State v. Polk ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-849
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Rowan County
Nos. 11 CRS 51259
RODERICK TYRONE POLK, 11 CRS 51260
Defendant. 11 CRS 51261
11 CRS 55416
Appeal by defendant from judgments entered 13 December 2012
by Judge Anna Mills Wagoner in Rowan County Superior Court.
Heard in the Court of Appeals 8 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Patrick S. Wooten, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Mary Cook, for defendant-appellant.
GEER, Judge.
Defendant Roderick Tyrone Polk appeals from his convictions
of trafficking in opium, two counts of felony maintaining a
dwelling to keep or sell controlled substances, and two counts
of felony possession of cocaine. On appeal, defendant primarily
challenges the trial court's reinstruction of the jury with
respect to the two counts of maintaining a dwelling to keep or
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sell controlled substances. We hold that defendant has failed
to show any risk of a non-unanimous verdict given the initial
instructions and the verdict sheet and has failed to establish
any other error in the reinstruction.
Facts
On 24 February 2011, Detective Jamie Beach of the
Kannapolis Police Department executed a search warrant for
defendant's house in Kannapolis, North Carolina. Detective
Beach applied for the warrant based on three controlled buys of
crack cocaine that took place at defendant's house. The front
door of the one-story house opened into a living room. In back
of the living room was a kitchen, while to the left was the
front bedroom. To the left of the kitchen was the back bedroom,
and to the right, there was an "8 by 10" room furnished with
only a stool and a chair. The house's single bathroom was
connected to the back bedroom. The front bedroom belonged to
defendant, and the back bedroom belonged to Ronald Church and
Mr. Church's wife or girlfriend.
Defendant's girlfriend, Tiffany Spry, answered the door
when the police arrived to search the premises. Mr. Church and
his wife or girlfriend were in the back bedroom, while defendant
was undressed in the bathroom, claiming he had just showered.
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Detective Beach allowed defendant to dress, and then the
officers searched the house.
In defendant's room, the officers located defendant's
wallet, which contained $822.00 in cash, consisting of one
$100.00 bill, 29 $20.00 bills, seven $10.00 bills, 10 $5.00
bills, and 22 $1.00 bills. One of the $20.00 bills found in
defendant's wallet was a bill that Detective Beach had used in
one of the previous controlled buys of crack cocaine that took
place at defendant's house. There was also a Duke Power bill in
defendant's name in the bedroom.
Defendant's room contained a linen cabinet, and on top of
it, the officers found a soap dish with a red straw beside it --
both the dish and the straw contained a white powder residue.
There was also white powder on top of the cabinet itself. In
the middle of a stack of sheets on a shelf in the cabinet, the
officers found a plastic bag containing nine hydrocodone pills.
Also in the cabinet, the officers found an empty hydrocodone
pill bottle for Ms. Spry, but the dosage for the pills
prescribed was different than the dosage of those found in the
plastic bag.
Finally, the officers located 42 rounds of 9 millimeter
ammunition on top of a dresser in defendant's room, and 43
rounds of "45 automatic" ammunition in the bottom drawer of the
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same dresser. The two types of ammunition were in boxes that
each held 50 rounds, meaning that roughly "a clip full" of
ammunition was missing from each box.
In the kitchen, on a counter, the officers found a butter
dish containing a razor blade, with white powder residue on both
the dish and the razor. Residue from the razor blade tested
positive for cocaine. In the "8 by 10" room next to the
kitchen, the officers found an ash tray and chunks of brillo
commonly used to smoke crack cocaine. In the back bedroom, the
officers found a pill container with white residue that tested
positive for crack cocaine; two glass pipes and chunks of brillo
used for smoking crack cocaine; and marijuana paraphernalia.
On 21 July 2011, Detective Beach executed a second search
warrant for defendant's house. On this occasion, defendant and
Ms. Spry were the only people in the house. Prior to the
search, Detective Beach saw a black male's arm hanging out of
the house's bathroom window dropping on the ground a plastic
container that held a plastic bag containing over a gram of
crack cocaine. Defendant admitted the container "belong[ed] to
him," but claimed "[h]e was holding it for a friend." During
this search, officers also found, under the mattress in
defendant's bedroom, a single hydrocodone pill identical to the
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nine hydrocodone pills they found in defendant's bedroom during
the prior search.
On 5 July 2011, defendant was indicted for felony
possession of cocaine, felony maintaining a place to keep
controlled substances, trafficking in opium, and possession of
drug paraphernalia, all based on the 24 February 2011 search.
On 28 November 2011, defendant was further indicted for felony
possession of cocaine and felony maintaining a place to keep and
sell controlled substances, with both offenses based on the 21
July 2011 search.
At trial, Ms. Spry testified to the following for the
defense. Ms. Spry stayed at defendant's house, in defendant's
bedroom, five to six nights a week. Ms. Spry claimed that all
of the hydrocodone pills found in defendant's bedroom belonged
to her and that she had a valid prescription for the pills to
treat back pain. In addition, Ms. Spry testified she owned the
soap dish and straw found in defendant's room and used those
objects to crush and snort her prescription hydrocodone.
On 24 February 2011, Ms. Spry put the bag containing her
nine hydrocodone pills in the stack of sheets for safekeeping.
On 21 July 2011, Ms. Spry stuck a single hydrocodone pill under
defendant's mattress because she was getting ready to take it
and was "startled" by a knock at the door. According to Ms.
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Spry, defendant had no knowledge that she had hydrocodone in his
house on either date. Ms. Spry never witnessed anyone use or
buy drugs at defendant's house. In addition to Ms. Spry's
testimony, defendant also presented evidence of a hydrocodone
pill bottle in Ms. Spry's name for the dosage of the pills found
in his bedroom.
The State dismissed the charge for possession of drug
paraphernalia. The jury found defendant guilty of the remaining
charges. The trial court sentenced defendant to 70 to 84 months
imprisonment for trafficking in opium. The court consolidated
the remaining charges into a single judgment and sentenced
defendant to a consecutive, presumptive-range term of six to
eight months imprisonment, but suspended the sentence and placed
defendant on supervised probation for 24 months beginning upon
defendant's release from imprisonment on the trafficking
conviction. Defendant timely appealed to this Court.
I
Defendant first argues that the State failed to present
substantial evidence of defendant's charges for possession of
cocaine on 24 February 2011 and trafficking in opium. However,
defendant failed to move to dismiss any of his charges at trial.
Rule 10(a)(3) of the Rules of Appellate Procedure provides that
"a defendant may not make insufficiency of the evidence to prove
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the crime charged the basis of an issue presented on appeal
unless a motion to dismiss the action, or for judgment as in
case of nonsuit, is made at trial."
Recognizing his failure to preserve these issues for
appeal, defendant asks this Court to suspend the preservation
requirements of Rule 10 pursuant to Rule 2 of the Rules of
Appellate Procedure in order to reach the merits of his
arguments. Although Rule 2 allows for suspension of the Rules
of Appellate Procedure in order to "prevent manifest injustice
to a party, or to expedite decision in the public interest," we
find neither circumstance present here. We, therefore, decline
defendant's request to invoke Rule 2 and do not address
defendant's arguments. See Dogwood Dev. & Mgmt. Co. v. White
Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008)
(observing Rule 2 "must be invoked 'cautiously'" and reaffirming
"prior cases as to the 'exceptional circumstances' which allow
the appellate courts to take this 'extraordinary step'" (quoting
State v. Hart, 361 N.C. 309, 315, 317, 644 S.E.2d 201, 205, 206
(2007))).
II
Defendant next argues that the trial court erred in
instructing the jury on the issue of constructive possession
with respect to the charge of possession of cocaine on 24
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February 2011. Defendant concedes he failed to preserve this
issue for appeal and, therefore, seeks plain error review. Our
Supreme Court has explained that
[f]or 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 State contends that defendant invited any error with
respect to this issue and, as such, cannot now claim he was
prejudiced by the instruction. See N.C. Gen. Stat. § 15A-
1443(c) (2013) ("A defendant is not prejudiced by the granting
of relief which he has sought or by error resulting from his own
conduct."). The State points to an exchange between the court
and the attorneys that occurred during the State's case-in-
chief. The transcript, however, makes plain that this was
merely a preliminary discussion of possible instructions
generally. We have found no indication in the transcript that
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defense counsel ever specifically consented to the constructive
possession instruction.
Jury instructions must be "'based upon a state of facts
presented by some reasonable view of the evidence.'" State v.
Sweat, 366 N.C. 79, 89, 727 S.E.2d 691, 698 (2012) (quoting
State v. Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 699
(1973)). This Court reviews arguments that jury instructions
were not supported by the evidence de novo. State v. Osorio,
196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).
"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." State v.
Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (internal
citation and quotation marks omitted). "'Where such materials
are found on the premises under the control of an accused, this
fact, 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.'" Id. (quoting State
v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)).
"However, unless the person has exclusive possession of the
place where the narcotics are found, the State must show other
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incriminating circumstances before constructive possession may
be inferred." Id.Here, the State contended that defendant constructively
possessed the cocaine residue on the razor blade found in the
butter dish that was sitting on the kitchen counter. Defendant
argues that the evidence showed he was not in exclusive
possession of the razor blade in the kitchen since Detective
Beach testified that Mr. Church and his wife or girlfriend also
lived in the house. Defendant further contends the State failed
to show other incriminating circumstances allowing the inference
that he constructively possessed the razor blade. We disagree.
The State's evidence showed that Detective Beach first
"came into contact with [defendant] as a result of some
information [he] received" and that, as a result of that
information, the detective conducted three controlled buys of
crack cocaine from defendant's house prior to 24 February 2011.
As a result of those controlled buys, defendant was the subject
of the search warrant executed on 24 February. On 24 February,
one of the $20.00 bills in defendant's wallet was a bill that
had previously been used by Detective Beach to conduct a
controlled buy of cocaine at defendant's house. This evidence
created a reasonable inference that defendant sold cocaine to
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the informant during at least one of the three controlled buys
conducted in his house prior to 24 February.
Also on 24 February, defendant's wallet contained $822.00
in cash, consisting of one $100.00 bill, 29 $20.00 bills, seven
$10.00 bills, 10 $5.00 bills, and 22 $1.00 bills. Detective
Beach testified that this large amount of cash in various
denominations was indicative of drug sales, and that lower level
crack cocaine purchases are generally for $20.00 or $40.00 worth
of cocaine. The amount and denomination of cash in defendant's
wallet, therefore, also constituted an incriminating
circumstance. See State v. Brown, 310 N.C. 563, 569-70, 313
S.E.2d 585, 589 (1984) (holding State presented substantial
evidence that defendant constructively possessed cocaine in
apartment based, in part, on evidence that defendant had large
amount of cash in his pockets). Although no guns were found,
the officers did find two boxes of ammunition in defendant's
room, with each box missing several rounds, and Detective Beach
testified that "individuals known to sell and keep drugs carry
firearms."
When searching defendant's room on 24 February, the
officers located a soap dish and a "little cut piece of red
straw," with white powder residue on both objects and on the
surface where they were located. Detective Beach testified that
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the straw was "common with people snorting either cocaine or
crushing pills and snorting them."1 The presence of this item
used to ingest cocaine, and the powder residue on the straw and
surrounding surfaces, out in the open in defendant's bedroom on
24 February provided an additional incriminating circumstance
that defendant constructively possessed the cocaine in the
kitchen. See State v. Chisholm, ___ N.C. App. ___, ___, 737
S.E.2d 818, 822 (holding State presented substantial evidence of
constructive possession, in part, because "defendant was
sleeping in the bed in the bedroom where drugs were found, . . .
[and] plastic baggies, drug paraphernalia, and an electronic
scale containing white residue were also in the bedroom"), disc.
review denied, 366 N.C. 591, 743 S.E.2d 222 (2013); State v.
Peek, 89 N.C. App. 123, 126, 365 S.E.2d 320, 323 (1988) (holding
1
Defendant argues that Detective Beach's testimony
identifying the residue in the soap dish and on the straw as
cocaine was erroneously admitted since the State did not present
evidence of chemical analysis showing the residue was cocaine
and not hydrocodone, as defendant's evidence showed. See State
v. Meadows, 201 N.C. App. 707, 712-13, 687 S.E.2d 305, 309
(2010) (holding trial court erroneously admitted officer's
testimony that substance was cocaine based solely on his visual
observation since controlled substances defined in terms of
chemical composition can only be identified through use of a
chemical analysis rather than through use of lay testimony based
on visual inspection). While defendant is correct, the
detective's separate testimony that the straw was an object
commonly used to ingest cocaine, along with the powder residue
on the straw, soap dish, and surrounding surface, nonetheless
provided an incriminating circumstance with respect to
defendant's constructive possession of the cocaine in the
kitchen.
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State presented substantial evidence of constructive possession
based, in part, on evidence that "contraband was found in four
different rooms, some of it in plain view and some of it
hidden").
On 21 July 2011, defendant admitted possessing a container
holding over a gram of crack cocaine. Moreover, on both 24
February and 21 July, officers found hydrocodone hidden in
defendant's bedroom. The presence of another controlled
substance in defendant's bedroom on both occasions also
constituted an incriminating circumstance in this case. See
State v. James, 81 N.C. App. 91, 92, 95, 344 S.E.2d 77, 79, 81
(1986) (holding State presented substantial evidence of
defendant's constructive possession of heroin underneath front
porch floorboard of his sister's house where he occasionally
stayed based, in part, on evidence of defendant's possession of
cocaine found in kitchen of same house).
Defendant nonetheless cites State v. McLaurin, 320 N.C.
143, 357 S.E.2d 636 (1987), as supporting his contention that
the trial court erred in instructing on constructive possession.
However, in McLaurin there was no evidence of incriminating
circumstances personally linking the defendant, as opposed to
other occupants of the premises searched, to the contraband.
Id. at 144, 357 S.E.2d at 637 (holding State failed to present
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substantial evidence of constructive possession when evidence
showed defendant, her apparent husband, and children all lived
in house; paraphernalia was found throughout house, including in
pocket of man's overcoat and in "drawer full of children's
clothing in a bedroom apparently occupied by children"; and
officers saw defendant's apparent husband and another man
entering and leaving on day of search but did not see defendant
doing so).
Defendant also points to this Court's determination in
James that evidence was insufficient that a co-defendant
constructively possessed the cocaine at issue. With respect to
the co-defendant in James, however, the evidence showed that he
did not live in the house; no evidence showed he had been at the
house more than two times; no circumstances linked him to the
cocaine at issue other than evidence that he was "'sneaking
around'" the room where cocaine was located with a gun in his
hand; and "[a]ll the evidence suggest[ed] that [he] was looking
for a place to hide the gun." 81 N.C. App. at 96, 344 S.E.2d at
81.
Since, here, defendant lived in the house, and the State's
evidence linked him personally to possession of the cocaine
found in the kitchen, McLaurin and James are distinguishable.
We hold that the evidence in this case permitted, at the very
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least, a reasonable inference that on 24 February, defendant
constructively possessed the cocaine residue on the razor blade
on his kitchen counter. See State v. Alston, 193 N.C. App. 712,
716-17, 668 S.E.2d 383, 387 (2008) (holding State presented
substantial evidence of constructive possession when even though
defendant did not reside in house being searched, defendant
"regularly visited and sold drugs from" house; defendant was
present in room containing drugs prior to officers entering
house for search; defendant sold cocaine to another person in
house earlier in evening; other drug dealer, who lived in house,
kept only small amount of cocaine on his person and kept his
cocaine buried in yard; and defendant's gun was found in room
containing drugs), aff'd per curiam, 363 N.C. 367, 677 S.E.2d
455 (2009). The trial court, therefore, properly instructed the
jury on constructive possession with respect to the charge of
possession of cocaine on 24 February.
III
Defendant's third argument is that the trial court erred in
reinstructing the jury on the two charges for felony maintaining
a dwelling to keep or sell controlled substances. Defendant
contends the reinstruction led to fatally ambiguous verdicts for
those charges and, therefore, violated his right to a unanimous
jury verdict under Article I, Section 24 of the North Carolina
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Constitution and N.C. Gen. Stat. § 15A-1237(b) (2013). This
issue is properly before the Court despite defendant's failure
to object below. See State v. Johnson, 183 N.C. App. 576, 582,
646 S.E.2d 123, 127 (2007) (explaining, in context of
disjunctive instruction argument, that when alleged "'error
violates [a] defendant's right to a trial by a jury of twelve,
[a] defendant's failure to object is not fatal to his right to
raise the question on appeal'" (quoting State v. Ashe, 314 N.C.
28, 39, 331 S.E.2d 652, 659 (1985))).
Defendant was charged with two counts of maintaining a
dwelling to keep or sell a controlled substance in violation of
N.C. Gen. Stat. § 90-108(a)(7) (2013). The trial court
initially charged the jury as to each of the two counts of
maintaining a dwelling separately. With respect to the 24
February offense, the court instructed in relevant part: "The
defendant has been charged with intentionally maintaining a
building which was used for the purpose of unlawfully keeping or
selling controlled substances on February 24th, 2011. For you
to find the defendant guilty of this offense, the state must
prove two things beyond a reasonable doubt. First, that the
defendant kept a building which was used for the purpose of
unlawfully keeping or selling cocaine or hydrocodone."
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With respect to the 21 July offense, the court instructed:
"The defendant has been charged with intentionally maintaining a
building used for the purpose of unlawfully keeping or selling
controlled substances on July 21, 2011. For you to find the
defendant guilty of this offense, the state must prove two
things beyond a reasonable doubt. First, that the defendant
kept a building which was used for the purpose of unlawfully
keeping or selling cocaine, a controlled -- cocaine, period."
The two instructions were, therefore, identical in relevant part
except that the 24 February instruction referenced both cocaine
and hydrocodone, while the 21 July instruction referenced only
cocaine. Defendant does not challenge the initial instructions
for the maintaining a dwelling charges.
The trial court also initially charged the jury with the
lesser-included offense of misdemeanor maintaining a dwelling,
which differs from the felony offense in that the felony
requires that the defendant "intentionally" maintained the
dwelling used for the unlawful purpose, and the misdemeanor
requires only proof that the defendant "knowingly" maintained
the dwelling used for the unlawful purpose. See N.C. Gen. Stat.
§ 90-108(a)(7), (b). During deliberations, the jury asked a
question about intent versus knowledge with respect to the
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felony maintaining a dwelling charges and the lesser-included
offenses.
In its response to the jury, the trial court gave a single,
reinstruction that applied to both offense dates. The court
explained to the jury:
The defendant has been charged with
intentionally keeping a building used for
the purpose of unlawfully keeping or selling
controlled substances on February 24th,
2011, and also on July 21st, 2011. Two
separate charges. For you to find the
defendant guilty of this offense, the state
must prove two things beyond a reasonable
doubt. First, that the defendant kept a
building which was used for the purpose of
unlawfully keeping or selling hydrocodone or
cocaine. Hydrocodone and cocaine are both
controlled substances, the keeping or
selling of which is unlawful.
. . . .
If you find from the evidence beyond a
reasonable doubt that on or [sic] February
24th, 2011, and/or July 21st, 2011, that the
defendant intentionally kept a building used
for the unlawful keeping or selling of
controlled substances, then it would be your
duty to return a verdict of guilty of this
offense.
(Emphasis added.)
Defendant argues that, based on the disjunctive
reinstruction, the verdicts for the two maintaining a dwelling
charges are fatally ambiguous since "jurors could have used
different acts of keeping or selling cocaine, hydrocodone or
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both on both, one or neither date of the charged offenses . . .
." Our Supreme Court has held that "a disjunctive instruction,
which allows the jury to find a defendant guilty if he commits
either of two underlying acts, either of which is in itself a
separate offense, is fatally ambiguous because it is impossible
to determine whether the jury unanimously found that the
defendant committed one particular offense." State v. Lyons,
330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991). However, "if
the trial court merely instructs the jury disjunctively as to
various alternative acts which will establish an element of the
offense, the requirement of unanimity is satisfied." Id. at
303, 412 S.E.2d at 312.
"[T]he submission of instructions in the disjunctive will
not always render a resulting verdict fatally ambiguous. In
some cases, '[a]n examination of the verdict, the charge, the
initial instructions by the trial judge to the jury . . ., and
the evidence may remove any ambiguity created by the charge.'"
Id. at 307, 412 S.E.2d at 315 (first alteration added) (quoting
State v. Diaz, 317 N.C. 545, 554, 346 S.E.2d 488, 494 (1986)
abrogated in part on other grounds by State v. Hartness, 326
N.C. 561, 391 S.E.2d 177 (1990)).
In this case, the trial court's reinstruction, when read in
isolation, arguably indicates that the jury could find defendant
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guilty of a single count of maintaining a dwelling based on
either of the two separate offense dates. However, the court
initially separately instructed the jury for each of the two
offenses and, in the reinstruction, the court reiterated that
the two offense dates were for "[t]wo separate charges." In
addition, there were two separate verdict sheets, one for each
of the two maintaining a dwelling charges. On those sheets, the
jury found defendant guilty of (1) "Felonious Maintain Building
To Keep Illegal Controlled Substances on February 24th, 2011[,]"
and (2) "Felonious Maintain Building To Keep Illegal Controlled
Substances on July 21st 2011." Under these circumstances, there
was no ambiguity in the jury's verdicts -- the jury unanimously
found defendant guilty of one count of maintaining a dwelling
for each of the two separate offense dates.
Although defendant also argues that the court erred in
disjunctively reinstructing the jury that in order to find
defendant guilty of the offenses, it must find that he kept a
building that was used for the purpose of either "keeping" or
"selling" controlled substances, defendant does not challenge on
appeal the trial court's initial instructions on these charges
that employed the same "keeping or selling" language. Given
defendant's failure to challenge the initial instructions, the
jury would have heard the "keeping or selling" phrasing in the
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unchallenged initial instructions even if the court had not
given the challenged reinstruction. Defendant cannot,
therefore, show prejudice in the reinstruction on this point.
Cf. State v. Watkins, 77 N.C. App. 325, 331, 335 S.E.2d 232, 236
(1985) (holding admission of challenged testimony did not
prejudice defendant since same testimony had already been
admitted without objection).
Defendant similarly challenges that the trial court's
reinstruction for both offenses that, in order to convict
defendant, the jury was required to find that he kept the
building for the purpose of unlawfully keeping or selling either
"hydrocodone or cocaine." While, with respect to the 24
February charge, the initial instruction was identical to the
reinstruction and, therefore, cannot have been prejudicial, the
reinstruction as to the 21 July charge differed from the initial
instruction. The initial instruction, in accordance with the
indictment for that charge, referred only to cocaine, while the
reinstruction referred to both hydrocodone and cocaine.2
Thus, under Lyons, defendant's argument presents the issue
whether maintaining a dwelling used for the purpose of
2
We note that defendant does not argue that there is a
variance between the indictment for the 21 July charge and the
reinstruction, and he does not argue that the reinstruction is
unsupported by the evidence. He solely argues that it is
impossible to tell whether the jury unanimously reached its
verdicts for the two maintaining a dwelling charges.
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unlawfully keeping or selling "cocaine" and maintaining a
dwelling used for the purpose of unlawfully keeping or selling
"hydrocodone" are two acts giving rise to separate offenses, or
are merely two "various alternative acts which will establish an
element of the offense" of maintaining a dwelling in violation
of N.C. Gen. Stat. § 90-108(a)(7). Lyons, 330 N.C. at 303, 412
S.E.2d at 312.
N.C. Gen. Stat. § 90-108(a)(7) provides: "It shall be
unlawful for any person . . . [t]o knowingly keep or maintain
any . . . dwelling . . . which is resorted to by persons using
controlled substances in violation of this Article for the
purpose of using such substances, or which is used for the
keeping or selling of the same in violation of this Article[.]"
Based on this statutory language, our Supreme Court has held
that "[t]here are thus two theories under which the State may
prosecute a defendant under N.C.G.S. § 90-108(a)(7). Under the
first statutory alternative the State must prove that the
defendant did (1) knowingly (2) keep or maintain (3) a
[dwelling] (4) which is resorted to (5) by persons unlawfully
using controlled substances (6) for the purpose of using
controlled substances. Under the second statutory alternative,
the State must prove that the defendant did (1) knowingly (2)
keep or maintain (3) a [dwelling] (4) which is used for the
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keeping or selling (5) of controlled substances." State v.
Mitchell, 336 N.C. 22, 31, 442 S.E.2d 24, 29 (1994) (emphasis
added). The State proceeded under the second statutory
alternative in this case.
Thus, the statutory language of N.C. Gen. Stat. § 90-
108(a)(7) does not require proof of any one particular
controlled substance versus another, and our Supreme Court in
Mitchell, 336 N.C. at 31, 442 S.E.2d at 29, referred generally
to "controlled substances" in describing the elements of a
violation of N.C. Gen. Stat. § 90-108(a)(7). The level of
punishment for the offense is not determined by the identity of
the controlled substance, and we see no indication that the
identity of the controlled substance otherwise impacts the
nature of the offense.
In State v. Brady, 147 N.C. App. 755, 759, 557 S.E.2d 148,
151 (2001) (quoting N.C. Gen. Stat. § 90-108(a)(10) (1999)),
this Court considered a statute that provided "it shall be
unlawful for any person '[t]o acquire or obtain possession of a
controlled substance by misrepresentation, fraud, forgery,
deception, or subterfuge[.]'" In holding that the trial court
did not err in allowing the State to amend the indictment to
change the name of the controlled substance from "'Xanax,'" a
Schedule IV controlled substance, to "'Percocet,'" a Schedule II
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controlled substance, id. at 759, 557 S.E.2d at 151, this Court
first noted that a "'non-essential variance is not fatal to the
charged offense,' and any 'averment unnecessary to charge the
offense . . . may be disregarded as inconsequential
surplusage.'" Id. at 758, 557 S.E.2d at 151 (quoting State v.
Grady, 136 N.C. App. 394, 396-97, 524 S.E.2d 75, 77 (2000)).
The Court then held that the amendment did not substantially
alter the indictment since (1) "[t]he name of the controlled
substance was not necessary to charge Defendant with a crime
under section 90-108(a)(10), as the charge remained the same
whether the controlled substance was a Schedule II or a Schedule
IV drug[,]" and (2) the defendant "was neither misled nor
surprised by the subsequent change in the Indictment as the
State was required to prove the same elements." Id. at 759, 557
S.E.2d at 151.
We believe the reasoning in Brady applies with equal force
in this context. Because the identity of the controlled
substance was not essential to the charged offense, we hold that
the trial court's disjunctive reinstruction that the jury could
find defendant guilty, with respect to the 21 July charge, if it
found he kept a building that was used for the purpose of
unlawfully keeping or selling either "hydrocodone or cocaine"
did not violate defendant's right to a unanimous jury verdict.
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Rather, the evidence of two possible controlled substances that
might fulfill the element that the building was used to keep or
sell "controlled substances" presented the jury with "various
alternative acts which will establish an element of the
offense." Lyons, 330 N.C. at 303, 412 S.E.2d at 312. Cf.
Mitchell, 336 N.C. at 34, 442 S.E.2d at 30 (analyzing
sufficiency of the evidence argument for charge of maintaining
vehicle to keep or sell marijuana and explaining that "focus of
the inquiry is on the use, not the contents, of the vehicle").
Consequently, we conclude defendant has failed to show
prejudicial error with respect to the disjunctive reinstruction.
No error.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).