Opinion
No. COA05-59
Filed 15 November 2005 This case not for publication
Appeal by defendant from judgment entered 7 June 2004 by Judge Jesse B. Caldwell, III in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 October 2005.
Roy A. Cooper, III, Attorney General, by Ted R. Williams, Special Deputy Attorney General, for the State. Michael E. Casterline for defendant-appellant.
Mecklenburg County Nos. 02 CRS 214614; 02 CRS 214616; 02 CRS 214981.
Defendant appeals from a judgment entered upon his convictions by a jury of intentionally keeping or maintaining a dwelling house for keeping or selling a controlled substance; possession of drug paraphernalia; and trafficking by possession of cocaine. We find no error.
At trial, the State's evidence included the testimony of Detective J.C. Long of Charlotte-Mecklenburg Police Department. Detective Long testified that on 3 April 2002, an informant whom he had arrested placed a telephone call at Detective Long's request. Detective Long was positioned so as to be able to hear both sides of the telephone conversation, and he heard the other party tell the informant that he "had it" and that the informant should meet him at a house with a Century 21 sign in front of it on Old Plank Road in Charlotte, North Carolina. Detective Long then went to the house described in the telephone conversation and knocked on the back door. He noticed, on the trash can on the porch, ziploc bags that appeared to have the residue of a white powdery substance, later tested to be cocaine. When no one answered the door, Detective Long called the last number dialed on the informant's cell phone, which the officer then had in his possession. He informed the person who answered that he was at the house waiting. The person on the other end replied that he would be there in twenty minutes.
Twenty minutes later, defendant arrived at the house in a pickup truck. Detective Long approached defendant, identified himself as a police officer, and showed defendant the bags containing the residue. Detective Long again used the informant's phone to dial the number he had called previously. A cell phone in defendant's possession rang. Detective Long testified that he recognized defendant's voice as the one from the earlier phone calls. When Detective Long asked defendant for identification, defendant presented an out-of-state driver's license bearing the name Roger Dale Prayther. Defendant told Long that he did not live at Old Plank Road, although he did have a key to the residence, and therefore he could not give consent for Detective Long to search. Detective Long secured a search warrant and returned to the residence. He used defendant's key to enter the house; defendant deactivated the alarm. Long stated that the house smelled strongly of cocaine and there was cocaine residue in the stove. In a desk in the bedroom, officers found a breathing apparatus, a heat lamp, a bag of cocaine, some Inositol (a cutting agent), and ziploc bags. Elsewhere in the home, officers found an oatmeal container containing cocaine, a press machine, scale, vacuum sealer and vacuum seal bags. In a closet, officers discovered a safe built into the wall, which contained additional cocaine. There was mail in the home addressed to defendant and also mail bearing the name of Roger Prayther, the name on the out-of-state driver's license which defendant had initially shown Detective Long.
Defendant told Detective Long that his actual residence was on Beagle Club Road, and gave the officer consent to search that residence. The Beagle Club Road residence was a mobile home with very little furniture or clothing. During that search, a duct taped package which appeared to have been cut open was found in a trash can. The package was similar in size to the size of a kilogram package of cocaine. No other incriminating items were found there.
Defendant presented evidence tending to show that he had moved out of the Old Plank Road residence in January of 2002. Three of his friends, including his neighbor at the Old Plank Road address, testified that they had helped defendant move, and that they had not seen any of the drug equipment which the officers discovered there. They also testified that they had never seen any cocaine or drug activity in their frequent interactions with defendant.
On appeal, defendant argues the trial court 1) erroneously permitted Detective Long to give expert opinion testimony even though he had not been qualified as such; 2) erred by allowing the prosecutor to make improper closing arguments; and 3) erred in denying his motion to dismiss based on insufficient evidence. We have carefully considered each of the arguments and find no merit in any of them.
Defendant maintains that Detective Long's testimony regarding the procedure and equipment required to process and package cocaine was inadmissible because he had not been qualified as an expert. A finding that a witness is an expert is implied by the admission of expert opinion testimony by a trial court, where the defendant has only made a general objection to the testimony. State v. Tyler, 346 N.C. 187, 203, 485 S.E.2d 599, 608, cert. denied, 522 U.S. 1001, 139 L. Ed. 2d 411 (1997); N.C.R. App. P. 10 (b)(1). Testimony by a lay witness "in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." N.C. Gen. Stat. § 8C-1, Rule 701 (2003). "As long as the lay witness has a basis of personal knowledge for his opinion, the evidence is admissible." State v. Bunch, 104 N.C. App. 106, 110, 408 S.E.2d 191, 194 (1991) (holding testimony by police officer regarding common practice in drug transactions in a particular community admissible). Detective Long's testimony regarding the press, scales, and manner of packing cocaine was not opinion testimony requiring that he be qualified as an expert witness because of his personal knowledge based on his experience as a law enforcement officer. Even so, Detective Long testified to his specialized training and experience regarding narcotics, and the 500 to 600 cocaine arrests he had made. Such testimony was clearly sufficient to show his specialized knowledge of the subject so as to assist the jury in understanding the significance of the items found during the search. N.C. Gen. Stat. § 8C-1, Rule 702(a) (2003). This assignment of error is overruled.
By his second argument, defendant contends the trial court erred in overruling his objection to statements by the prosecutor in his closing argument which defendant contends referred to matters not in evidence. He also contends that the prosecutor's argument implicated defendant's constitutional right not to testify and that the trial court erred by not intervening ex mero motu to stop the improper argument. Defendant maintains these errors require that he be granted a new trial. Again, we disagree.
"When, in a closing argument, an objection was made and overruled, the standard of review on appeal is whether the trial court abused its discretion by failing to sustain the objection." State v. Millsaps, 169 N.C. App 340, 347, 610 S.E.2d 437, 442 (2005). We must then determine whether the remarks were so improper that they prejudiced the defendant. Id. Where a defendant has not objected to the argument by the prosecutor, wedetermine if the trial court erred in failing to intervene ex mero motu, to protect the rights of the parties and the sanctity of the proceedings. State v. Walters, 357 N.C. 68, 101-02, 588 S.E.2d 344, 364, cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003). Closing arguments are considered in context. State v. Augustine, 359 N.C. 709, 725-26, 616 S.E.2d 515, 528 (2005).
Defendant contends the prosecutor referred to facts not in evidence by stating, "We don't have that evidence but you can infer that he said, `I will talk to him right now. I will call [defendant]. I know he has the keys and the code to that house.'" Our examination of the record leads us to conclude that the argument was based on the prosecutor's analysis of Detective Long's testimony and there was no abuse of the trial court's discretion in overruling defendant's objection to it. N.C. Gen. Stat. § 15A-1230 (2003).
Defendant also maintains the prosecutor directly commented on defendant's failure to testify by stating:
Why wouldn't [defendant] just say, "I live at" whatever place he lived at? What is the big deal? Who knows. I don't know and I know you don't know because you didn't hear any evidence about it. . . . Why wouldn't he say he lived with a law-abiding citizen? I don't know.
Taken in context, however, these statements are not impermissible comments on defendant's failure to testify; rather, they relate to defendant's statements to Detective Long when defendant arrived at the house on Old Plank Road. "[E]ven assuming that the prosecutor's rhetorical question can be perceived as touching on defendant's decision not to testify," we do not believe the argument was so grossly improper as to undermine defendant's right to a fair trial; therefore, "the trial court did not commit error by failing to intervene ex mero motu." State v. Barden, 356 N.C. 316, 356, 572 S.E.2d 108, 134 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003).
In defendant's final argument, he contends the trial court should have granted his motions to dismiss all of the charges against him due to insufficient evidence. When considering a motion to dismiss for insufficiency of the evidence, the trial court must consider whether there is substantial evidence of each essential element of the crime charged. State v. Holland, 161 N.C. App. 326, 328, 588 S.E.2d 32, 34 (2003). Substantial evidence is relevant evidence "that a reasonable mind might accept as adequate to support a conclusion," State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981), and can be either direct or circumstantial. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). This evidence must be considered "in the light most favorable to the State," and the State is entitled to every reasonable inference to be drawn from it. State v. Bright, 301 N.C. 243, 257, 271 S.E.2d 368, 377 (1980). "The trial court in considering a motion to dismiss is concerned only with the sufficiency of the evidence to carry the case to the jury; it is not concerned with the weight of the evidence." State v. Lowery, 309 N.C. 763, 766, 309 S.E.2d 232, 236 (1983). Defendant first argues the trial court should have granted his motion to dismiss the charge of maintaining a dwelling for keeping or selling a controlled substance. The "State has the burden of proving the defendant: (1) knowingly or intentionally kept or maintained; (2) a building or other place; (3) being used for the keeping or selling of a controlled substance." State v. Frazier, 142 N.C. App. 361, 365, 542 S.E.2d 682, 686 (2001). Cocaine is a controlled substance. N.C. Gen. Stat. § 90-90(1)(d) (2003). Factors to be considered in determining whether defendant kept or maintained the property include occupancy of the property; payment of rent, utilities, or repair expenses; and possession of a key to access the property. Frazier, 142 N.C. App. at 365, 542 S.E.2d at 686.
"[B]oth actual and constructive possession will support a finding of `possession' within the meaning of our statutes." State v. McNeil, 359 N.C. 800, 813, 617 S.E.2d 271, 279 (2005). It "is not necessary to show that an accused has exclusive possession of the premises where contraband is found, where possession of the premises is nonexclusive, constructive possession of the contraband materials may not be inferred without other incriminating circumstances." State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 588-89 (1984). The State may show a defendant had constructive possession by producing evidence that a defendant "maintained the premises as a residence, or had some apparent proprietary interest in the premises or the controlled substance." State v. Hamilton, 145 N.C. App. 152, 156, 549 S.E.2d 233, 235 (2001). Here, the State presented evidence from which the jury could infer that defendant kept or maintained the Old Plank Road residence for keeping or selling cocaine. There was little furniture and no clothing or personal possessions in the home. There was testimony that the home appeared to be what is commonly referred to as a "stash house." It did, however, contain mail addressed to defendant or Roger Prayther. Defendant not only met Detective Long at the house after the informant telephoned him, but also had a key and was able to disarm the alarm. This evidence, taken in light most favorable to the State, is sufficient to permit the jury to conclude that defendant maintained the house for the purpose of keeping cocaine.
Defendant also argues the trial court should have dismissed the charge of trafficking in cocaine, which is knowing possession of 28 or more grams of cocaine. State v. White, 104 N.C. App. 165, 168, 408 S.E.2d 871, 873 (1991); N.C. Gen. Stat. § 90-95(h)(3)(b) (2003). Discovery of contraband materials "on the premises under the control of an accused . . . in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury." State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).
We have already determined there was substantial evidence that defendant controlled the premises; there was also substantial evidence from which the jury could find that defendant possessed the cocaine found upon the premises. Defendant met Detective Long at a remote residence after receiving a phone call from the informant. The cocaine was found in three separate amounts: 1) the bag of cocaine from the dresser in the bedroom weighed 81.57 grams; 2) the cocaine in the oatmeal container weighed 204.58 grams; and 3) the cocaine recovered from the wall safe weighed 251.09 grams, providing a total weight of more than 200 grams of cocaine. In addition, there was evidence that two bottles of Inosital powder, a cutting agent used to repackage the cocaine at a greater weight, were found in a desk drawer.
Finally, defendant argues there was insufficient evidence that he knowingly used, or possessed "with intent to use, drug paraphernalia to . . . manufacture, compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain, or conceal a controlled substance. . . ." N.C. Gen. Stat. § 90-113.22 (2003). The State must show that defendant 1) possessed the processing equipment found in the house and 2) intended to use it to process cocaine. See State v. Hedgecoe, 106 N.C. App. 157, 164, 415 S.E.2d 777, 781 (1992).
Again, because there was sufficient evidence that defendant maintained the house under his control, the jury could infer that the defendant possessed the breathing apparatus, heat lamp, bags with cocaine residue, cutting agent, ziploc bags, press machine, scale, vacuum sealer and vacuum seal bags, and oatmeal container found therein. There was testimony that these items are commonly used to process cocaine.
We hold the evidence, taken in light most favorable to the State, was sufficient to allow the jury to determine that defendant maintained the dwelling house for the purpose of keeping cocaine, trafficked in cocaine, and possessed drug paraphernalia. Accordingly, the trial court did not err in denying defendant's motion to dismiss.
No error.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).