State v. Williams , 241 N.C. App. 177 ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1129
Filed: 19 May 2015
Wilson County, No. 12 CRS 55006
STATE OF NORTH CAROLINA, Plaintiff,
v.
RASHON DEVELL WILLIAMS, Defendant.
Appeal by defendant from judgment entered 25 March 2014 by Judge Quentin
T. Sumner in Wilson County Superior Court. Heard in the Court of Appeals 6 May
2015.
Attorney General Roy Cooper by Assistant Attorney General Oliver G. Wheeler
IV, for the State.
Adrian M. Lapas for defendant-appellant.
STEELMAN, Judge.
The trial court did not err by denying defendant’s motion to dismiss the charges
against him where there was sufficient evidence of incriminating circumstances to
support the submission of the theory of constructive possession to the jury. The
admission of evidence of defendant’s prior bad acts did not rise to the level of plain
error. Defendant's claim of ineffective assistance of counsel is dismissed without
prejudice to his right to file a motion for appropriate relief in the trial court.
STATE V. WILLIAMS
Opinion of the Court
I. Factual and Procedural History
On 15 November 2012 Detective David Seagroves of the Wilson Police
Department obtained a search warrant for the premises located at 1009 Washington
Street, Wilson. The search warrant was executed on 16 November 2012, and items
were seized from the house. On 5 August 2013 defendant was indicted for felonious
possession of cocaine, possession with intent to sell or deliver cocaine, and the felony
of intentionally maintaining a dwelling for keeping and selling controlled substances.
Prior to trial the State dismissed the possession of cocaine charge. The charges
against defendant came on for trial at the 25 March 2014 criminal session of Superior
Court for Wilson County.
A. State’s Evidence
In November 2012 Detective Seagroves was in the narcotics division of the
Wilson Police Department. On 15 November 2012 Detective Seagroves observed
defendant at the residence engaging in a controlled drug sale of crack cocaine to a
confidential informant. Detective Seagroves obtained a search warrant for the
Washington Street house and the next day he led several law enforcement officers in
executing the search warrant. When the officers entered the house, defendant’s
mother was in the living room, and defendant and his brother, Broderick Hagins,
were sleeping in the middle bedroom. The officers seized the following items from
defendant’s bedroom: (1) plastic baggies containing a white residue; (2) a pill bottle
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Opinion of the Court
with a white residue; (3) a digital scale with white residue on it; (4) a red bandana,
which Detective Seagroves associated with gang membership; (5) a pot scrubber of a
type that Detective Seagroves testified was often used as a filter in a crack pipe; (6)
a marijuana roach; and (7) mail addressed to defendant at 1009 Washington Street,
including a release order from another criminal case.
Defendant’s brother and mother were released, but defendant was arrested
and taken to the police station, where he made a statement after being informed of
his Miranda rights. In defendant’s statement, he stated (1) that he lived at 1009
Washington Street, (2) that he knew the scale contained cocaine residue, (3) that he
had previously sold cocaine, (4) that he was not selling cocaine “right now” or “lately”
because “the dope out there isn’t any good,” and (5) that the drugs found in the
bedroom belonged to his brother. In addition to the testimony of Detective Seagroves,
the State presented expert testimony that the digital scale and pill bottle contained
a residue amount of crack cocaine.
B. Defendant’s Evidence
Defendant testified that on 16 November 2012 he was living at 1009
Washington Street, where he shared a bedroom with his brother, Broderick. He had
previous convictions for larceny, possession of cocaine, and several misdemeanor
offenses. Defendant denied belonging to a gang, but admitted that he “was affiliated
with guys that [were] in the gang.” He had sold cocaine within the six months before
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Opinion of the Court
his arrest, but was not selling cocaine on 15 November 2012. He was unemployed at
that time, and earned money through illegal gambling. He had used “pills and
cocaine” a few days before trial, but did not own the drugs found in his bedroom. His
brother also sold drugs, and his mother was “a cocaine addict.”
On 25 March 2014 the jury found defendant guilty of felonious possession with
intent to sell or deliver cocaine, and the misdemeanor offense of knowingly
maintaining a dwelling for keeping or selling controlled substances. The trial court
imposed a consolidated judgment, sentencing defendant to eight to nineteen months
imprisonment.
Defendant appeals.
II. Constructive Possession
In his first argument, defendant contends that the trial court erred in denying
his motions to dismiss at the close of the State’s evidence and again at the close of all
the evidence. Defendant argues that the State failed to show that he had constructive
possession of the cocaine. We disagree.
A. Standard of Review
“ ‘This Court reviews the trial court’s denial of a motion to dismiss de novo.’
‘Upon defendant’s motion for dismissal, the question for the Court is whether there
is substantial evidence (1) of each essential element of the offense charged, or of a
lesser offense included therein, and (2) of defendant’s being the perpetrator of such
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Opinion of the Court
offense. If so, the motion is properly denied.’ ” State v. Ruffin, __ N.C. App. __, __, 754
S.E.2d 685, 690 (2014) (quoting State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29,
33 (2007) (citation omitted), and State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,
455 (2000) (internal quotation omitted)). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citation omitted). “ ‘In
making its determination, the trial court must consider all evidence admitted,
whether competent or incompetent, in the light most favorable to the State, giving
the State the benefit of every reasonable inference and resolving any contradictions
in its favor.’ ‘Contradictions and discrepancies do not warrant dismissal of the case;
rather, they are for the jury to resolve. Defendant’s evidence, unless favorable to the
State, is not to be taken into consideration.’ In this case, since defendant presented
evidence, we only review the sufficiency of the evidence as of the close of all of the
evidence.” Ruffin, __ N.C. App. at __, 754 S.E.2d at 690 (quoting State v. Rose, 339
N.C. 172, 192, 451 S.E.2d 211, 223 (1994), and State v. Franklin, 327 N.C. 162, 172,
393 S.E.2d 781, 787 (1990) (citations omitted), and citing State v. Britt, 87 N.C. App.
152, 154, 360 S.E.2d 291, 292 (1987)).
Defendant challenges only the sufficiency of the evidence that he possessed the
cocaine. “[D]efendant was convicted of possession of cocaine with intent to sell or
deliver. The elements of this offense are ‘1) possession, 2) of a controlled substance,
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and 3) with intent to sell or deliver[.]’ ” State v. Mack, 214 N.C. App. 169, 174, 718
S.E.2d 637, 640 (2011) (quoting State v. Peoples, 167 N.C. App. 63, 67, 604 S.E.2d 321,
324 (2004)). The sufficiency of the evidence of possession is pertinent to that charge.
However, “[p]ossession is not an element of the offense of maintaining a dwelling for
keeping and selling a controlled substance.” State v. Rosario, 93 N.C. App. 627, 634,
379 S.E.2d 434, 438, disc review denied, 325 N.C. 275, 384 S.E.2d 527 (1989). Thus,
defendant has failed to challenge his conviction for maintaining a residence and we
do not address that offense.
B. Discussion
Defendant contends that there was insufficient evidence of incriminating
circumstances to support submission of the theory of constructive possession to the
jury, given that defendant’s use of the premises was non-exclusive.
Possession may be either actual or constructive. ‘Under the
theory of constructive possession, a person may be charged
with possession of an item such as narcotics when he has
both the power and intent to control its disposition or use,
even though he does not have actual possession.’ . . . [If] the
defendant does not have exclusive control of the premises,
then ‘other incriminating circumstances must be
established for constructive possession to be inferred.’
Nevertheless, this Court has held that ‘[t]he State is not
required to prove that the defendant . . . was the only
person with access to [the controlled substance.]’ Indeed,
‘the State may overcome a motion to dismiss . . . by
presenting evidence which places the accused within such
close juxtaposition to the narcotic drugs as to justify the
jury in concluding that the same was in his possession.’ ”
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Opinion of the Court
State v. Henry, __ N.C. App. __, __, 765 S.E.2d 94, 101 (2014) (quoting State v. Davis,
325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (internal quotation omitted), State v.
Neal, 109 N.C. App. 684,686, 428 S.E.2d 287, 289 (1993), State v. Rich, 87 N.C. App.
380, 382, 361 S.E.2d 321, 323 (1987), and State v. Harvey, 281 N.C. 1, 12-13, 187
S.E.2d 706, 714 (1972) (internal quotation omitted) (additional citations omitted)).
“[O]ur review of the relevant decisions reveals that the cases finding sufficient
proof of constructive possession frequently include evidence of one or more of the
following: First, constructive possession cases often include evidence that the
defendant had a specific or unique connection to the place where the drugs were
found.” State v. Ferguson, 204 N.C. App. 451, 460-61, 694 S.E.2d 470, 477-78 (2010)
(citing State v. Butler, 356 N.C. 141, 144, 567 S.E.2d 137, 139 (2002) (other citations
omitted)). “Secondly, many constructive possession cases involve evidence that the
defendant behaved suspiciously, [or] made incriminating statements admitting
involvement with drugs[.]” Id. (citations omitted). “Finally, constructive possession is
often based, at least in part, on other incriminating evidence in addition to the fact
that drugs were found near the defendant.” Id. (citing State v. McNeil, 359 N.C. 800,
801, 617 S.E.2d 271, 272 (2005), and State v. Wiggins, 185 N.C. App. 376, 388, 648
S.E.2d 865, 873 (2007)).
In this case, defendant admitted that he lived at 1009 Washington Street, and
that the cocaine was found in his bedroom. Detective Seagroves had personally
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Opinion of the Court
observed defendant selling cocaine from his home the day before defendant’s arrest.
In addition, defendant admitted that he had sold cocaine within several months of
his arrest, and had used cocaine and pills within a few days of trial. Moreover, in the
statement given by defendant at the time of his arrest, he did not claim to have given
up selling cocaine, but stated that he was not selling drugs at the moment because
the available cocaine was of low quality. We easily conclude that the State presented
an abundance of incriminating circumstances, and that the evidence was sufficient
to allow a reasonable juror to find, although defendant’s access to the cocaine was
non-exclusive, that he was in constructive possession of the evidence seized from his
room. The trial court did not err by denying defendant’s motion to dismiss the charge.
Defendant’s argument that the State failed to offer adequate evidence of
incriminating circumstances tying him to the items seized in his room rests primarily
on his assertions that his brother also had access to the area where the drugs were
found, and that there were deficiencies in the State’s evidence, such as the absence of
fingerprints. For “circumstantial evidence to be sufficient to overcome a motion to
dismiss, it need not, however, point unerringly toward the defendant’s guilt so as to
exclude all other reasonable hypotheses.” State v. Steelman, 62 N.C. App. 311, 313,
302 S.E.2d 637, 638 (1983) (citing State v. Jones, 303 N.C. 500, 279 S.E.2d 835
(1981)). Regarding the absence of certain forensic evidence, “[a]lthough defendant
was certainly free to argue this theory to the jury, these additional facts make the
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Opinion of the Court
State's evidence no less sufficient to send to the jury.” Butler, 356 N.C. at 148, 567
S.E.2d at 141.
Defendant also asserts that the outcome of the present case is controlled by
State v. McLaurin, 320 N.C. 143, 357 S.E.2d 636 (1987). However, McLaurin is
readily distinguishable, as in that case “there was no evidence of other incriminating
circumstances linking [the defendant] to [the contraband.]” McLaurin, 320 N.C. at
147, 357 S.E.2d at 638. In the present case, as detailed above, there were numerous
incriminating circumstances.
This argument is without merit.
III. Evidence of Prior Bad Acts
In his second argument, defendant contends that it was plain error for the trial
court to admit evidence of defendant’s prior criminal activity and his association with
a street gang. Defendant characterizes this as evidence admitted under North
Carolina Rules of Evidence 404(b), which provides that evidence of “other crimes,
wrongs, or acts” may be admissible for purposes “such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or
accident.” Because defendant did not object to admission of the evidence, we have no
way to know whether the prosecutor might have sought its admission on some other
basis. We conclude, however, that admission of the challenged evidence, even if error,
did not amount to plain error on the facts of this case.
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Opinion of the Court
“In criminal cases, an issue that was not preserved by objection noted at trial
and that is not deemed preserved by rule or law without any such action nevertheless
may be made the basis of an issue presented on appeal when the judicial action
questioned is specifically and distinctly contended to amount to plain error.” N.C. R.
App. P. 10(a)(4). However:
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
affect[s] the fairness, integrity or public reputation of
judicial proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations
and quotation marks omitted).
The testimony to which defendant objects on appeal falls into two main
categories. First, defendant challenges the admission of testimony by Detective
Seagroves indicating that defendant had previously been charged with or convicted
of criminal offenses, including his testimony that he had arrested defendant at the
Washington Street address, that he knew defendant through his work as a police
officer, and that there was a release order in defendant’s bedroom. However,
Defendant testified at trial, was examined about his criminal record, and admitted to
engaging in illegal activities, including gambling and selling drugs. We hold that
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Opinion of the Court
Detective Seagroves’s references to defendant’s criminal past did not add appreciably
to defendant’s own admissions, and did not have a probable effect on the jury’s finding
that defendant was guilty.
Secondly, defendant argues that it was plain error to allow Detective Seagroves
to suggest that defendant was involved with a street gang, and directs our attention
to the officer’s testimony that the red bandana found in defendant’s bedroom was a
type favored by gang members and that there was a “file” on defendant in the police
department’s gang unit. However, defendant admitted at trial that he “was affiliated
with” gang members. Defendant also argues on appeal that the officer testified
“without objection” that defendant had a gang tattoo, and that the State “elicited from
the detective during its case-in-chief that on a previous occasion [defendant] had ‘self-
admitted’ to being involved in gang activity.” Contrary to defendant’s assertion, it
was defendant who elicited this testimony on cross-examination:
DEFENSE COUNSEL: . . . [Y]ou said you had a file or
something on Mr. Williams previously? Is that correct?
...
A. Are you talking about the gang? Anytime we have
interactions with anybody, we create a file on someone . . .
if there was another case where they’re observed wearing
a flag or if they self-admitted.
Q. All right. Did Mr. Williams ever self-admitted?
A. He self-admitted to me before.
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Opinion of the Court
...
Q. Did he admit that he was involved in any gang activity?
A. Yes, sir. He actually has a gang tattoo right on his
forehead.
We agree with defendant that his affiliation with a gang was not relevant to
the issues in this case. However, given defendant’s admissions at trial and the
strength of the State’s evidence, we hold that the references to defendant’s possible
gang membership did not have a probable impact on the jury’s finding that he was
guilty. Defendant has failed to establish that the admission of evidence regarding his
prior criminal record and his affiliation with a gang, even if error, amounted to plain
error.
This argument lacks merit.
IV. Ineffective Assistance of Counsel
Defendant's final argument is that he was denied the effective assistance of
counsel. “Generally, claims of ineffective assistance of counsel should be considered
through motions for appropriate relief and not on direct appeal. A motion for
appropriate relief is preferable to direct appeal[.]’ ” State v. Johnson, 203 N.C. App.
718, 722, 693 S.E.2d 145, 147 (2010) (quoting State v. Stroud, 147 N.C. App. 549, 554,
557 S.E.2d 544, 547 (2001)). Defendant’s claim of ineffective assistance of counsel is
dismissed, without prejudice to his right to file a motion for appropriate relief in the
trial court.
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Opinion of the Court
V. Conclusion
For the reasons discussed above, we conclude that defendant had a fair trial,
free of reversible error, and that his claim of ineffective assistance of counsel should
be dismissed without prejudice.
NO ERROR AS TO TRIAL, DISMISSED AS TO INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIM.
Judges STEPHENS and McCULLOUGH concur.
Report per Rule 30(e).
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