An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-308
                       NORTH CAROLINA COURT OF APPEALS

                            Filed: 16 September 2014


STATE OF NORTH CAROLINA

      v.                                      Gaston County
                                              Nos. 13 CRS 7708, 55426, 55428,
                                              55430
JOHNTIA LUWONZIA BARNETTE



      Appeal    by   defendant     from   judgments     entered     26    September

2013 by Judge Jesse B. Caldwell, III in Gaston County Superior

Court.     Heard in the Court of Appeals 28 August 2014.


      Roy Cooper, Attorney General, by Martin                     T.     McCracken,
      Assistant Attorney General, for the State.

      Patterson Harkavy LLP by Narendra K. Ghosh for defendant-
      appellant.


      STEELMAN, Judge.


      Where an officer’s affidavit in support of an application

for a search warrant was based upon the testimony of a named

witness, this constituted sufficient indicia of reliability to

support the issuance of the search warrant.                     Since defendant

failed to raise a constitutional issue at trial, it must be

dismissed and is not subject to plain error review.                      Where the
                                          -2-
State   presented      substantial      evidence     of   each   element   of    the

charges    of    felony       maintaining       a   dwelling     for   controlled

substances, possession of cocaine with intent to manufacture,

sell, and deliver, and possession of drug paraphernalia, the

trial   court    did    not    err   in    denying    defendant’s      motions    to

dismiss these charges.

                 I. Factual and Procedural Background

       On 6 May 2013, Officer C.A. Cape of the Gastonia Police

Department (Officer Cape) stopped a prostitute in possession of

a crack pipe.        Officer Cape learned that she had purchased crack

cocaine from a person named Sweat at Room 122 of the Red Carpet

Inn.      Officer Cape went to Room 122, and met its occupant,

Jomonyak Sanders (Sanders), who consented to a search of the

room.     The search revealed a digital scale with crack cocaine

residue, and several crack pipes.                   Sanders told Officer Cape

that he had purchased the cocaine from a man called R2 at a

house located at 403 North Boyce Street in Gastonia.                   The second

occupant of the room, identified only as a known prostitute,

identified      R2     as     Johntia     Barnett     (defendant).         Sanders

identified the house when he rode past it with Officer Cape.

Based upon the statements of Sanders and the unnamed prostitute,

Officer Cape obtained a search warrant for 403 North Boyce.
                                            -3-
       On 5 May 2012, at 11:32 p.m., Officer Cape and other law

enforcement officers executed the search warrant.                         When one of

the residents saw and recognized Officer Cape, he slammed the

door shut and locked it, requiring officers to use a battering

ram to force the door open.                 Upon entering the house, Officer

Cape   found      five   persons   in       the    house,   one   of    whom   was    the

defendant.        A search revealed a substance that Officer Cape

believed to be crack cocaine, a digital scale, and a .22 caliber

rifle.      The crack cocaine and scale were in plain view on a

kitchen     counter,     next    to     a    box    of   plastic       baggies.       The

substance was later confirmed by the North Carolina Crime Lab to

be approximately .73 grams of cocaine base, commonly known as

crack cocaine.

       Officer Cape and his team seized the items, moved them to

the kitchen, and asked the persons in the house who owned them.

All    of   the    persons      denied      ownership.        When      Officer      Cape

indicated that he would have to arrest everyone, defendant made

the statement, “I’ll take the charges.”                      Officer Cape further

testified that, prior to being taken to jail, defendant stated

that “he was residing there because he didn't have anywhere else

to stay.”
                                           -4-
    Defendant         was   charged       with    possession           with   intent     to

manufacture,     sell,      and    deliver    cocaine;         felony    maintaining      a

dwelling   for        keeping       and     selling       controlled          substances;

possession of drug paraphernalia; possession of a firearm by a

felon; and being an habitual felon.                   Prior to trial, defendant

moved to suppress the evidence seized, based upon a lack of

probable cause to issue the search warrant.                            On 24 September

2013, the trial court denied this motion.

    The jury found defendant guilty of possession with intent

to manufacture, sell, and deliver cocaine, possession of drug

paraphernalia,        and   felony    maintaining         a    place    for    controlled

substances.      Defendant was found not guilty of possession of a

firearm by a felon.               Defendant pled guilty to habitual felon

status.     On    26    September         2013,   the     trial    court       entered   a

consolidated     judgment,         sentencing       defendant      to     72-99    months

imprisonment.

    Defendant appeals.

                             II. Motion to Suppress

    In his first argument, defendant contends that the trial

court   erred    in    denying      his    motion    to       suppress    the   evidence

seized pursuant to the search warrant.                  We disagree.
                                          -5-
                             A. Standard of Review

       Our   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,    291    S.E.2d     618,    619    (1982).   “The      trial   court’s

conclusions of law . . . are fully reviewable on appeal.” State

v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

                                     B. Analysis

       Officer Cape submitted an affidavit to the magistrate in

support of his application for a search warrant, attesting that

he had learned about the defendant being the source of cocaine,

and the location of the house where the cocaine was sold, from

Sanders and the unnamed prostitute.               The affidavit did not state

that either was a reliable informant.                  Defendant contends that

Sanders and the prostitute were not reliable informants, that

the search warrant was issued in error, and that the trial court

erred in denying his motion to suppress.

       Our Supreme Court has held that the fact that an informant

was named and identified in a search warrant affidavit provides
                                          -6-
a magistrate with enough information to permit him to determine

the informant to be reliable.                 State v. Eason, 328 N.C. 409,

420, 402 S.E.2d 809, 814 (1991).                Further, our Supreme Court has

also held that statements against penal interest carry their own

indicia     of    credibility    sufficient          to    support   a   finding   of

probable cause to search.                State v. Arrington, 311 N.C. 633,

641, 319 S.E.2d 254, 259 (1984).

       Defendant contends, however, that this reliability should

not apply to criminals.          Defendant cites to authority from other

states, which is not binding upon this court, to support his

argument.        Defendant   does    not      cite    to   any   cases   from   North

Carolina supporting his argument.

       While we recognize that there exist arguments for holding

that    a   criminal    cannot      be    a     “citizen-informant”       and   thus

considered reliable, we are bound by North Carolina precedent,

which holds that a named informant offers sufficient indicia of

reliability for a magistrate to properly issue a search warrant.

We hold that the trial court did not err in denying defendant’s

motion to suppress.

       This argument is without merit.

                 III. Exclusion of Incriminating Statements
                                    -7-
    In his second argument, defendant contends that the trial

court committed plain error in failing to exclude defendant’s

incriminating statements.     We disagree.




                         A. Standard of Review

    “[A]    constitutional     issue      not   raised    at    trial    will

generally   not   be   considered   for   the   first    time   on   appeal.”

State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009).

    We “review unpreserved issues for plain error when they

involve either (1) errors in the judge’s instructions to the

jury, or (2) rulings on the admissibility of evidence.” State v.

Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).

                              B. Analysis

    When Officer Cape searched the residence at 403 North Boyce

and seized items from the kitchen, he asked the occupants of the

house to whom the seized items belonged.          Cape indicated that he

would arrest all of the occupants.          Defendant responded that he

would “take the charges.”      Defendant further stated that he was

residing at the house because he “didn’t have anywhere else to

stay.”   There was no evidence that defendant was advised of his
                                         -8-
Miranda     rights    prior    to   making     these      statements.          Defendant

contends that the trial court committed plain error in admitting

these statements.

       In   the   instant     case,     defendant        did    not    object    to    the

admission of these statements, nor did he raise a constitutional

issue pursuant to Miranda.              Our Supreme Court has “previously

decided that plain error analysis applies only to instructions

to the jury and evidentiary matters.”                     State v. Cummings, 352

N.C.   600,    613,   536     S.E.2d    36,    47    (2000)      (quoting      State    v.

Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000)), cert.

denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001).                          In Cummings,

the Supreme Court held that failure to object to constitutional

error at trial constituted waiver, and could not be raised on

appeal via plain error review.                Id.   This issue is not properly

before us, and is dismissed.

       Even assuming arguendo that we could review this issue,

because defendant failed to object at trial, we could review

this issue only for plain error.

       Defendant contends that these statements constitute plain

error because, absent the statements, there was no evidence that

defendant      maintained     the     dwelling      at    403    North       Boyce.     He

further       contends      that,      without      evidence          that     defendant
                                        -9-
maintained     the   dwelling,     there      was    no    evidence     to     support

possession of cocaine or possession of drug paraphernalia.

       This is not correct.       In defendant’s brief, he acknowledges

that Sanders testified at trial that he had purchased cocaine

from    defendant    at   403   North    Boyce.           Because     this    evidence

supports a finding that defendant maintained the residence for

purposes of controlled substances, defendant’s argument, which

is predicated upon the deficiency of the evidence with respect

to that charge, fails.

       We   hold   that   defendant     has   failed      to   show    that    he   was

prejudiced by the admission of these statements.                             The trial

court    did   not   commit     plain    error      in    admitting     defendant’s

statements.

       This argument is without merit.

                           IV. Motion to Dismiss

       In his third and fourth arguments, defendant contends that

the trial court erred in denying his motions to dismiss the

charges of felony maintaining a dwelling, possession of cocaine

with intent to manufacture, sell, and deliver, and possession of

drug paraphernalia.       We disagree.

                           A. Standard of Review
                                        -10-
    “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 question for

the Court 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 being 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).

                                     B. Analysis

    Defendant        first     argues   that    there    was    not   substantial

evidence    to     support     the   charge    of    maintaining      a   dwelling,

because    there    was   no   evidence    that     defendant    maintained     the

house at 403 North Boyce.

    To obtain a conviction for maintaining a dwelling for the

purpose of keeping or selling controlled substances under N.C.

Gen. Stat. § 90-108(a)(7), “the State has the burden of proving

a defendant: (1) knowingly or intentionally kept or maintained;

(2) a building or other place; (3) being used for the keeping or

selling of a controlled substance.”                 State v. Fuller, 196 N.C.
                                           -11-
App. 412, 424, 674 S.E.2d 824, 832 (2009) (citation omitted).

“To determine whether a person keeps or maintains a place under

N.C.     Gen.   Stat.       §    90–108(a)(7),         the   court     considers      the

following factors, none of which are dispositive: ownership of

the     property,     occupancy       of       the    property,     repairs    to     the

property, payment of utilities, payment of repairs, and payment

of     rent.”       Id.    (citation        and      quotations    omitted).          “The

determination depends on the totality of the circumstances.” Id.

However, “occupancy, without more, will not support the element

of ‘maintaining’ a dwelling.” State v. Spencer, 192 N.C. App.

143, 148, 664 S.E.2d 601, 605 (2008).                        “A pivotal factor is

whether     there     is        evidence       that    defendant     owned,    leased,

maintained,     or    was       otherwise      responsible    for     the   premises.”

State v. Boyd, 177 N.C. App. 165, 174, 628 S.E.2d 796, 804

(2006).

       In the instant case, defendant was found at the 403 North

Boyce residence when the search was executed.                        Sanders had told

police that he had purchased cocaine from defendant at 403 North

Boyce.     Cocaine was found during the search of those premises.

Defendant further stated to police that he was staying at 403

North Boyce because he didn’t have any place else to stay.                             We

have    previously        held    that     a    defendant’s       statement    that    he
                                          -12-
resided at a particular place “was substantial evidence that

defendant maintained the dwelling.”                       Spencer, 192 N.C. App. at

148, 664 S.E.2d at 605.              In the instant case, we hold that the

State    presented     substantial        evidence         of   each    element    of   the

charge    of       felony     maintaining        a        dwelling      for     controlled

substances.         The     trial    court   did          not   err     in    denying   the

defendant’s motion to dismiss the charge of felony maintaining a

dwelling.

    Defendant         next    argues      that       there      was     not    substantial

evidence to support the charges of possession of cocaine with

intent to manufacture, sell, and deliver, and possession of drug

paraphernalia,       because     there     was       no    evidence      that    defendant

controlled the house at 403 North Boyce.

    “A person has actual possession of a controlled 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. Alston, 193 N.C.

App. 712, 715, 668 S.E.2d 383, 386 (2008) aff’d, 363 N.C. 367,

677 S.E.2d 455 (2009). “Constructive possession [of a controlled

substance]     occurs         when    a    person          lacks       actual     physical

possession, but nonetheless has the intent and power to maintain

control     over     the     disposition     and          use   of     the    [controlled]
                                           -13-
substance.” Id. (quoting State v. Wilder, 124 N.C. App. 136,

139-40, 476 S.E.2d 394, 397 (1996)).                         “[U]nless the person has

exclusive possession of the place where the narcotics are found,

the   State   must     show    other       incriminating           circumstances       before

constructive possession may be inferred.” Id. (quoting State v.

Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989)).

      In   the    instant      case,       defendant         was    found      in    the    same

residence as the cocaine and drug paraphernalia.                                Pursuant to

Alston, because defendant did not have sole possession of the

residence,       the   State        had     the     burden         of    showing       “other

incriminating circumstances” before it could prove constructive

possession.       Once again, however, defendant’s statement that he

resided    there,      combined        with       Sanders’         testimony         that     he

purchased cocaine from defendant at 403 North Boyce, and the

presence of cocaine and drug paraphernalia, constituted “other

incriminating      circumstances.”            We    hold       that     this    constituted

substantial      evidence      of    possession         of    both      cocaine      and    drug

paraphernalia.          The        trial    court       did     not      err    in    denying

defendant’s      motions      to    dismiss       the   charges         of   possession       of

cocaine with intent to manufacture, sell, and distribute, and

possession of drug paraphernalia.

      This argument is without merit.
                         -14-
DISMISSED IN PART, NO ERROR IN PART.

Judge GEER concurs.

Judge HUNTER, Robert N., Jr. concurred prior to 6 September

2014.

Report per Rule 30(e).
