State v Tucker

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-154 NORTH CAROLINA COURT OF APPEALS Filed: 4 October 2011 STATE OF NORTH CAROLINA v. Guilford County Nos. 09 CRS 78669 09 CRS 24529 YUAKIN DYWAN TUCKER Appeal by defendant from judgment entered 17 August 2010 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 1 September 2011. Roy Cooper, Attorney General, by Daniel Assistant Attorney General, for the State. S. Staples Hughes, Appellate Defender, by Emily Assistant Appellate Defender, for defendant. Hirschman, H. Davis, THIGPEN, Judge. Yuakin Dywan Tucker ( Defendant ) was convicted of possession of cocaine and trafficking by possessing twenty-eight grams or more of cocaine. State presented On appeal, we must decide whether the sufficient evidence that Defendant constructively possessed cocaine and whether the admission of evidence that his companion, Carl Blackmon ( Blackmon ), also -2possessed illegal substances was plain error. We conclude Defendant had a fair trial, free from error. The evidence of record tends to show that on the afternoon of 6 May 2009, Detective Justin Blanks, Detective E.A. Goodykoontz, and Corporal John Marsh, conducted surveillance at the Studio 6 hotel in Greensboro, North Carolina. Detective Blanks saw a blue Ford Taurus enter the hotel parking lot and subsequently exit the lot less than two minutes later. Detective Blanks believed the vehicle s short stay at the hotel indicated a drug transaction may have occurred. Detective Goodykoontz and Corporal Marsh stopped the Taurus, and after obtaining consent to search the vehicle, discovered 0.4 grams of crack cocaine and a crack pipe. with the cocaine. focused policemen about The driver of the vehicle spoke where he had purchased the crack Thereafter, the police renewed their surveillance and on Building 16 of the Studio 6 hotel, looking specifically for two males. Within minutes, the police saw two men, who were later identified as Blackmon and Defendant. Blackmon and Defendant exited Building 16, walked to separate vehicles, and drove away. The police followed Blackmon and stopped him, after which Blackmon was transferred to the Studio 6 hotel, where he showed -3the officers the room he had left, room 1612. The police searched Blackmon and found marijuana and 0.3 grams of powder cocaine. The police also followed Defendant into a nearby apartment complex, where Defendant parked his car. Sergeant J.E. Armstrong parked next to Defendant, turned on his blue lights, and approached Defendant. strong odor of Sergeant Armstrong noticed a very marijuana marijuana on his person. and asked Defendant if then arrived at had Defendant said yes, voluntarily giving Sergeant Armstrong a marijuana blunt from his pocket. Blanks he the apartment complex and Detective searched Defendant, finding a room key for room 1612 at the Studio 6 hotel and $1,555.00 in denominational breakdowns of fives, tens, and twenties. After Defendant was searched, Detective Blanks testified that a female . . . emerged from the apartment complex[,] and [D]efendant . . . spoke to her and asked her to call somebody and have them respond to the room. In response, Detective Blanks contacted Sergeant Koonce, who obtained a key for room 1612 from the front desk of the Studio 6 hotel and secured the room. Detective Blanks was concerned that whoever the [female] was that [Defendant] asked to respond to the room may try to -4arrive and attempt to destroy any evidence that may be present. Detective Blanks then informed Defendant the police were going to obtain a search warrant for room 1612, and Defendant would be transported back to the room. Defendant immediately broke into a went deep sweat[.] Defendant from collected state . . . to very nervous. a very calm, cool, Defendant was visibly tense. Sergeant Armstrong transported Defendant back to the Studio 6 hotel, and Detective Blanks obtained a search warrant for room 1612. Blackmon and several other officers were already gathered in the room. the warrant, tense[.] While waiting on Detective Blanks to return with Defendant was nervous[,] fidgety[,] and Detective Blanks announced over the police radio he had just left the magistrate s office with the search warrant and was returning to the Studio 6 hotel, after which Defendant stood up, started walking towards the bed and nightstand, and stated, I'm going to end all this[;] all I got is scales and some bags[;] let me get it and give it to you[;] let s go to jail. Officers instructed Defendant to sit back down, and Defendant complied. Detective Blanks arrived with the search warrant, and the officers conducted a search of room 1612 with the assistance of -5a K-9 unit. nightstand. The K-9 unit alerted to the area near the Police discovered scales and a box of sandwich bags in the nightstand drawer and 64.7 grams of crack cocaine in a plastic bag in a black Nike shoe underneath the nightstand. Police also found a bag with white powder, which was ultimately not subjected to a chemical analysis because the weight of the 64.7 grams of crack cocaine in addition to the white powder totaled less than 200 grams. Defendant was arrested on 6 May 2009. On 20 July 2009, Defendant was indicted on charges of trafficking by possession of 28 to 200 grams of cocaine and possession with intent to sell and deliver cocaine. The case came on for trial on 27 July 2010 in Guilford County Superior Court, and on 3 August 2010, the jury found Defendant guilty of trafficking by possession of 28 to 200 grams of cocaine and of possession of cocaine. Defendant pled guilty to having attained the status of an habitual felon. The trial court consolidated the offenses, entered a judgment consistent with the jury s verdict, and sentenced Defendant to 110 to 141 months incarceration. From this judgment, Defendant appeals. I: Motion to Dismiss -6In Defendant s first argument on appeal, he contends the trial court erred by denying his motion to dismiss the charges of trafficking by possession of 28 to 200 grams of cocaine and possession of cocaine for insufficiency of the evidence. We disagree. When reviewing a challenge to the denial of a defendant s motion to dismiss a charge on the basis of insufficiency of the evidence, this Court determines whether the State presented substantial evidence in support of each element of the charged offense. 827 State v. Chapman, 359 N.C. 328, 374, 611 S.E.2d 794, (2005) relevant (quotation evidence that omitted). a reasonable Substantial person evidence might accept is as adequate, or would consider necessary to support a particular conclusion. State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (quotation omitted). In this determination, all evidence is considered in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence. Additionally, a substantial evidence Id. (quotation omitted). inquiry examines the sufficiency of the evidence presented but not its weight, which remains a matter for the jury. State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005) (quotation omitted). Thus, -7 [i]f there is substantial evidence whether direct, circumstantial, or both to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied. Id. (quotation omitted). For a conviction of felonious possession of cocaine, the State is required possessed cocaine. to prove that the defendant knowingly State v. White, 104 N.C. App. 165, 168, 408 S.E.2d 871, 873 (1991) (citing N.C. Gen. Stat. § 90-95(d)(2)). To prove the offense of trafficking in cocaine by possession the State must show: (1) knowing possession of cocaine and (2) that the amount possessed was 28 grams or more. N.C. Gen. element Stat. § 90-95(h)(3)). of the offense established by showing of The trafficking that: (1) knowingly by Id. (citing possessed possession defendant had may be actual possession; (2) defendant had constructive possession; or (3) defendant acted in concert with another to commit the crime. State v. Alston, 193 N.C. App. 712, 715, 668 S.E.2d 383, 386 (2008), aff d per curiam, 363 N.C. 367, 677 S.E.2d 455 (2009) (citation omitted). Defendant specifically contends there was insufficient evidence to support the possession element of his possession and trafficking of cocaine offenses. -8 Constructive possession [of a controlled substance] occurs when a person lacks actual physical possession, but nonetheless has the intent disposition (quotation and and use omitted). power of to the The maintain control [controlled] defendant may over substance. have control either alone or jointly with others. the power the Id. to State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (citation omitted). Unless a defendant has exclusive possession of the place where the contraband is found, the State must show other incriminating circumstances sufficient for the jury to find a defendant had constructive possession. Id. (citation omitted). In the present case, since Defendant did not have exclusive possession of the hotel room, the State was required to present sufficient evidence of incriminating circumstances in order to allow the jury to infer Defendant constructively possessed the crack cocaine found in the hotel room. Incriminating circumstances relevant to constructive possession include [but are not limited to] evidence that [the] defendant: (1) owned other items found in proximity to the contraband; (2) was the only person who could have placed the contraband in the position where it was found; (3) acted nervously in the presence of law enforcement; (4) resided in, had some control of, or regularly visited the premises where the contraband was found; (5) was near contraband in plain view; or (6) -9possessed a large amount of cash. Alston at 716, 668 S.E.2d at 386. Evidence of conduct by the defendant indicating knowledge of the controlled substance or fear of discovery is also sufficient to permit a jury to find constructive possession. Id. (citation omitted). Our determination of whether the State presented sufficient evidence of incriminating circumstances depends on the totality of the circumstances in each case[;] [n]o single factor controls, but ordinarily the questions will be for the jury. Id. at 716, 668 S.E.2d at 386-87 (quotation omitted) (Emphasis in original). In this case, the police saw Defendant leaving Building 16 of the Studio 6 hotel; Defendant possessed a room key for room 1612, in possession which the $1,555 in cocaine small was found; bills; upon Defendant had Defendant s in his discovery that the police were interested in room 1612, Defendant told an unidentified female to call somebody and have them respond to room 1612; Defendant became extremely nervous when told room 1612 would be searched; Defendant admitted there were scales and plastic bags in room 1612; Defendant also knew where the scales and plastic bags were located in room 1612. We believe the foregoing incriminating circumstances were sufficient, such that the question of whether Defendant constructively possessed -10cocaine was properly a question for the jury. See, e.g., State v. Brown, 310 N.C. 563, 569-70, 313 S.E.2d 585, 588-89 (1984) (finding sufficient other incriminating circumstances when cocaine and other drug packaging paraphernalia were found on a table beside which the defendant was standing when the officers entered the apartment, the defendant had been observed at the apartment multiple times, possessed a key to the apartment, and had over $1,700 in cash in his pockets). We conclude the trial court did not err by denying Defendant s motion to dismiss for insufficiency of the evidence. II: In Defendant s contends the second trial court Plain Error and final committed argument plain on error appeal, by he admitting evidence pertaining to the illegal drugs found on Carl Blackmon. Assuming arguendo the admission of this evidence was error, we conclude any error was not plain, because it did not prejudice Defendant s trial. Rule 10(a)(4) of the North Carolina Rules of Appellate Procedure governs this Court s review of matters employing the plain error standard: In criminal cases, an issue that was not preserved by objection noted at trial . . . nevertheless may be made the basis of an issue presented on appeal when the judicial -11action questioned is specifically and distinctly contended to amount to plain error. 1 Plain error analysis jury instructions. applies to evidentiary matters and State v. Cummings, 361 N.C. 438, 469, 648 S.E.2d 788, 807 (2007), cert. denied, 552 U.S. 1319, 170 L. Ed. 2d 760, critical 128 S. Ct. in the 1888 context (2008). of The plain error rule is admitting physical evidence or testimony without an objection because the trial court is not expected to second-guess a party s trial strategy[;] [t]he possibility always exists that a party intentionally declines to object for some strategic reason. State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634, cert. denied, __ U.S. __, 175 L. Ed. 2d 362, 130 S. Ct. 510 (2009) (citation omitted). To show plain error, the defendant must convince this Court not only that there probably was would error, have but reached that a absent different the error, result[.] the jury State v. Allen, 360 N.C. 297, 310, 626 S.E.2d 271, 282, cert. denied, 549 U.S. 867, 166 L. Ed. 2d 116, 127 S. Ct. 164 (2006) (quotation omitted). 1 Defendant bears the burden of showing that an error Defendant did not object at trial to the admission of the evidence pertaining to the illegal drugs found on Carl Blackmon. Therefore, plain error review is appropriate. -12arose to the level of plain error. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Defendant argues the admission of the testimony of SBI Special Agent Lindley pertaining to the chemical analysis and identification of powder cocaine found on Blackmon was plain error. Defendant evidence of argues Defendant s there guilt, was and less Agent than overwhelming Lindley s testimony tipped the scales with the jury to convict Defendant. this argument unconvincing. We find Defendant used the evidence that Blackmon possessed illegal drugs to his advantage. At trial, Defendant implied that because drugs were found in Blackmon s shoe, the drugs found in the hotel room stowed away in a shoe must necessarily have also been Blackmon s. On examination, Defendant asked the following questions: Q: What contraband did the Greensboro Police find on Mr. Blackmon? A: Marijuana and cocaine. Q: And where was it found? A: In his shoe. Q: In his shoe? A: Yes, sir. Q: Did you find any cocaine in [Defendant s] shoe? cross- -13A: No sir, not not on his person, the shoes that were on his person, no. Based on admission the of foregoing, evidence and assuming pertaining to without illegal deciding drugs found the on Blackmon was erroneously admitted, we do not believe Defendant has met his burden of proving that absent the admission of the evidence, result. error. the jury probably would have reached a different We conclude the admission of the evidence was not plain Defendant had a fair trial, free from error. NO ERROR. Judges GEER and STROUD concur. Report per Rule 30(e).

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