Opinion
No. COA12–1465.
2013-08-6
STATE of North Carolina v. Roderick Demetrius BLOUNT.
Attorney General Roy Cooper, by Assistant Attorney General Nancy Dunn Hardison, for the State. Kimberly P. Hoppin, for defendant appellant.
Appeal by defendant from judgment entered 25 January 2012 by Judge W. Allen Cobb in Wayne County Superior Court. Heard in the Court of Appeals 10 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Nancy Dunn Hardison, for the State. Kimberly P. Hoppin, for defendant appellant.
McCULLOUGH, Judge.
Roderick Demetrius Blount (“defendant”) appeals from his convictions for possession of marijuana with intent to sell or deliver, possession of drug paraphernalia, and attaining the status of an habitual felon. For the following reasons, we find no error.
I. Background
On 30 November 2009, Sergeant Gaston Lopez, Sergeant Daniel Peters, and Captain Seth Harris, members of the drug unit of the Goldsboro Police Department, were on duty in an unmarked police vehicle. While patrolling an area in response to complaints of drug activity, Sergeant Lopez spotted a white Cadillac that matched the description of a vehicle specifically identified in the complaints. The officers followed the Cadillac to the parking lot of a tobacco store where, parked a short distance away, they were able to observe the Cadillac.
At some point the officers saw a woman, later identified as Pamela Bradley, get out of a red Blazer parked near the Cadillac and enter the Cadillac's rear passenger-side door. A few minutes later Ms. Bradley reemerged and appeared to be clenching something in her fist. The officers then saw defendant exit the Cadillac from the front passenger-side door and walk into the tobacco store.
Sergeant Peters and Sergeant Lopez, suspecting they had witnessed a drug transaction, confronted and questioned Ms. Bradley. When asked if she had drugs in the car, Ms. Bradley responded affirmatively, handed Sergeant Lopez a small bag of what was believed to be seven to seven and a half grams of marijuana, and told Sergeant Lopez she had purchased the substance from the man in the Cadillac. Additionally, Ms. Bradley later gave a sworn statement and testified at trial that she had contacted defendant beforehand to purchase marijuana and defendant specifically told Ms. Bradley to meet him at the tobacco store parking lot to conduct the transaction that day.
While Sergeant Lopez was issuing a citation to Ms. Bradley, he saw defendant walk out of the tobacco store. The two recognized each other from a previous encounter, and defendant even acknowledged Sergeant Lopez by name, saying, “what's up, Lopez.” Instead of returning to the Cadillac, defendant continued to walk past the officers and around the corner of the building. By the time Sergeant Lopez instructed Sergeant Peters to follow defendant, defendant had already disappeared.
Sergeant Peters, joined by Captain Harris, then approached the Cadillac and questioned the driver, Shakiana Dewitt (the “codefendant”). Codefendant told Sergeant Peters there was no marijuana in the car; Sergeant Peters, however, smelled marijuana and could see a scale between the front seats of the Cadillac that appeared to be covered in marijuana residue.
Sergeant Peters ordered codefendant out of the Cadillac and searched the vehicle. Along with the scale, Sergeant Peters recovered a bag of a substance he believed to be marijuana. The bag was found wrapped in a sweatshirt underneath the front passenger seat of the Cadillac. SBI testing later confirmed the bag contained 58.4 grams (about 2 ounces) of marijuana.
Defendant was later arrested and indicted on charges of possession with intent to sell or deliver marijuana in violation of N.C. Gen.Stat. § 90–95(a)(1) and possession of drug paraphernalia in violation of N.C. Gen.Stat. § 90–113.22(a). In addition, a separate bill of indictment was entered charging defendant for being an habitual felon as defined in N.C. Gen.Stat. § 14–7.1.
On 26 October 2011, the State filed a motion for joinder of defendant's and codefendant's cases for trial on the ground that each defendant was charged with accountability for each offense. Two days later, defendant filed a motion to sever. The State's motion for joinder was granted.
The case first came on for jury trial on 31 October 2011, but resulted in a mistrial. A second jury trial began on 23 January 2012. After hearing the evidence, the jury returned verdicts finding defendant guilty of all charges. The trial court consolidated the offenses for judgment and sentenced defendant as an habitual felon with a prior record level III to a term of 104 to 134 months. Defendant filed written notice of appeal on 3 February 2012.
II. Analysis
Defendant raises two issues on appeal: whether the trial court erred in (1) joining his case and codefendant's for jury trial; and (2) denying his motion to dismiss the charges based on insufficiency of the evidence. We address the issues in order.
A. Joinder of Cases
N.C. Gen.Stat. § 15A–926(b)(2)(a) authorizes joinder of defendants when the State seeks to hold each defendant accountable for the same crime or crimes. Public policy strongly favors joinder as the rule rather than the exception in North Carolina. See State v. Paige, 316 N.C. 630, 643, 343 S.E.2d 848, 857 (1986). Yet no matter how strong the State's judicial economy justifications may be, joinder “must not stand in the way of ‘a fair determination of ... guilt or innocence ....‘ “ State v. Boykin, 307 N.C. 87, 92, 296 S.E.2d 258, 261 (1982) (quoting N.C. Gen.Stat. § 15A–927(c)(2)).
In the present case, the State's motion for joinder of defendant's and codefendant's cases was granted because each defendant was charged with accountability for each offense: possession of marijuana with intent to sell or deliver and possession of drug paraphernalia. Defendant now argues that the trial court erred by allowing the State's motion to join the cases for trial and in denying his motion to sever. We disagree.
“It is well established that a trial court's ruling on the consolidation or severance of cases is discretionary and will not be disturbed absent a showing of abuse of discretion.” State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985). In order to overturn the discretionary ruling of the trial court, a defendant must show that joinder deprived him of a fair trial. State v. Porter, 303 N.C. 680, 688, 281 S.E.2d 377, 383 (1981). As the North Carolina Supreme Court has said,
the existence of antagonistic defenses alone does not necessarily warrant severance. The test under section 15A–927(c)(2) is whether the conflict in the defendants' respective positions at trial is such that, considering all of the other evidence in the case, they were denied a fair trial. Thus the focus is not on whether defendants contradict one another but on whether they have suffered prejudice.
No prejudice results where the state presents plenary evidence of [the] defendant's guilt, apart from the codefendant's testimony, and where defendant has the opportunity to cross-examine the codefendant.
State v. Rasor, 319 N.C. 577, 582–83, 356 S.E.2d 328, 332 (1987).
Here, defendant contends codefendant's antagonistic position prejudiced his case because (1) up until days before trial codefendant was expected to testify for the State against defendant in exchange for a grant of immunity; (2) a Mirandized statement made by codefendant to officers at the time of her arrest could not be introduced into evidence in a joint case without prejudicing one of the parties; (3) codefendant's counsel previously represented Ms. Bradley, the State's key witness, resulting in “an apparent allegiance between the State, the State's chief witness and [codefendant's] attorney”; and (4) counsel for codefendant made a statement during closing arguments that undermined the defendant's “right to remain silent and be free of having the exercise of that silence used at trial to infer his guilt.” We are not persuaded by these arguments.
Defendant's first two arguments are groundless given that codefendant was not called to testify and the State never sought to introduce codefendant's statement at trial. Defendant's reliance upon Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476 (1968), is misplaced because the State chose not to admit codefendant's statement into evidence, and the State's option to proceed without the statement altogether is specifically contemplated by statute. SeeN.C. Gen.Stat. § 15A–927(c)(1) (2011); see also Hayes, 314 N.C. at 468, 334 S.E.2d at 746. Defendant cannot be prejudiced by testimony that was never presented to the jury.
Defendant insists in the alternative that he was deprived of an opportunity to present codefendant's statement to the jury in a light potentially exculpatory as to him, relying upon the authority of State v. Tucker, 331 N.C. 12, 24–25, 414 S.E.2d 548, 554–55 (1992). Yet, defendant's complaint here is wanting because he never actually sought to introduce codefendant's statement at trial, despite the trial court explicitly preserving his opportunity to do so.
Defendant cites no authority to support his third argument, and has not given this Court any reason to believe Ms. Bradley's testimony at trial would have been different absent her previous attorney-client relationship and subsequent conversations with codefendant's counsel. Finally, codefendant's counsel explained that his statements in closing argument referred to defendant's disappearance from the scene at the tobacco store, leaving codefendant to fend for herself. We fail to see how this statement prejudiced defendant's case as a comment on his right to remain silent, especially when the jury was specifically instructed that the law “assures the Defendants that their decision not to testify creates no presumption against them.”
Where the evidence presented at trial would not have been materially different had the trial been severed and the defendant tried individually, we fail to see how defendant was prejudiced by the trial court's decision to grant the motion to join defendant's and codefendant's cases for jury trial. Accordingly, we find no abuse of the trial court's discretion.
B. Motion to Dismiss
Defendant also asserts the trial court erred in denying his motion to dismiss the charges of possession with intent to sell or deliver marijuana and possession of paraphernalia. We disagree.
“This Court reviews the trial court's denial of a motion to dismiss de novo. ” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “It is well settled that upon a motion to dismiss in a criminal action, all the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). “The trial judge must decide whether there is substantial evidence of each element of the offense charged.” Id. “To be substantial, the evidence need not be irrefutable or uncontroverted; it need only be such as would satisfy a reasonable mind as being ‘adequate to support a conclusion.’ “ State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 139 (2002) (citation omitted). “If substantial evidence exists, whether direct, circumstantial, or both, supporting a finding that the offense charged was committed by the defendant, the case must be left for the jury.” State v. Matias, 354 N.C. 549, 551–52, 556 S.E.2d 269, 270 (2001).
Here, defendant challenges the sufficiency of the evidence as to both possession with intent to sell or deliver marijuana and possession of drug paraphernalia.
N.C. Gen.Stat. § 90–95(a)(1) provides that it is unlawful for a person “to manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance[.]” There are three elements to the offense of possession with intent to sell or deliver a controlled substance: “(1) possession of a substance; (2) the substance must be a controlled substance; [and] (3) there must be intent to sell or distribute the controlled substance.” State v. Carr, 145 N.C.App. 335, 341, 549 S.E.2d 897, 901 (2001).
The State presented competent evidence to show the substance recovered from the Cadillac was marijuana, and there is no question that marijuana is a controlled substance. SeeN.C. Gen.Stat. § 90–94(1). Instead, defendant contends there is insufficient evidence to show he possessed the marijuana found in the Cadillac. We find no merit in this argument.
Possession may be established “by showing either actual possession or constructive possession.” State v. Siriguanico, 151 N.C.App. 107, 110, 564 S.E.2d 301, 304 (2002). Constructive possession is found when, although there is no actual physical dominion over the contraband, the defendant nonetheless “has ‘the intent and capability to maintain control and dominion over it.’ “ State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)).
If the contraband is found on premises under the exclusive control of an accused, this 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. McNeil, 359 N.C. 800, 809, 617 S.E.2d 271, 277 (2005) (internal quotation marks and citations omitted). However, where control of the premises is nonexclusive, that is, when another individual is present and potentially responsible for possession, “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).
This Court and the North Carolina Supreme Court have identified several incriminating circumstances as sufficient to permit a reasonable inference of constructive possession. See State v. Alston, 193 N.C.App. 712, 716, 668 S.E.2d 383, 386 (2008), aff'd per curiam, 363 N.C. 367, 677 S.E.2d 455 (2009). As this Court has noted,
[i]ncriminating circumstances relevant to constructive possession
“include evidence that defendant: (1) owned other items found in proximity to the contraband; (2) was the only person who could have placed the contraband in the position where it was found; (3) acted nervously in the presence of law enforcement; (4) resided in, had some control of, or regularly visited the premises where the contraband was found; (5) was near contraband in plain view; or (6) possessed a large amount of cash.”
Evidence of conduct by the defendant indicating knowledge of the controlled substance or fear of discovery is also sufficient to permit a jury to find constructive possession.
Id. (citations omitted). By itself, proximity to persons or premises with contraband about them is insufficient. See State v. Barron, 202 N.C.App. 686, 692, 690 S.E.2d 22, 27,disc. review denied,364 N.C. 327, 700 S.E.2d 926 (2010). However, an inquiry into other incriminating circumstances “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. McBride, 173 N.C.App. 101, 106, 618 S.E.2d 754, 758 (emphasis in original) (internal quotation marks and citations omitted), disc. review denied,360 N.C. 179, 626 S.E.2d 835 (2005). The cases “have tended to turn on the specific facts presented.” Miller, 363 N.C. at 99, 678 S.E.2d at 594.
In State v. Martinez a car's passenger argued the evidence was insufficient to show he constructively possessed marijuana found in the car because he did not have exclusive control over the car, and the marijuana was found in the trunk instead of the passenger area where he was sitting. 150 N.C.App. 364, 371, 562 S.E.2d 914, 918,appeal dismissed and disc. review denied,356 N.C. 172, 568 S.E.2d 859 (2002). This Court rejected the passenger's arguments, noting as a key “incriminating circumstance[ ]” that the passenger was intercepted by the police on his way to a prearranged drug transaction. Id. In Siriguanico, this Court held the evidence of other incriminating circumstances was sufficient to infer that the defendant was in nonexclusive, constructive possession of nearly 1000 grams of cocaine where, even though the defendant never himself held the cocaine, he was aware of and present during all conversations about selling the cocaine, rode in a car to transport the cocaine to a location where they would “deal” it, and assisted another to weigh the cocaine on a set of scales when they arrived. See Siriguanico, 151 N.C.App. at 110–11, 564 S.E.2d at 304.
Finally, in Matias one of four passengers in a car argued the trial court erred in denying his motion to dismiss charges for possession of a bag of cocaine found tucked in between the back right seat where the passenger had been sitting. See Matias, 354 N.C. at 551, 556 S.E.2d at 270. The North Carolina Supreme Court, however, rejected the passenger's appeal and found the evidence of incriminating circumstances sufficient to infer constructive possession where officers smelled a strong odor and observed physical evidence of other drugs in the vehicle and an officer testified the passenger was the only person who could have placed the cocaine where it was found. See id. at 552, 556 S.E.2d at 271.
Here, viewing the evidence in the light most favorable to the State, there was sufficient evidence for a reasonable jury to infer defendant had constructive possession of the marijuana found in the Cadillac. Defendant here did not have exclusive control over the Cadillac and codefendant was in the Cadillac alone for a short period of time before the car was searched and the marijuana was recovered. However, the State presented evidence tending to show several incriminating circumstances implicating defendant, including that the officers received complaints of drug activity that identified a white Cadillac and Ms. Bradley testified that, without defendant specifically telling her, she knew which vehicle was his; the officers spotted a white Cadillac and followed it to a parking lot where they watched Ms. Bradley enter the Cadillac and exit a few minutes later, clenching something in her fist; when confronted, Ms. Bradley was found to have a substance believed to be marijuana in her possession, told the officers she had just purchased the marijuana from a man in the Cadillac, and later testified that she had specifically arranged to meet defendant at the tobacco store to purchase marijuana. After exiting the Cadillac and upon seeing the officers, defendant inexplicably “disappeared” around the corner of the tobacco store instead of returning to the Cadillac; and when the officers searched the Cadillac, they found scales covered in marijuana residue and a bag of marijuana stuffed under the front passenger seat where they had seen defendant sitting just moments before.
Given the sufficiency of the evidence on a constructive possession theory, we need not address defendant's argument that the State did not present sufficient evidence under an actual possession or acting in concert theory. See Alston, 193 N.C.App. at 715, 668 S.E.2d at 386. We therefore find no error in the trial court's denial of defendant's motion to dismiss the charge of possession with intent to sell or deliver marijuana.
In his brief to this Court, defendant did not specifically challenge the evidence on the element of intent to sell or deliver. However, given Ms. Bradley's testimony that she had specifically arranged to meet with defendant to purchase marijuana and did actually purchase a substance that she identified as marijuana from him, it is beyond dispute that there is sufficient evidence for the jury to infer the existence of this element.
Concerning the charge of possession of drug paraphernalia, N.C. Gen.Stat. § 90–113.22(a) provides that “[i]t is unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain, or conceal a controlled substance which it would be unlawful to possess ....“ Based on the reasoning above, we find the evidence that defendant constructively possessed the drug paraphernalia found in the Cadillac sufficient to survive defendant's motion to dismiss on that charge as well.
III. Conclusion
For the reasons discussed above, the trial court did not abuse its discretion in granting the State's motion to join defendant's and codefendant's cases for jury trial, did not abuse its discretion in denying defendant's motion to sever, and did not err in denying defendant's motion to dismiss the charges of possession of marijuana with intent to sell or deliver and possession of drug paraphernalia.
No error. Judges BRYANT and HUNTER, JR., (ROBERT N.), concur.
Report per Rule 30(e).