Opinion
No. COA14–745.
04-07-2015
STATE of North Carolina v. Christopher M. CLEMONS.
Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State. Center for Death Penalty Litigation, Inc., by Vernetta R. Alston, for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State.
Center for Death Penalty Litigation, Inc., by Vernetta R. Alston, for defendant-appellant.
BRYANT, Judge.
Where there was substantial incriminating evidence of defendant's possession of cocaine, the trial court properly denied defendant's motion to dismiss the charge of trafficking in cocaine. Where defendant failed to raise a constitutional argument challenging the search of the residence before the trial court, we do not address it for the first time on appeal. Where defendant's evidence of the weight of the cocaine showed it to be above the threshold for trafficking in cocaine, the trial court did not err in not instructing the jury on a lesser-included offense. We find no error in the judgment and commitment of the trial court.
On 7 January 2013, defendant Christopher Monyah Clemons was indicted on charges of trafficking cocaine by manufacturing, trafficking cocaine by possession, possession with intent to sell or deliver cocaine, and maintaining a dwelling for keeping or selling controlled substances. A jury trial commenced on 17 December 2013 in Wake County Superior Court, the Honorable W. Osmond Smith, III, Judge presiding.
The evidence at trial tended to show that on 8 August 2012, there was an outstanding warrant for defendant's arrest. At that time, defendant was dating Beverly Moore who lived at 508 Steel Street in Raleigh. Raleigh police officers began surveillance of the residence at 508 Steel Street that evening in an attempt to locate defendant. Defendant was observed between 1:30 and 2:00 a.m. on 9 August standing outside the residence. When the officers moved in to arrest defendant, defendant turned and ran into the residence, leaving the front door open. As one of the officers approached the open door, he detected a strong odor of marijuana and observed drugs and drug paraphernalia in plain sight “close to the front doorway.” The five occupants of the house, including defendant, were ordered to exit and were arrested without incident. One occupant, Robert Young, volunteered that he had marijuana in his possession. The officers did a protective sweep of the residence and then applied for a search warrant.
Pursuant to the warrant, officers searched the small, single-story, two-bedroom house. In one bedroom, items of “male clothing,” including a large coat containing $695.00 in cash, were found. In the kitchen, officers found “crack cocaine,” digital scales, and drug paraphernalia. Photographs of the kitchen depicted items noted as drug paraphernalia, such as baking soda, measuring cups, a mixing spoon with cocaine residue, plastic sandwich baggies with white powder residue, and a silver cup containing some “crack cocaine.” Also in the kitchen officers found two grams of cocaine in a plastic bag and a Newport cigarette box containing nineteen dosage units of cocaine packaged in a plastic baggie. The total weight of the various forms of cocaine seized from the residence was 31.6 grams.
Defendant contested one measurement as to item number 31 (State's Exhibit 16). The State had presented testimony that the white powder in Exhibit 16 contained cocaine base and, absent packaging, weighed 29.8 grams. Defendant presented testimony from a forensic chemist who weighed the powder in Exhibit 16 at the Raleigh Police Department with a portable scale and stated that the powder weighed 26.31 grams.
At the close of the evidence, the jury returned verdicts finding defendant guilty of trafficking in cocaine by manufacturing 28 grams or more, possessing cocaine with intent to sell or deliver, and trafficking in cocaine by possession of 28 grams or more. The trial court entered a consolidated judgment in accordance with the jury verdicts, sentencing defendant to an active term of 35 to 42 months. Defendant appeals.
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On appeal, defendant raises the following issues: did the trial court err by (I) denying defendant's motion to dismiss; (II) failing to suppress evidence from the search of defendant's residence; and (III) failing to instruct on a lesser-included offense.
I
Defendant first argues that the trial court erred by denying his motion to dismiss the charges of trafficking cocaine by possession and possession of cocaine with intent to sell and deliver. Defendant's main contention does not challenge the evidence supporting trafficking or possession with intent to sell or deliver, but rather challenges the evidence as insufficient to show that defendant possessed the cocaine. We disagree.
“The denial of a motion to dismiss for insufficient evidence is a question of law which we review de novo.” State v. Rouse, 198 N.C.App. 378, 381–82, 679 S.E.2d 520, 523 (2009) (citations omitted).
To review a motion to dismiss for insufficient evidence, this Court asks whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Substantial evidence is that which a reasonable juror would consider sufficient to support the conclusion that each essential element of the crime exists. In reviewing a motion to dismiss, the trial court should be concerned only with the sufficiency of the evidence, and not with its weight. The evidence must be viewed in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Review of the sufficiency of the evidence to withstand the defendant's motion to dismiss is the same whether the evidence is direct, circumstantial, or both.
State v. Owen, 159 N.C.App. 204, 206, 582 S.E.2d 689, 690–91 (2003) (citations and quotations omitted).
Pursuant to our General Statutes, section 90–95,
[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine and any salt, isomer, salts of isomers, compound, derivative, or preparation thereof, ... or any mixture containing such substances, shall be guilty of a felony, which felony shall be known as “trafficking in cocaine[.]”
N.C. Gen.Stat. § 90–95(h)(3) (2013). Possession of a controlled substance may be either actual or constructive, but “[t]o convict a defendant of possessing a controlled substance, the State must prove beyond a reasonable doubt that defendant knowingly possessed the substance.” State v. Crudup, 157 N.C.App. 657, 662, 580 S.E.2d 21, 25–26 (2003) (citation omitted). “Actual possession requires a party to have physical or personal custody of the item. Constructive possession, however, exists when a person, although not having actual possession of the controlled substance, has the intent and capability to maintain control and dominion over the controlled substance.”State v. Bowens, 140 N.C.App. 217, 222–23, 535 S.E.2d 870, 873–74 (2000) (citations omitted). “[I]f the defendant does not have exclusive control of the premises in which the controlled substance was found, there must be evidence of other incriminating circumstances to support constructive possession .” State v. Hamilton, 145 N.C.App. 152, 155, 549 S.E.2d 233, 235 (2001) (citation and quotations omitted); see, e.g., Bowens, 140 N.C.App. at 223, 535 S.E.2d at 874 (the defendant was within close proximity to a narcotic drug); State v. Rich, 87 N.C.App. 380, 382, 361 S.E.2d 321, 323 (1987) (the defendant's personal items-clothes and letterswere found in the same room and in the dresser where cocaine was found). “As the terms ‘intent’ and ‘capability’ suggest, constructive possession depends on the totality of circumstances in each case. No single factor controls, but ordinarily the question will be for the jury.” State v. Jenkins, 167 N.C.App. 696, 700, 606 S.E.2d 430, 433 (2005) (citation omitted).
An officer testified that he searched one of the bedrooms where he found “items of male clothing,” a citation with defendant's name on it, and “a large winter-type heavy coat” hanging on the bedroom door. “It was a large coat. It was a size that would fit [defendant].” “[I]nside the coat there was $695 in cash.”
Another officer testified that: “I observed what I believed to be crack cocaine on the kitchen table, along with digital scales and drug paraphernalia.” He also observed “a Newport box. Located inside the Newport box [were] bags containing what [I] believed to be crack cocaine.” On the kitchen table was crack cocaine in plastic bags, marijuana “roaches,” a knife, a silver ladle containing crack cocaine and Arm & Hammer baking soda—“commonly used to cook crack cocaine,” as well as a small metal pot, measuring spoons, and mixing cups containing cocaine residue.
At trial, Beverly Moore, defendant's girlfriend, testified that on 8 August 2012, she was residing at 508 Steel Street. Moore was in a dating relationship with defendant and he stayed with her “[f]rom time to time[.]” On the evening of 8 August, Moore returned home to find defendant, Robert Young, and Marcus Williams in the home. Moore's roommate Trey Watson later returned to the residence. Moore testified that she went to sleep and was awakened by defendant who informed her that the police were outside. Moore was arrested. While in custody, Moore was escorted into the living room where she viewed the kitchen area.
Q. Do you recall ever seeing anything in the kitchen that night after the police got there?
A. I saw the cups and stuff that was in the kitchen, I think.
Q. That's important. So those cups that you saw, they were out as if somebody had been making something, correct?
A. Yes, ma‘am.
Q. Nobody was in your house making that cake that night, though, were they?
A. No, ma‘am.
Q. And so inside those cups you saw a white powder substance; is that right?
A. Um-hmm.
Q. Is that a yes?
A. Yes, ma‘am.
Q. Ma‘am, this isn't the first time that you've seen that in your home, is it?
A. No, ma‘am.
Q. And about how may other times have you seen the defendant leaving cups with a powder substance in it in your kitchen?
A. I've seen it on the table maybe three times.
...
Q. Was that your crack cocaine?
Beverly Moore had pled guilty to trafficking in cocaine by manufacturing, trafficking in cocaine by possession, conspiracy to traffic cocaine, and maintaining a dwelling to keep or sell a controlled substance. Moore testified against defendant, providing what she hoped would be considered substantial assistance that could earn her a reduced sentence.
Trey Weston , Beverly Moore's roommate, was also arrested that evening. At trial, Weston was asked to whom the cocaine belonged.
Trey Weston had pled guilty to trafficking in cocaine by manufacturing, trafficking in cocaine by possession, conspiracy to traffic cocaine by possession, and maintaining a dwelling to keep or sell a controlled substance. Like Moore, Weston testified against defendant in the hope of earning a reduced sentence.
Q. So then whose crack was it in the kitchen?
...
[A.] [Defendant's].
We hold that, on this record, there exists substantial, incriminating evidence to support a finding by a reasonable juror that defendant actually and/or constructively possessed the cocaine. Therefore, the trial court did not err in failing to dismiss these charges. Accordingly, defendant's argument is overruled.
II
Next, defendant argues that the initial search of Beverly Moore's house violated defendant's constitutional rights. Defendant contends that a non-resident's consent to enter the residence did not authorize law enforcement officers to enter the house at 508 Steel Street, that the protective sweep law enforcement officers conducted after all occupants exited the residence was unreasonable, and that no exigent circumstances existed to justify the warrantless search. Defendant further contends that because the search violated defendant's constitutional right to privacy, the trial court committed plain error in admitting the fruits of the search. We dismiss these arguments.
“In general, a constitutional issue may not be raised for the first time on appeal.” State v. Haddock,191 N.C.App. 474, 478–79, 664 S.E.2d 339, 343 (2008) (citing State v. Chapman, 359 N.C. 328, 360, 611 S.E.2d 794, 819 (2005) ).
Defendant does not contend, and we do not find, that the trial court was presented with arguments concerning defendant's privacy rights and whether they were impacted by a search of the residence at 508 Steel Street. Therefore, we do not consider these arguments for the first time on appeal. Accordingly, these arguments are dismissed.
III
Defendant argues that the trial court committed plain error by failing to give an instruction on the lesser-included offense of possession of cocaine. Defendant contends that because there was evidence that the cocaine found at 508 Steel Street weighed only 27.91 grams, failing to meet the 28 gram minimum requirement for the offense of trafficking in cocaine, the jury should have been instructed on the lesser-included offense of possession of cocaine. We disagree.
“[P]lain error review in North Carolina is normally limited to instructional and evidentiary error.” State v. Lawrence, 365 N .C. 506, 516, 723 S.E.2d 326, 333 (2012) (citation omitted). “[T]he North Carolina plain error standard of review applies only when the alleged error is unpreserved, and it requires the defendant to bear the heavier burden of showing that the error rises to the level of plain error.” Id.
The adoption of the “plain error” rule does not mean that every failure to give a proper instruction mandates reversal regardless of the defendant's failure to object at trial.... Indeed, even when the “plain error” rule is applied, it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.
Id.at 517, 723 S.E.2d at 333 (citations and quotations omitted). “Historically, in conducting plain error review, our appellate courts have considered whether the error was prejudicial and whether it resulted in a miscarriage of justice.” Id.at 517, 723 S.E.2d at 334. “For error to constitute plain error ... a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.” Id.at 518, 723 S.E.2d at 334.
“The sole distinction between trafficking in cocaine by possession ... and simple possession of cocaine ... is the amount of drugs.” State v. Valladares, 165 N.C.App. 598, 608, 599 S.E.2d 79, 87 (2004) (citation omitted). “N.C. Gen.Stat. § 9095(h)(3) [ ] provides that ‘any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine shall be guilty of a felony known as “trafficking in cocaine [.]” ‘ “ State v. Wiggins, 185 N.C.App. 376, 386, 648 S.E.2d 865, 872 (2007). “[A] defendant could be found guilty of simple possession if he possessed anyamount of cocaine.” Valladares, 165 N.C.App. at 608, 599 S.E.2d at 87 (citation omitted).
Defendant acknowledges that the State presented evidence that the weight of the cocaine found at 508 Steel Street was 29.8 grams and totaled 31.6 grams when the crack cocaine was included, but contends the total weight of the cocaine was 27.91 grams. However, defendant's expert testified that, at the request of defendant, he only weighed one of the State's exhibits, Exhibit 16. Defendant's expert then admitted on cross-examination that, when added up, the total weight of the cocaine in all of the State's exhibits amounted to 28.21 grams, which was above the threshold amount required for the offense of trafficking in cocaine by possession. Based on the State's evidence and the testimony of defendant's expert, we hold that the trial court did not err by failing to instruct the jury on the lesser-included-offense of possession of cocaine. See, e.g., State v. Thomas, 325 N.C. 583, 590–91, 386 S.E.2d 555, 559 (1989) (discussing how the trial court has no duty to instruct the jury on a lesser-included offense where the evidence only supports an instruction on the greater offense). As the trial court did not err in its instructions to the jury, there could be no plain error. Defendant's argument is overruled.
NO ERROR.
Judges DILLON and DIETZ concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgment entered 19 December 2013 by Judge W. Osmond Smith, III, in Wake County Superior Court. Heard in the Court of Appeals 3 December 2014.