State v. Hughes

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-73
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 12 CRS 200980-84
ROLAND ASHLEY HUGHES
Appeal by defendant from judgments entered 26 August 2013
by Judge Linwood O. Foust in Mecklenburg County Superior Court.
Heard in the Court of Appeals 21 May 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Robert D. Croom, for the State.
Arnold & Smith, PLLC, by Laura M. Cobb, for defendant-
appellant.
McCULLOUGH, Judge.
Roland Ashley Hughes (Defendant) appeals the order of the
trial court denying his motion to suppress evidence as well as
certain evidentiary rulings made during the trial of his case.
For the reasons set forth herein, we affirm the order of the
trial court regarding the motion to suppress and find no error
in the trial of Defendant’s case.
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I. Procedural History
Defendant was indicted by a Mecklenburg County grand jury
on 16 July 2012 and charged with trafficking in marijuana,
manufacture of a controlled substance, maintaining a place to
keep controlled substances, possession with intent to sell or
deliver marijuana, and possession of drug paraphernalia. On 6
February 2013, Defendant filed, pursuant to N.C. Gen. Stat. §
15A-972 and the federal and state constitutions, a motion to
suppress all evidence seized from 1963 Margate Avenue,
Charlotte, North Carolina, along with any statements made by
Defendant. On that same date, Defendant filed an objection to
the admission of a laboratory report pursuant to N.C. Gen. Stat.
§ 90-95(g). On 19 and 20 August 2013, Defendant filed Motions
In Limine to suppress any evidence regarding settlement
negotiations and agreements regarding the lease of 1963 Margate
Avenue and to suppress untested plant material.
A suppression hearing was held on 19 August 2013, after
which the trial court denied Defendant’s motions to suppress. A
jury trial began shortly thereafter which ended on 26 August
2013 with Defendant’s conviction on all charges. Defendant gave
oral notice of appeal in open court that same day. Defendant’s
case is before this Court as a final judgment of the Superior
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Court and, pursuant to N.C. Gen. Stat. § 7A-27(b), is properly
before this Court.
II. Factual Background
The single family residential structure located at 1963
Margate Avenue in Charlotte, North Carolina, first came to the
attention of the Charlotte-Mecklenburg Police Department in
December 2011 when Officer Aksone Inthisone responded to several
domestic violence incidents in the vicinity of 1963 Margate
Avenue. During the first call, he smelled a strong odor of
marijuana but could not locate the source. During the second
domestic violence incident, Officer Inthisone was able to
identify the building at 1963 Margate Avenue as the place from
which the marijuana odor emanated. Officer Inthisone reported
his observations to an officer with the Focus Mission Team,
Officer Peter Carbonaro.
Shortly after receiving the information from Officer
Inthisone, Officer Carbonaro, along with other officers, went to
1963 Margate Avenue to conduct a “Knock and Talk” investigation.
Upon exiting his vehicle, Officer Carbonaro smelled a strong
odor of marijuana and, as he approached the front door, the
smell became more intense to the point that he was certain the
residential building located there was the source of the
marijuana odor. Officer Carbonaro knocked on the door and while
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waiting to see if anyone would answer the door, heard a loud
"motor generator” sound coming from the rear of the residence.
He walked to the rear of the residence and identified the source
of this sound as an operational air conditioner unit. He also
observed that the lights were on and all windows were covered
with black cloth. As it was 35 degrees on 4 January 2012,
Officer Carbonaro believed it was odd to be running an air
conditioner. Based on the smell of marijuana and the sound of
the equipment, as well as the fact that the lights were on while
the windows were covered, Officer Carbonaro believed that 1963
Margate Avenue was a building that housed a marijuana growing
operation. Accordingly, he proceeded to the Magistrate’s
courtroom where he applied for a search warrant.
In researching the ownership of 1963 Margate Avenue,
Officer Carbonaro found that the building was owned by one Frank
Shepherdson and he located a utility bill in Defendant’s name.
Defendant’s name somehow became transposed as “Ronald Hughes”
and the fact that Ronald Hughes had a prior record of drug
violations was also included in the warrant application. Based
on all of the above, the Magistrate issued a search warrant,
which was then executed about 12:30 a.m. on 5 January 2012.
During the execution of the warrant, the officers opened
all the windows to ventilate the building as the smell was so
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overpoweringly strong. Upon discovering that the electrical box
had been altered to the point the officers were concerned for
their safety, the Fire Department was called. Members of the
Fire Department inspected the premises for safety and provided
the searching officers with masks. The officers found a number
of growing marijuana plants, 51 half-pound bags of marijuana,
and a digital scale. The weight of all the material seized was
89.7 pounds and the weight of the plants forensically tested was
13.124 pounds. Also located in the building were a concealed
weapon permit, a firearms course completion certificate, a U.S.
Marine Corps discharge form and a utility bill, all in
Defendant’s name. At trial, the property manager for the unit
located at 1963 Margate Avenue identified Defendant as the
person who paid the rent on the building, producing copies of
checks signed by Defendant which represented rental payments.
Evidence consisting of emails and other documents regarding
Defendant’s settlement of civil claims by the owner against
Defendant for property damage were also admitted. All of the
documentary evidence was received over objection.
III. Issuance of Search Warrant
Defendant moved to suppress all evidence seized from 1963
Margate Avenue arguing that the warrant was lacking in probable
cause. The crucial paragraph of the Application For Search
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Warrant, wherein the officer must offer evidence sufficient for
a Magistrate to find probable cause, reads as follows:
This applicant has received a drug
complaiant [sic] in the past month from
Officer Inthisone #1948 and concerned
citizens. Officer Inthisone has been
employed with the Charlotte-Mecklenburg
Police Department since 1997. During
Officer Inthisone’s 14 years with the
department he has attended Basic Law
Enforcement Training and Explosive Ordinance
Disposal School. Officer Inthisone advised
me that in the past month he has answered
several calls for service on Margate Avenue
and smelled a strong odor of marijuana.
Officer Inthisone also advised that the
address that he smelled the marijuana was
emitting from 1963 Margate Avenue. Officer
Inthisone also advised that concerned
citizens that live on the block near 1963
Margate Ave[nue] have also complained of the
marijuana smell. The concern[ed] citizen[s]
also stated to Officer Inthisone that a loud
sounding generator comes on at night located
at the residence.
On January 4, 2012, at approximate 2130
hours, Officers from the Eastway Division
Focus Mission Team attempted to conduct a
Knock and Talk investigation at 1963 Margate
Avenue. While I was approaching the
residence I could smell an odor of marijuana
emitting from the residence. While I was
waiting for somebody to come to the front
door, I heard a motor/generator sound coming
from the back of the house. I walked around
to the backyard to see what the sound was.
It appeared that the sound was coming from
an air conditioner unit that was in the wall
of the back part of the house. This room
had all of the lights on and all of the
windows were covered with a black cloth
material. The temperature tonight is 35
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degrees Fahrenheit. Through my training and
experience I believe that this house is
manufacturing marijuana and conducting a
grow operation inside.
Defendant correctly states our standard of review; thus, we
quote Defendant’s brief with approval:
A. Standard of Review of denial of
Motion to Suppress
Review of a trial court's denial of a
motion to suppress is “strictly limited to
determining whether the trial judge's
underlying findings of fact are supported by
competent evidence, in which event they are
conclusively binding on appeal, and whether
those factual findings in turn support the
judge's ultimate conclusions of law.” State
v. Cooke, 306 N.C. 132, 134 (1982). “The
trial court's conclusions of law ... are
fully reviewable on appeal.” State v.
Hughes, 353 N.C. 200, 208 (2000).
B. Standard of Review of warrant
probable cause finding
“[T]he duty of the reviewing court [in
reviewing a probable cause determination]...
is simply to ensure that the magistrate had
a ‘substantial basis for ... conclud[ing]
that probable cause existed.’” State v.
Taylor, 191 N.C. App. 587, 591 (2008). (See
Illinois v. Gates, 462 U.S. 213, 238-39
(1983)).
Citing State v. Wallace, 111 N.C. App. 581, 585, 433 S.E.2d
238, 241 (1993), Defendant recognizes that officers may approach
the front door of a residence and knock on the door to see if
the occupant will answer questions. Defendant argues that the
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officer had no right to approach the rear of the residence and
that the use of the name Ronald Hughes was an attempt to
buttress a weak application. We need not consider either
argument if the one sentence set forth above, where Officer
Carbonaro alleges he smelled marijuana emanating from 1963
Margate Avenue as he approached the front door, is sufficient
for a finding of probable cause. Franks v. Delaware, 438 U.S.
154, 157, 57 L. Ed. 2d 667, 673 (1978); State v. Louchheim, 296
N.C. 314, 322-23, 250 S.E.2d 630, 636 (1979).
Defendant argues that smell alone cannot provide probable
cause citing only one case, that of Johnson v. U.S., 333 U.S.
10, 92 L. Ed. 436 (1948). The trial court disagreed and in its
order explicitly stated that the finding of probable cause was
supported by the odors detected by both Officer Inthisone and
Carbonaro, particularly the latter, without regard to any
information gleaned from walking to the rear of the residence.
In its brief, the State cites a number of cases for the
proposition that probable cause to search is established once
officers identify the plain smell of the illicit substance. In
its reply brief, Defendant attempts to distinguish each case
cited. We need not review every case cited by either party as
it has long been held by the courts that smell of a substance
can generate probable cause. In State v. Downing, 169 N.C. App.
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790, 796, 613 S.E.2d, 35, 39 (2005), this Court clearly stated,
“[p]lain smell of drugs by an officer is evidence to conclude
there is probable cause for a search.”
The Downing case involved a traffic stop where an informant
told police about a shipment of cocaine. Based on the
informant’s information, the car was stopped and a strong odor
of cocaine was noted by the officers. This Court stated:
Plain smell of drugs by an officer is
evidence to conclude there is probable cause
for a search. State v. Trapper, 48 N.C.
App. 481, 484-85, 269 S.E.2d 680, 682,
appeal dismissed, 301 N.C. 405, 273 S.E.2d
450 (1980), cert. denied, 451 U.S. 997, 68
L. Ed. 2d 856 (1981) (affidavit containing a
statement that a strong odor of marijuana
was noticed was evidence from which a
magistrate could conclude there was probable
cause to issue a search warrant).
Id. at 796, 613 S.E.2d at 39.
In short, despite Defendant’s assertion that odor alone is
insufficient to establish probable cause to search, such is not
the law, nor has it been. Just as the Court in Downing and
Trapper held that odor establishes the right to search, we too
hold that Officer Carbonaro’s affidavit provided probable cause
to search 1963 Margate Avenue.
IV. Documentary Evidence
During the execution of the search warrant, the officers
discovered several documents which had Defendant’s name on them.
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These documents included a U.S. Marine Corps discharge, a
concealed weapon permit, a certificate attesting to Defendant’s
graduation from a firearms training course, and a utility bill.
Defendant objected to the documents on the basis that they were
hearsay. We review the trial court’s admission of these
documents de novo. State v. Johnson, 202 N.C. App. 682, 706
S.E.2d 790 (2011).
As Defendant was not present at the time of the search and
in actual possession of the marijuana in question, the State
bore the burden of establishing constructive possession. State
v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009).
Defendant argues that the documents were hearsay and not
properly authenticated as they were offered into evidence after
being identified by the seizing officers. Rule 801(c) defines
hearsay as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-
1, Rule 801(c) (2013). In the case sub judice, it does not
appear that the State was offering the documents to prove that
Defendant was in fact discharged from the U.S. Marine Corps,
that he attended a firearms class, that he was licensed to carry
a concealed weapon, or that he had an account with the power
company. Instead, they were placed in evidence merely because
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they were documents bearing Defendant’s name and were found on
the premises. As such, the documents were some evidence that
the Defendant was in control of the premises. These documents
were not being offered for the truth of the matter asserted and
thus were not hearsay. Their admission into evidence was not
error.
Defendant also objected to copies of the checks he issued
to the property management company when he paid rent for the
residence located at 1963 Margate Avenue. He further objected
to copies of the emails, lease, and settlement he reached with
the owner regarding property damage at that location. The
checks were properly authenticated by the bookkeeper who
processed them after accepting them personally from Defendant.
The bookkeeper’s testimony did not rely on out of court
statements but were based on her personal knowledge. Her
testimony authenticated the checks, and thus, they were
admissible upon her identification and were relevant to prove
Defendant’s constructive possession of the premises. See State
v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986) (proof
of constructive possession depends on the totality of
circumstances and no one factor controls).
At trial and on appeal, Defendant argues that emails
between Defendant and the property owner regarding a settlement
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they reached over property damage was improperly admitted in
violation of Rule 408, which provides:
Evidence of (1) furnishing or offering or
promising to furnish, or (2) accepting or
offering or promising to accept, a valuable
consideration in compromising or attempting
to compromise a claim which was disputed as
to either validity or amount, is not
admissible to prove liability for or
invalidity of the claim or its amount.
Evidence of conduct or evidence of
statements made in compromise negotiations
is likewise not admissible. This rule does
not require the exclusion of any evidence
otherwise discoverable merely because it is
presented in the course of compromise
negotiations. This rule also does not
require exclusion when the evidence is
offered for another purpose, such as proving
bias or prejudice of a witness, negativing a
contention of undue delay, or proving an
effort to obstruct a criminal investigation
or prosecution.
N.C. Gen. Stat § 8C-1, Rule 408 (2013).
Here, the State offered the evidence not to establish
Defendant’s liability for the damage but to show his
constructive possession of the premises. This evidence was not
offered in a trial between the property owner and Defendant over
the issue of liability for damage to the premises; rather, the
evidence was tendered in a criminal trial to establish
Defendant’s constructive possession. The evidence was thus
admissible and its admission does not violate Rule 408. See
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Renner v. Hawk, 125 N.C. App. 483, 492, 487 S.E.2d 370, 375,
disc. rev. denied, 346 N.C. 283, 487 S.E.2d 553 (1997).
Defendant also argues that some of these documents were not
provided until trial and Defendant was prejudicially surprised
when they were produced at trial. Defendant claims the
documents should have been excluded as violations of the
discovery statutes. The complained of documents were all listed
on the property inventory records which were provided to
Defendant long before trial. Thus, the State complied with N.C.
Gen. Stat. § 15A-903(b) (2013) and this argument is without
merit.
V. Marijuana Evidence
Defendant objected to the untested marijuana admitted into
evidence and displayed to the jury and argued its probative
value is outweighed by its prejudicial effect. We review the
court’s admission of evidence for abuse of discretion. State v.
Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008) (abuse of
discretion occurs when the court’s ruling is manifestly
unsupported by reason or is so arbitrary that it could not be
the result of reasoned decision). 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
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evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2013). Rule 403
allows the exclusion of relevant evidence if the court finds its
probative value is substantially outweighed by unfair prejudice,
confusion of the issues, could mislead the jury, delay, or be a
waste of time. N.C. Gen. Stat. § 8C-1, Rule 403 (2013).
The State had the burden of proving Defendant was
conducting a marijuana growing operation. As such, the entire
scope of the operation was relevant to the issue of Defendant’s
guilt or innocence. Thus, the court properly allowed all of the
plant evidence to be introduced and viewed by the jury. While
most evidence which is probative of Defendant’s guilt is
prejudicial, that does not make such evidence inadmissible. See
State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990)
(while evidence that is probative necessarily has prejudicial
effect, the question is one of degree). Since Defendant’s
trafficking charge was supported by the evidence which was
forensically tested, we see no prejudice to Defendant in the
admission of the entire plant evidence.
Relying on an unpublished Illinois decision, State v.
Miller, 2012 Ill. App. 3d 1, 8 (2011), Defendant argues that it
was error for the trial court to have allowed the bulk marijuana
exhibit to be present in the courtroom and instead should have
restricted the State’s presentation. Defendant maintains that
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photographs should have been offered rather than the actual
marijuana plants themselves. We do not agree that the admission
of this evidence constitutes reversible error. Control of the
courtroom and ensuring that the trial is conducted efficiently
is within the sound discretion of the trial judge and his
decision will not be overturned absent an abuse of discretion.
State v. Arnold, 284 N.C. 41, 46-47, 199 S.E.2d 423, 427 (1973).
As the marijuana exhibits were not in the courtroom for more
than four hours during a one week trial, it does not seem that
the exhibits were in the courtroom for an extended period of
time. Other jurisdictions that have confronted this issue have
found no abuse of discretion under similar circumstances. See
U.S. v. Ramos Rodriguez, 926 F.2d 418, 421 (5th Cir. 1991); U.S.
v. Dunn, 961 F. Supp. 249, 251-52 (D. Kan. 1997); McKenzie v.
State, 362 Ark. 257, 270, 208 S.W.3d 173, 180 (2005).
No error.
Judges STEPHENS and STROUD concur.
Report per Rule 30(e).