An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA01-912
NORTH CAROLINA COURT OF APPEALS
Filed:
1 October 2002
STATE OF NORTH CAROLINA,
v.
Carteret County
Nos. 99 CVS 10089, 10090,
10091 and 00CRS 2302;
99 CVS 00 10086, 10087,
10088 and 00 CRS 2301
CAROL LAFFERTY COLT and
DANIEL WAYNE STEPHENS
Appeal by defendants from judgments entered 7 September 2000
by Judge Russell J. Lanier in Carteret County Superior Court.
Heard in the Court of Appeals 14 May 2002.
Attorney General Roy Copper, by Special
General Ted R. Williams, for the State.
Deputy
Attorney
E. Daniels Nelson, for the defendants.
BIGGS, Judge.
Carol Colt and Daniel Stephens (defendants) were tried jointly
on charges of possession with intent to manufacture, sell and
deliver
marijuana,
maintaining
substance,
a
knowingly
dwelling
misdemeanor
for
and
intentionally
purposes
possession
misdemeanor possession of hashish.
of
of
keeping
drug
keeping
a
or
controlled
paraphernalia
and
Both were convicted of the
lesser included offense of felony possession of marijuana and
knowingly keeping a dwelling for purposes of keeping a controlled
-2substance.
Colt was also convicted of misdemeanor possession of
drug paraphernalia and misdemeanor possession of hashish; Stephens
was found not guilty of these offenses.
For the reasons herein, we
vacate defendant Stephens’ conviction for felonious possession of
marijuana and find no error in all remaining convictions of both
defendants.
The State presented the following evidence at trial: On 15
October 1999, at approximately 9 p.m., Officer Troy Edwards was
dispatched
Carolina,
to
in
the
Handle
response
to
Bar
a
Restaurant,
disturbance
in
call.
Beaufort,
Eye
North
witnesses
explained to the officer that a fight had occurred; that
the
suspected assailant, Jeremy Coy, left the scene in a red Ford
Escort; and, that they believed the suspect was going to defendant
Stephens’ house.
Officer Edwards went with two other police
officers to Stephens’ residence and, upon arrival, observed a red
Ford Escort parked in front of a triplex.
The police officers went to the first apartment in the triplex
where the resident, Christine Coy Teal, explained that Jeremy Coy
was her son and that he was at Stephens’ apartment further down the
driveway.
Teal led the officers down a driveway to Stephens’
apartment.
The police officers detected the odor of marijuana
coming from a window of the apartment.
According to Officer
Edwards, “there was a clear view into the room and [he] observed
defendant Colt sitting on the couch and it appeared that she was
smoking marijuana at that time.”
The officers knocked on the door of the apartment.
When Colt
-3answered the door, the officers explained that they were looking
for Jeremy Coy and a source told them he was in the apartment.
Colt allowed them inside. While inside the apartment, the officers
observed a small ashtray with a pair of hemostats and two marijuana
cigarettes, or “roach heads”, attached to them.
In addition, the
officers observed a small rectangular metal tin on the couch near
the ashtray.
One of the officers opened the tin box and observed
two bags of what appeared to be approximately two ounces of
marijuana rolled up inside each bag.
Officer
Edwards
obtained
officer secured the residence.
a
search
warrant
while
another
Upon executing the search warrant,
the officers seized the following items:
two additional plastic
bags of what appeared to be marijuana discovered in a red coffee
can in the laundry room, a clump of brown material wrapped up in
tinfoil in the coffee can, four firearms, ammunition, and varying
quantities of cash found in the bedroom, living room, and kitchen
area.
Stephens was not present during the initial entry by the
officers, but arrived as the officers were executing the search
warrant.
Although Stephens explained that he lived there, the
officers would not allow him to enter until they completed the
search of the apartment.
were
arrested
and
Following the search, Colt and Stephens
taken
into
custody.
The
State
Bureau
of
Investigation determined, and both parties stipulated, that the
material
found
at
the
material was hashish.
residence
was
marijuana
and
the
brown
-4Defendants offered the following testimony at trial: When the
officers knocked on the door and asked to enter to look for Jeremy
Coy, Colt explained, “. . . he is not here, . . . [she] didn’t
think there was any need for them to come in and look around”, and
she was not properly dressed at the time.
She further explained
that Stephens was on his way to the Bar in response to the reported
disturbance. However, when the officers continued to persist, Colt
finally “backed away from the door”.
Colt testified that she
smoked marijuana every night before she went to sleep as her “own
little civil disobedience”, but explained that Stephens “doesn’t
really smoke . . . because of his responsibilities at the bar.”
Colt also testified that there was only one marijuana joint on the
table and not two, as Officer Edwards testified.
Both Colt and
Stephens testified that Stephens did not know that the marijuana
and hashish were in the house.
Stephens testified that the guns
were a part of his gun collection.
Teal, Colt, and Stephens
testified that the large amount of cash in the house was used to
pay bills and included tips from the Bar.
From
their
convictions,
both
defendants
appeal.
Though
defendants filed a joint brief, we find it necessary to consider
their claims individually.
Stephens’ Appeal
Stephens
first
contends
that
the
trial
court
committed
reversible error in denying his motion to dismiss all charges
against him.
In response to his motion to dismiss, the trial court
declined to submit the charged offense of possession with intent to
-5manufacture, sell and deliver marijuana to the jury and, instead,
charged the jury on the lesser included offense of felonious
possession of marijuana. In addition, the court denied defendant’s
motion
to
dismiss
the
charge
of
intentionally
and
knowingly
maintaining a dwelling for the purpose of keeping a controlled
substance.
Defendant
argues
that
there
is
no
physical
or
testimonial evidence that links him to the seized material or the
crimes
and
thus,
all
charges
against
him
should
have
been
dismissed.
A
motion
to
dismiss
is
properly
denied
if
“there
is
substantial evidence (1) of each essential element of the offense
charged, and (2) that defendant is the perpetrator of the offense.”
State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990)
(citation
omitted).
“Substantial
evidence
is
such
relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”
State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d
781, 787 (1990) (citation omitted).
“When ruling on a motion to
dismiss, all the evidence should be considered in the light most
favorable to the State, and the State is entitled to all reasonable
inferences which may be drawn from the evidence.”
State v. Davis,
130
(1998).
N.C.
App.
675,
679,
505
S.E.2d
138,
141
“Any
contradictions or discrepancies in the evidence are for resolution
by the jury.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585,
587 (1984).
We first examine defendant's motion to dismiss the charge of
felonious possession of marijuana.
Possession of a controlled
-6substance may be actual or constructive. State v. Harvey, 281 N.C.
1, 12, 187 S.E.2d 706, 714 (1972).
Here, the State has produced no
evidence of actual possession by Stephens but rather proceeded on
the theory of constructive possession.
“Constructive possession exists when a person, while not
having actual possession of the controlled substance, has the
intent and capability to maintain control and dominion over a
controlled substance.”
State v. Neal, 109 N.C. App. 684, 686, 428
S.E.2d 287, 289 (1993) (citation omitted).
constructive
controlled
possession
substance
by
was
a
defendant
discovered,
the
“[I]n order to show
not
present
State
must
when
a
present
evidence that the defendant had exclusive use of the premises,
maintained the premises as a residence, or had some apparent
proprietary interest in the premises or the controlled substance.”
State v. Hamilton, 145 N.C. App. 152, 156, 549 S.E.2d 233, 235
(2001)
(emphasis
added).
If,
however,
the
defendant
had
nonexclusive control of the premises in question, the State must
show evidence of “other incriminating circumstances” to support a
theory of constructive possession.
State v. Morgan, 111 N.C. App.
662, 665, 432 S.E.2d 877, 879 (1993).
a
strong
suspicion
without
“Evidence that raises only
producing
any
incriminating
circumstances does not reach the level of substantial evidence
necessary for the denial of a motion to dismiss.”
Hamilton, 145
N.C. App. at 158, 549 S.E.2d at 237.
In State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638
(1987), though defendant resided at a home where drug paraphernalia
-7was found, our Supreme Court concluded that her control of the
premises was “patently nonexclusive”, since evidence showed that
her husband also lived in the home, and, her husband and another
man were seen in the home that day.
Further, the Supreme Court
held that the State had not presented any other incriminating
evidence which suggested that defendant had control of the drug
paraphernalia; therefore, the trial court was correct in granting
her motion to dismiss.
McLaurin is in contrast to State v. Davis, 325 N.C. 693, 386
S.E.2d 187 (1989), in which the Supreme Court held there was
sufficient evidence to deny a motion to dismiss on the charge of
possession of narcotics.
In Davis, the defendant had nonexclusive
possession of a trailer where narcotics were found, since seven
other people were present in the home.
However, the Court held
that the State had presented other incriminating evidence, i.e.,
the defendant owned the mobile home, white tablets were found in
the pockets of defendant's pants, and white tablets were found in
the chair on which he had been sitting. Id; see also State v.
Baxter, 285 N.C. 735, 737, 208 S.E.2d 696, 697 (1974) (holding
there
was
sufficient
evidence
to
deny
defendant’s
motion
to
dismiss, where he was not present, his wife also lived in the
house, and there was other incriminating evidence of his guilt,
such
as
marijuana
found
in
a
dresser
drawer
beneath
male
underclothing, and an envelope containing marijuana found in the
pocket of a man’s coat).
In the case sub judice, the evidence, taken in the light most
-8favorable to the State, is as follows: Stephens and Colt resided
together at the house where the marijuana and contraband were
seized; Stephens had left the house a short time before the
officers
arrived
and
returned
before
the
officers
left;
the
officers observed Colt sitting alone smoking what appeared to be
marijuana; Officer Edwards saw two marijuana cigarettes and two
hemostats in the living room; there was evidence that Jeremy Coy,
the individual the officers were searching for, may have been at
the
apartment;
the
evidence
seized
included
marijuana found in a tin can on the sofa,
four
ounces
of
marijuana found in a
coffee can in the laundry room, a large amount of cash found in
varying locations in the apartment, and four guns.
We conclude that the facts in this case more closely resemble
McLaurin than Davis.
In this case, as in Davis and McLaurin,
Stephens' control of the premises was nonexclusive since Colt also
lived there.
However, unlike in Davis, the State, in the present
case, did not present evidence of “other incriminating evidence” of
Stephens’ guilt.
Stephens was not present when the officers
arrived; the marijuana was not found in an area over which Stephens
had exclusive control; it was in an ashtray and tin can.
There was
evidence that a third individual, Jeremy Coy, may have been in the
apartment immediately before the officers arrived.
State
has
failed
to
offer
substantial
We believe the
evidence
of
“other
incriminating circumstances” from which a jury could find that
defendant Stephens was in constructive possession of the marijuana
seized from the apartment.
We, therefore, conclude that it was
-9error for the court to allow the charge of felonious possession of
marijuana to go to the jury.
Stephens also argues that the trial court erred in denying his
motion to dismiss the charge of knowingly and intentionally keeping
and maintaining a dwelling for the purpose of keeping controlled
substances. N.C.G.S. § 90-108(a)(7) (2001).
The statute reads, in pertinent part:
(a) It shall be unlawful for any person:
. . . .
(7) To knowingly keep or maintain any . . .
dwelling house, building, . . . or any place
whatever, 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
. . . the same in violation of this Article. .
. .
N.C.G.S. § 90-108 (a)(7).
To
survive
substantial
a
motion
evidence
of
to
the
dismiss,
the
following:
State
“[that
must
present
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. Frazier, 142 N.C. App. 361, 365,
542
(2001).
S.E.2d
maintain[s]’
682,
a
686
place,
within
“Whether
the
a
person
meaning
of
‘keep[s]
N.C.G.S.
§
or
90-
108(a)(7), requires consideration of several factors, none of which
are dispositive.” Id. (citation omitted).
the
following:
occupancy
of
the
Those factors include
property;
payment
of
rent;
possession over a duration of time; possession of a key used to
enter or exit property; and payment of utility or repair expenses.
-10Id.; see also, State v. Allen, 102 N.C. App. 598, 608-09, 403
S.E.2d 907, 913-914 (1991), rev’d on other grounds, 332 N.C. 123,
418 S.E.2d 225 (1992); State v. Kelly, 120 N.C. App. 821, 826, 463
S.E.2d 812, 815 (1995).
Here, it is uncontested that Stephens
lived at the apartment, with Colt.
Thus, at issue is whether the
state presented sufficient evidence that Stephens knowingly or
intentionally kept or maintained the apartment for the purpose of
keeping controlled substances, or, which is used to keep controlled
substances.
Whether a dwelling is used for knowingly or intentionally
keeping a controlled substance “will depend on the totality of the
circumstances”. Generally, Frazier, 142 N.C. App. at 366, 542
S.E.2d at 686 (citing State v. Mitchell, 336 N.C. 22, 34, 442
S.E.2d 24, 30 (1994)).
This Court has considered such factors as
large amounts of cash being found in a place and the place
containing numerous amounts of drug paraphernalia, as evidence that
a particular place is used to keep or sell controlled substances.
Id.; see also, State v. Bright, 78 N.C. App. 239, 240, 337 S.E.2d
87, 87-88, disc. review denied, 315 N.C. 591, 341 S.E.2d 31 (1986).
The State’s evidence, in the present case, tended to show the
following: although Stephens was not present when the officers
arrived, he had only recently left the premises; at the time the
officers arrived, Colt was openly smoking marijuana in such a way
that her activity could be seen and smelled by the officers outside
of the apartment; a small ashtray with a pair of hemostats and two
marijuana cigarettes attached to them were lying on the living room
-11table in plain view; Colt testified that she smoked marijuana every
night; marijuana was found in various other parts of the apartment
to which Stephens had access: in the laundry room, the bedroom,
living room, and kitchen; and varying amounts of cash were found
throughout the apartment.
While this evidence may not be overwhelming, a reasonable
person
could
infer
that
defendant
knowingly
or
intentionally
maintained a residence that is used for the keeping of a controlled
substance in violation of N.C.G.S. § 90-108 (a) (7). “To withstand
a motion to dismiss, overwhelming evidence is not needed. In close
cases,
‘courts
have
consistently
expressed
submitting issues to the jury. . . .’”
a
preference
for
State v. Jackson, 103 N.C.
App. 239, 244, 405 S.E.2d 354, 357 (1991) (quoting State v.
Hamilton, 77 N.C. App. 506, 512, 335 S.E.2d 506, 510 (1985), disc.
rev. denied, 315 N.C. 593, 341 S.E.2d 33 (1986)).
We hold that,
though there was insufficient evidence that Stephens possessed the
marijuana seized, the trial court did not err in denying Stephens’
motion to dismiss the charge of intentionally or knowingly keeping
a dwelling which was used for the purpose of keeping a controlled
substance.
Stephens finally argues that (1) the trial court erred in
giving the same jury instruction for both defendants, and (2) the
court’s use of “guilty” first on the verdict sheet, to describe the
jury’s
choices
was
suggestive,
amounted to plain error.
misleading
and
confusing,
and
We decline to address these issues.
First, Stephens failed to object to the jury instructions or
-12the verdict sheet at trial as required by Rule 10(b)(1) of the
North Carolina Rules of Appellate Procedure. The rule provides
that, “in order to preserve a question for appellate review, a
party must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the ruling
the party desired the court to make.”
When the trial court asked
at the end of the jury charge, if there were any corrections or
additional instructions, defendant’s counsel stated that there were
not.
Moreover, none of Stephens’ assignments of error address
either the jury instructions or the verdict sheet.
review
on
appeal
is
limited
to
those
issues
The scope of
presented
by
assignments of error in the record on appeal. N.C.R. App. P 10(a);
Koufman v. Koufman, 330 N.C. 93, 408 S.E.2d 729 (1991).
Thus,
these issues are not properly before this Court.
Accordingly, we vacate defendant Stephens’ conviction for
felonious possession of marijuana; and, we find no error in the
court’s denial of Stephens’ motion to dismiss the charge of keeping
or maintaining a dwelling house for the purpose of keeping a
controlled substance.
Colt’s Appeal
Colt argues that the trial court erred in denying her motion
to dismiss.
Specifically, she contends that the officers’ initial
entry and search of
violation
of
the
her residence without a warrant was in
Fourth
Amendment
of
the
United
States
Constitution. In addition, Colt argues that it was plain error for
-13the court to list “guilty” as the first jury choice on the verdict
sheet.
It is well-settled that an appellate court may not consider
constitutional questions that were neither raised or decided in the
court below. State v. Houston, 122 N.C. App. 648, 471 S.E.2d 127
(1993); State v. Crews, 286 N.C. 41, 47-48, 209 S.E.2d 462, 466
(1974), cert. denied, 421 U.S. 987, 44 L. Ed.2d 477 (1975); State
v. Greene, 33 N.C. App. 228, 229, 234 S.E.2d 428, 429-30 (1977).
Since Colt raises the constitutional question of the warrantless
search for the first time on appeal, this Court will not consider
it.
Accordingly, this assignment is dismissed.
In addition, we likewise decline to address Colt’s contention
that the trial court erred in listing the term “guilty” first on
the verdict sheet, in that she, like Stephens, failed to object at
trial or to assign it as error.
III.
Lastly, Colt and Stephens argue that the trial court erred in
allowing the State to introduce into evidence weapons and cash
seized during the search without giving a curative instruction. We
find no merit in this assignment.1
A trial court may use curative instructions to remove possible
prejudice arising from inadmissible or otherwise improper material
put before the jury.
See generally, State v. Holmes, 120 N.C. App.
54, 65, 460 S.E.2d 915, 922, disc. review denied, 342 N.C. 416, 465
1
Though appellants list assignment of error #2 in their
brief as corresponding to this argument, it is assignment of
error #4 that actually corresponds to this argument.
-14S.E.2d 545-6 (1995).
However, a trial court does not err by
failing to give a curative instruction when it is not requested by
the defense.
State v. Williamson, 333 N.C. 128, 423 S.E.2d 766
(1992)(citation omitted).
In the present case, defendant argues that guns and cash were
not relevant to the crimes charged and that he was prejudiced by
the failure of the trial court to give a curative instruction.
Relevant evidence is defined as “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.”
N.C.G.S. § 8C-1, Rule 401; State
v. Whiteside, 325 N.C. 389, 397, 383 S.E.2d 911, 915 (1989)
(“Evidence is relevant if it has any logical tendency, however
slight, to prove a fact in issue in the case”).
has
held
that
“[w]here
evidence
reasonably
Our Supreme Court
tends
to
prove
a
material fact at issue in the crime charged, it will not be
rejected. . . .” State v. Jeter, 326 N.C. 457, 458, 389 S.E.2d 805,
806 (1990).
As stated earlier, this Court has considered a large amount of
cash found in a dwelling to be a factor considered in determining
whether the place is used to keep or sell controlled substances.
See Frazier, 142 N.C. App. at 365, 542 S.E.2d at 686; State v.
Bright, 78 N.C. App. at 240, 337 S.E.2d at 87-88.
Moreover, in
State v. Willis, 125 N.C. App. 537, 543, 481 S.E.2d 407, 411 (1997)
this Court has stated that based on their experience in drug
trafficking cases, officers could rely on “common sense association
-15of drugs and guns”.
We conclude that the testimony regarding the guns and money
was relevant and properly admitted.
Having determined that the
testimony was admissible, we further conclude that defendant was
not
entitled
to
a
curative
instruction.
Moreover,
assuming
arguendo, it was not admissible, there is no evidence in the record
that defendant ever requested a curative instruction. Accordingly,
this assignment of error is overruled.
We vacate Stephens’ conviction on the charge of felonious
possession and remand for resentencing; we find no error in all
other convictions that are the subject of this appeal.
No error in part; vacated in part, and remanded for new
sentencing.
Judges GREENE and HUDSON concur.
Report per Rule 30(e).
