                                    NO. COA13-609

                      NORTH CAROLINA COURT OF APPEALS

                             Filed: 7 January 2014


STATE OF NORTH CAROLINA

     v.                                         Randolph County
                                                No. 11 CRS 57484
CRECENCIO FELIX RODELO



     Appeal by Defendant from judgment entered 7 December 2012 by

Judge V. Bradford Long in Randolph County Superior Court.                Heard

in the Court of Appeals 21 October 2013.


     Attorney General Roy Cooper, by Assistant Attorney General
     John R. Green, Jr., for the State.

     Unti & Lumsden, LLP, by Margaret C. Lumsden, for Defendant.


     DILLON, Judge.


     Crecencio Felix Rodelo (“Defendant”) appeals from a judgment

convicting     him   of     trafficking     in     cocaine    by   possession,

challenging (1) the trial court’s denial of his motion to suppress

evidence, (2) the sufficiency of the evidence to support his

constructive possession of the cocaine, and (3) trial counsel’s

failure to request instructions on lesser included offenses or to

object    to   statements    made    by   the    prosecutor   during   closing
                                   -2-
arguments,   contending   these   failures   amounted   to   ineffective

assistance of counsel.    We find no error.

     The evidence of record tends to show the following:        Based on

information from a confidential informant regarding the delivery

of a shipment of cocaine, agents from the Randolph County Sheriff’s

Office and from the Drug Enforcement Agency (“DEA”) conducted

surveillance on a particular warehouse in Randolph County.            At

approximately 11:00 P.M. on 30 November 2011, agents saw a tractor-

trailer, driving without headlights, pull up, release the trailer,

and pull into a garage bay of the warehouse.    The agents approached

the front and rear entrances to the warehouse and heard metallic

“clanging” noises inside.     One agent knocked on the front door,

shouting “Policia.”   The noises stopped, and the back door to the

warehouse opened suddenly.        A man, later identified as Nathan

Tobias-Tristan, stepped out.      Tobias-Tristan told the agents who

were stationed outside the rear entrance that he worked in the

warehouse, that a friend of his was inside; that there were no

illegal   drugs inside; and that he consented to a search.        Inside

the warehouse, agents saw no one in the open, so they threatened

to loose a dog, after which Defendant came out of the sleeper area

of the tractor-trailer.
                                      -3-
     The agents discovered a hidden compartment in the tractor-

trailer, containing numerous, tightly-wrapped packages, which the

agents believed to contain cocaine.          There was a chemical smell of

cocaine   in   the   warehouse    and   no   indication    of   any    kind   of

legitimate business.         “[S]mall wrappings” were “all over” the

tractor-trailer, as well as in the open area of the Honda SUV

parked next to the tractor-trailer.            Defendant took one of the

agents aside, out of the view of Tobias-Tristan, and told the agent

that money was hidden in the tractor-trailer.             Two agents went to

the Sheriff’s office to prepare a search warrant.

     Upon searching the warehouse, police discovered $955,000.00

in cash in the tightly-wrapped packages in the tractor-trailer, as

Defendant disclosed.      They also found cocaine in a Honda Pilot,

located in close proximity to the tractor-trailer. The Honda Pilot

contained a hidden compartment, but the bundles of cocaine were in

plain view.    Each bundle weighed approximately one kilogram, the

total net weight being 21.81 kilograms.           Defendant was convicted

of trafficking in cocaine by possession and sentenced to 175 to

219 months incarceration.        From this judgment, Defendant appeals.

                             I: Motion to Suppress

     In Defendant’s first argument, he contends the trial court

erred   by   denying   his   motion     to   suppress   evidence      based   on
                                -4-
Defendant’s lack of standing to contest the initial warrantless

search of the warehouse.   We disagree.

      “The standard of review in evaluating the denial of a motion

to suppress is whether competent evidence supports the trial

court’s findings of fact and whether the findings of fact support

the conclusions of law.”    State v. Otto, 366 N.C. 134, 136, 726

S.E.2d 824, 827 (2012) (citation and quotation marks omitted).

      “Before defendant can assert the protection afforded by the

Fourth Amendment, however, he must demonstrate that any rights

alleged to have been violated were his rights, not someone else’s.”

State v. Ysut Mlo, 335 N.C. 353, 377, 440 S.E.2d 98, 110, cert.

denied, 512 U.S. 1224, 129 L. Ed. 2d 841 (1994).     “Standing [to

assert this protection] requires both an ownership or possessory

interest and a reasonable expectation of privacy.” State v. Swift,

105 N.C. App. 550, 556, 414 S.E.2d 65, 68-69 (1992).      However,

“[t]he burden of showing this ownership or possessory interest is

on the person who claims that his rights have been infringed.”

Id.   When a defendant neither asserts “a property nor a possessory

interest [in the premise searched],” nor makes a showing of any

other “circumstances giving rise to a reasonable expectation of

privacy in the premises searched[,] . . . defendant has failed to
                                     -5-
establish his standing to object.”         State v. Jones, 299 N.C. 298,

306, 261 S.E.2d 860, 865 (1980).

       In this case, the trial court found, inter alia, that Tristan-

Tobias informed one of the officers that he just worked at the

warehouse; that there was someone else inside who was his friend;

and that he consented to a search of the warehouse.             The trial

court further found that no evidence was presented that connected

Defendant with the warehouse except his presence.            Based on its

findings, the trial court concluded:

            The defendant has failed to show that he has
            any standing to challenge Nathan Tristan-
            Tobias’ consent to search the warehouse in
            question as the defendant has failed to show
            any reasonable expectation of privacy in the
            contents of the warehouse.      Moreover, the
            Court concludes as a matter of law that Nathan
            Tristan-Tobias was reasonably, apparently
            entitled to give consent to search the
            premises at Warehouse Number 8 under the facts
            set out above. The Motion to Suppress is
            denied.

       We believe the record supports the trial court’s findings

that    Defendant   presented   no   evidence   of   his   “ownership   or

possessory interest” or of a “reasonable expectation of privacy.”

Swift, 105 N.C. App. at 556, 414 S.E.2d at 68-69.          Accordingly, we

believe the trial court did not err by concluding that Defendant

failed to meet his burden of establishing standing.             Moreover,

assuming arguendo Defendant had standing to contest the search, we
                                -6-
do not believe the trial court erred by concluding that it was

reasonable for the agents to assume that Tristan-Tobias had the

authority to give consent for a search of the warehouse, and the

police later secured a search warrant based on probable cause.1

State v. Toney, 187 N.C. App. 465, 469, 653 S.E.2d 187, 190 (2007)

(stating, “[i]n the absence of actual authority, a search may still

be proper if an officer obtains consent from a third party whom he

reasonably believes has authority to consent”) (citing Illinois v.

Rodriguez, 497 U.S. 177, 111 L. Ed. 2d 148 (1990)).

                       II: Motion to Dismiss

     In Defendant’s second argument on appeal, he contends the

trial court erred by denying his motion to dismiss for lack of

substantial evidence of Defendant’s constructive possession of the

contraband.   We disagree.

     “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



1 The trial court made a number of findings to establish that the
agents acted on a reasonable belief that Tristan-Tobias had
apparent authority to consent to the search.
                                         -7-
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,   cert.    denied,     531   U.S.   890,    148    L.   Ed.    2d    150   (2000)

(quotation     omitted).      “Substantial       evidence      is   such      relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion.”       State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d

164, 169 (1980).       “In making its determination, the trial court

must   consider      all    evidence     admitted,       whether      competent    or

incompetent, in the light most favorable to the State, giving the

State the benefit of every reasonable inference and resolving any

contradictions in its favor.”            State v. Rose, 339 N.C. 172, 192,

451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L.

Ed. 2d 818 (1995).

            Circumstantial evidence may withstand a motion
            to dismiss and support a conviction even when
            the evidence does not rule out every
            hypothesis of innocence. If the evidence
            presented is circumstantial, the court must
            consider whether a reasonable inference of
            defendant’s guilt may be drawn from the
            circumstances. Once the court decides that a
            reasonable inference of defendant’s guilt may
            be drawn from the circumstances, then it is
            for the jury to decide whether the facts,
            taken singly or in combination, satisfy [it]
            beyond a reasonable doubt that the defendant
            is actually guilty.

Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation and quotation

marks omitted).
                                      -8-
      Trafficking in cocaine by possession has two elements: (1)

knowing possession of cocaine, and (2) the cocaine weighing 28

grams or more.    State v. White, 104 N.C. App. 165, 168, 408 S.E.2d

871, 873 (1991); see also N.C. Gen. Stat. § 90-95(h)(3)(a).                “It

is   well   established     in    North   Carolina   that   possession   of   a

controlled substance may be either actual or constructive.”              State

v. Jenkins, 167 N.C. App. 696, 700, 606 S.E.2d 430, 433 (2005)

(citation and quotation marks omitted).              Constructive possession

is   not    required   to    be    exclusive:   “Proof      of   nonexclusive,

constructive possession is sufficient.”          State v. McNeil, 359 N.C.

800, 809, 617 S.E.2d 271, 277 (2005) (citation and quotation marks

omitted).    “A person is said to have constructive possession when

he, without actual physical possession of a controlled substance,

has both the intent and the capability to maintain dominion and

control over it.”      Jenkins, 167 N.C. App. at 700, 606 S.E.2d at

433 (2005) (citation and quotation marks omitted).

            As the terms “intent” and “capability”
            suggest, constructive possession depends on
            the totality of circumstances in each case. No
            single factor controls, but ordinarily the
            question will be for the jury. . . . The fact
            that a person is present in a [vehicle] where
            drugs are located, nothing else appearing,
            does not mean that person has constructive
            possession of the drugs. . . . There must be
            evidence of other incriminating circumstances
            to support constructive possession.
                                   -9-
State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986)

(citations omitted).     “Where [contraband is] 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.”    State v. Butler, 356 N.C. 141, 567 S.E.2d 137, 140

(2002).   “However, unless 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.”    State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190

(1989).   Evidence of constructive possession is sufficient to

support a conviction if it would allow a reasonable mind to

conclude that defendant had the intent and capability to exercise

control and dominion over the controlled substance. State v. Peek,

89 N.C. App. 123, 365 S.E.2d 320 (1988).

     In this case, Defendant was neither in actual, physical

possession of the controlled substance, nor did he have exclusive

control of the warehouse.         Therefore, to support a charge of

trafficking    by   possession,   the   State   was   required   to   submit

substantial evidence that Defendant constructively possessed the

cocaine in this case.     Defendant contends on appeal that the State

did not submit substantial evidence of his constructive possession
                                       -10-
of the cocaine.       In support of his position, Defendant cites State

v. Weems, 31 N.C. App. 569, 230 S.E.2d 193 (1976), for the

proposition that the mere presence of a defendant near the location

of the contraband is not sufficient to prove control and intent.

In Weems, we stated that “mere proximity to persons or locations

with drugs about them is usually insufficient, in the absence of

other incriminating circumstances, to convict for possession[,]”

and   further   that    “the    mere   presence    of   the    defendant   in   an

automobile in which illicit drugs are found does not, without more,

constitute sufficient proof of his possession of such drugs.”                   Id.

at 571, 230 S.E.2d at 194 (citations and quotation marks omitted).

In    Weems,    the    police    “placed      a   certain     automobile     under

surveillance[,]” “saw three men get into the automobile and drive

away[,]” and “followed and shortly thereafter stopped the car.”

Id.    The defendant was a passenger in the right front seat, and

the driver was the registered owner of the automobile.                 Id.      The

third man was in a passenger in the back seat.                “Packets of heroin

were found hidden in three different locations in the car, two of

which were in the front seat area and one in the back seat area.”

Id.   The defendant was in close proximity to the heroin hidden in

the front seat area, but “[t]here was no evidence [the] defendant

owned or controlled the car[,] [and] [t]here was no evidence he
                                     -11-
had been in the car at any time other than during the short period

which elapsed between the time the officers saw the three men get

in the car and the time they stopped and searched it.”             Moreover,

there   “was   no   evidence   of    any   circumstances   indicating     that

defendant knew of the presence of the drugs hidden in the car.”

Id. at 571, 230 S.E.2d at 194-95.           The Weems Court held, on these

facts, that because there was “no evidence of any circumstance

connecting the defendant to the drugs in any manner whatsoever

other than the showing of his mere presence for a brief period in

the car as a passenger[,]” there was not substantial evidence of

the defendant’s constructive possession of the heroin.               Id. at

571, 230 S.E.2d at 195.

      We believe Weems is distinguishable from the case sub judice,

because, here, the State’s case rests on more than Defendant’s

mere proximity to the controlled substance.            Defendant hid from

the   agents   when   they   first    entered   the   warehouse.     He   was

discovered alone in the tractor-trailer where the money was hidden.

No one else was discovered in the warehouse.               The cocaine was

discovered in a Honda Pilot parked, with its doors open, in close

proximity to the tractor-trailer containing the cash.              The cash

and the cocaine in this case were packaged in a similar fashion.

“[S]mall wrappings” were “all over” the tractor-trailer, in which
                                     -12-
Defendant was hiding, as well as in the open area of the Honda SUV

parked close to the tractor-trailer.          Defendant admitted knowing

where the money was hidden.       The entire warehouse had a chemical

smell of cocaine.     In addition, when the police were questioning

Tristan-Tobias and Defendant together, Defendant motioned to one

of the agents “that he wanted to talk to [the agent]” out of the

view   of   Tristan-Tobias,   from    which   a    jury   could    infer   that

Defendant knew and planned to reveal something, which Tristan-

Tobias did not know, or that Defendant was guilty of a crime and

was seeking leniency.

       We believe the evidence in this case, when viewed in the light

most favorable to the State, supports the trial court’s conclusion

that Defendant was in constructive possession of the cocaine.                In

other words, there were sufficient incriminating circumstances –

beyond Defendant’s mere presence – to support the trial court’s

conclusion.     Accordingly, Defendant’s argument is overruled.

                III: Ineffective Assistance of Counsel

       In   Defendant’s   third   argument,   he    contends      he   received

ineffective assistance of counsel when his attorney failed to ask

for an instruction on the lesser included offense of and failed to

object to the State’s allegedly egregious statements in closing

arguments.
                                    -13-
     “To prevail on a claim of ineffective assistance of counsel,

a defendant must first show that his counsel’s performance was

deficient and then that counsel’s deficient performance prejudiced

his defense. Deficient performance may be established by showing

that counsel’s representation fell below an objective standard of

reasonableness.”        State v. Allen, 360 N.C. 297, 316, 626 S.E.2d

271, 286, cert. denied, 549 U.S. 867, 166 L. Ed. 2d 116 (2006)

(citations and quotation marks omitted).           “Generally, to establish

prejudice, a defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”             Id.

     Defendant contends he was provided ineffective assistance of

counsel in this case for two reasons:            (1) trial counsel failed to

request that the jury be instructed on conspiracy to traffic in

cocaine and the lesser included offense of possession of cocaine;

and (2) trial counsel failed to object to allegedly egregious,

improper comments by the State during its closing argument.               We

address each argument in turn.

              A:    Instruction on Lesser Included Offenses

     First,        Defendant   contends    his     trial   counsel   rendered

ineffective assistance by failing to request a jury instruction on
                                  -14-
conspiracy to traffic in cocaine and the lesser included offense

of possession of cocaine.    We disagree.

     We note that in his brief, Defendant refers to the crime of

conspiracy to traffic in cocaine as a lesser included offense of

trafficking in cocaine.    However, conspiracy to traffic in cocaine

is not a lesser included offense of trafficking in cocaine, because

the requirement of an agreement, while necessary to sustain a

conviction    for   conspiracy,   is   not   a    necessary   element   of

trafficking in cocaine by possession.            State v. Kemmerlin, 356

N.C. 446, 476, 573 S.E.2d 870, 891 (2002) (stating that “conspiracy

is a separate offense from the completed crime that normally does

not merge into the substantive offense”).         In this case, since the

indictment does not contain an allegation of an agreement, it would

have been error for the trial court to instruct the jury on

conspiracy.    Accordingly, we address Defendant’s argument as it

relates to the lesser included offense of possession of cocaine.

     Here, since Defendant failed to object to the omission of a

lesser-included offense jury instruction at trial or to request

such an instruction, we must review the instructions under the

plain error standard.     State v. Lowe, 150 N.C. App. 682, 685, 564

S.E.2d 313, 315 (2002).      Plain error is “a fundamental error,

something so basic, so prejudicial, so lacking in its elements
                                -15-
that justice cannot have been done[.]”       State v. Odom, 307 N.C.

655, 660, 300 S.E.2d 375, 378 (1983) (internal quotation marks and

citation omitted) (emphasis in original).         Under plain error

analysis, a defendant is entitled to reversal “only if the error

was so fundamental that, absent the error, the jury probably would

have reached a different result.”      State v. Jones, 355 N.C. 117,

125, 558 S.E.2d 97, 103 (2002).

     “[A] lesser included offense instruction is required if the

evidence would permit a jury rationally to find [defendant] guilty

of the lesser offense and acquit him of the greater.”       State v.

Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002) (citations

and quotation marks omitted). “Where the State’s evidence is clear

and positive as to each element of the offense charged and there

is no evidence showing the commission of a lesser included offense,

it is not error for the judge to refuse to instruct on the lesser

offense.”     State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190,

193 (1985).

     The key difference between the crime of trafficking in cocaine

by possession and the lesser-included offense of felony possession

of cocaine is weight; that is, trafficking by possession requires

evidence of 28 grams or more of cocaine.     State v. White, 104 N.C.

App. 165, 168, 408 S.E.2d 871, 873 (1991).    Here, we do not believe
                                      -16-
the trial court committed plain error in failing to instruct the

jury on conspiracy to traffic in cocaine and the lesser included

offense of simple possession of cocaine.               The evidence shows that

Defendant was discovered in close proximity to 21.81 kilograms of

cocaine, which is substantially more than the 28 grams required to

constitute trafficking.         Defendant offered no evidence that he was

in possession of only less than 28 grams of cocaine.               See State v.

King,   99   N.C.   App.     283,   290,   393    S.E.2d    152,   156    (1990).

Accordingly, we conclude the trial court did not err, much less

commit plain error, in failing to give these instructions.

                        B: Failure to Object to Remarks

     Defendant      lastly      argues     he    was    provided   ineffective

assistance of counsel because trial counsel failed to object to

allegedly egregious, improper comments by the State during its

closing argument.       We disagree.

     “The    standard      of   review   for    assessing    alleged     improper

closing arguments that fail to provoke timely objection from

opposing counsel is whether the remarks were so grossly improper

that the trial court committed reversible error by failing to

intervene ex mero motu.”          State v. Jones, 355 N.C. 117, 133, 558

S.E.2d 97, 107 (2002).          Our Supreme Court has stated:

             We have frequently held that counsel must be
             allowed wide latitude in jury arguments in
                                  -17-
            hotly contested cases. Counsel may argue the
            facts   in   evidence  and   all  reasonable
            inferences that may be drawn therefrom
            together with the relevant law in presenting
            the case.

State v. Anderson, 322 N.C. 22, 37, 366 S.E.2d 459, 468, cert.

denied, 488 U.S. 975, 102 L. Ed. 2d 548 (1988).

       In this case, Defendant argues that his trial counsel’s

failure to object to three statements made by the prosecutor during

closing arguments constituted ineffective assistance of counsel:

(1) the prosecutor’s statement that Defendant was “exchanging

money and drugs, from one vehicle to another,” a proposition which

was not established at trial and which would have been consistent

with    a   charge   of   trafficking    by   transportation;   (2)   the

prosecutor’s statement that Defendant was “trafficking in cocaine

and narcotics,” when there was no evidence that Defendant also

trafficked in narcotics; and (3) the prosecutor’s characterization

of the business as a place where drugs and money were exchanged,

arguing in his brief that “[t]he idea that the business was

involved only in trafficking in cocaine and narcotics has no basis

in the evidence and is not supported by an inference from the

evidence.”

       We believe these statements by the prosecutor, to which trial

counsel failed to object, and which Defendant has made the basis
                                   -18-
of   his   ineffective   assistance   of    counsel     claim,   were   either

reasonable inferences drawn from the evidence, or were not so

grossly improper that the trial court committed reversible error

by failing to intervene ex mero motu.           The prosecutor’s statement

that Defendant was exchanging drugs and money from one vehicle to

another may be reasonable inferred from $955,000.00 in cash in one

vehicle and 21.81 kilograms of cocaine in a different vehicle

parked,    with   its    doors   open,     in   close    proximity.        The

characterization and description of the warehouse as a being a

place for exchange of drugs and money could be reasonably inferred

by the rural location of the warehouse close to major highways,

the lack of a business sign or descriptor or evidence of any other

business being conducted therein, and the fact that a tractor-

trailer containing $955,000.00 in cash pulled into the warehouse

to join a car containing 21.81 kilograms of cocaine.                Finally,

referring to “narcotics,” we do not believe, standing alone, was

so grossly improper that the trial court committed reversible error

by failing to intervene ex mero motu.                 As such, Defendant’s

argument that trial counsel provided ineffective assistance of

counsel by failing to object to these three statements during the

prosecutor’s closing argument must necessarily fail.

      We conclude Defendant had a fair trial, free from error.
                         -19-
NO ERROR.

Chief Judge MARTIN and Judge STEELMAN concur.
