Opinion
No. COA14–724.
04-07-2015
STATE of North Carolina v. Adam Jarmal HODGE, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Steven Armstrong, for the State. Anne Bleyman for Defendant–Appellant.
Attorney General Roy Cooper, by Assistant Attorney General Steven Armstrong, for the State.
Anne Bleyman for Defendant–Appellant.
McGEE, Chief Judge.
Adam Jarmal Hodge (“Defendant”) appeals from judgments entered upon jury verdicts finding him guilty of the following offenses: conspiring to traffic in cocaine by possession; possession of cocaine with intent to manufacture, sell, or deliver; conspiring to possess cocaine with intent to manufacture, sell, or deliver; knowingly maintaining a dwelling place for keeping or selling cocaine; possession of drug paraphernalia; and being an habitual felon. We find no prejudicial error.
I. Facts and Procedural History
Defendant was arrested on 24 October 2012 on charges unrelated to the present case for which he remained in jail until 1 December 2012. During this time, his roommate, Deangelo Hickman (“Mr.Hickman”), twice sold crack cocaine to a confidential informant who was working for local law enforcement. On 18 December 2012, more than two weeks after Defendant's release from jail, Mr. Hickman sold crack cocaine for a third time to the confidential informant. The informant paid with three marked $100 bills.
In the early morning hours of 20 December 2012, police executed a search warrant at Defendant and Mr. Hickman's residence—a single-wide mobile home with three bedrooms, two bathrooms, a kitchen, and a living room (“the mobile home”). Defendant, Mr. Hickman, and Defendant's girlfriend, Anita Eaena (“Ms.Eaena”), were present at the time of the search. During the search, law enforcement recovered 3.4 grams of crack cocaine in a kitchen cabinet. On a nearby shelf, police discovered a black pouch filled with letters and documents belonging to Defendant. Two digital scales with cocaine residue were found in plain view on the kitchen counter, and law enforcement also recovered two boxes of clear plastic sandwich bags that are frequently used to distribute cocaine for sale. On the kitchen counter near the sink, police found two cell phones and two “push rods,” which are small pieces of metal that are often used in connection with smoking crack cocaine through a pipe.
Police also discovered 58.8 grams of crack cocaine in the trunk of Defendant's Mercedes Benz (“the vehicle”), which was parked next to the mobile home. The vehicle was registered in Defendant's name, but he and Mr. Hickman both drove it and Mr. Hickman used the vehicle during one of the controlled buys with police. At the time of the search, both Defendant and Mr. Hickman had identifying information, including recent mail, in the vehicle.
In Defendant's bedroom, police recovered a black Joe Boxer sock stuffed with $2,000 in large and small bills (“the sock money”), including one marked $100 bill that had been used in the 18 December 2012 controlled buy. Police found the sock in the top right drawer of Defendant's dresser, surrounded by Defendant's personal belongings.
After police discovered the sock money, Ms. Eaena, who did not live with Defendant and Mr. Hickman, claimed ownership of the sock and its contents. She told police she had earned $2,000 working in various low-paying jobs and that the $100 marked bill was there purely by coincidence because she had traded money with Mr. Hickman and presumably obtained the marked bill in the trade. Other than the sock money, the only items in Defendant's room belonging to Ms. Eaena were a single article of clothing and a pack of cigarettes.
Ms. Eaena later went to the police station and filed paperwork for the return of the $2,000, again claiming the money was hers. As a result of what law enforcement claims was a “mistake” or an “oversight,” the officer who processed Ms. Eaena's paperwork released $1,900 from the sock money to Ms. Eaena, retaining only the $100 marked bill. The police contend that this was an administrative mistake and that they believed the sock money belonged to Defendant, not to Ms. Eaena.
The State charged both Defendant and Mr. Hickman with seven separate drug-related crimes, including conspiracy, possession, and trafficking charges. At Defendant's trial, the State called Ms. Eaena as a witness. She testified under oath that the sock money found in Defendant's dresser belonged to her. The State challenged this testimony by drawing out inconsistences between her pretrial statements to police and her testimony at trial. Defendant objected to this line of questioning, arguing that the State was acting in bad faith by impeaching its own witness. Further, Defendant argued that if Ms. Eaena was in fact lying about owning the sock money, the State violated his due process rights through the knowing use of perjured testimony.
As a witness for the defense, Mr. Hickman testified that he alone was responsible for the drugs and drug paraphernalia recovered in the mobile home and the vehicle. He described how he sent a letter to Defendant's attorney prior to accepting a plea deal in his own case claiming full responsibility for the crimes. Mr. Hickman confirmed Ms. Eaena's testimony that he sometimes exchanged money with her, to explain how the marked bill might have become mixed into the sock money found in Defendant's dresser.
During closing argument, the State again pointed out the inconsistencies in Ms. Eaena's testimony concerning the sock money. The State argued that her testimony “d[id]n't make a whole lot of sense,” and urged that the jury should not believe her claim that the sock money was hers and not Defendant's. Defendant again objected and moved for a mistrial on the ground that, because the State believed Ms. Eaena was lying, it could not call her to testify as a witness.
At the close of the State's case and again at the close of all evidence, Defendant moved to dismiss the charges based on lack of evidence. The trial court denied Defendant's motions and the jury returned guilty verdicts on the following offenses: conspiring to traffic in cocaine by possession; conspiring to possess cocaine with intent to manufacture, sell, or deliver; possession of drug paraphernalia; knowingly maintaining a dwelling place for keeping or selling cocaine; possession of cocaine with intent to manufacture, sell, or deliver; and being an habitual felon. Defendant was sentenced as an habitual felon to a term of 96 to 128 months' imprisonment for the conspiracy and possession convictions, and 33 to 52 months' imprisonment for the maintaining a dwelling and paraphernalia convictions. Defendant appeals.
II. Analysis
A. Motions to Dismiss
Defendant first argues that the trial court should have granted his motions to dismiss the charges for insufficient evidence. We disagree.
In ruling on a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences that can be drawn. State v. Bradshaw, 366 N.C. 90, 92–93, 728 S.E.2d 345, 347 (2012). Contradictions and inconsistencies in the evidence require resolution by the jury and do not justify dismissal. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). Evidence presented by the State need only provide a reasonable inference of guilt for the motion to be denied and the case submitted to the jury. Bradshaw, 366 N.C. at 93, 728 S.E.2d at 347. Unless favorable to the State, the defendant's evidence should not be considered. Id.A trial court must deny a defendant's motion to dismiss claiming insufficient evidence if there is evidence from which a reasonable mind could conclude that the offense charged has been committed and that the defendant committed it. State v. Robledo,193 N.C.App. 521, 524–25, 668 S.E.2d 91, 94 (2008). We review the denial of a motion to dismiss for insufficient evidence de novo. Id.at 525, 668 S.E.2d at 94.
1. Possession of Cocaine and Drug Paraphernalia Offenses
Defendant first argues that the trial court erred by denying his motions to dismiss the possession of cocaine and possession of drug paraphernalia charges. He contends there was insufficient evidence that he possessed the cocaine found in the kitchen cabinet, the cocaine found in his vehicle, the digital scales with cocaine residue, or the other drug paraphernalia found in plain view in his kitchen. We disagree.
Possession of a controlled substance or drug paraphernalia may be actual or constructive. State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972) (concerning possession of narcotics); see State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638 (1987) (concerning possession of drug paraphernalia). “A person has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use.” State v. Reid, 151 N.C.App. 420, 428–29, 566 S.E.2d 186, 192 (2002). By contrast, constructive possession exists when the defendant, while not having actual possession of the contraband, “has both the power and intent to control its disposition or use.” Id.at 429, 566 S.E.2d at 192 (internal quotation marks omitted). “[C]onstructive possession depends on the totality of circumstances in each case,” State v. James, 81 N.C.App. 91, 93, 344 S.E.2d 77, 79 (1986), and the question is ordinarily one for the jury. Id.
When a defendant does not have exclusive possession of the place where the contraband 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). Our appellate courts have found many examples of “other incriminating circumstances” that can support a finding of constructive possession, including evidence that a 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.
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). For instance, our appellate courts repeatedly have found evidence to be sufficient to support an inference of constructive possession where a defendant or his personal property was found in close proximity to narcotics and the defendant also possessed a large amount of cash. See State v. Brown, 310 N.C. 563, 569–70, 313 S .E.2d 585, 589 (1984) (finding constructive possession where defendant had a key to the apartment where the drugs were found as well as a large amount of cash on his person); State v. Neal, 109 N.C.App. 684, 687–88, 428 S.E.2d 287, 290 (1993) (finding constructive possession where defendant was found crouched over a toilet in the process of flushing something and had a large amount of cash on his person). “Our determination of whether the State presented sufficient evidence of 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.” Alston,193 N.C.App. at 716, 668 S.E.2d at 386–87 (emphasis and internal quotation marks omitted).
In the present case, police found the digital scales with cocaine residue and other drug paraphernalia in plain view in the kitchen of Defendant's mobile home. Police also found a black pouch and personal documents belonging to Defendant on a kitchen shelf close to where police discovered crack cocaine. Police further found letters recently addressed to Defendant in the front passenger compartment of his vehicle, which Defendant was known to drive, despite having a revoked license. Defendant's vehicle also contained a large amount of crack cocaine. Finally, police found a sock in Defendant's bedroom dresser filled with more than $2,000, including a marked bill from a controlled buy. This money was found in Defendant's bedroom amidst Defendant's personal belongings in his personal dresser, which contained no one else's belongings. Additionally, this large amount of cash included a $100 marked bill used by a police informant to buy cocaine from Mr. Hickman. Thus, the State's evidence was sufficient for a reasonable jury to conclude that the cocaine belonged to Defendant and that he came into possession of the marked bill, along with a large sum of cash, as proceeds from the cocaine that already had been sold by Mr. Hickman.
While Defendant does not dispute the existence of any of this evidence, he urges that law enforcement's decision to return the sock money—except for the marked $100 bill—to Ms. Eaena “validated Ms. Eaena's ownership claim to the money by later releasing all but one bill of the money to [her].” Although, at trial, the State explained that this was simply a mistake, Defendant contends that, because the State returned the sock money to Ms. Eaena, no reasonable jury could have concluded that the sock money belonged to Defendant.
However, this argument ignores the central role of the jury. Defendant cites no authority holding that the return of the sock money to Ms. Eaena established, as a matter of law, that the sock money was hers, and no such authority exists. It is for the jury to determine who owned that money. While the jury could have viewed the return of the sock money as corroboration of Ms. Eaena's claim that the money was hers, the jury readily could have concluded that Ms. Eaena's claim was not credible and that the sock money belonged to Defendant.
Thus, when viewed in the light most favorable to the State, and drawing all reasonable inferences in the State's favor, we conclude that there was sufficient evidence for the jury to infer that Defendant constructively possessed the cocaine and drug paraphernalia recovered during the search. Although Defendant did not have exclusive control over his kitchen and his vehicle, the State presented evidence of other incriminating circumstances sufficient to find that he exercised control and dominion over the recovered narcotics and drug paraphernalia. See Miller,363 N.C. at 99–100, 678 S.E.2d at 594–95. Accordingly, we hold the trial court did not err by denying Defendant's motions to dismiss these charges.
2. Conspiracy to Possess and Traffic Cocaine Offenses
Defendant next argues that the trial court erred by denying his motions to dismiss the conspiracy charges based on insufficiency of the evidence. Defendant contends the State presented insufficient evidence showing that he had entered into an agreement with Mr. Hickman to possess and traffic the cocaine. We disagree.
“In order to prove conspiracy, the State need not prove an express agreement” between the parties. State v. Morgan, 329 N .C. 654, 658, 406 S.E.2d 833, 835 (1991). Rather, “evidence tending to show a mutual, implied understanding” is sufficient. Id.A conspiracy may be proven through circumstantial evidence, or it may be inferred from the defendant's behavior or the conduct of other parties to the conspiracy. State v. Jenkins, 167 N.C.App. 696, 699–700, 606 S.E.2d 430, 432, aff'd per curiam,359 N.C. 423, 611 S.E.2d 833 (2005). Proof of conspiracy “may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.” State v.. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933). Thus, even in “borderline” cases, “our courts have consistently expressed a preference for submitting issues to the jury[.]” State v. Jackson, 103 N.C.App. 239, 244, 405 S.E.2d 354, 357 (1991) (finding sufficient evidence to submit trafficking in cocaine and conspiracy to traffic in cocaine to the jury), aff'd per curiam,331 N.C. 113, 413 S.E.2d 798 (1992).
Viewing the evidence in this case in the light most favorable to the State, there was sufficient evidence to survive a motion to dismiss. Defendant owned the vehicle that Mr. Hickman used to conduct at least one of the three controlled buys and that was used to store most of the drugs. Drugs, digital scales with cocaine residue, and drug paraphernalia were also found throughout Defendant's mobile home which he shared with Mr. Hickman. Police further found the sock money in Defendant's room, including a $100 marked bill from a controlled buy with Mr. Hickman. As explained above, the jury readily could have rejected the only explanation Defendant offered for how the sock money got there—the claim that the sock money actually belonged to Ms. Eaena and that she obtained the marked bill purely by happenstance when she traded money with Mr. Hickman. Thus, the jury reasonably could have inferred that Defendant's possession of the marked bill, and Mr. Hickman's use of Defendant's vehicle and mobile home for the drug trafficking, showed an agreement between the two men to sell cocaine and split the profits. Accordingly, the trial court did not err by denying Defendant's motions to dismiss.
B. Challenge to Prosecutor's Closing Argument
Finally, Defendant contends the prosecutor improperly expressed his personal opinion that Ms. Eaena's testimony was untrue during the State's closing argument. Defendant argues that the prosecutor's improper remarks were prejudicial and entitle Defendant to a new trial.
Both statutory and case law explicitly prohibit a prosecutor from telling the jury that the prosecutor does not believe the testimony of a witness. During closing argument, an attorney “may not ... express his personal belief as to the truth or falsity of the evidence.” N.C. Gen.Stat. § 15A–1230(a) (2013). “A prosecutor may not express a personal opinion concerning the veracity of a witness'[s] testimony.” State v. Best, 342 N.C. 502, 518, 467 S.E.2d 45, 55, cert. denied,519 U.S. 878, 136 L.Ed.2d 139 (1996). “It is improper for a lawyer in his argument to assert his opinion that a witness is lying.He can argue to the jury that theyshould not believe a witness, but he should not call him a liar.” State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 345 (1967) (emphases added). For example, in Best,the defendant argued that
the prosecutor called the defendant a liar when he argued to the jury: “I suppose he would answer questions from the officers, as long as he wasn't telling the truth about it and as long as he was saying, ‘I didn't do anything.’ “
The prosecutor made this argument while arguing that the jury should not find the nonstatutory mitigating circumstance “[t]hat although the defendant did not confess, he was cooperative in answering questions of the investigating officers.” The defendant testified at trial that when questioned about going back to the [victim's] house after he finished his work there, he told the officers that he did not return.
Best, 342 N.C. at 518, 467 S.E.2d at 55 (alteration in original). In Best,our Supreme Court held that “the prosecutor was not expressing his belief that the defendant was lying to the police officer. The phrase ‘I suppose’ does not refer to the prosecutor's personal opinion. Rather, it is a comment by the prosecutor on the strength of the evidence supporting the mitigating circumstance.” Id.
Likewise, our Supreme Court found permissible the following statement in the State's closing argument:
What else would you have the State do? I don't know what it is. Evidence is as clear as I know how to make it clear what the truth is in this case. The defendant's guilty of burglary, guilty of two armed robberies. Under the theory of acting in concert, he's guilty of blowing that woman's face off. And beyond all that he's guilty of first degree murder.
State v. Erlewine, 328 N.C. 626, 633, 403 S.E.2d 280, 284 (1991). In Erlewine,the Court concluded that the prosecutor was “not expressing a personal opinion regarding the guilt of the defendant, but merely asking the jury to find facts and draw permissible inferences based upon substantial competent evidence[.]” Id.
In contrast, prosecutorial remarks that a witness was lying or that the prosecutor did not believe the witness are prohibited. In Miller,our Supreme Court found the prosecutor's remark, “I knew [the witness] was lying the minute he said that” improper, and that statement, along with other improper arguments by the State, resulted in a new trial for the defendant. Miller,271 N.C. at 659–61, 157 S.E.2d at 345–47. In State v. Matthews, 358 N.C. 102, 591 S.E.2d 535 (2004), the Court found that the prosecutor's remark that the defendant's theory of the case was “bull crap” constituted an improper expression of his personal opinion. Id.at 111–12, 591 S.E.2d at 542.
We find the discussion in State v. Phillips, 365 N.C. 103, 711 S.E.2d 122 (2011), cert. denied,––– U.S. ––––, 182 L.Ed.2d 176 (2012), particularly helpful, as the remarks in that case, like those here, included examples of both clearly improper statements of the prosecutor's personal opinion and possibly proper arguments regarding the strength of the evidence. Id.at 138–40, 711 S.E.2d at 147–48. “The prosecutor's flat statement that [the witness's] testimony was ‘wholly unbelievable’ was ... improper.” Id.at 139, 711 S.E.2d at 148. However, “[t]he subsequent remark that ‘I would say she's not very credible’ when [the witness] testified that [the] defendant suffered diminished capacity only during a short period is more ambiguous.” Id.“The comment can be read either as a statement of the prosecutor's personal belief or as a contention to the jury.” Id.However, the Court opined that “the infelicitous phrasing [of the latter comment] skirts the strictures of [N.C. Gen.Stat. § 15A–1230(a) ].” Id.Nevertheless, the defendant was not awarded a new trial because, “[i]n light of the overwhelming evidence against [the] defendant, [the Court] conclude[d] that the prosecutor's remarks did not pervert or contaminate the trial to such an extent as to render the proceedings fundamentally unfair.” Id.
In the present case, in his opening statement to the jury, the prosecutor forecast Ms. Eaena's testimony about the sock money:
You will hear that Ms. Eaena claimed that money was hers. She said that was her money that she got various ways through her mother or grandmother, working or whatnot. Now law enforcement eventually released that money to her, because she's the one that claimed it, but they kept the hundred dollars to put back in the special operations fund, because that's their hundred dollars.
So they asked her about that. Well, you had a hundred dollars that was used in the buy previously, in so many words they asked her that, and you will hear her response that [Defendant] gave that money to her because she didn't like to carry around large bills. So that's what she told law enforcement that day on December the 20th of 2012.
Ms. Eaena testified in conformity with the State's forecast, repeating the same account of the sock money that she had been giving since Defendant's arrest. At the conclusion of the trial, the prosecutor began his closing argument as follows:
Thank you for your time in being here. It's almost like what [defense counsel] is saying in so many words is all right you've got Ms. Eaena, Mr. Hickman, I should just sit down and not even get up and talk to you guys, that I should just sit down, let you go make your decision and come back with a not guilty verdict. That's what he's insinuating, but I'm going to take this stance, I'm going to take this stance right here.
If you believe what c[a]me out of the mouth of [Defendant's] girlfriend and Mr. Hickman, yeah, you've got to do it, if you honestly believe it. But if you believe this, if you believe that well, I really don't believe her. I don't believe that money was hers.I don't believe Mr. Hickman.
Defendant does not bring forward any argument on appeal concerning the prosecutor's expression of his personal opinion that Mr. Hickman was lying, and accordingly, we do not consider the propriety of this remark.
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(Emphasis added). We conclude that these remarks constituted “a personal opinion concerning the veracity of a witness'[s] testimony[,]” see Best, 342 N.C. at 518, 467 S.E.2d at 55, because we are unable to meaningfully distinguish these comments from those held improper in Miller, Matthews,and Phillips.Accordingly, we hold Defendant is correct in his contention that the State relied upon an improper prosecutorial comment.
However, “for an inappropriate prosecutorial comment to justify a new trial, it must be sufficiently grave that it is prejudicial error.” State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487–88 (1992) (internal quotation marks omitted). “In order to reach the level of prejudicial error in this regard, it now is well established that the prosecutor's comments must have so infected the trial with unfairness as to make the resulting conviction a denial of due process.”State v. Green, 336 N.C. 142, 186, 443 S.E.2d 14, 40 (internal quotation marks omitted), cert. denied,513 U.S. 1046, 130 L.Ed.2d 547 (1994).
In this case, as we discussed above, police found digital scales with cocaine residue and other drug paraphernalia in plain view in the kitchen of Defendant's mobile home, and found personal items belonging to Defendant on a kitchen shelf close to where police discovered crack cocaine. Defendant's vehicle also contained a large amount of crack cocaine, and the vehicle contained recent personal correspondence addressed to Defendant in the front passenger compartment of the vehicle. Finally, police found a sock in Defendant's bedroom dresser filled with more than $2,000, including a marked $100 bill from a controlled buy, which money was found in Defendant's bedroom amidst Defendant's own personal belongings in his personal dresser, which contained no one else's belongings. Thus, although we agree that the prosecutor “would have been better advised to have refrained from making ... the comments to which [Defendant] has directed our attention,” see State v. Privette, 218 N.C.App. 459, 470, 721 S.E.2d 299, 308, disc. review denied,365 N.C. 566, 724 S.E.2d 532 (2012), the evidence in the record before us was such that “any impropriety in the challenged portion[ ] of the prosecutor's closing argument did not render [Defendant's] trial fundamentally unfair.” See id.
NO PREJUDICIAL ERROR.
Judges STEPHENS and DIETZ concur.
Report per Rule 30(e).
Opinion
Appeal by Defendant from judgments entered 17 January 2014 by Judge J. Thomas Davis in Superior Court, Buncombe County. Heard in the Court of Appeals 20 October 2014.