Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 20 November 2007
STATE OF NORTH CAROLINA
Nos. 04 CRS 51936
ANSEL PIERRE STREET 04 CRS 51938
05 CRS 1585
Appeal by Defendant from judgment entered 4 May 2006 by Judge
R. Stuart Albright in Montgomery County Superior Court. Heard in
the Court of Appeals 12 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Gary A. Scarzafava, for the State.
McAfee Law, P.A., by Robert J. McAfee, for Defendant.
On 17 December 2004, Sheriff's deputies in Montgomery County
conducted an undercover drug buy at a mobile home owned by Joanne
Street, a 60-70-year-old female relative of Defendant Ansel Pierre
Street (Defendant) . Both Defendant and Joanne Street lived at
the mobile home. As Deputy Talmedge LeGrand (LeGrand) approached
the mobile home to make the purchase, he saw an unknown man who
was there to buy standing on the back porch . On the porch,
LeGrand asked just of anybody if he could buy 100 dollars worth
(See footnote 1)
After he made his request, a 30-35-year-old woman came
out of the mobile home, and LeGrand repeated his request. Thewoman went back inside, and, a few minutes later, Defendant emerged
from within . LeGrand again repeated his request for 100 dollars
worth of hard. Defendant went back inside the mobile home, and,
a few minutes later, the woman emerged and handed LeGrand five
crack cocaine rocks . LeGrand gave the woman a one-hundred dollar
bill. Defendant was standing on the porch at the time of the
transaction, having re-emerged from the mobile home just before the
woman came out with the drugs . After LeGrand purchased the drugs
from the . . . female subject, LeGrand left the back porch and
walked toward his car. Defendant said to LeGrand: Nice doing
business with you. Come back again.
On 21 December 2004, Montgomery County Sheriff's deputies
searched the mobile home pursuant to a search warrant obtained that
day . Part of the basis for obtaining the search warrant was that
undercover drug purchases had been made from the residence on five
occasions between November 2002 and February 2003, in addition to
the purported purchase made on 17 December 2004 . When the warrant
was executed, Defendant, Joanne Street, and Yolanda Street, another
relative of Defendant, were in the mobile home's kitchen . While
the warrant was being executed, a fourth relative entered the
residence. In an unlabelled, brown pill bottle on top of a
microwave in the kitchen, the deputies found 2.6 grams of crack
cocaine . A search incident to arrest revealed fifty dollars in
cash on Defendant's person: seven five-dollar bills and fifteen
one-dollar bills . Defendant was tried 3-4 May 2006. After the jury was
selected, defense counsel alerted the trial court that Defendant
was concerned that [defense counsel has] been paid off by the
State. The trial court questioned Defendant about his concerns.
Defendant said he was not comfortable with defense counsel
because he felt there was a conflict. When asked to be more
specific, Defendant said he and defense counsel were not seeing
eye to eye and that he was concerned that defense counsel was
court-appointed. The trial court denied Defendant's request for a
new attorney .
The jury convicted Defendant of one count of delivering
cocaine and one count of possession with intent to sell or deliver
cocaine for the events of 17 December 2004, and one count of
possession with intent to sell or deliver cocaine for the events of
21 December 2004. After the jury returned its verdicts, Defendant
pled guilty to having obtained the status of an habitual felon .
The trial court consolidated all charges for sentencing and
sentenced Defendant to 133 to 169 months in prison . On appeal,
Defendant argues the trial court erred (1) in insufficiently
inquiring into the basis of Defendant's motion for new counsel and
in refusing to appoint new counsel, and (2) in denying Defendant's
motion to dismiss the charges against him for insufficiency of the
I. MOTION FOR NEW COUNSEL
The decision to substitute counsel rests solely in the
discretion of the trial court. State v. Morgan, 359 N.C. 131,146, 604 S.E.2d 886, 895 (2004) (citing State v. Robinson, 290 N.C.
56, 66, 224 S.E.2d 174, 180 (1976)), cert. denied, 546 U.S. 830,
163 L. Ed. 2d 79 (2005). A trial court is constitutionally
required to appoint substitute counsel whenever representation by
counsel originally appointed would amount to denial of defendant's
right to effective assistance of counsel[.] State v. Thacker, 301
N.C. 348, 352, 271 S.E.2d 252, 255 (1980) (citations omitted).
[t]he constitutional right of an indigent
defendant in a criminal action to have the
effective assistance of competent counsel,
appointed by the court to represent him, does
not include the right to insist that competent
counsel, so assigned and so assisting him, be
removed and replaced with other counsel merely
because the defendant has become dissatisfied
with his services.
Robinson, 290 N.C. at 65-66, 224 S.E.2d at 179.
Thus, when it appears to the trial court that
the original counsel is reasonably competent
to present defendant's case and the nature of
the conflict between defendant and counsel is
not such as would render counsel incompetent
or ineffective to represent that defendant,
denial of defendant's request to appoint
substitute counsel is entirely proper.
Thacker, 301 N.C. at 352, 271 S.E.2d at 255 (emphasis original).
The trial court should conduct a hearing to fulfill its obligation
to inquire into defendant's reasons for wanting to discharge his
attorneys and to determine whether those reasons were legally
sufficient to require the discharge of counsel. State v.
Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981).
Having reviewed the transcript in this case, we disagree with
Defendant's contention that the trial court did not sufficientlyinquire into [D]efendant's dissatisfaction with counsel[.] On the
contrary, the trial court conducted a thorough inquiry into the
matter, giving Defendant ample opportunity to express his concerns.
Defendant's contention is without merit.
Moreover, we discern no abuse of discretion in the trial
court's ruling. During the trial court's inquiry into Defendant's
concerns, defense counsel stated: I have researched the case law.
I've examined the files. I've spoken at length with
[Defendant]. . . . I'm prepared. Additionally, the trial court
described defense counsel as very experienced and well
respected[.] After the inquiry, the court found: (1) Defense
counsel was appointed 29 December 2004; (2) Defendant waited until
immediately before trial began on 3 May 2006 to raise any concerns
about defense counsel; (3) The only reasons Defendant articulated
as to why he should be appointed new counsel were that he was not
comfortable with his attorney, they were not seeing eye-to-eye, and
his attorney was court-appointed and paid by the State. These
findings are presumed supported by competent evidence and are
binding on appeal. State v. Taylor, 155 N.C. App. 251, 574 S.E.2d
58 (2002). The trial court did not abuse its discretion in
refusing to appoint substitute counsel. See State v. Prevatte, 356
N.C. 178, 216, 570 S.E.2d 440, 461 (2002) (When a defendant makes
a motion for new counsel, if it appears the present attorney is
reasonably competent and there is no conflict between attorney and
client that renders the attorney incompetent, the motion for new
counsel must be denied.) (citing State v. Anderson, 350 N.C. 152,167, 513 S.E.2d 296, 305-06 (1999)), cert. denied, 538 U.S. 986,
155 L. Ed. 2d 681 (2003). Defendant's argument is overruled.
II. SUFFICIENCY OF THE EVIDENCE
Upon a defendant's motion to dismiss for insufficiency of the
the trial court must determine whether there
is substantial evidence of each essential
element of the offense charged and of the
defendant being the perpetrator of the
offense. State v. Crawford, 344 N.C. 65, 73,
472 S.E.2d 920, 925 (1996); see also State v.
Smith, 357 N.C. 604, 615, 588 S.E.2d 453, 461
(2003). Substantial evidence is relevant
evidence that a reasonable person might accept
as adequate, State v. Squires, 357 N.C. 529,
535, 591 S.E.2d 837, 841 (2003), or would
consider necessary to support a particular
conclusion, State v. Vick, 341 N.C. 569,
583-84, 461 S.E.2d 655, 663 (1995). A
substantial evidence inquiry examines the
sufficiency of the evidence presented but not
its weight. State v. Sokolowski, 351 N.C.
137, 143, 522 S.E.2d 65, 69 (1999). The
reviewing court considers all evidence in the
light most favorable to the State, and the
State receives the benefit of every reasonable
inference supported by that evidence.
Squires, 357 N.C. at 535, 591 S.E.2d at 841.
Evidentiary [c]ontradictions and
discrepancies are for the jury to resolve and
do not warrant dismissal. State v. Gibson,
342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995).
Finally, sufficiency review is the same
whether the evidence is circumstantial or
direct, or both. State v. Jones, 303 N.C.
500, 504, 279 S.E.2d 835, 838 (1981).
State v. Garcia, 358 N.C. 382, 412-13, 597 S.E.2d 724, 746 (2004),
cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005).
A. 17 December 2004
Defendant contends the trial court erred in denying his motion
to dismiss the charges of possession with intent to sell or delivercocaine and delivering cocaine for the 17 December 2004
transaction. Defendant does not dispute that the State presented
substantial evidence, as to the woman, of each essential element of
the offenses charged. That is, the State presented substantial
evidence that the woman possessed crack cocaine with the intent to
sell or deliver it and that the woman delivered crack cocaine to
LeGrand. See N.C. Gen. Stat. § 90-95(a)(1) (2003) (listing
elements of the offenses). Defendant contends, however, that the
State's legal theory of Defendant's guilt was insufficient to
take the charges to the jury. We disagree.
For the 17 December 2004 transaction, the State was proceeding
against Defendant under an acting in concert theory. Under this
[i]f two persons join in a purpose to commit
a crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in
pursuance of the common purpose . . . or as a
natural or probable consequence thereof.
State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (quoting
State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991)),
cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134 (1997), and cert.
denied, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998).
Viewing the evidence in the light most favorable to the State,
as we must, the State presented substantial evidence that Defendant
and the woman joined in a common purpose to commit the crimes and
that Defendant was actually present when the crimes were committed.
The sequence of events between LeGrand's initial request to thewoman and the woman's delivery of the crack cocaine to LeGrand
constitutes evidence of a common purpose. Notably, the woman
delivered the crack cocaine to LeGrand after LeGrand made his
request to Defendant and after the woman and Defendant were then
inside the mobile home together. Moreover, Defendant's statement
to LeGrand that it was [n]ice doing business with him constitutes
substantial evidence that Defendant was engaged in a common plan
with the woman to possess and deliver the crack cocaine.
Defendant's statement evinces a knowledge of and a participation in
the common purpose. Finally, Defendant was actually present when
the crimes were committed, as he was standing on the back porch
when the transfer was made . The State presented substantial
evidence that Defendant and the woman were engaged in a common
purpose to commit the crimes. Accordingly, Defendant's argument is
B. 21 December 2004
Defendant also contends the trial court erred in denying his
motion to dismiss the charge of possession with intent to sell or
deliver for the events of 21 December 2004, the day the search
warrant was executed. Although the State was required to present
substantial evidence of both Defendant's possession of the cocaine
and his intent to sell or deliver it, N.C. Gen. Stat. § 90-
95(a)(1), Defendant argues [t]he sole issue underlying
[D]efendant's motion as regards the charges from December 21 has to
do with constructive possession of the cocaine[.]
As Defendant contends, his conviction for possession with
intent to sell or deliver the crack cocaine discovered pursuant to
the search warrant was based on the theory of constructive
possession. Constructive possession exists when a person, while
not having actual possession, has the intent and capability to
maintain control and dominion over a controlled substance. State
, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983)
(citations omitted). [C]onstructive possession depends on the
totality of the circumstances in each case. State v. James
N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986). No single factor
controls, but ordinarily the question will be for the jury. Id.
(citations omitted). 'Where such materials 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. Matias
, 354 N.C. 549, 552, 556
S.E.2d 269, 270-71 (2001) (quoting 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).
Since the evidence shows that Defendant did not have exclusive
possession of the mobile home, the issue is whether the evidence
disclosed other incriminating circumstances sufficient for the jury
to find that Defendant had constructive possession of the crackcocaine found in the pill bottle. Viewing the evidence in a light
most favorable to the State, we conclude that the evidence was
insufficient to go to the jury on this issue.
The mobile home was owned by Joanne Street, and Joanne Street
lived in the mobile home along with Defendant. Thus, it cannot be
said that the mobile home was under Defendant's control. While the
discovery of Defendant in close proximity to the drugs can be
incriminating, the discovery of two other people equal in proximity
to the drugs mitigates this circumstance. State v. Alston
, 91 N.C.
App. 707, 373 S.E.2d 306 (1988). Also, while the presence of a
large amount of cash can be an incriminating circumstance, see id.
(finding an incriminating circumstance where the defendant was
found with more than $10,000.00 in cash on his person), we do not
think fifty dollars incriminates Defendant in the possession
pill bottle in this case, although arguably it shows an intent to
sell or deliver. Similarly, we do not think the prior sales _ all
but one of which were completed more than one and a half years
before the discovery of the drugs in the mobile home _ incriminates
Defendant in the possession of drugs. The State does not direct
our attention to any authority that stands for such a proposition,
and we have found none in our research.
Finally and importantly, nothing in the evidence links
Defendant to the drugs in the pill bottle. The pill bottle was not
labeled in Defendant's name, and there was no evidence that any of
Defendant's personal items were found around the pill bottle. See
State v. Autry
, 101 N.C. App. 245, 399 S.E.2d 357 (1991) (findingconstructive possession where two of four items on or near a table
on which cocaine was found belonged to the defendant).
Additionally, there was no evidence that Defendant had any
knowledge of the presence of the drugs in the bottle. The pill
bottle was brown, not clear, and one of the deputies agreed that
it would be difficult by just holding up the bottle . . . to
determine what was in [it].
In sum, the evidence does nothing
more than create suspicion or conjecture that Defendant possessed
the drugs in the bottle. State v. Malloy
, 309 N.C. 176, 179, 305
S.E.2d 718, 720 (1983).
In light of the totality of the circumstances, the trial court
erred in denying Defendant's motion to dismiss the charge of
possession with intent to sell or deliver for the events of 21
December 2004, and its order denying Defendant's motion on that
charge is reversed.
NO ERROR IN PART, REVERSED IN PART.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
LeGrand testified that hard is a synonym for crack cocaine
*** Converted from WordPerfect ***