An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-849
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


STATE OF NORTH CAROLINA

      v.                                      Rowan County
                                              Nos. 11 CRS 51259
RODERICK TYRONE POLK,                              11 CRS 51260
          Defendant.                               11 CRS 51261
                                                   11 CRS 55416


      Appeal by defendant from judgments entered 13 December 2012

by Judge Anna Mills Wagoner in Rowan                  County Superior Court.

Heard in the Court of Appeals 8 January 2014.


      Attorney General Roy Cooper, by Special                    Deputy   Attorney
      General Patrick S. Wooten, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Mary Cook, for defendant-appellant.


      GEER, Judge.


      Defendant Roderick Tyrone Polk appeals from his convictions

of trafficking in opium, two counts of                  felony maintaining a

dwelling to keep or sell controlled substances, and two counts

of felony possession of cocaine.             On appeal, defendant primarily

challenges     the   trial    court's    reinstruction      of    the   jury   with

respect to the two counts of maintaining a dwelling to keep or
                                    -2-
sell controlled substances.         We hold that defendant has failed

to show any risk of a non-unanimous verdict given the initial

instructions and the verdict sheet and has failed to establish

any other error in the reinstruction.

                                    Facts

    On   24    February     2011,    Detective      Jamie     Beach     of    the

Kannapolis    Police   Department    executed       a    search     warrant   for

defendant's   house    in   Kannapolis,     North       Carolina.      Detective

Beach applied for the warrant based on three controlled buys of

crack cocaine that took place at defendant's house.                   The front

door of the one-story house opened into a living room.                  In back

of the living room was a kitchen, while to the left was the

front bedroom.    To the left of the kitchen was the back bedroom,

and to the right, there was an "8 by 10" room furnished with

only a stool and a chair.            The house's single bathroom was

connected to the back bedroom.            The front bedroom belonged to

defendant, and the back bedroom belonged to Ronald Church and

Mr. Church's wife or girlfriend.

    Defendant's    girlfriend,      Tiffany    Spry,       answered    the    door

when the police arrived to search the premises.                Mr. Church and

his wife or girlfriend were in the back bedroom, while defendant

was undressed in the bathroom, claiming he had just showered.
                                            -3-
Detective     Beach       allowed        defendant      to    dress,   and    then       the

officers searched the house.

       In   defendant's          room,     the     officers     located      defendant's

wallet,     which    contained        $822.00      in   cash,    consisting        of    one

$100.00 bill, 29 $20.00 bills, seven                         $10.00 bills, 10 $5.00

bills, and 22 $1.00 bills.                  One of the $20.00 bills found in

defendant's wallet was a bill that Detective Beach had used in

one of the previous controlled buys of crack cocaine that took

place at defendant's house.                There was also a Duke Power bill in

defendant's name in the bedroom.

       Defendant's room contained a linen cabinet, and on top of

it, the officers found a soap dish with a red straw beside it --

both the dish and the straw contained a white powder residue.

There was also white powder on top of the cabinet itself.                                 In

the middle of a stack of sheets on a shelf in the cabinet, the

officers found a plastic bag containing nine hydrocodone pills.

Also in the cabinet, the officers found an empty hydrocodone

pill    bottle      for    Ms.     Spry,     but     the     dosage    for   the     pills

prescribed was different than the dosage of those found in the

plastic bag.

       Finally, the officers located 42 rounds of 9 millimeter

ammunition    on     top   of     a   dresser      in   defendant's     room,      and    43

rounds of "45 automatic" ammunition in the bottom drawer of the
                                         -4-
same dresser.        The two types of ammunition were in boxes that

each   held    50   rounds,    meaning    that      roughly      "a    clip   full"    of

ammunition was missing from each box.

       In the kitchen, on a counter, the officers found a butter

dish containing a razor blade, with white powder residue on both

the dish and the razor.           Residue from the razor blade tested

positive      for   cocaine.     In   the      "8   by    10"    room   next   to     the

kitchen, the officers found an ash tray and chunks of brillo

commonly used to smoke crack cocaine.                    In the back bedroom, the

officers found a pill container with white residue that tested

positive for crack cocaine; two glass pipes and chunks of brillo

used for smoking crack cocaine; and marijuana paraphernalia.

       On 21 July 2011, Detective Beach executed a second search

warrant for defendant's house.              On this occasion, defendant and

Ms. Spry were the only people in the house.                             Prior to the

search, Detective Beach saw a black male's arm hanging out of

the house's bathroom window dropping on the ground a plastic

container that held a plastic bag containing over a gram of

crack cocaine.        Defendant admitted the container "belong[ed] to

him," but claimed "[h]e was holding it for a friend."                           During

this    search,     officers    also     found,          under   the     mattress     in

defendant's bedroom, a single hydrocodone pill identical to the
                                       -5-
nine hydrocodone pills they found in defendant's bedroom during

the prior search.

    On     5    July    2011,     defendant    was    indicted      for    felony

possession      of   cocaine,     felony   maintaining     a    place     to    keep

controlled substances, trafficking in opium, and possession of

drug paraphernalia, all based on the 24 February 2011 search.

On 28 November 2011, defendant was further indicted for felony

possession of cocaine and felony maintaining a place to keep and

sell controlled substances, with both offenses based on the 21

July 2011 search.

    At     trial,    Ms.   Spry    testified   to    the   following      for   the

defense.       Ms. Spry stayed at defendant's house, in defendant's

bedroom, five to six nights a week.             Ms. Spry claimed that all

of the hydrocodone pills found in defendant's bedroom belonged

to her and that she had a valid prescription for the pills to

treat back pain.       In addition, Ms. Spry testified she owned the

soap dish and straw found in defendant's room and used those

objects to crush and snort her prescription hydrocodone.

    On 24 February 2011, Ms. Spry put the bag containing her

nine hydrocodone pills in the stack of sheets for safekeeping.

On 21 July 2011, Ms. Spry stuck a single hydrocodone pill under

defendant's mattress because she was getting ready to take it

and was "startled" by a knock at the door.                     According to Ms.
                                             -6-
Spry, defendant had no knowledge that she had hydrocodone in his

house on either date.            Ms. Spry never witnessed anyone use or

buy   drugs    at     defendant's      house.       In    addition     to    Ms.   Spry's

testimony, defendant also presented evidence of a hydrocodone

pill bottle in Ms. Spry's name for the dosage of the pills found

in his bedroom.

      The     State    dismissed       the    charge      for    possession    of   drug

paraphernalia.         The jury found defendant guilty of the remaining

charges.      The trial court sentenced defendant to 70 to 84 months

imprisonment for trafficking in opium.                     The court consolidated

the   remaining       charges    into    a       single   judgment     and    sentenced

defendant to a consecutive, presumptive-range term of six to

eight months imprisonment, but suspended the sentence and placed

defendant on supervised probation for 24 months beginning upon

defendant's         release     from    imprisonment            on   the    trafficking

conviction.      Defendant timely appealed to this Court.

                                             I

      Defendant first argues that the State failed to present

substantial evidence of defendant's charges for possession of

cocaine on 24 February 2011 and trafficking in opium.                          However,

defendant failed to move to dismiss any of his charges at trial.

Rule 10(a)(3) of the Rules of Appellate Procedure provides that

"a defendant may not make insufficiency of the evidence to prove
                                         -7-
the crime charged the basis of an issue presented on appeal

unless a motion to dismiss the action, or for judgment as in

case of nonsuit, is made at trial."

       Recognizing      his    failure       to    preserve          these     issues    for

appeal, defendant asks this Court to suspend the preservation

requirements of Rule 10 pursuant to Rule 2 of the Rules of

Appellate     Procedure       in    order     to    reach       the     merits     of    his

arguments.     Although Rule 2 allows for suspension of the Rules

of Appellate Procedure in order to "prevent manifest injustice

to a party, or to expedite decision in the public interest," we

find neither circumstance present here.                      We, therefore, decline

defendant's      request      to    invoke       Rule    2     and     do    not   address

defendant's arguments.             See Dogwood Dev. & Mgmt. Co. v. White

Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008)

(observing Rule 2 "must be invoked 'cautiously'" and reaffirming

"prior cases as to the 'exceptional circumstances' which allow

the appellate courts to take this 'extraordinary step'" (quoting

State v. Hart, 361 N.C. 309, 315, 317, 644 S.E.2d 201, 205, 206

(2007))).

                                            II

       Defendant     next     argues     that      the       trial     court     erred   in

instructing the jury on the issue of constructive possession

with   respect     to   the   charge     of       possession     of     cocaine     on    24
                                          -8-
February 2011.            Defendant concedes he failed to preserve this

issue for appeal and, therefore, seeks plain error review.                            Our

Supreme Court has explained that

                [f]or error to constitute plain error, a
                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.
                Moreover, because plain error is to be
                applied   cautiously   and    only  in  the
                exceptional case, the error will often be
                one that seriously affect[s] the fairness,
                integrity or public reputation of judicial
                proceedings[.]

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal citations and quotation marks omitted).

      The State contends that defendant invited any error with

respect to this issue and, as such, cannot now claim he was

prejudiced        by    the   instruction.        See    N.C.   Gen.    Stat.    §   15A-

1443(c) (2013) ("A defendant is not prejudiced by the granting

of relief which he has sought or by error resulting from his own

conduct.").           The State points to an exchange between the court

and   the   attorneys         that   occurred     during    the   State's       case-in-

chief.          The    transcript,    however,     makes    plain      that   this    was

merely      a     preliminary        discussion     of     possible      instructions

generally.            We have found no indication in the transcript that
                                            -9-
defense counsel ever specifically consented to the constructive

possession instruction.

       Jury instructions must be "'based upon a state of facts

presented by some reasonable view of the evidence.'"                        State v.

Sweat, 366 N.C. 79, 89, 727 S.E.2d 691, 698 (2012) (quoting

State    v.   Lampkins,       283    N.C.    520,   523,    196   S.E.2d   697,    699

(1973)).      This Court reviews arguments that jury instructions

were not supported by the evidence de novo.                       State v. Osorio,

196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).

       "Under the theory of constructive possession, a person may

be charged with possession of an item such as narcotics when he

has both the power and intent to control its disposition or use,

even    though   he    does    not    have    actual   possession."        State    v.

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

citation and quotation marks omitted).                     "'Where such materials

are found on the premises under the control of an accused, this

fact, in and of itself, gives rise to an inference of knowledge

and possession which may be sufficient to carry the case to the

jury on a charge of unlawful possession.'"                     Id. (quoting State

v.   Harvey,     281   N.C.     1,    12,    187    S.E.2d    706,   714    (1972)).

"However,     unless    the    person       has   exclusive    possession    of    the

place where the narcotics are found, the State must show other
                                          -10-
incriminating circumstances before constructive possession may

be inferred."         Id.

      Here,     the    State    contended      that      defendant        constructively

possessed the cocaine residue on the razor blade found in the

butter dish that was sitting on the kitchen counter.                             Defendant

argues      that    the     evidence    showed     he     was       not   in     exclusive

possession of the razor blade in the kitchen since Detective

Beach testified that Mr. Church and his wife or girlfriend also

lived in the house.           Defendant further contends the State failed

to show other incriminating circumstances allowing the inference

that he constructively possessed the razor blade.                         We disagree.

      The    State's        evidence    showed    that     Detective           Beach   first

"came    into      contact     with     [defendant]       as    a    result       of    some

information        [he]     received"    and     that,    as     a     result     of    that

information, the detective conducted three controlled buys of

crack cocaine from defendant's house prior to 24 February 2011.

As a result of those controlled buys, defendant was the subject

of the search warrant executed on 24 February.                         On 24 February,

one of the $20.00 bills in defendant's wallet was a bill that

had   previously       been     used    by   Detective         Beach      to    conduct    a

controlled buy of cocaine at defendant's house.                           This evidence

created a reasonable inference that defendant sold cocaine to
                                      -11-
the informant during at least one of the three controlled buys

conducted in his house prior to 24 February.

    Also on 24 February, defendant's wallet contained $822.00

in cash, consisting of one $100.00 bill, 29 $20.00 bills, seven

$10.00 bills, 10 $5.00 bills, and 22 $1.00 bills.                          Detective

Beach    testified     that    this   large    amount       of    cash   in   various

denominations was indicative of drug sales, and that lower level

crack cocaine purchases are generally for $20.00 or $40.00 worth

of cocaine.      The amount and denomination of cash in defendant's

wallet,      therefore,        also     constituted              an    incriminating

circumstance.        See State v. Brown, 310 N.C. 563, 569-70, 313

S.E.2d    585,   589   (1984)    (holding      State    presented        substantial

evidence    that     defendant    constructively        possessed        cocaine    in

apartment based, in part, on evidence that defendant had large

amount of cash in his pockets).               Although no guns were found,

the officers did find two boxes of ammunition in defendant's

room, with each box missing several rounds, and Detective Beach

testified that "individuals known to sell and keep drugs carry

firearms."

    When      searching       defendant's      room    on        24   February,    the

officers located a soap dish and a "little cut piece of red

straw," with white powder residue on both objects and on the

surface where they were located.              Detective Beach testified that
                                         -12-
the straw was "common with people snorting either cocaine or

crushing pills and snorting them."1               The presence of this item

used to ingest cocaine, and the powder residue on the straw and

surrounding surfaces, out in the open in defendant's bedroom on

24 February provided an additional incriminating circumstance

that       defendant    constructively     possessed   the   cocaine    in   the

kitchen.       See State v. Chisholm, ___ N.C. App. ___, ___, 737

S.E.2d 818, 822 (holding State presented substantial evidence of

constructive         possession,    in    part,    because   "defendant      was

sleeping in the bed in the bedroom where drugs were found, . . .

[and]      plastic     baggies,   drug   paraphernalia,   and   an   electronic

scale containing white residue were also in the bedroom"), disc.

review denied, 366 N.C. 591, 743 S.E.2d 222 (2013); State v.

Peek, 89 N.C. App. 123, 126, 365 S.E.2d 320, 323 (1988) (holding
       1
      Defendant   argues   that    Detective  Beach's    testimony
identifying the residue in the soap dish and on the straw as
cocaine was erroneously admitted since the State did not present
evidence of chemical analysis showing the residue was cocaine
and not hydrocodone, as defendant's evidence showed. See State
v. Meadows, 201 N.C. App. 707, 712-13, 687 S.E.2d 305, 309
(2010) (holding trial court erroneously admitted officer's
testimony that substance was cocaine based solely on his visual
observation since controlled substances defined in terms of
chemical composition can only be identified through use of a
chemical analysis rather than through use of lay testimony based
on visual inspection).        While defendant is correct, the
detective's separate testimony that the straw was an object
commonly used to ingest cocaine, along with the powder residue
on the straw, soap dish, and surrounding surface, nonetheless
provided   an   incriminating    circumstance with    respect   to
defendant's constructive possession of the cocaine in the
kitchen.
                                             -13-
State presented substantial evidence of constructive possession

based, in part, on evidence that "contraband was found in four

different    rooms,      some    of     it    in     plain     view   and    some   of   it

hidden").

    On 21 July 2011, defendant admitted possessing a container

holding over a gram of crack cocaine.                          Moreover, on both 24

February    and     21   July,    officers          found     hydrocodone      hidden    in

defendant's       bedroom.        The        presence         of   another     controlled

substance     in     defendant's         bedroom         on    both    occasions       also

constituted an incriminating circumstance in this case.                                  See

State v. James, 81 N.C. App. 91, 92, 95, 344 S.E.2d 77, 79, 81

(1986)     (holding      State        presented          substantial        evidence     of

defendant's constructive possession of heroin underneath front

porch floorboard of his sister's house where he occasionally

stayed based, in part, on evidence of defendant's possession of

cocaine found in kitchen of same house).

    Defendant        nonetheless        cites       State     v.   McLaurin,    320    N.C.

143, 357 S.E.2d 636 (1987), as supporting his contention that

the trial court erred in instructing on constructive possession.

However,    in     McLaurin     there    was        no   evidence     of    incriminating

circumstances personally linking the defendant, as opposed to

other occupants of the premises searched, to the contraband.

Id. at 144, 357 S.E.2d at 637 (holding State failed to present
                                           -14-
substantial evidence of constructive possession when evidence

showed defendant, her apparent husband, and children all lived

in house; paraphernalia was found throughout house, including in

pocket   of     man's      overcoat      and    in    "drawer    full       of    children's

clothing   in       a   bedroom    apparently         occupied    by    children";         and

officers      saw       defendant's      apparent      husband     and       another       man

entering and leaving on day of search but did not see defendant

doing so).

      Defendant         also    points    to    this    Court's     determination           in

James    that       evidence      was     insufficient      that        a    co-defendant

constructively possessed the cocaine at issue.                          With respect to

the co-defendant in James, however, the evidence showed that he

did not live in the house; no evidence showed he had been at the

house more than two times; no circumstances linked him to the

cocaine at issue           other than evidence that he was "'sneaking

around'" the room where cocaine was located with a gun in his

hand; and "[a]ll the evidence suggest[ed] that [he] was looking

for a place to hide the gun."                  81 N.C. App. at 96, 344 S.E.2d at

81.

      Since, here, defendant lived in the house, and the State's

evidence   linked         him   personally       to    possession       of       the   cocaine

found in the kitchen, McLaurin and James are distinguishable.

We hold that the evidence in this case permitted, at the very
                                          -15-
least, a reasonable inference that on 24 February, defendant

constructively possessed the cocaine residue on the razor blade

on his kitchen counter.           See State v. Alston, 193 N.C. App. 712,

716-17,   668    S.E.2d    383,     387    (2008)    (holding    State     presented

substantial evidence of constructive possession when even though

defendant      did   not   reside    in    house    being   searched,      defendant

"regularly visited and sold drugs from" house; defendant was

present   in    room   containing         drugs    prior   to   officers    entering

house for search; defendant sold cocaine to another person in

house earlier in evening; other drug dealer, who lived in house,

kept only small amount of cocaine on his person and kept his

cocaine buried in yard; and defendant's gun was found in room

containing drugs), aff'd per curiam, 363 N.C. 367, 677 S.E.2d

455 (2009).      The trial court, therefore, properly instructed the

jury on constructive possession with respect to the charge of

possession of cocaine on 24 February.

                                           III

    Defendant's third argument is that the trial court erred in

reinstructing the jury on the two charges for felony maintaining

a dwelling to keep or sell controlled substances.                          Defendant

contends the reinstruction led to fatally ambiguous verdicts for

those charges and, therefore, violated his right to a unanimous

jury verdict under Article I, Section 24 of the North Carolina
                                            -16-
Constitution and N.C. Gen. Stat. § 15A-1237(b) (2013).                               This

issue is properly before the Court despite defendant's failure

to object below.            See State v. Johnson, 183 N.C. App. 576, 582,

646    S.E.2d        123,       127   (2007)       (explaining,     in     context      of

disjunctive      instruction          argument,      that   when    alleged       "'error

violates [a] defendant's right to a trial by a jury of twelve,

[a] defendant's failure to object is not fatal to his right to

raise the question on appeal'" (quoting State v. Ashe, 314 N.C.

28, 39, 331 S.E.2d 652, 659 (1985))).

       Defendant      was       charged    with    two   counts    of    maintaining     a

dwelling to keep or sell a controlled substance in violation of

N.C.    Gen.    Stat.       §    90-108(a)(7)        (2013).       The    trial     court

initially charged the jury as to each of the two counts of

maintaining      a    dwelling        separately.        With   respect     to    the   24

February offense, the court instructed in relevant part: "The

defendant      has    been       charged    with    intentionally        maintaining    a

building which was used for the purpose of unlawfully keeping or

selling controlled substances on February 24th, 2011.                            For you

to find the defendant guilty of this offense, the state must

prove two things beyond a reasonable doubt.                         First, that the

defendant kept a building which was used for the purpose of

unlawfully keeping or selling cocaine or hydrocodone."
                                           -17-
    With respect to the 21 July offense, the court instructed:

"The defendant has been charged with intentionally maintaining a

building used for the purpose of unlawfully keeping or selling

controlled substances on July 21, 2011.                      For you to find the

defendant    guilty       of   this     offense,     the    state    must    prove     two

things beyond a reasonable doubt.                    First, that the defendant

kept a building which was used for the purpose of unlawfully

keeping or selling cocaine, a controlled -- cocaine, period."

The two instructions were, therefore, identical in relevant part

except that the 24 February instruction referenced both cocaine

and hydrocodone, while the 21 July instruction referenced only

cocaine.    Defendant does not challenge the initial instructions

for the maintaining a dwelling charges.

    The trial court also initially charged the jury with the

lesser-included offense of misdemeanor maintaining a dwelling,

which   differs     from       the    felony      offense    in     that    the   felony

requires    that    the        defendant     "intentionally"         maintained        the

dwelling    used    for    the       unlawful     purpose,    and    the    misdemeanor

requires only proof that the defendant "knowingly" maintained

the dwelling used for the unlawful purpose.                    See N.C. Gen. Stat.

§ 90-108(a)(7), (b).             During deliberations, the jury asked a

question    about    intent       versus    knowledge        with    respect      to   the
                                   -18-
felony maintaining a dwelling charges and the lesser-included

offenses.

    In its response to the jury, the trial court gave a single,

reinstruction that applied to both offense dates.                  The court

explained to the jury:

            The   defendant   has   been   charged   with
            intentionally keeping a building used for
            the purpose of unlawfully keeping or selling
            controlled substances on February 24th,
            2011, and also on July 21st, 2011.        Two
            separate charges.     For you to find the
            defendant guilty of this offense, the state
            must prove two things beyond a reasonable
            doubt.   First, that the defendant kept a
            building which was used for the purpose of
            unlawfully keeping or selling hydrocodone or
            cocaine.   Hydrocodone and cocaine are both
            controlled   substances,   the   keeping   or
            selling of which is unlawful.

                 . . . .

                 If you find from the evidence beyond a
            reasonable doubt that on or [sic] February
            24th, 2011, and/or July 21st, 2011, that the
            defendant intentionally kept a building used
            for the unlawful keeping or selling of
            controlled substances, then it would be your
            duty to return a verdict of guilty of this
            offense.

(Emphasis added.)

    Defendant       argues     that,    based     on      the     disjunctive

reinstruction, the verdicts for the two maintaining a dwelling

charges   are   fatally    ambiguous   since    "jurors   could    have   used

different acts of keeping or selling cocaine, hydrocodone or
                                  -19-
both on both, one or neither date of the charged offenses . . .

."   Our Supreme Court has held that "a disjunctive instruction,

which allows the jury to find a defendant guilty if he commits

either of two underlying acts, either of which is in itself a

separate offense, is fatally ambiguous because it is impossible

to   determine   whether   the   jury    unanimously   found   that   the

defendant committed one particular offense."           State v. Lyons,

330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991).          However, "if

the trial court merely instructs the jury disjunctively as to

various alternative acts which will establish an element of the

offense, the requirement of unanimity is satisfied."             Id. at

303, 412 S.E.2d at 312.

     "[T]he submission of instructions in the disjunctive will

not always render a resulting verdict fatally ambiguous.               In

some cases, '[a]n examination of the verdict, the charge, the

initial instructions by the trial judge to the jury . . ., and

the evidence may remove any ambiguity created by the charge.'"

Id. at 307, 412 S.E.2d at 315 (first alteration added) (quoting

State v. Diaz, 317 N.C. 545, 554, 346 S.E.2d 488, 494 (1986)

abrogated in part on other grounds by State v. Hartness, 326

N.C. 561, 391 S.E.2d 177 (1990)).

     In this case, the trial court's reinstruction, when read in

isolation, arguably indicates that the jury could find defendant
                                   -20-
guilty of a single count of maintaining a dwelling based on

either of the two separate offense dates.                 However, the court

initially separately instructed the jury for each of the two

offenses and, in the reinstruction, the court reiterated that

the two offense dates were for "[t]wo separate charges."                       In

addition, there were two separate verdict sheets, one for each

of the two maintaining a dwelling charges.               On those sheets, the

jury found defendant guilty of (1) "Felonious Maintain Building

To Keep Illegal Controlled Substances on February 24th, 2011[,]"

and (2) "Felonious Maintain Building To Keep Illegal Controlled

Substances on July 21st 2011."       Under these circumstances, there

was no ambiguity in the jury's verdicts -- the jury unanimously

found defendant guilty of one count of maintaining a dwelling

for each of the two separate offense dates.

    Although    defendant   also    argues       that    the   court   erred   in

disjunctively   reinstructing      the    jury    that    in   order   to   find

defendant guilty of the offenses, it must find that he kept a

building that was used for the purpose of either "keeping" or

"selling" controlled substances, defendant does not challenge on

appeal the trial court's initial instructions on these charges

that employed the same "keeping or selling" language.                       Given

defendant's failure to challenge the initial instructions, the

jury would have heard the "keeping or selling" phrasing in the
                                           -21-
unchallenged      initial       instructions       even     if       the    court    had   not

given     the     challenged          reinstruction.                 Defendant       cannot,

therefore, show prejudice in the reinstruction on this point.

Cf. State v. Watkins, 77 N.C. App. 325, 331, 335 S.E.2d 232, 236

(1985)    (holding          admission     of     challenged          testimony      did    not

prejudice       defendant       since     same     testimony          had    already       been

admitted without objection).

     Defendant         similarly        challenges       that        the    trial    court's

reinstruction         for    both     offenses     that,        in    order    to    convict

defendant,      the    jury     was     required    to    find       that     he    kept   the

building for the purpose of unlawfully keeping or selling either

"hydrocodone      or        cocaine."      While,        with    respect       to    the    24

February charge, the initial instruction was identical to the

reinstruction and, therefore, cannot have been prejudicial, the

reinstruction as to the 21 July charge differed from the initial

instruction.          The initial instruction, in accordance with the

indictment for that charge, referred only to cocaine, while the

reinstruction referred to both hydrocodone and cocaine.2

     Thus, under Lyons, defendant's argument presents the issue

whether     maintaining         a     dwelling     used     for        the     purpose      of
     2
      We note that defendant does not argue that there is a
variance between the indictment for the 21 July charge and the
reinstruction, and he does not argue that the reinstruction is
unsupported by the evidence.      He solely argues that it is
impossible to tell whether the jury unanimously reached its
verdicts for the two maintaining a dwelling charges.
                                           -22-
unlawfully       keeping     or       selling     "cocaine"         and     maintaining         a

dwelling used for the purpose of unlawfully keeping or selling

"hydrocodone" are two acts giving rise to separate offenses, or

are merely two "various alternative acts which will establish an

element of the offense" of maintaining a dwelling in violation

of N.C. Gen. Stat. § 90-108(a)(7).                     Lyons, 330 N.C. at 303, 412

S.E.2d at 312.

    N.C.        Gen.   Stat.      §    90-108(a)(7)         provides:       "It    shall       be

unlawful for any person . . . [t]o knowingly keep or maintain

any . . . dwelling . . . which is resorted to by persons using

controlled       substances       in    violation       of     this    Article      for       the

purpose    of    using    such        substances,      or     which    is   used    for       the

keeping or selling of the same in violation of this Article[.]"

Based on this statutory language, our Supreme Court has held

that "[t]here are thus two theories under which the State may

prosecute a defendant under N.C.G.S. § 90-108(a)(7).                               Under the

first   statutory        alternative        the       State    must       prove    that       the

defendant       did    (1)   knowingly          (2)     keep     or    maintain         (3)     a

[dwelling] (4) which is resorted to (5) by persons unlawfully

using     controlled       substances       (6)       for     the     purpose      of    using

controlled substances.                Under the second statutory alternative,

the State must prove that the defendant did (1) knowingly (2)

keep or maintain (3) a [dwelling] (4) which is used for the
                                           -23-
keeping or selling (5) of controlled substances."                                  State v.

Mitchell, 336 N.C. 22, 31, 442 S.E.2d 24, 29 (1994) (emphasis

added).        The    State     proceeded           under      the     second      statutory

alternative in this case.

       Thus,    the   statutory         language     of     N.C.     Gen.    Stat.    §    90-

108(a)(7)      does       not   require         proof     of     any      one     particular

controlled substance versus another, and our Supreme Court in

Mitchell, 336 N.C. at 31, 442 S.E.2d at 29, referred generally

to   "controlled      substances"         in     describing        the    elements        of   a

violation      of   N.C.    Gen.       Stat.    §   90-108(a)(7).           The    level       of

punishment for the offense is not determined by the identity of

the controlled substance, and we see no indication that the

identity    of      the    controlled          substance       otherwise        impacts    the

nature of the offense.

       In State v. Brady, 147 N.C. App. 755, 759, 557 S.E.2d 148,

151 (2001) (quoting N.C. Gen. Stat. § 90-108(a)(10) (1999)),

this   Court     considered        a    statute     that    provided        "it    shall       be

unlawful for any person '[t]o acquire or obtain possession of a

controlled       substance      by       misrepresentation,              fraud,     forgery,

deception, or subterfuge[.]'"                   In holding that the trial court

did not err in allowing the State to amend the indictment to

change the name of the controlled substance from "'Xanax,'" a

Schedule IV controlled substance, to "'Percocet,'" a Schedule II
                                               -24-
controlled substance, id. at 759, 557 S.E.2d at 151, this Court

first noted that a "'non-essential variance is not fatal to the

charged offense,' and any 'averment unnecessary to charge the

offense      .   .       .     may        be   disregarded        as    inconsequential

surplusage.'"        Id. at 758, 557 S.E.2d at 151 (quoting State v.

Grady, 136 N.C. App. 394, 396-97, 524 S.E.2d 75, 77 (2000)).

The Court then held that the amendment did not substantially

alter the indictment since (1) "[t]he name of the controlled

substance was not necessary to charge Defendant with a crime

under section 90-108(a)(10), as the charge remained the same

whether the controlled substance was a Schedule II or a Schedule

IV   drug[,]"    and         (2)    the    defendant       "was   neither     misled    nor

surprised by the subsequent change in the Indictment as the

State was required to prove the same elements."                         Id. at 759, 557

S.E.2d at 151.

      We believe the reasoning in Brady applies with equal force

in   this    context.              Because     the    identity     of   the   controlled

substance was not essential to the charged offense, we hold that

the trial court's disjunctive reinstruction that the jury could

find defendant guilty, with respect to the 21 July charge, if it

found   he   kept    a       building      that      was   used   for   the   purpose    of

unlawfully keeping or selling either "hydrocodone or cocaine"

did not violate defendant's right to a unanimous jury verdict.
                                       -25-
Rather, the evidence of two possible controlled substances that

might fulfill the element that the building was used to keep or

sell "controlled substances" presented the jury with "various

alternative     acts     which   will    establish      an        element    of   the

offense."     Lyons, 330 N.C. at 303, 412 S.E.2d at 312.                           Cf.

Mitchell,     336    N.C.   at   34,     442   S.E.2d        at     30   (analyzing

sufficiency of the evidence argument for charge of maintaining

vehicle to keep or sell marijuana and explaining that "focus of

the inquiry is on the use, not the contents, of the vehicle").

Consequently,       we   conclude      defendant     has      failed        to    show

prejudicial error with respect to the disjunctive reinstruction.


    No error.

    Judges BRYANT and CALABRIA concur.

    Report per Rule 30(e).
