State v. Robinson , 255 N.C. App. 397 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1213
Filed: 5 September 2017
Mecklenburg County, Nos. 14 CRS 224971, 225816, and 43298
STATE OF NORTH CAROLINA, Plaintiff,
v.
CHARLES BERNARD ROBINSON, Defendant.
Appeal by defendant from judgment entered 19 February 2016 by Judge R.
Gregory Horne in Mecklenburg County Superior Court. Heard in the Court of
Appeals 10 August 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Martin T.
McCracken, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Hannah H.
Love, for defendant-appellant.
ZACHARY, Judge.
Charles Bernard Robinson (defendant) appeals from the judgments entered
upon his conviction of possession of cocaine with the intent to sell or deliver and
possession of a firearm by a felon, and from his plea of guilty to having attained the
status of an habitual felon. On appeal, defendant argues that the trial court erred by
denying his motion to suppress evidence, and committed plain error in its instructions
to the jury on actual and constructive possession. After careful consideration of
STATE V. ROBINSON
Opinion of the Court
defendant’s arguments, we conclude that the court did not err by denying his
suppression motion, and that the court’s instructions did not constitute plain error.
Background
On 26 June 2014, Detective C.T. Davis of the Charlotte-Mecklenburg Police
Department applied for and was issued a search warrant authorizing him to search
a house located at 3627 Corbett Street, in Charlotte, North Carolina. During the
search, law enforcement officers seized two firearms, marijuana, and cocaine.
Defendant was present during the search and made inculpatory statements to a law
enforcement officer, admitting ownership of the firearms and the cocaine.
On 3 November 2014, defendant was indicted for possession of cocaine with the
intent to sell or deliver, possession of marijuana, maintaining a dwelling for the
purpose of keeping or selling controlled substances, possession of a firearm by a
person previously convicted of a felony, and having attained the status of an habitual
felon. Prior to trial, the State dismissed the charges of possession of marijuana and
maintaining a dwelling for the purpose of keeping or selling controlled substances.
On 6 November 2015, defendant filed a motion asking the court to suppress the
evidence that was seized during the search of the Corbett Street residence and the
statements defendant made to law enforcement officers during the search. Defendant
alleged that the search warrant was not based upon probable cause and that the
statements he made “were involuntary and made as the result of mental or
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psychological pressure[.]” Defendant was tried before the trial court and a jury
beginning on 16 February 2016. Prior to trial, the trial court conducted a hearing on
defendant’s suppression motion, and orally denied defendant’s motion to suppress
evidence. The court entered a written order on 1 March 2016.
The State’s evidence at trial tended to show, in relevant part, the following:
Detective Todd Hepner of the Charlotte-Mecklenburg Police Department testified
that he and several other officers executed the search warrant for the Corbett Street
residence. When Detective Hepner entered the house, defendant was present, along
with his wife, Armisher Glenn, and the couple’s two children. In the master bedroom,
Detective Hepner and another officer found a .44 caliber revolver, a shotgun, cocaine,
and marijuana. Detective Charlie Davis testified that on 26 June 2014 he obtained
and executed a search warrant for the house located at 3627 Corbett Street,
Charlotte. He described for the jury the process of searching the house and the items
that were seized. After the contraband had been located and placed on the bed,
defendant was brought into the bedroom by another officer and accurately identified
the location within the bedroom where each of the items had been stored. Andrew
Oprysko, a chemist for the Charlotte-Mecklenburg Police Department, testified as an
expert in forensic chemistry that forensic testing had identified the material seized
during the search of the Corbett Street house as cocaine.
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Opinion of the Court
Detective Sidney Lackey testified that while other officers were searching the
house, he interviewed defendant. During this interview, defendant admitted that the
cocaine, marijuana, and firearms discovered by the law enforcement officers belonged
to him. The State accepted defendant’s stipulation to the fact of his prior conviction
of a felony for purposes of the charge of possession of a firearm by a felon.
Defendant also presented evidence at trial. Armisher Glenn testified that she
was defendant’s wife and that she had never known defendant to be in possession of
cocaine or to sell drugs. Neither she nor defendant owned any firearms; however, Ms.
Glenn’s brother had asked to store two guns at her house and she assumed that these
were the firearms seized by the police. In June of 2014, defendant and Ms. Glenn
were separated due to marital difficulties; however, defendant sometimes visited the
family home. On one occasion, Ms. Glenn’s sister, Ms. Luba Hill, watched the children
while defendant and Ms. Glenn went out to supper. Upon their return, defendant
engaged in a conflict with his nephew, Ms. Hill’s son. Assault charges were filed
against defendant and his nephew, but were later dismissed. Ms. Hill remained
angry at defendant after this altercation and made false reports about Ms. Glenn to
the Department of Social Services. Ms. Hill’s daughter, Kiarra Hill, testified about
Ms. Hill’s anger about the conflict between her son and defendant, and about
statements her mother made in which she threatened to “get” an unnamed person.
Candace Glenn testified that Armisher Glenn and Luba Hill were her daughters, and
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Opinion of the Court
that Ms. Hill was very angry about the fight between defendant and Ms. Hill’s son.
At one point Ms. Hill was holding a “rock” of some substance and threatened to “get”
defendant.
Defendant testified on his own behalf at trial. He denied owning firearms or
cocaine or selling cocaine in 2014. Defendant testified about the fight between him
and his nephew and about his belief that his arrest was the result of being “set up”
by Ms. Hill. He was not aware that there were drugs or firearms in the house on 26
June 2014. Although the contraband did not belong to him, defendant made
inculpatory statements to Detective Lackey in order to prevent the police from
arresting Ms. Glenn and placing his children in the custody of DSS. On cross-
examination, defendant admitted to having prior criminal convictions, including a
2009 conviction for identity theft.
Following the presentation of evidence, the arguments of counsel, and the trial
court’s instructions, the jury returned verdicts finding defendant guilty of possession
of cocaine with the intent to sell or distribute and with possession of a firearm by a
convicted felon. Defendant then entered a plea of guilty to having the status of an
habitual felon. The trial court sentenced defendant to concurrent sentences of 83 to
112 months’ imprisonment for possession of a firearm by a felon, and 73 to 100
months’ imprisonment for possession of cocaine with the intent to sell or deliver.
Defendant gave notice of appeal in open court.
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Standard of Review
Defendant argues that the trial court erred by denying his motion to suppress.
“The standard of review in evaluating the denial of a motion to suppress is whether
competent evidence supports the trial court’s findings of fact and whether the
findings of fact support the conclusions of law.” State v. Biber, 365 N.C. 162, 167-68,
712 S.E.2d 874, 878 (2011) (citation omitted).
Defendant also argues that the trial court erred by instructing the jury that it
could find that he was in either actual or constructive possession of the firearms and
cocaine in the house, on the grounds that there was no evidence to support a finding
of actual possession. As defendant did not object to this instruction at trial, we review
only for plain error. Under this standard, the defendant “must demonstrate that a
fundamental error occurred at trial. To show that an error was fundamental, a
defendant must establish prejudice—that, after examination of the entire record, the
error had a probable impact on the jury’s finding that the defendant was guilty.”
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).
Denial of Suppression Motion
Defendant argues that the trial court erred by denying his motion to suppress
the evidence seized pursuant to the search of the Corbett Street residence.1
1On appeal, the State argues that defendant lacked standing to challenge the search warrant,
and that he failed to object at trial to the introduction of the evidence that was seized during the
search. We conclude that these arguments lack merit and do not require further discussion.
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Opinion of the Court
Defendant’s motion also sought to suppress the statements defendant made to
Detective Lackey at the time of the search; however, defendant has not pursued this
argument on appeal and, accordingly, it is deemed to be abandoned. See N.C. R. App.
P. 28(a) (“Issues not presented and discussed in a party’s brief are deemed
abandoned.”). The sole basis of defendant’s appellate argument that the trial court
erred by denying his suppression motion is his contention that, when Detective Davis
executed a sworn affidavit in support of his application for a search warrant, he made
“a knowingly false statement that, if omitted, would render the search warrant
insufficient to establish probable cause.” However, at the trial level, defendant did
not argue that the statements which Detective Davis included in the affidavit were
made in bad faith or reckless disregard of the truth. As a result, defendant has not
preserved this issue for appellate review. Moreover, even assuming, arguendo, that
this issue were preserved, defendant has failed to show that the trial court erred by
denying his motion to suppress.
It is well-established that:
The requirement that a search warrant be based on
probable cause is grounded in both constitutional and
statutory authority. U.S. Const. amend. IV; N.C.G.S. §
15A-244 [(2015)]. Probable cause for a search is present
where facts are stated which establish reasonable grounds
to believe a search of the premises will reveal the items
sought and that the items will aid in the apprehension or
conviction of the offender. It is elementary that the Fourth
Amendment’s requirement of a factual showing sufficient
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Opinion of the Court
to constitute “probable cause” anticipates a truthful
showing of facts.
State v. Fernandez, 346 N.C. 1, 13, 484 S.E.2d 350, 358 (citing Franks v. Delaware,
438 U.S. 154, 164-65, 57 L. Ed. 2d 667, 678 (1978)). However:
There is a presumption of validity with respect to the
affidavit supporting the search warrant. Before a
defendant is entitled to a hearing on the issue of the
veracity of the facts contained in the affidavit, he must
make a preliminary showing that the affiant knowingly, or
with reckless disregard for the truth, made a false
statement in the affidavit. . . . A claim under Franks is not
established merely by evidence that contradicts assertions
contained in the affidavit, or even that shows the affidavit
contains false statements. Rather, the evidence must
establish facts from which the finder of fact might conclude
that the affiant alleged the facts in bad faith.
Fernandez, 346 N.C. at 14, 484 S.E.2d at 358 (citations omitted).
The motion that defendant filed seeking the suppression of evidence seized
pursuant to the execution of a search warrant for the Corbett Street house disputes
the accuracy of two sections of the affidavit. First, defendant objects to the statement
in the affidavit that he gave 3627 Corbett Street as his address “in April of 2013
during a domestic violence arrest.” The incident to which this allegation refers was
the altercation between defendant and his nephew, which resulted in both being
charged with assault. At the hearing on his suppression motion, defendant argued
that this was not a “domestic violence” arrest. In addition, during the hearing on his
motion, the parties agreed that the arrest had actually taken place in May of 2014,
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Opinion of the Court
rather than April, 2013. However, defendant neither disputed that at the time of his
arrest he gave 3627 Corbett Street as his address, nor argued that these inaccuracies
were made in bad faith or with a reckless disregard for the truth. Furthermore,
defendant did not argue at the hearing or on appeal that the details of this arrest
were important to the magistrate’s determination that probable cause existed for the
issuance of the search warrant.
Defendant’s primary challenge was to the section of Detective Davis’s affidavit
concerning the use of a confidential and reliable informant, referred to in the affidavit
as a “CRI.” The affidavit states the following:
In June of 2014, this applicant began utilizing a CRI to
complete the investigation on Charles Bernard Robinson.
This Applicant obtained a 2006 Mug shot photo of Charles
Bernard Robinson and showed the photograph to the CRI.
The CRI advised that Charles Bernard Robinson was
known on the streets as “Red.” The CRI confirmed that
Charles Bernard Robinson sold crack cocaine and that he
operated from the telephone number (704)-819-4383. This
confirmed the information that was provided by the Crime
Stoppers tipster.
Within the past 72 hours this confidential and reliable
informant has purchased “crack” cocaine from Charles
Bernard Robinson at the residence located on 3627 Corbett
Street under this Applicant’s direct supervision.
This Applicant has known this confidential informant for
over (28) months. During this time, this informant has
provided intelligence information regarding Drug
distributors in the Charlotte area that this Applicant has
verified to be true and factual. This informant has
admitted to using and selling controlled substances in the
past and is familiar with how they are packaged and sold
on the streets of Charlotte. This informant has made
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Opinion of the Court
purchases of controlled substances under this Applicant’s
direct supervision.
In his suppression motion, defendant states that he was not known by the
street name Red, was not selling cocaine from the Corbett Street house, and had not
sold crack cocaine “in the recent past.” However, the suppression motion does not
assert that these alleged inaccuracies were the result of bad faith, intentional
misstatement, or reckless indifference to the truth. Instead, the thrust of defendant’s
suppression motion and of his argument before the trial court was that the allegations
in Detective Davis’s affidavit were insufficiently detailed to establish probable cause
for the issuance of a search warrant. Defendant contends in the suppression motion
that the information in the affidavit concerning the CRI’s purchase of crack cocaine
was “insufficient to reach the level of probable cause[.]” Defendant supports this
assertion with quotations from State v. Taylor, 191 N.C. App. 587, 664 S.E.2d 421(2008).
At the hearing on the suppression motion, defendant argued that the
characterization of his arrest for assault as a “domestic violence” incident was
misleading. Regarding the information in the affidavit about the controlled buy,
defense counsel informed the trial court that “the case [he was] relying on” was State
v. Taylor, cited above. Defendant’s counsel discussed the holding of Taylor at length
as it related to the level of detail required for an affidavit’s description of a controlled
buy of drugs. Defense counsel summarized his argument as follows:
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Opinion of the Court
MR. CLIFTON: In this case, we’ve got the past 72 hours
this confidential reliable informant has purchased crack
cocaine from Charles Bernard Robinson at the residence
located on 3627 Corbett Street under this affiant’s direct
supervision, and to me that just doesn’t fit what State v.
Taylor is calling for. It appears to me to be insufficient, and
that’s why I’m arguing this motion to suppress should be
granted. There’s nothing about the cocaine being turned
over to the officer, and it doesn’t even say in here that he
saw him go into the house or make the buy. So in other
words, to me, it does not meet the standards that are set
out in Taylor. In Taylor, you know, the motion -- they
affirmed the trial court’s granting of the defendant’s
motion to suppress. This case is dated from 2008, which I
believe this postdates all these cases that [the prosecutor]
presented to you, so it just looks to me like there’s not
enough in this affidavit to lead to a finding of probable
cause in order to go into somebody’s house.
The prosecutor argued that the facts of Taylor were distinguishable, and then
addressed the issue of whether the affidavit contained incorrect statements:
MS. HONEYCUTT: As far as the other sub issue, incorrect
information in the search warrant, I was referring to . . .
the issue Mr. Clifton already addressed as far as the
previous arrest at that location. . . . [State v.] Fernandez
says that when a search warrant is issued on the basis of
an affidavit containing false facts which are necessary to a
finding of probable cause, the defendant has to prove by a
preponderance of the evidence that the facts were asserted
with knowledge of their falsity or reckless disregard for the
truth. Fernandez also says that before the defendant is
entitled to a hearing on the issue of the veracity of the facts
contained in the affidavit, he has to make a preliminary
showing that the affiant either knowingly or with reckless
disregard for the truth made a false statement in the
affidavit and that he must establish facts from which the
finder of fact might conclude that the affiant alleged the
facts in bad faith. . . . [T]he defendant hasn’t made -- in any
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Opinion of the Court
way established that the affiant was acting in bad faith
when he alleged the incorrect date and that the defendant
was arrested at this address.
Thereafter, defense counsel called defendant to testify about the facts set out
in the affidavit. Defendant testified in detail regarding the altercation with his
nephew, his living situation at the time of his arrest, and his lack of recent criminal
activity. He also made a single, conclusory, statement about the controlled buy:
MR. CLIFTON: Okay. All right, now the affidavit that
Detective Davis filed states that the confidential informant
bought cocaine from you three days before -- sometime in
the three days before the search warrant was served. What
do you have to say about that?
DEFENDANT: I say that’s a lie.
MR. CLIFTON: Okay.
After hearing the testimony offered to support or challenge the issuance of a
search warrant, the trial court asked defense counsel if he wished to be heard on the
issue of Detective Davis’s good faith in executing the affidavit, and defendant’s
attorney said he did not want to address the issue. The prosecutor then argued that
defendant’s bare denial did not establish bad faith, citing an unpublished case from
this Court, State v. Price, __ N.C. App. __, __ S.E.2d __ (2005 N.C. App. Lexis 556)
(unpublished):
MS. HONEYCUTT: Your Honor, I’ll just point out that in
State v. Price, which is one of the first cases I handed up, it
also addresses the issue of the defendant testifying as far
as incorrect or false information in the affidavit. It
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Opinion of the Court
specifically says in that case that the defendant’s testimony
that he didn’t sell was mere contradictory evidence that
doesn’t show bad faith. In that case, the defendant took the
stand and said he didn’t sell to an informant, and the Court
ruled that that was not enough to show bad faith on the
facts of the affiant which is contradictory evidence to what
was in the search warrant, and I would say that’s what we
have here.
In response to the prosecutor’s argument, defendant’s attorney did not contend
that bad faith on the part of Detective Davis could be established on the basis of
defendant’s bare denial, and repeated that the basis for the suppression motion was
the lack of detail in the affidavit:
MR. CLIFTON: Okay. And, Your Honor, I understand that.
I mean, I’m hanging my hat on the -- State v. Taylor
basically. I don’t know how we could get into it at trial
where the State’s going to say this happened, he’s going to
say no, there’s no way that happened. That’s not going to
do any good, but certainly the State v. Taylor language, I
think, does.
THE COURT: Thank you, Mr. Clifton.
On appeal, defendant limits his argument to the section of the affidavit
concerning the purchase of crack cocaine by a CRI. Defendant contends that the issue
of Detective Davis’s bad faith was raised at the trial level and that defendant’s
statement at the hearing that these allegations were “a lie” served to “establish” that
the detective knowingly made false statements in the affidavit.
We have carefully reviewed defendant’s suppression motion and the transcript
of the hearing on the motion. We conclude that at no time did defendant argue that
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Opinion of the Court
Detective Davis had knowingly made false statements in the affidavit or that he had
acted in bad faith or in reckless disregard for the truth. Instead, defendant’s
suppression motion was based on a question of law: whether the allegations contained
in the affidavit were sufficiently detailed to permit the magistrate to issue a search
warrant upon a finding of probable cause. “This Court has long held that where a
theory argued on appeal was not raised before the trial court, ‘the law does not permit
parties to swap horses between courts in order to get a better mount in the Supreme
Court.’ ” State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v.
Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). See also State v. Benson, 323 N.C.
318, 321-22, 372 S.E.2d 517, 518-19 (1988) (applying the “no swapping horses” rule
where defendant relied on one theory at trial as basis for written motion to suppress
and then asserted a different theory on appeal).
On appeal, defendant asserts that the “veracity” of Detective Davis’s
allegations in the affidavit was “before the trial court” at the hearing on his
suppression motion. However, defendant has failed to identify any instances in which
he argued before the trial court that Detective Davis had knowingly made false
statements in the affidavit or had acted in bad faith.
Defendant also directs our attention to selected excerpts from Detective Davis’s
testimony at trial. During cross-examination, defense counsel attempted to ask the
detective for the basis of the information about defendant’s home address contained
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Opinion of the Court
in the affidavit. The prosecutor objected, saying that they “had already dealt with
the search warrant” and the trial court sustained the objection. In the absence of the
jury, defense counsel brought up the issue of Detective Davis’s good faith for the first
time, and only as it related to the characterization of defendant’s arrest as being for
domestic violence:
THE COURT: In terms of the second issue, I was going to
allow you to make a proffer, if you wish, with regard to your
question concerning the search warrant. Again, this being
outside the presence of the jury. I sustained the objection
but if you wish to be heard further regarding that outside
the presence of the jury, I’m happy to hear it.
MR. CLIFTON: It’s my client’s concern that it was done out
of bad faith by Detective Davis. That sentence in the search
warrant about it being a domestic violence connected to an
arrest at this address. He sees that as a bad faith --
something put into the search warrant out of bad faith on
the part of the detective, and that’s why he wants me to
bring it up.
...
MS. HONEYCUTT: Your Honor, I would say that the
Court has already addressed the issue of bad faith. This is
not a situation where the search warrant is in front of the
jury and they’re thinking that something is true that
wasn’t because of what’s in that search warrant. They don’t
have that before them, and I think we’ve already addressed
that issue.
THE COURT: All right. I have sustained the State’s
objection previously. I will continue with that same ruling,
but it is on the record the basis by which the question is
reserved for review.
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Opinion of the Court
On appeal, defendant contends that this dialogue establishes that Detective
Davis’s good faith in asserting that a CRI had made a controlled buy of cocaine “is
properly before this Court.” However, defense counsel’s belated reference to the
detective’s “bad faith” in using the term “domestic violence” does not alter the fact
that neither defendant’s written motion nor his argument during the hearing on the
suppression motion ever asserted that Detective Davis had made knowingly false
statements regarding the controlled buy. We conclude that defendant’s appellate
argument, that the allegations in the affidavit concerning the purchase of cocaine by
a CRI were knowingly false and made in bad faith, was not raised before the trial
court and therefore was not preserved for appellate review.
Our conclusion on this question does not reflect a technical default, but an
issue of fundamental fairness. On appeal, defendant stresses that Detective Davis
“did not testify at the suppression hearing” and that “the State did not put on any
evidence relating to the controlled buy.” Appellate counsel argues that defendant’s
“uncontroverted testimony that he did not sell cocaine in the 72 hours before the
search warrant was executed was evidence of bad faith.” However, as discussed
above, at the hearing on his suppression motion, defendant relied upon a legal
argument - that, even if the allegations in the affidavit were true, they were
insufficient to establish probable cause for the issuance of a search warrant. Given
that defendant did not argue at the hearing that Detective Davis had acted in bad
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Opinion of the Court
faith, the State had no reason to offer testimony from the officer on the issue of his
good faith. Moreover, the trial court was not asked to rule on this issue; in fact, when
the prosecutor argued that defendant’s conclusory statement that the affidavit was
“a lie” did not establish bad faith, defense counsel conceded as much and stated that
he was “hanging his hat” on the legal argument based on State v. Taylor.
Finally, we observe that even assuming that this issue were preserved,
defendant has failed to show that he is entitled to relief. The sworn affidavit
submitted by Detective Davis contained a comprehensive explanation of the basis for
the application for a search warrant, including information as to (1) Detective Davis’s
extensive experience in law enforcement and specifically in the investigation of
crimes involving controlled substances; (2) the tip received through the Crime
Stoppers organization that included many details about defendant’s drug dealing; (3)
corroboration of defendant’s address through investigative research; (4) the fact that
defendant’s prior criminal record included a 2001 conviction for possession of cocaine;
(5) the basis of Detective Davis’s belief that the CRI was a reliable informant, and;
(6) the CRI’s purchase of cocaine from defendant. Defendant’s opposition to the
affidavit consisted of a conclusory assertion that it was “a lie.” It is axiomatic that:
An appellate court’s review of a trial court’s order on a
motion to suppress “is strictly limited to a determination of
whether its findings are supported by competent evidence,
and in turn, whether the findings support the trial court’s
ultimate conclusion.” Because the trial court, as the finder
of fact, has the duty to pass upon the credibility of the
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evidence and to decide what weight to assign to it and
which reasonable inferences to draw therefrom, “the
appellate court cannot substitute itself for the trial court in
this task.”
State v. Villeda, 165 N.C. App. 431, 437-38, 599 S.E.2d 62, 66 (2004) (quoting State v.
Allison, 148 N.C. App. 702, 704, 559 S.E.2d 828, 829 (2002), and Nationsbank of North
Carolina v. Baines, 116 N.C. App. 263, 269, 447 S.E.2d 812, 815 (1994)).
In this case, the trial court found that the affidavit established that the CRI
had purchased cocaine from defendant within 72 hours before the issuance of the
search warrant. Defendant objects to the use of the word “established,” and argues
that because defendant called the affidavit a lie, “the affidavit could not ‘establish’
evidence of its own truthfulness.” Defendant contends that the trial court should
have instead found only that the affidavit “stated” certain things. However, the trial
court’s use of the word “established” clearly indicates that the court is finding the
statement to be accurate. In contrast, a court’s recitation of what a witness or
document “stated” does not constitute a finding of fact. Moore v. Moore, 160 N.C. App.
569, 571-72, 587 S.E.2d 74, 75 (2003) (“Recitations of the testimony of each witness
do not constitute findings of fact by the trial judge[.]”). Furthermore, defendant has
offered no reason why the trial court could not consider both defendant’s testimony
that the affidavit was “a lie” as well as the contents of the sworn affidavit, in order to
make a determination of the facts.
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Opinion of the Court
For the reasons discussed above, we conclude that defendant failed to preserve
for appellate review the argument that Detective Davis knowingly and in bad faith
made false statements in the affidavit. We further conclude that, even assuming that
this issue were preserved, defendant has not shown that the trial court erred in its
assessment of the weight and credibility of the evidence.
Instructions on Possession
Defendant also argues that the trial court erred by instructing the jury on both
actual and constructive possession, on the grounds that there was no evidence to
support an instruction on actual possession. We conclude that defendant is not
entitled to relief on the basis of this argument.
At the close of all the evidence, the prosecutor requested that the trial court
instruct the jury on both actual and constructive possession, and defense counsel
agreed to this. Upon review of the printed copies of the instructions that the trial
court intended to give the jury, defendant’s attorney had no requests for changes.
After the jury was instructed, defense counsel informed the trial court that he had no
objections or requests for additions or modifications. We conclude that defendant did
not object at trial to the instruction that he challenges on appeal.
“Because defendant did not object to the instruction as given at trial, we
consider whether this instruction constitutes plain error. See N.C. R. App. P. 10(a)(4);
see also State v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012).” State v.
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Juarez, __ N.C. __, __, 794 S.E.2d 293, 299 (2016). The plain error standard requires
a defendant to “demonstrate that a fundamental error occurred at trial. To show that
an error was fundamental, a defendant must establish prejudice -- that, after
examination of the entire record, the error had a probable impact on the jury’s finding
that the defendant was guilty.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (internal
quotation omitted). “For plain error to be found, it must be probable, not just possible,
that absent the instructional error the jury would have returned a different verdict.”
Juarez, __ N.C. at __, 794 S.E.2d at 300 (citing Lawrence).
Our appellate courts previously held that it was per se plain error for a trial
court to instruct the jury on a theory of the defendant’s guilt that was not supported
by the evidence. See, e.g., State v. Tucker, 317 N.C. 532, 540, 346 S.E.2d 417, 422
(1986) (“[I]t would be difficult to say that permitting a jury to convict a defendant on
a theory . . . not supported by the evidence is not plain error even under the stringent
test required to invoke that doctrine.”) However, in State v. Boyd, 222 N.C. App. 160,
167-68, 730 S.E.2d 193, 198 (2012), reversed and remanded, 366 N.C. 548, 742 S.E.2d
798 (2013), the jury was instructed that it could convict the defendant of kidnapping
based upon a finding that the defendant had confined, restrained, or removed the
victim. There was no evidence to support the theory that the defendant had removed
the victim, and on appeal this Court held that the trial court’s instruction constituted
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Opinion of the Court
plain error. Judge Stroud, relying upon standard for plain error set out in State v.
Lawrence, 365 N.C. 506, 723 S.E.2d 326 (2012), dissented:
I do not believe that defendant has shown “that, absent the
error, the jury probably would have returned a different
verdict. Thus, he cannot show the prejudicial effect
necessary to establish that the error was a fundamental
error. In addition, the error in no way seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.” See Lawrence, [365] N.C. at [519], 723 S.E.2d
at 335. The omission of approximately ten words relating
to ‘removal’ from the above jury instructions would, under
the facts of this particular case, make no difference at all
in the result. Therefore, I would find no plain error as to
the trial court’s instructions as to second-degree
kidnapping.
Boyd, 222 N.C. App. at 173, 730 S.E.2d at 201 (Stroud, J., dissenting). On appeal,
the North Carolina Supreme Court, in a per curiam opinion, reversed for the reasons
stated in the dissent. State v. Boyd, 366 N.C. 548, 548, 742 S.E.2d 798, 799 (2013).
Thus, “under Boyd, a reviewing court is to determine whether a disjunctive jury
instruction constituted reversible error, without being required in every case to
assume that the jury relied on the inappropriate theory.” State v. Martinez, __ N.C.
App. __, __, 801 S.E.2d 356, __ (2017).
“To prove that a defendant possessed contraband materials, the State must
prove beyond a reasonable doubt that the defendant had either actual or constructive
possession of the materials.” State v. Loftis, 185 N.C. App. 190, 197, 649 S.E.2d 1, 6
(2007) (citation omitted), disc. review denied, 362 N.C. 241, 660 S.E.2d 494 (2008). “A
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STATE V. ROBINSON
Opinion of the Court
person has actual possession of a 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. Reid, 151 N.C. App. 420, 428-29, 566 S.E.2d
186, 192 (2002) (citation omitted). “Constructive possession exists when the
defendant, ‘while not having actual possession, . . . has the intent and capability to
maintain control and dominion over’ the narcotics.” State v. Matias, 354 N.C. 549,
552, 556 S.E.2d 269, 270 (2001) (quoting State v. Beaver, 317 N.C. 643, 648, 346
S.E.2d 476, 480 (1986)).
In the present case, Detective Davis testified without objection that he “had
obtained a search warrant for the residence in reference to drugs being sold from the
home” by defendant. When the law enforcement officers searched the Corbett Street
house, defendant was present along with his wife and children. Detective Hepner
and another officer searched the master bedroom, where they found a .44 caliber
revolver, a shotgun, cocaine, and marijuana. During the search, defendant was
interviewed by Detective Lackey, to whom he admitted owning the firearms and the
cocaine. Defendant testified at trial that, although he and his wife were separated at
the time of the search, he was at the house “pretty much on a daily basis,” and when
defendant was brought into the bedroom, he accurately pointed out where the drugs
and firearms had been, indicating that he had been aware of their presence.
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STATE V. ROBINSON
Opinion of the Court
Defendant’s defense at trial was that the contraband found in the house did
not belong to him. Defendant’s wife testified that the marijuana in the house
belonged to her and that her brother had asked to store two firearms in the house.
Defendant and his wife testified that defendant did not own guns or cocaine and did
not sell drugs. In regard to the cocaine found in the house, defendant, his wife, and
several other witnesses testified to circumstances in support of defendant’s theory
that his sister-in-law had planted the drugs in his house in revenge for a fight
between defendant and his nephew.
We conclude that there was substantial evidence that defendant constructively
possessed the items seized during the search, and defendant has not contested the
sufficiency of the evidence of constructive possession. We agree with defendant that
there was no evidence that defendant was in actual possession of either the firearms
or the narcotics seized from the house. These items were found in the master bedroom
of the home, rather than on defendant’s person. We conclude, however, that
defendant has failed to show that it is “probable, not just possible, that absent the
instructional error the jury would have returned a different verdict.” Juarez at __,
794 S.E.2d at 300. The primary factual issue for the jury to resolve was whether to
find defendant guilty based upon the State’s evidence or to believe defendant’s
explanations for the presence of firearms and cocaine in the house. Simply put, the
question for the jury was whether to believe that defendant’s sister-in-law planted
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STATE V. ROBINSON
Opinion of the Court
the drugs and that his wife’s brother was storing weapons in defendant’s house. We
conclude without difficulty that the distinction between actual and constructive
possession did not play a significant role in the jury’s decision.
Conclusion
For the reasons discussed above, we conclude that the trial court did not err by
denying defendant’s suppression motion and did not commit plain error in its
instructions to the jury. Defendant had a fair trial, free of reversible error.
NO ERROR.
Judges DILLON and BERGER, JR. concur.
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