State v McClaude 

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NO. COA14-584 NORTH CAROLINA COURT OF APPEALS Filed: 18 November 2014 STATE OF NORTH CAROLINA v. Johnston County No. 13 CRS 52989, 52990 PHABIEN DARRELL MCCLAUDE Appeal by defendant from judgments entered 15 January 2013 by Judge Reuben F. Young in Johnston County Superior Court. Heard in the Court of Appeals 8 October 2014. Attorney General Roy Cooper, by Special General E. Burke Haywood, for the State. McCOTTER ASHTON, defendant. P.A., by Rudolph A. Deputy Ashton, Attorney III, for ELMORE, Judge. On guilty 14 of January 2014, misdemeanor a jury possession unanimously of found marijuana, defendant possession of cocaine with the intent to sell and/or deliver (PWISD cocaine), and conspiracy to sell and/or deliver cocaine (conspiracy). trial court sentenced defendant to consecutive active The prison terms of 15-27 months based on the PWISD cocaine conviction and 15-27 months based on the conspiracy conviction. For the -2possession of marijuana conviction, defendant received a suspended sentence of 20 days imprisonment and was placed on supervised probation for 8 months to be served upon his release from prison. Defendant appeals. After careful consideration, we vacate the conspiracy conviction and remand for resentencing. I. Facts On 11 June 2013, Johnston County Deputy Sheriff Billy Britt was on patrol duty at the intersection of N.C. 96 North and N.C. 42 West when he noticed a vehicle cross the center line of the road on two separate occasions. As a result of the traffic violation, Deputy Britt conducted a traffic stop of the vehicle. Deputy Britt approached the vehicle, and he smelled a strong odor of marijuana emanating from the vehicle. He asked the occupants vehicle, whether any marijuana was inside the and Phabien Darrell McClaude (defendant), who was located in the front passenger seat, indicated that he and the driver, Jonathan Hall, had previously smoked marijuana in the car. Britt’s Deputy person. request, Britt conducted Deputy defendant’s defendant Britt trouser a and Hall exited protective found pocket a search small and the bag of of subsequently Upon Deputy vehicle, and defendant’s marijuana in handcuffed -3defendant. Both Hall and defendant became visibly nervous, but they indicated that nothing else was inside the vehicle. Thereafter, Deputy Britt conducted a search of the vehicle. As he began to search the center of the vehicle, Hall appeared increasingly discomposed as he “wring[ed] and twist[ed] . . . all around,” and shuffled and tapped his feet. then pulled out the ashtray beneath the center console. and could see Deputy Britt the floor panel Deputy Britt found a black box underneath the console, and after opening the box, he found 7.2 grams of a substance that was later determined to be powder cocaine. At this point, Hall started to walk away from the scene, forcing another deputy to place him in handcuffs. Deputy Britt re-approached make voluntary statements. defendant, who then began to Defendant proceeded to inform Deputy Britt that he had outstanding child support warrants, concealed marijuana in his underwear, and was “just trying to make a [sic] enough money to pay for . . . child support[.]” Deputy Britt then placed defendant under arrest and transported him to the Johnston County Jail. In relevant part, the State charged defendant with PWISD marijuana, PWISD cocaine, and conspiracy. At trial, defendant made motions to dismiss these charges for insufficient evidence, each of which was denied by the trial -4court. Defendant also attempted to present evidence by calling Hall as a witness but was unable to locate him. Defendant requested that he be given additional time to locate Hall, but the trial court denied the request. During jury deliberations, defendant found Hall and made a motion to the trial court to reopen the evidence so that Hall could testify, but the trial court denied defendant’s motion. The jury returned with verdicts of guilty of misdemeanor possession of marijuana, PWISD cocaine, and conspiracy. II. Analysis a.) Motion to Dismiss the Conspiracy Charge Defendant defendant’s argues motion that to insufficient evidence. the dismiss trial the court erred conspiracy by denying charge for Defendant contends the State presented insufficient evidence to establish that he and Hall made an agreement to sell and deliver cocaine. We agree. “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 Court question for the 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 -5being 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). as a “Substantial evidence is such relevant evidence reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). consider “In making its determination, the trial court must all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). To withstand a motion to dismiss the charge of conspiracy to sell and/or deliver cocaine, the State must provide substantial evidence that: 1.) The defendant and at least one other person entered into an agreement; 2.) The agreement was to commit the crime of the sale and/or delivery of cocaine; and 3.) The defendant and the other person(s) intended agreement be carried out at the time it was made. Crim. 202.80. that the N.C.P.I.- However, “the State need not prove an express -6agreement; evidence understanding will tending suffice. unlawful act be completed. to Nor show is a it mutual, necessary implied that the As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is completed.” State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991) (citations and quotation marks omitted). The State directs us to State v. Worthington, in support of the proposition that defendant and Hall had “a mutual implied understanding” sufficient to establish a conspiracy. In Worthington, this Court indicated that the State can prove a conspiracy by showing “a number of indefinite acts, each of which, standing alone, might point have little unerringly to weight, the but, existence taken collectively, they of a conspiracy.” State v. Worthington, 84 N.C. App. 150, 162, 352 S.E.2d 695, 703 (1987) (citation and internal quotation marks omitted). Based on this principle, we held that the State presented sufficient evidence of a conspiracy to withstand a motion to dismiss despite the absence of any evidence of “an express agreement between the defendants[.]” S.E.2d at 703. Id. at 162, 352 However, the facts in Worthington are markedly dissimilar to those at issue here. -7In Worthington, cocaine from the an undercover co-conspirator, S.B.I. law Agent purchased enforcement officers discovered the money used to buy the cocaine in the possession of both the defendant and the co-conspirator, the co- conspirator’s name and phone number were written in a notebook found in the defendant’s residence, the notebook listed “payments and balances for dated transactions[,]” and the coconspirator “repeatedly referred to ‘his man,’ the manner in which ‘his man’ liked to arrange a drug deal, and ‘his man’s’ ability to transact a half-pound cocaine deal.” 352 S.E.2d at 697-703. The evidence in Id. at 152-163, Worthington that unerringly indicated an implied understanding between the coconspirator and the defendant is simply lacking in this case. Instead, we find State v. Euceda-Valle controlling. N.C. App. 268, 276, 641 S.E.2d 858, 864 (2007). 182 In Euceda-Valle this Court held that the State failed to present substantial evidence suspicion” of the or a existence “mere of a relationship association” is insufficient. conspiracy between because the parties or Id. at 276, 641 S.E.2d at 864-65 (citation and internal quotation marks omitted). an officer conducted a traffic stop. at 860-61. “mere In that case, Id. at 270-71, 641 S.E.2d The defendant and alleged co-conspirator were seated -8inside the vehicle, both individuals were nervous, an odor of air-freshener emanated from the vehicle, and after a canine sniff and search of the vehicle, officers located 4.98 kilograms of cocaine hydrochloride in the trunk. Id. Importantly, we observed that the State provided no evidence of “conversations between the two men; unusual movements or actions by defendant and/or [alleged co-conspirator]; large amounts of cash on alleged [co-conspirator]; the possession of weapons; or anything else suggesting an agreement.” Id. at 276, 641 S.E.2d at 864. Similarly, defendant and Hall never conversed, no cash was found in the vehicle or linked to Hall despite the presence of cocaine, and neither person possessed a weapon. was visibly unusual nervous movements throughout indicating the that encounter he might Although Hall and have made some known that cocaine was in the vehicle, such evidence does not amount to substantial evidence of an agreement to commit the crime of the sale and/or delivery of cocaine. smoked weed and that’s it.” Hall stated only that “[w]e Moreover, while defendant admitted his own intent to sell cocaine by stating, “I was just trying to make a [sic] enough money to pay for this . . . child support, I got a hookup and I was able to cut it good[,]” nothing expressly or impliedly connected Hall to defendant’s admission of his -9intent to sell the cocaine. In fact, defendant said Hall was merely driving the vehicle because he did not have a license. Thus, the State did not present sufficient evidence of an agreement to support the conspiracy charge. See State v. Benardello, 164 N.C. App. 708, 711, 596 S.E.2d 358, 360 (2004) (holding that the evidence was insufficient to establish the existence of occupied conspiracies to commit murder or properties because a phone to conversation, shoot into the only evidence supporting a conspiracy, discussed resolving a money issue but made “no mention of shooting, killing or violence of any kind”); compare State v. Jenkins, 167 N.C. App. 696, 701, 606 S.E.2d 430, 433-34 aff'd, 359 N.C. 423, 611 S.E.2d 833 (2005) (ruling that the State presented substantial evidence of the existence of a conspiracy to traffic in cocaine when the defendant was in a truck with two individuals, 79.3 grams of cocaine were located in the vehicle, one of the occupants possessed thousands of dollars in cash, and officers found a loaded firearm in the vehicle). Accordingly, the trial court erred by denying defendant’s motion to dismiss the conspiracy charge. b.) Motion to Dismiss the PWISD Cocaine Charge -10Next, denying defendant his motion argues to that dismiss insufficiency of the evidence. the the trial PWISD court Cocaine erred charge by for We disagree. In order to withstand a motion to dismiss the charge of PWISD Cocaine, the State must present substantial evidence that defendant possessed a controlled substance with the “intent to sell or distribute the controlled substance.” State v. Richardson, 202 N.C. App. 570, 572, 689 S.E.2d 188, 191 (2010) (citation and internal quotation marks omitted). Possession of a controlled substance can be actual or constructive. State v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d 172, 174 (2005). “A person is in constructive possession of a thing when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing.” State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986) (citation omitted). Additionally, the State must demonstrate “other incriminating circumstances before constructive possession may be inferred.” Nettles, 170 N.C. App. at 103, 612 S.E.2d at 174 (citation and internal quotation marks omitted). Here, defendant contests the sufficiency of the State’s evidence as it relates to the elements of “possession” and the “intent to sell or distribute.” However, the evidence shows -11that Deputy Britt observed defendant in the passenger seat reaching towards the center of the car before the traffic stop, and he located the cocaine in the center console of the vehicle, between the driver and passenger’s seat. admitted to actually possessing and Moreover, defendant intending to sell the cocaine, since he stated, “[m]an, I don’t sling dope anymore, I was just trying to make a [sic] enough money to pay for this . . . child support, I got a hookup and I was able to cut it good.” Based on Deputy Britt’s training and experience, he interpreted this slang to mean “buying an amount of -- in this case cocaine and adding other ingredients to it in some way, shape or form to make it a larger amount.” Defendant also revealed to Deputy Britt that he bought one gram of cocaine “and was able to make it into twelve.” Thus, defendant’s own statements coupled with his conduct indicate that he bought and possessed the cocaine, diluted it, and intended to sell the controlled substance in order to pay child support. Accordingly, the trial court did not err by denying defendant’s motion to dismiss the PWISD cocaine charge. c.) Request for Additional Time to Locate a Witness and Motion to Reopen Evidence Defendant also argues that the trial court erred by denying both his request for additional time to locate Hall and his -12motion to reopen the evidence so that Hall could testify. We disagree. The standard of review regarding whether a trial court should grant a recess due to a missing witness is reviewed for an abuse of discretion. State v. Elliott, 25 N.C. App. 381, 383, 213 S.E.2d 365, 367-68 (1975). Similarly, “[b]ecause there is no constitutional right to have one’s case reopened, the decision to reopen a case is strictly within the trial court’s discretion.” State v. S.E.2d 303, 305 (2005). Hoover, 174 N.C. App. 596, 599, 621 This broad discretion stems from the trial court’s “inherent authority to supervise and control trial proceedings.” State v. Davis, 317 N.C. 315, 318, 345 S.E.2d 176, 178 (1986). The relevant facts show that after defendant’s motions to dismiss were denied, the trial court took a 15 minute break at 10:34 a.m. and excused the jury. During this time, defendant’s attorney notified the trial court that he was attempting to make contact with a potential witness, Hall. Hall was not under subpoena but had been present in the courtroom earlier in the day. The prosecutor told the trial court that he had spoken with Hall’s attorney who stated that his client was not going to testify. The trial court nevertheless allowed defendant’s -13attorney a “few minutes” to locate Hall. Defendant’s attorney was unsuccessful and informed the trial court that he had been unable to locate Hall. The jury returned at 11:03 a.m. and defendant stated that he would not present any evidence. The trial court, defendant, and the State then conducted the charge conference outside the presence of the jury. After the charge conference, defendant’s attorney requested additional time to locate Hall, and the following colloquy occurred: DEFENDANT’S ATTORNEY: We can’t get any additional time to get our witnesses here? TRIAL COURT: I thought the witness was not going to testify. DEFENDANT’S ATTORNEY: closed the evidence. Plus you’ve already TRIAL COURT: I guess the answer to that question is no. Did you talk to his lawyer? DEFENDANT’S ATTORNEY: I did speak to his lawyer. His lawyer is in Harnett County. TRIAL COURT: Okay. The jury re-entered the courtroom at 11:38 a.m. to hear closing arguments started deliberations deliberations, and receive at defendant’s 12:29 jury p.m. attorney instructions. At some learned The point that jury during Hall had returned (although Hall was not in the courtroom), so he made a -14motion to reopen the evidence so that Hall could testify. The trial court denied the motion, stating: Let the record reflect that the witness was earlier here in the courtroom prior to both sides resting. He left this courtroom and did not return. Let the record further reflect that this witness, as I understand, was not under subpoena to be here but was here this morning on his own, left on his own, and that the Court has been advised that the jury has reached a verdict with regards to this matter. The motion by defense to reopen this case so that the witness can testify is hereby denied. The trial court did not abuse its discretion by denying both defendant’s request for additional time to locate Hall and his motion to reopen the evidence. The trial court acted within its authority to expedite the trial proceedings in light of credible information that Hall had not been subpoenaed (and thus not required to be present), and Hall’s attorney had indicated that Hall would not be testifying. Moreover, defendant had ample opportunity to locate Hall during trial. minutes trial elapsed court from aware the time his efforts of defendant’s to Approximately 30 attorney contact the until Hall made the moment at which he requested additional time to locate Hall. Over 1.5 hours later, just as the jury reached a verdict, -15defendant’s attorney made a motion to reopen the evidence, although Hall was still absent from the courtroom. Additionally, defendant carries the burden of establishing prejudicial error. See N.C. Gen. Stat. § 15A-1443 (2013) (requiring that in non-constitutional matters, defendant show “a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises”). On appeal, defendant fails to advance any argument in his brief to the effect that he was prejudiced as a result of the trial court’s denial of his request for additional time and motion to reopen necessarily fail. evidence. Thus, defendant’s arguments See Davis, 317 N.C. at 318-19, 345 S.E.2d at 178 (holding that the trial court did not err by denying the defendant’s motion to reopen evidence so that he could play a tape for the jury “where counsel for the defense, after more than adequate opportunity, failed timely to produce the necessary equipment to play the tape[,]” and even if the trial court erred, the defendant could not error). III. Conclusion establish prejudicial -16In sum, we hold that the trial court did not err by denying defendant’s: 1.) motion to dismiss the PWISD charge, 2.) request for additional time reopen the evidence. defendant’s insufficient motion to locate a witness, and 3.) motion to However, the trial court erred by denying to dismiss the evidence. Thus, we conspiracy vacate charge the conviction and remand for resentencing. No error, in part, vacated and remanded, in part. Judges BRYANT and ERVIN concur. for conspiracy

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