Opinion
No. COA13–16.
2013-07-2
STATE of North Carolina v. Theresa Michelle HAWKINS, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Lisa K. Bradley, for the State. Gilda C. Rodriguez, for defendant-appellant.
Appeal by defendant from judgments entered on 14 and 25 June 2012 by Judge James M. Webb in Superior Court, Guilford County. Heard in the Court of Appeals 22 May 2013. Attorney General Roy A. Cooper, III, by Assistant Attorney General Lisa K. Bradley, for the State. Gilda C. Rodriguez, for defendant-appellant.
STROUD, Judge.
Defendant appeals from judgments sentencing her for drug-related offenses. For the following reasons, we find no error.
I. Background
The State's evidence tended to show that on 9 March 2011 at around 8:15 p.m., as part of a drug investigation, Detectives Patrena Caviness and Dwayne James of the Greensboro Police Department parked near defendant's house which she shared with her husband. A vehicle registered to defendant was in her driveway, and the front porch light was on at the house. About fifteen minutes later, a car pulled into defendant's driveway. The driver got out of the car and walked to the front door of defendant's house. The front porch light turned off, and an individual wearing a white tee shirt answered the door and gave the driver a package. Thereafter, the porch light came back on, and the driver got in his car and left. A detective stopped the car and found cocaine packaged in a FoodSaver brand plastic bag in the floorboard.
Detective James knocked on the front door of defendant's house, but no one answered. When law enforcement officers opened the door, they found defendant standing in the living room in a white tee shirt. During a search of the kitchen, officers found four FoodSaver brand plastic bags of cocaine in the pantry. A jury found defendant guilty of “trafficking in cocaine by possession of 400 grams or more” (“trafficking”) and “knowingly keeping and maintaining a building, to wit: a dwelling house used for the purpose of unlawfully keeping and selling a controlled substance, to wit: cocaine[.]” (Original in all caps.) Defendant was sentenced accordingly, and appeals from the trial court's judgments.
II. Motion to Dismiss
As to her trafficking conviction, defendant first contends that “the trial court erred when it denied ... [her] motion to dismiss because there was insufficient evidence that ... [she] had constructive possession of the cocaine seized in the house over which she did not have exclusive control.” (Original in all caps.)
The standard of review for a motion to dismiss is well known. A defendant's motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant's being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The Court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence.
State v. Johnson, 203 N.C.App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and quotation marks omitted).
“To prove the offense of trafficking in cocaine by possession, the State must show ... knowing possession of cocaine[.]” State v. Acolatse, 158 N.C.App. 485, 488, 581 S.E.2d 807, 809 (2003) (citations and quotation marks omitted). Knowing possession may be established by showing that the defendant had constructive possession. State v. Garcia, 111 N.C.App. 636, 639–40, 433 S.E .2d 187, 189 (1993) (citation omitted). “A person is said to have constructive possession when he, without actual physical possession of a controlled substance, has both the intent and the capability to maintain dominion and control over it.” State v. Jackson, 103 N .C.App. 239, 243, 405 S.E.2d 354, 357 (1991), aff'd per curiam,331 N.C. 113, 413 S.E.2d 798 (1992). If a defendant does not have exclusive possession of the place where the controlled substance “is found, the State must show other incriminating circumstances sufficient for the jury to find a defendant had constructive possession.” State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009).
In State v. Rich, the defendant made an argument similar to the one before us. 87 N.C.App. 380, 382, 361 S.E.2d 321, 323 (1987). This Court noted,
The State is not required to prove that the defendant owned the controlled substance, or that defendant was the only person with access to it.
The State's evidence showed that defendant was seen on the premises the evening before, that on the night of her arrest she was cooking dinner at the house when the agents arrived, that women's casual clothes and undergarments were found in the bedroom, and that mail addressed to defendant, including an insurance policy listing the house as her residence, was found in the house. This is sufficient to show defendant had nonexclusive control of the premises. Where control of the premises is nonexclusive, however, constructive possession may not be inferred without other incriminating circumstances. Here, the evidence established more than defendant's mere residence in the house. The evidence showed that defendant was present on the premises when the cocaine was found, that women's clothes and undergarments were in the room and in the dresser where the cocaine was found, and that letters with defendant's name on them were also found in the room. This is evidence of other incriminating circumstances, sufficient to allow the jury to infer that defendant was in constructive possession of the cocaine.
State v. Rich, 87 N.C.App. 380, 382–83, 361 S.E.2d 321, 323 (1987) (citations and quotation marks omitted).
Here, defendant shared her home with her husband, making her control over the home and the cocaine nonexclusive and requiring the State to “show other incriminating circumstances sufficient for the jury to find ... [she] had constructive possession.” Miller, 363 N.C. at 99, 678 S.E.2d at 594. Defendant argues that there was a lack of incriminating circumstances because the cocaine or other items “suggestive of drug activity” were not found in plain view; defendant did not possess “large amounts of cash or other items associated with drug activity[;]” and other individuals not in the house at the time of the search “were the targets of the investigation.” Despite defendant's contentions that certain incriminating circumstances were not present, the evidence demonstrates that other incriminating circumstances did exist.
Here, defendant resided in the home where the cocaine was found and was the only adult in the house at the time of the search. Furthermore, no other adults were seen coming or going from defendant's house besides the individual who was handed a package from defendant's home and was thereafter found with a package of cocaine. Accordingly, there were “other incriminating circumstances sufficient for the jury to find a defendant had constructive possession.” Miller, 363 N.C. at 99, 678 S.E.2d at 594. As such, the trial court did not err by denying defendant's motion to dismiss, so this argument is overruled. See Johnson, 203 N.C.App. at 724, 693 S.E.2d at 148.
III. Plain Error
Defendant also argues that the trial court committed plain error as to two evidentiary issues.
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, 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. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations, quotation marks, and brackets omitted).
A. Odor of Marijuana
Defendant contends that “[t]hree detectives gave testimony about a strong marijuana odor they encountered upon entering” her home and that the admission of such testimony was plain error. Defendant specifically argues that evidence of the odor of marijuana in her home was irrelevant; “its only probative value was to show that ... [defendant] had the propensity or disposition to commit an offense involving contraband—an impermissible use of such evidence under Rule 404(b)[;]” the evidence “linked ... [defendant] to contraband and allowed the jury to leap to the other contraband the officers found for which she was on trial[;]” and the evidence “was potentially inflammatory” and “very prejudicial” “given the presence of two young children in the house[.]”
Assuming that defendant is correct in contending that the evidence regarding the odor of marijuana should not have been admitted, defendant must still show that the error “had a probable impact on the jury's findings that the defendant was guilty.” Id. In light of evidence that defendant was a resident of the house where the cocaine were found; an individual dressed like defendant was seen coming to the door of the house and handing the driver of the visiting car a package; the driver of said car was found with a package of cocaine; four packages of cocaine was found in the same packaging at defendant's house; and defendant was the only adult in her house at the time of the search when no one else was seen coming to or going from her house during the entire incident, we do not conclude that any evidence regarding marijuana had “a probable impact on the jury's findings that the defendant was guilty.” Id. Therefore, this argument is overruled.
B. Assisting a Fugitive
Defendant contends that the State presented extensive testimony regarding her “alleged effort to help her husband avoid being captured and [her] alleged dishonest exchange with law enforcement.” Defendant contends that “[t]he trial court committed plain error when it allowed the [S]tate to repeatedly present evidence of [defendant] helping her husband avoid arrest” as this evidence was irrelevant. Again, even assuming that defendant may be correct in arguing that evidence regarding her husband was erroneously admitted, in light of the overwhelming evidence against defendant we do not conclude that any alleged error rose to the level of plain error. Id. Accordingly, this argument is overruled.
C. Cumulative Effect
Lastly, defendant contends that “[t]he cumulative evidence of the marijuana odor and the events leading to the arrest of [defendant's husband] were prejudicial to ... [her] and had a probable impact on the jury's decision to convict.” However, this Court has previously “refuse[d] to apply the plain error doctrine on a cumulative basis[.]” State v. Holbrook, 137 N.C.App. 766, 769, 529 S.E.2d 510, 512 (2000). As such, this argument is overruled.
IV. Conclusion
For the foregoing reasons, we find no error.
NO ERROR. Judges HUNTER, ROBERT C. and ERVIN concur.
Report per Rule 30(e).