State v. Major Givens , 95 N.C. App. 72 ( 1989 )

381 S.E.2d 869 (1989)

STATE of North Carolina
v.
Major GIVENS.
STATE of North Carolina
v.
Cleveland CANTY.

No. 885SC1318.

Court of Appeals of North Carolina.

August 15, 1989.

Atty. Gen. Thornburg by Asst. Atty. Gen. Kathryn Jones Cooper for the State.

Kenneth B. Hatcher, Wilmington, for defendant-appellant Canty.

J.H. Corpening, II, Wilmington, for defendant-appellant Givens.

EAGLES, Judge.

Among other arguments both defendants assign as error the denial of their motions to dismiss. After careful review of the record we find that the trial court erred in denying Canty's motion to dismiss. Accordingly, we reverse the judgment in defendant Canty's case. As to the denial of defendant Givens' motions to dismiss, we find no error. Additionally, Givens argues that his motion for appropriate relief was erroneously denied. He also argues that testimony by an arresting officer regarding prior visits to the premises searched and the "common use" of scales found on Givens' person was erroneously admitted. Givens also assigns as error the admission of exhibits 4, 5 and 6 into evidence. We are not persuaded by Givens' arguments and accordingly in his trial find no error.

I. Canty's Appeal

Canty argues that the trial court erred in failing to dismiss the charges against him. G.S. 90-95(a)(3) provides that it is unlawful for any person to possess a controlled substance. Possession of one gram or more of cocaine is a Class I felony. G.S. 90-95(d)(2)." Felonious possession of a controlled substance has two essential elements. The substance must be possessed, and the substance must be `knowingly' possessed." State v. Rogers, 32 N.C.App. 274, 278, 231 S.E.2d 919, 922 (1977). The State relies on the theory of constructive possession by Canty of the 1.16 grams of cocaine seized from the jacket found in the small back room and 5.9 grams found in the bicycle wheel. Defendant argues there was no evidence that he possessed one gram or more of cocaine.

"The doctrine of constructive possession applies when a person lacking actual physical possession nevertheless has the intent and capability to maintain control and dominion over a controlled substance." State v. Baize, 71 N.C.App. 521, 529, 323 S.E.2d 36, 41 (1984), disc. rev. denied, 313 N.C. 174, 326 S.E.2d 33, 34 (1985). Where controlled substances are found on the premises under the defendant's exclusive control, this fact alone may be sufficient to give rise to an inference of constructive possession and take the case to the jury. State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638 (1987). However, "where possession of the premises [by defendant] is nonexclusive, constructive possession of the contraband materials may not be inferred without other incriminating circumstances." State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984).

In ruling on a motion to dismiss, all evidence admitted must be considered in the light most favorable to the State, giving the State the benefit of all reasonable inferences which can be drawn therefrom. State v. Rasor, 319 N.C. 577, 585, 356 S.E.2d 328, 333 (1987). If there is "substantial evidence" of each element of the charged offense, the motion should be denied. State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984). "`Substantial evidence' is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981). Evidence of constructive possession is sufficient if it would allow a reasonable mind to conclude that the defendant had the intent and capability to maintain control and dominion over the contraband. State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986).

Considering the evidence in the light most favorable to the State, there is no substantial evidence that the building was under the control of defendant Canty. First, there is no evidence that Canty owned the building. Furthermore, there is no evidence that Canty leased the premises or otherwise exercised any control over the building. The only key found that fit the lock on the front door was found in Mallette's possession. Mallette testified that he received the key from Allen. Although there is evidence that Canty knew that there was cocaine in the building, that he was "waiting for his" and "he come [sic] to receive some drugs," this is not substantial evidence that Canty had the capability to maintain control and dominion over one gram or more of cocaine. See Brown, 310 N.C. at 569-70, 313 S.E.2d at 589 (sufficient control shown where defendant had on his person a key to the residence being searched and on every occasion the police observed defendant prior to the date of the search defendant was at the residence in question); State v. Allen, 279 N.C. 406, 412, 183 S.E.2d 680, 684-85 (1971) (sufficient control shown where utilities at the residence were in defendant's name, personal papers including an Army identification card bearing defendant's name were found on the premises and evidence that drugs belonged to defendant and were being sold at defendant's direction); State v. Rich, 87 N.C.App. 380, 382, 361 S.E.2d 321, 323 (1987) (sufficient control shown where defendant was seen on the premises the evening before the search, seen cooking dinner on the premises on the night of the search, mail was found on the premises addressed to the defendant and an insurance policy listing the premises in question as defendant's residence was also found on the premises). For this reason the trial court erred in denying Canty's motion to dismiss. Because of our determination of this issue we need not discuss the other issues raised in Canty's appeal.

II. Givens' Appeal

Givens' first argument is that the trial court erred in denying his motions to dismiss. Givens asserts there was insufficient evidence on which his conviction could be based. For the same reason, Givens argues his motion for appropriate relief was erroneously denied. We disagree.

The State relied on the theory of constructive possession. As stated above, where control of the premises is nonexclusive, constructive possession may not be inferred "without other incriminating circumstances." Brown, 310 N.C. at 569, 313 S.E.2d at 589. Evidence of constructive possession is sufficient if it would allow a reasonable mind to conclude that the defendant had the intent and capability to maintain control and dominion over the contraband. Beaver, 317 N.C. at 648, 346 S.E.2d at 480.

There is some evidence that Givens exercised some control over the premises searched. The evidence showed that prior to the officers' entry to execute the search warrant, Givens answered a knock at the door and informed the person outside that they were closed and were not selling beer. Additionally, there are other incriminating circumstances sufficient to permit the jury to infer constructive possession. Defendant was arrested in the same room where police found cocaine in plain view. A defendant's presence on the premises and close proximity to a controlled substance is a circumstance which may support an inference of constructive possession. See State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972). Additional incriminating circumstances were shown through evidence tending to show that Givens arrived with an amount of cocaine in his possession, that he used cocaine while on the premises and he "dumped" his cocaine in the building when the police arrived. We also note that when Givens was searched, officers found a set of scales in his pocket. We find that these circumstances when considered together are sufficient to allow a reasonable mind to conclude that Givens had constructive possession of the cocaine found in the building. Givens' motions to dismiss and for appropriate relief based on insufficient evidence were properly denied.

Givens also argues that the trial court erred in allowing testimony regarding an officer's prior visits to the premises searched. The officer testified that on two occasions prior to the search he had gone to 620 Campbell Street and purchased alcohol. The officer also testified that Givens was not on the premises on either occasion. Givens asserts that the evidence was prejudicial to him. The State argues that the testimony was background in nature and was admitted to show the basis for obtaining the search warrant. Additionally, the State asserts that even if the testimony was erroneously admitted, Givens has not shown he was prejudiced.

Rule 401 provides that relevant evidence is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." G.S. 8C-1, Rule 401. The testimony regarding prior sales of alcohol at the premises searched was irrelevant in Givens' trial for manufacturing cocaine and possession of cocaine with intent to sell or deliver. The testimony was erroneously admitted. The test for prejudicial error, however, "is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." State v. Heard, 285 N.C. 167, 172, 203 S.E.2d 826, 829 (1974). See also G.S. 15A-1443. Givens has not shown that there is a reasonable possibility that he was prejudiced as a result of the admission of this testimony.

Givens' third argument is that the trial court erred in allowing testimony regarding the "common use" of scales found by the police during the search of Givens. Givens asserts the testimony was not responsive to the prosecutor's question and the officer's opinion was without "qualification... or foundation." Defendant's arguments are without merit.

The question presented to the officer by the prosecutor was "can you describe what that object is?" The officer answered, after Givens' objection was overruled, that the exhibit was "a scale commonly used to weigh very light objects." The officer went on to relate that the scales were "common drug paraphernalia." The officer's answer was responsive to the question asked.

Rule 701 provides that opinion testimony from a lay witness is limited to opinions which are "rationally based on the perception of the witness" and are helpful to the jury. G.S. 8C-1, Rule 701. A lay witness must have a basis of personal knowledge for his opinion. However, a "[p]reliminary determination of personal knowledge need not be explicit but may be implied from the witness' testimony." G.S. 8C-1, Rule 602, commentary. There is no showing in the record that the officer had a basis for his opinion testimony. However, defendant Givens has not shown he was prejudiced by the admission of the testimony.

Defendant Givens' final argument is that the trial court erred in admitting State's exhibits 4, 5, and 6 into evidence. These exhibits consisted of the cocaine that was seized during the search of 620 Campbell Street and the Volkswagen car parked outside. Givens' argument is based on the asserted lack of evidence of Given's possession of the cocaine. With respect to exhibit 6, the cocaine found in the car, the trial court correctly instructed the jury not to consider that evidence. "It is well-settled in this jurisdiction that when the court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured." State v. Smith, 301 N.C. 695, 697, 272 S.E.2d 852, 855 (1981). We find that any possible prejudice to defendant was cured by the court's instructions. We also find that the evidence presented was sufficient to infer Given's constructive possession of the other cocaine which was found inside the building. Therefore exhibits 4 and 5 were properly admitted.

For the reasons stated above, defendant Canty's conviction is reversed and we find no prejudicial error in defendant Givens' trial.

Canty—reversed.

Givens—no error.

PARKER and ORR, JJ., concur.