Converted WP file 060982-1

Appeal by Defendant from judgments entered 18 January 2006 by Judge William C. Griffin, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 8 March 2007.

Attorney General Roy Cooper, by Assistant Attorney General John C. Evans, for the State.

William D. Spence for Defendant-Appellant.

    STEPHENS, Judge.

    On 18 January 2006, a jury found Defendant guilty of four drug-related offenses. On appeal, Defendant argues that the trial court erred in (1) refusing to dismiss each of the charges for insufficiency of the evidence, (2) abusing its discretion by allowing the State to re-open its case, and (3) refusing to intervene ex mero motu during the State's closing argument. For the reasons set forth below, we find no error.
    At trial, the State's evidence tended to show that on 28 January 2003, police officer Sandra Barrow was dispatched to an apartment located at 2005 Tiffany Drive in Greenville . Prior to Officer Barrow's arrival at the apartment, the apartment complex manager, Ms. Judy Gurganus, and a “maintenance man” had been insidethe apartment. Upon Officer Barrow's arrival, Ms. Gurganus provided her with information “regarding controlled substances in the residence.” Ms. Gurganus also informed Officer Barrow that the apartment was being rented by Defendant and provided the officer with a copy of Defendant's lease agreement with the apartment complex . Based on her conversations with Ms. Gurganus and the maintenance man, Officer Barrow obtained a warrant to search the apartment. After determining that the apartment was unoccupied, Officer Barrow and other members of the Greenville Police Department executed the warrant.
    Inside the apartment, the officers found 81.1 pounds of marijuana contained in numerous ziploc baggies and in ten “bricks,” 11.9 grams of cocaine stored in forty-six ziploc baggies, numerous ziploc baggies “just scattered about the floor,” and five boxes of ziploc baggies . The officers also found a nine millimeter handgun with magazines , a nine millimeter rifle, $4,200.00 of counterfeit currency, and a pit bull puppy . Although the apartment contained two bedrooms, only one of the rooms was furnished. In the furnished bedroom, the officers found the following documents, all in Defendant's name: signed Social Security card; stack of business cards ; Greenville Utilities electric and water service deposit receipt dated 25 January 2002 ; financial aid re-payment form dated 20 August 2002; W-2 form for tax year 2001; phone bill dated 3 January 2003; Greenville Utilities bill; and Western Union money transfer receipt dated 13 January 2003 . The utility service deposit receipt, phone bill, and utility bill each showedan address of 2005 Tiffany Drive . Pictures of Defendant were on the apartment walls . All of the clothes found in the apartment were men's clothes and one of the closets contained twenty pairs of men's shoes . In addition to numerous pieces of furniture, the officers also found a 60-inch television, a 19-inch television, a computer, three DVD players, two radar detectors, a Sony PlayStation, and three vacuum cleaners .
    At the close of the State's evidence, Defendant made a motion to dismiss the charges on the ground of insufficient evidence. Defendant argued, inter alia, that the State had failed to present evidence that Defendant was the “legal lessor” of the apartment. The trial court denied the motion, stating that “there's enough [evidence] for [the State] to put [its] case to the jury[,]” and adjourned for the day.
    The next morning, Defendant elected not to present evidence, but renewed his earlier motion to dismiss for insufficiency of the evidence at the close of all the evidence . The court again denied the motion. The State then made a motion to re-open its case in order to call a witness to testify about Defendant's lease with the apartment complex. The Prosecutor stated that, despite the State's efforts, it could not locate Ms. Gurganus to testify concerning the lease. The State proposed to call Ms. Linda Singletary, the apartment manager at the time of the trial, who would testify about Defendant's lease as a business record. Over Defendant's objection, the trial court allowed the State to re-open its case, stating that “in view of the fact that [the apartment manager] that[] precipitated [the original call to Officer Barrow] apparently has vanished and [the State] can't locate her[,]” the State could call Ms. Singletary to testify about the lease as a “business record[.]”
    After the lease was received in evidence, Ms. Singletary testified that the lease agreement, by its terms, was between Defendant and the apartment complex for the property at 2005 Tiffany Drive for a one-year period beginning 25 January 2002. In the event of Defendant's holdover, a month-to-month tenancy would be created. The use of the residence was for “one adult[,]” and the lease was signed in Defendant's name. The State rested following Ms. Singletary's testimony .
    After the jury's verdict, the trial court sentenced Defendant to thirty-five to forty-two months in prison on the charges of trafficking in marijuana by possession and maintaining a dwelling for controlled substances. The trial court sentenced Defendant to eight to ten months on the charges of possession of cocaine with intent to sell and deliver and possession of drug paraphernalia, to run consecutively with the greater sentence. Defendant appeals.

    In his first assignment of error, Defendant contends that the trial court erred in denying his motion to dismiss the charge of trafficking in marijuana by possession because the State failed to present sufficient evidence on the first element of the crime: that Defendant knowingly possessed marijuana. See N.C. Gen. Stat. § 90-95(h)(1) (2003). We disagree.
    As our Supreme Court recently stated in State v. McNeil, 359 N.C. 800, 617 S.E.2d 271 (2005):
        In a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials. Proof of nonexclusive, constructive possession is sufficient. Constructive possession exists when the defendant, while not having actual possession, . . . has the intent and capability to maintain control and dominion over the narcotics.

Id. at 809, 617 S.E.2d at 277 (quoting State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001)) (internal quotations andcitations omitted). “Where [controlled substances] are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.” State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). “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 (1989) (citation omitted). “'[C]onstructive possession depends on the totality of the circumstances in each case. No single factor controls, but ordinarily the questions will be for the jury[.]'” State v. Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991) (quoting State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986)), aff'd per curiam, 331 N.C. 113, 413 S.E.2d 798 (1992).
    In this case, and viewing the evidence in the light most favorable to the State, the State presented substantial evidence that Defendant possessed marijuana in that the apartment in which the marijuana was found was under his exclusive control. The State introduced in evidence Defendant's lease agreement with the apartment complex. Defendant was the sole tenant under the lease and only one of the apartment's two bedrooms was furnished. Although the initial term of the lease had expired four days prior to the search, a month-to-month tenancy was automatically created at the expiration of the initial term. The State also introducedevidence which tended to show that the apartment's utilities were maintained in Defendant's name. In fact, all of the documents discovered during the search were in Defendant's name. All of the clothing found during the search was men's clothing. The search also revealed Defendant's signed Social Security card. In light of all the documents found in the apartment, in addition to the electronic equipment, furniture, and clothing, it is apparent that the apartment was, in fact, Defendant's residence, and that he continued to live there after the expiration of the initial term of the lease. Thus, because the marijuana was found in a premises under Defendant's exclusive control, an inference of constructive possession arose and the case was for the jury.
    Nevertheless, Defendant argues that he did not have exclusive possession of the apartment and that, therefore, the State must offer evidence of other incriminating circumstances before the inference of constructive possession arises. Relying on our Supreme Court's decisions in State v. Allen, 279 N.C. 406, 183 S.E.2d 680 (1971), and State v. McLaurin, 320 N.C. 143, 357 S.E.2d 636 (1987), Defendant argues that the entry of the apartment manager and the maintenance man into the apartment prior to Officer Barrow's arrival establishes non-exclusive possession. We disagree.
    The defendants in Allen and McLaurin were not present during police searches of premises under their control, and both searches resulted in the discovery of controlled substances. The facts of Allen are readily distinguishable from the case at bar, however, asthree other people were present in the defendant's house at the time of the police search. In McLaurin, the Court found the defendant's control of her house to be “patently nonexclusive” because two men who were later arrested for their roles in illegal drug transactions had been observed entering and leaving the house the day of the search, “there was no evidence that defendant was so observed, and the presence of children's and adult male clothes in closets and bureaus indicated that defendant did not reside there alone.” McLaurin, 320 N.C. at 146, 357 S.E.2d at 638. As we stated above, all of the evidence discovered during the search in the case at bar shows that Defendant had exclusive possession of the apartment. None of the evidence discovered during the search supports the contention that Defendant's possession of the premises was non-exclusive. The entry of the apartment manager and a maintenance man prior to the search, standing alone, does not support the contention that Defendant's possession was non- exclusive. Because Defendant had exclusive control of the premises, the State was not required to present evidence of “other incriminating circumstances.” Defendant's argument is without merit.

    In his second assignment of error, Defendant argues that the trial court erred in denying his motion to dismiss the charge of maintaining a dwelling for controlled substances because the State failed to offer sufficient evidence on the first element of the offense: that Defendant “ke[pt] or maintained” the premiseslocated at 2005 Tiffany Drive. See N.C. Gen. Stat. § 90-108(a)(7) (2003). We disagree.
    Under our holding in State v. Frazier, 142 N.C. App. 361, 542 S.E.2d 682 (2001),
        [w]hether a person “keep[s] or maintain[s]” a place, within the meaning of N.C. Gen. Stat. § 90-108(a)(7), requires consideration of several factors, none of which are dispositive . . . . Those factors include: occupancy of the property; payment of rent; possession over a duration of time; possession of a key used to enter or exit the property; and payment of utility or repair expenses.

Id. at 365, 542 S.E.2d at 686 (citations omitted). The totality of the circumstances determines whether a premises is maintained for the purpose of keeping or selling controlled substances. State v. Mitchell, 336 N.C. 22, 442 S.E.2d 24 (1994).

    In his third assignment of error, Defendant argues that the trial court erred in denying his motion to dismiss the charge of possession with intent to sell and deliver cocaine because the State failed to offer sufficient evidence that Defendant (1) possessed cocaine, and (2) had the intent to sell it. See N.C. Gen. Stat. § 90-95(a)(1) (2003). We do not agree.
    Defendant argues that this charge should have been dismissed “for the same reasons that the charge of trafficking in marijuana should have been dismissed, to wit: the State failed to offer sufficient evidence to prove that [D]efendant (constructively) possessed the cocaine[.]” For the same reasons we conclude that the State offered substantial evidence that Defendant possessed marijuana, Defendant's contention regarding his possession of the cocaine is without merit.
    “[T]he intent to sell or distribute may be inferred from (1) the packaging, labeling, and storage of the controlled substance, (2) the defendant's activities, (3) the quantity found, and (4) the presence of cash or drug paraphernalia.” State v. Nettles, 170 N.C. App. 100, 106, 612 S.E.2d 172, 176 (citations omitted), cert. denied, 359 N.C. 640, 617 S.E.2d 286 (2005). In Nettles, this Court determined that the possession of “four to five crack cocaine rocks which weighed 1.2 grams,” by itself, did not constitute substantial evidence to support an inference of an intent to sell or deliver. Id.    Relying on our decision in Nettles, Defendant contends that the discovery of forty-six baggies containing, in sum, 11.9 grams of cocaine, does not constitute substantial evidence to support an inference of Defendant's intent to sell or deliver cocaine. We find our decisions in State v. Alston, 91 N.C. App. 707, 373 S.E.2d 306 (1988) (finding that 4.27 grams of cocaine wrapped in twenty envelopes supported an inference of intent to sell), and State v. McNeil, 165 N.C. App. 777, 600 S.E.2d 31 (2004) (5.5 grams of crack cocaine individually wrapped in twenty-two pieces), aff'd, 359 N.C. 800, 617 S.E.2d 271 (2005), more factually analogous to the case at bar. We also note that the police officers discovered $4,200.00 in counterfeit currency during the search, further supporting the inference, under Nettles, of Defendant's intent to sell cocaine. Defendant's assignment of error is overruled.

    In his fourth assignment of error, Defendant argues that the trial court erred in denying his motion to dismiss the charge of possession of drug paraphernalia because the State failed to offer substantial evidence that Defendant (1) possessed drug paraphernalia, and (2) had the intent to use it as drug paraphernalia. See N.C. Gen. Stat. § 90-113.22 (2003). Again, we disagree.
    Defendant argues that this charge should have been dismissed “for the same reasons that the charge of trafficking in marijuana should have been dismissed, to wit: the State failed to offer sufficient evidence to prove that [D]efendant (constructively)possessed the drug paraphernalia[.]” For the same reasons we conclude that the State offered substantial evidence that Defendant possessed marijuana, Defendant's contention regarding his possession of the drug paraphernalia is without merit.
    Although “mere possession” of drug paraphernalia is insufficient evidence of the element of intent, State v. Hedgecoe, 106 N.C. App. 157, 164, 415 S.E.2d 777, 781 (1992), intent may be inferred through evidence of “other incriminating circumstances.” Id. In this case, the evidence presented at trial was replete with other incriminating circumstances sufficient to establish Defendant's intent. Importantly, much of the drug paraphernalia at issue _ plastic baggies _ in fact contained marijuana and cocaine. The trial court did not err in denying Defendant's motion to dismiss for insufficiency of the evidence, and Defendant's assignment of error is overruled.

    By his fifth assignment of error, Defendant argues that the trial court abused its discretion and its duty of impartiality in allowing the State to re-open its case after the State rested. We disagree.
    A trial court has the discretion to re-open a case after either party has rested. N.C. Gen. Stat. § 15A-1226(b) (2005). A trial court abuses its discretion only when the court's decision “'is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'” State v. McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413 (1998)(quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).
    We disagree with Defendant's argument that the State's failure to introduce the lease in evidence during its case-in-chief represented a “defect” and a “potential flaw” in the State's case. When the Prosecution initially rested, before the lease agreement was offered into evidence, the trial judge stated that the State had put on “enough [evidence] . . . to put [its] case to the jury.” In addition to Officer Barrow's testimony that Defendant was the resident of the apartment under a lease and another officer's testimony that pictures of Defendant were on the apartment walls, the State had introduced the financial aid and W-2 forms, the phone and utility bills, the utility and Western Union receipts, and Defendant's Social Security card.
    We also disagree with Defendant's contention that “the Trial Court cast aside his robe of impartiality and joined forces with the District Attorney to secure the defendant's conviction.” The Prosecutor stated that the State had made efforts in the week before and on the first day of the trial to contact apartment complex personnel, but that “nobody would ever return any phone calls[.]” Additionally, the Prosecutor stated that Ms. Gurganus, the apartment manager who had originally met Officer Barrow, was “on the [witness] list” but that she had “vanished.” Under these circumstances, the trial court's decision to let the State re-open its case to allow Ms. Singletary to testify about the lease as a business record was not “manifestly unsupported by reason” or “soarbitrary that it could not have been the result of a reasoned decision.” Defendant's assignment of error is overruled.

     When a defendant does not object at trial to what, on appeal, the defendant asserts are improper arguments by the State, a defendant must show that the trial court abused its discretion in not intervening ex mero motu. State v. Jolly, 332 N.C. 351, 420 S.E.2d 661 (1992). A defendant must show that the State's argument was so “grossly improper” that “the outcome of defendant's trial would have differed if [the] argument had not been made.” Id. at 369, 420 S.E.2d at 672. “When determining whether the prosecutor's remarks are grossly improper, the remarks must be viewed in context and in light of the overall factual circumstances to which they refer.” State v. Womble, 343 N.C. 667, 692-93, 473 S.E.2d 291, 306 (1996) (citation omitted), cert. denied, 519 U.S. 1095, 136 L. Ed. 2d 719, reh'g denied, 520 U.S. 1111, 137 L. Ed. 2d 322 (1997). The argument “must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it.” State v. Smith, 294 N.C. 365, 378, 241 S.E.2d 674, 682 (1978) (citation omitted).
    Defendant argues that he is entitled to a new trial because the following portion of the Prosecutor's closing argument amounted to a “demonization” of Defendant:
            Now, sometimes you wonder, I think in our day and age when you read the newspaper or you hear reports on TV about violence and drugs, how does this take place? Why do we have drugs in our schools? Why do we have drugs on the playground? Why do we have drugs at work? Why? You know, do we have some big bad cartel. That Columbia there Columbia [sic] brings all these drugs. Yeah, some places may have. But you know how drugs get in our schools, exactly like this. Exactly like that. By people like this.
            They bring 81 pounds into their house. They package it in little bags, they give it to their runners, they take it to the school. They take it to wherever they are taking it. Behind the mall. Wherever you hear about drugs being taken, being sold. That's how it happens. Not some big cartel. Street level. Trickle down, if you will. Cocaine, marijuana.
            That's how we get cocaine marijuana in our schools, that's how we get it on the streets, exactly like this.

While we agree with Defendant that there was no evidence presented at trial that in any way suggested Defendant was using “runners” to sell drugs to schoolchildren on playgrounds, we do not agree with Defendant's contention that the trial court erred and abused its discretion by not intervening in the closing argument ex mero motu. Although the Prosecutor's statements were undoubtedly improper, the statements were not so “grossly improper” that, absent the statements, a different result would have been reached at trial. Defendant's assignment of error is therefore overruled.