State v. Barnette ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-308
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
v. Gaston County
Nos. 13 CRS 7708, 55426, 55428,
55430
JOHNTIA LUWONZIA BARNETTE
Appeal by defendant from judgments entered 26 September
2013 by Judge Jesse B. Caldwell, III in Gaston County Superior
Court. Heard in the Court of Appeals 28 August 2014.
Roy Cooper, Attorney General, by Martin T. McCracken,
Assistant Attorney General, for the State.
Patterson Harkavy LLP by Narendra K. Ghosh for defendant-
appellant.
STEELMAN, Judge.
Where an officer’s affidavit in support of an application
for a search warrant was based upon the testimony of a named
witness, this constituted sufficient indicia of reliability to
support the issuance of the search warrant. Since defendant
failed to raise a constitutional issue at trial, it must be
dismissed and is not subject to plain error review. Where the
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State presented substantial evidence of each element of the
charges of felony maintaining a dwelling for controlled
substances, possession of cocaine with intent to manufacture,
sell, and deliver, and possession of drug paraphernalia, the
trial court did not err in denying defendant’s motions to
dismiss these charges.
I. Factual and Procedural Background
On 6 May 2013, Officer C.A. Cape of the Gastonia Police
Department (Officer Cape) stopped a prostitute in possession of
a crack pipe. Officer Cape learned that she had purchased crack
cocaine from a person named Sweat at Room 122 of the Red Carpet
Inn. Officer Cape went to Room 122, and met its occupant,
Jomonyak Sanders (Sanders), who consented to a search of the
room. The search revealed a digital scale with crack cocaine
residue, and several crack pipes. Sanders told Officer Cape
that he had purchased the cocaine from a man called R2 at a
house located at 403 North Boyce Street in Gastonia. The second
occupant of the room, identified only as a known prostitute,
identified R2 as Johntia Barnett (defendant). Sanders
identified the house when he rode past it with Officer Cape.
Based upon the statements of Sanders and the unnamed prostitute,
Officer Cape obtained a search warrant for 403 North Boyce.
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On 5 May 2012, at 11:32 p.m., Officer Cape and other law
enforcement officers executed the search warrant. When one of
the residents saw and recognized Officer Cape, he slammed the
door shut and locked it, requiring officers to use a battering
ram to force the door open. Upon entering the house, Officer
Cape found five persons in the house, one of whom was the
defendant. A search revealed a substance that Officer Cape
believed to be crack cocaine, a digital scale, and a .22 caliber
rifle. The crack cocaine and scale were in plain view on a
kitchen counter, next to a box of plastic baggies. The
substance was later confirmed by the North Carolina Crime Lab to
be approximately .73 grams of cocaine base, commonly known as
crack cocaine.
Officer Cape and his team seized the items, moved them to
the kitchen, and asked the persons in the house who owned them.
All of the persons denied ownership. When Officer Cape
indicated that he would have to arrest everyone, defendant made
the statement, “I’ll take the charges.” Officer Cape further
testified that, prior to being taken to jail, defendant stated
that “he was residing there because he didn't have anywhere else
to stay.”
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Defendant was charged with possession with intent to
manufacture, sell, and deliver cocaine; felony maintaining a
dwelling for keeping and selling controlled substances;
possession of drug paraphernalia; possession of a firearm by a
felon; and being an habitual felon. Prior to trial, defendant
moved to suppress the evidence seized, based upon a lack of
probable cause to issue the search warrant. On 24 September
2013, the trial court denied this motion.
The jury found defendant guilty of possession with intent
to manufacture, sell, and deliver cocaine, possession of drug
paraphernalia, and felony maintaining a place for controlled
substances. Defendant was found not guilty of possession of a
firearm by a felon. Defendant pled guilty to habitual felon
status. On 26 September 2013, the trial court entered a
consolidated judgment, sentencing defendant to 72-99 months
imprisonment.
Defendant appeals.
II. Motion to Suppress
In his first argument, defendant contends that the trial
court erred in denying his motion to suppress the evidence
seized pursuant to the search warrant. We disagree.
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A. Standard of Review
Our review of a trial court’s denial of a motion to
suppress is “strictly limited to determining whether the trial
judge’s underlying findings of fact are supported by competent
evidence, in which event they are conclusively binding on
appeal, and whether those factual findings in turn support the
judge’s ultimate conclusions of law.” State v. Cooke, 306 N.C.
132, 134, 291 S.E.2d 618, 619 (1982). “The trial court’s
conclusions of law . . . are fully reviewable on appeal.” State
v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
B. Analysis
Officer Cape submitted an affidavit to the magistrate in
support of his application for a search warrant, attesting that
he had learned about the defendant being the source of cocaine,
and the location of the house where the cocaine was sold, from
Sanders and the unnamed prostitute. The affidavit did not state
that either was a reliable informant. Defendant contends that
Sanders and the prostitute were not reliable informants, that
the search warrant was issued in error, and that the trial court
erred in denying his motion to suppress.
Our Supreme Court has held that the fact that an informant
was named and identified in a search warrant affidavit provides
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a magistrate with enough information to permit him to determine
the informant to be reliable. State v. Eason, 328 N.C. 409,
420, 402 S.E.2d 809, 814 (1991). Further, our Supreme Court has
also held that statements against penal interest carry their own
indicia of credibility sufficient to support a finding of
probable cause to search. State v. Arrington, 311 N.C. 633,
641, 319 S.E.2d 254, 259 (1984).
Defendant contends, however, that this reliability should
not apply to criminals. Defendant cites to authority from other
states, which is not binding upon this court, to support his
argument. Defendant does not cite to any cases from North
Carolina supporting his argument.
While we recognize that there exist arguments for holding
that a criminal cannot be a “citizen-informant” and thus
considered reliable, we are bound by North Carolina precedent,
which holds that a named informant offers sufficient indicia of
reliability for a magistrate to properly issue a search warrant.
We hold that the trial court did not err in denying defendant’s
motion to suppress.
This argument is without merit.
III. Exclusion of Incriminating Statements
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In his second argument, defendant contends that the trial
court committed plain error in failing to exclude defendant’s
incriminating statements. We disagree.
A. Standard of Review
“[A] constitutional issue not raised at trial will
generally not be considered for the first time on appeal.”
State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009).
We “review unpreserved issues for plain error when they
involve either (1) errors in the judge’s instructions to the
jury, or (2) rulings on the admissibility of evidence.” State v.
Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).
B. Analysis
When Officer Cape searched the residence at 403 North Boyce
and seized items from the kitchen, he asked the occupants of the
house to whom the seized items belonged. Cape indicated that he
would arrest all of the occupants. Defendant responded that he
would “take the charges.” Defendant further stated that he was
residing at the house because he “didn’t have anywhere else to
stay.” There was no evidence that defendant was advised of his
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Miranda rights prior to making these statements. Defendant
contends that the trial court committed plain error in admitting
these statements.
In the instant case, defendant did not object to the
admission of these statements, nor did he raise a constitutional
issue pursuant to Miranda. Our Supreme Court has “previously
decided that plain error analysis applies only to instructions
to the jury and evidentiary matters.” State v. Cummings, 352
N.C. 600, 613, 536 S.E.2d 36, 47 (2000) (quoting State v.
Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000)), cert.
denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). In Cummings,
the Supreme Court held that failure to object to constitutional
error at trial constituted waiver, and could not be raised on
appeal via plain error review. Id. This issue is not properly
before us, and is dismissed.
Even assuming arguendo that we could review this issue,
because defendant failed to object at trial, we could review
this issue only for plain error.
Defendant contends that these statements constitute plain
error because, absent the statements, there was no evidence that
defendant maintained the dwelling at 403 North Boyce. He
further contends that, without evidence that defendant
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maintained the dwelling, there was no evidence to support
possession of cocaine or possession of drug paraphernalia.
This is not correct. In defendant’s brief, he acknowledges
that Sanders testified at trial that he had purchased cocaine
from defendant at 403 North Boyce. Because this evidence
supports a finding that defendant maintained the residence for
purposes of controlled substances, defendant’s argument, which
is predicated upon the deficiency of the evidence with respect
to that charge, fails.
We hold that defendant has failed to show that he was
prejudiced by the admission of these statements. The trial
court did not commit plain error in admitting defendant’s
statements.
This argument is without merit.
IV. Motion to Dismiss
In his third and fourth arguments, defendant contends that
the trial court erred in denying his motions to dismiss the
charges of felony maintaining a dwelling, possession of cocaine
with intent to manufacture, sell, and deliver, and possession of
drug paraphernalia. We disagree.
A. Standard of Review
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“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007).
“‘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 offense. If so, the motion is properly denied.’” State
v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting
State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)),
cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
B. Analysis
Defendant first argues that there was not substantial
evidence to support the charge of maintaining a dwelling,
because there was no evidence that defendant maintained the
house at 403 North Boyce.
To obtain a conviction for maintaining a dwelling for the
purpose of keeping or selling controlled substances under N.C.
Gen. Stat. § 90-108(a)(7), “the State has the burden of proving
a 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. Fuller, 196 N.C.
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App. 412, 424, 674 S.E.2d 824, 832 (2009) (citation omitted).
“To determine whether a person keeps or maintains a place under
N.C. Gen. Stat. § 90–108(a)(7), the court considers the
following factors, none of which are dispositive: ownership of
the property, occupancy of the property, repairs to the
property, payment of utilities, payment of repairs, and payment
of rent.” Id. (citation and quotations omitted). “The
determination depends on the totality of the circumstances.” Id.
However, “occupancy, without more, will not support the element
of ‘maintaining’ a dwelling.” State v. Spencer, 192 N.C. App.
143, 148, 664 S.E.2d 601, 605 (2008). “A pivotal factor is
whether there is evidence that defendant owned, leased,
maintained, or was otherwise responsible for the premises.”
State v. Boyd, 177 N.C. App. 165, 174, 628 S.E.2d 796, 804
(2006).
In the instant case, defendant was found at the 403 North
Boyce residence when the search was executed. Sanders had told
police that he had purchased cocaine from defendant at 403 North
Boyce. Cocaine was found during the search of those premises.
Defendant further stated to police that he was staying at 403
North Boyce because he didn’t have any place else to stay. We
have previously held that a defendant’s statement that he
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resided at a particular place “was substantial evidence that
defendant maintained the dwelling.” Spencer, 192 N.C. App. at
148, 664 S.E.2d at 605. In the instant case, we hold that the
State presented substantial evidence of each element of the
charge of felony maintaining a dwelling for controlled
substances. The trial court did not err in denying the
defendant’s motion to dismiss the charge of felony maintaining a
dwelling.
Defendant next argues that there was not substantial
evidence to support the charges of possession of cocaine with
intent to manufacture, sell, and deliver, and possession of drug
paraphernalia, because there was no evidence that defendant
controlled the house at 403 North Boyce.
“A person has actual possession of a controlled 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. Alston, 193 N.C.
App. 712, 715, 668 S.E.2d 383, 386 (2008) aff’d, 363 N.C. 367,
677 S.E.2d 455 (2009). “Constructive possession [of a controlled
substance] occurs when a person lacks actual physical
possession, but nonetheless has the intent and power to maintain
control over the disposition and use of the [controlled]
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substance.” Id. (quoting State v. Wilder, 124 N.C. App. 136,
139-40, 476 S.E.2d 394, 397 (1996)). “[U]nless the person has
exclusive possession of the place where the narcotics are found,
the State must show other incriminating circumstances before
constructive possession may be inferred.” Id. (quoting State v.
Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989)).
In the instant case, defendant was found in the same
residence as the cocaine and drug paraphernalia. Pursuant to
Alston, because defendant did not have sole possession of the
residence, the State had the burden of showing “other
incriminating circumstances” before it could prove constructive
possession. Once again, however, defendant’s statement that he
resided there, combined with Sanders’ testimony that he
purchased cocaine from defendant at 403 North Boyce, and the
presence of cocaine and drug paraphernalia, constituted “other
incriminating circumstances.” We hold that this constituted
substantial evidence of possession of both cocaine and drug
paraphernalia. The trial court did not err in denying
defendant’s motions to dismiss the charges of possession of
cocaine with intent to manufacture, sell, and distribute, and
possession of drug paraphernalia.
This argument is without merit.
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DISMISSED IN PART, NO ERROR IN PART.
Judge GEER concurs.
Judge HUNTER, Robert N., Jr. concurred prior to 6 September
2014.
Report per Rule 30(e).