
, 164 N.C. App. 638, 639, 596 S.E.2d
313, 314 (2004) ([T]he trial court erroneously allowed testimony
indicating Defendant was in a neighborhood known as an 'open air
market for drugs.'). However, defendant has failed to show that
the admission of this testimony amounted to plain error. As
discussed previously herein, we concluded that the State presented
substantial evidence that defendant possessed cocaine. We furtherfind that the officers' testimony regarding the neighborhood was
not critical evidence in the State's case, and it is not likely
that the jury would have reached a different verdict had it been
barred. Moreover, admission of this testimony was not error
amounting to a miscarriage of justice. Carroll
356 N.C. at 539,
573 S.E.2d at 908
. Accordingly, the assignment of error is
overruled and we find no plain error.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
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