An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
                                       -2-
                          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
                             -3-
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
                             -4-
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
                                       -5-
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
                              -6-
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
                              -7-
         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
                              -8-
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.
                              -9-
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.
                                           -10-
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
                             -11-
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
                            -12-
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
                            -13-
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
                                    -14-
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
                                      -15-
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).
