An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-392
                         NORTH CAROLINA COURT OF APPEALS

                              Filed:      21 October 2014

STATE OF NORTH CAROLINA

      v.                                         Buncombe County
                                                 Nos. 12 CRS 64142-43
MARQUES AUBREY DAVIS



      Appeal by defendant from judgment entered 11 September 2013

by   Judge   James     U.    Downs   in    Buncombe   County      Superior          Court.

Heard in the Court of Appeals 22 September 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Neal T. McHenry, for the State.

      Appellate   Defender  Staples   S.   Hughes,  by   Assistant
      Appellate Defender James R. Grant, for defendant-appellant.


      McCULLOUGH, Judge.


      Defendant       was    tried   on    charges    of     possession        of    drug

paraphernalia      and      possession    with    intent     to   sell    or   deliver

(“PWISD”) marijuana.          The jury found him guilty of possession of

drug paraphernalia and the lesser included offense of simple

possession of more than one-half ounce but less than one and

one-half     ounces    of    marijuana.       The    trial    court      consolidated
                                           -2-
defendant’s offenses for judgment and sentenced him to 90 days

in county jail.        Defendant gave notice of appeal in open court.

      On 29 November 2012, Officer Matthew Kiser of the Buncombe

County      Sheriff’s    Office       knocked     on    the   front    door    of    an

apartment in Lee Walker Heights, seeking to serve a warrant for

unpaid child support upon defendant.                     Defendant answered the

door but advised Officer Kiser “that Marques Davis did not live

at   that    address    and   .   .    .   was   not    there.”       Based   on    the

photograph      that     accompanied         the       warrant,   Officer       Kiser

recognized defendant as the Marques Davis in question.                        He also

detected a strong odor of marijuana emanating from inside the

apartment and asked defendant for consent to enter the apartment

to look for the marijuana.             Defendant demurred, stating that the

apartment did not belong to him.                 Officer Kiser asked defendant

to come outside, detained him on the outstanding warrant, and

secured the apartment to prevent further ingress or egress.                          He

then contacted Narcotics Officer Edward Winslow, who arrived 30

minutes later and obtained defendant’s consent to search the

apartment.

      A protective sweep revealed no additional occupants in the

apartment.      Proceeding upstairs to a bedroom, Officer Winslow

observed “several bags of marijuana” in plain view on the bed.
                                     -3-
Also on the bed was a North Carolina photographic identification

card belonging to defendant.         On top of a dresser in the corner

of the bedroom were “several bags of marijuana . . ., a set of

digital scales and some loose marijuana laying on the scales and

on top of the dresser.”        On top of a second dresser were a box

of plastic sandwich baggies, several individual sandwich baggies

with the corners missing, and men’s deodorant.             In a left-hand

drawer of this dresser, Officer Winslow also found a loaded .38

revolver and a box of ammunition.          He opened the cylinder of the

revolver and saw that “one of the rounds had been fired.”

    Prior to trial, defendant moved to suppress the evidence

found during the search of the apartment on the ground that his

consent   to   the   search   was   involuntary   or   otherwise   invalid.

Defendant also moved to suppress any statements he made to the

officers after he was detained but before he was advised of his

Miranda rights.       The trial court denied the motion as to the

fruits of the search but granted the motion as to any statements

made by defendant after his initial exchange with Officer Kiser

regarding the warrant.

    On appeal, defendant claims the trial court committed plain

error by allowing the State to introduce evidence of the loaded

handgun and ammunition that were found in the bedroom where the
                                       -4-
marijuana was found.         He contends this “weapon evidence” had no

relevance to either of the charged crimes, inasmuch as “the

State never introduced any evidence suggesting the gun belonged

to [him].”     Moreover, citing the “highly inflammatory nature” of

the loaded handgun and Officer Winslow’s testimony that the gun

had    been    fired,     defendant    argues      that       the   evidence     was

inadmissible and should have been excluded pursuant to N.C. Gen.

Stat. § 8C-1, Rules 401 and 403 (2013).

       In seeking plain error review, defendant concedes he failed

to    object   to   the   evidence    of    the   handgun     and   ammunition    on

grounds of irrelevance.          See N.C. R. App. P. 10(a)(1), (4).

Rather,    defendant’s     objection       at   trial   was    solely   “based    on

[defendant’s] prior motion” to suppress.1                   Having “objected on

grounds other than those now argued on appeal, he has waived his

right to appellate review other than for plain error.”                   State v.

Locklear, 363 N.C. 438, 449, 681 S.E.2d 293, 303 (2009); see

also N.C. R. App. P. 10(a)(4).             To establish plain error,



1
 Although the trial court inquired sua sponte into the relevance
of photographs of the gun and ammunition tendered by the State,
this proffer occurred well after Officer Winslow’s initial
testimony about finding the gun in the bedroom dresser.
Moreover, the court allowed the photographs into evidence “for
illustration purposes only” and instructed the jury to consider
the photographs “for illustration only; that is, whether or not
they illustrate whatever this officer saw with respect to that
scene.”
                                        -5-
            . . . 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. . . .
            In other words, the inquiry is whether the
            defendant has shown that, absent the error,
            the jury probably would have returned a
            different verdict.

State v. Carter, 366 N.C. 496, 500, 739 S.E.2d 548, 551 (2013)

(citations and quotations omitted).

       The North Carolina Rules of Evidence provide that “[a]ll

relevant evidence is admissible” unless otherwise prohibited by

law.     N.C. Gen. Stat. § 8C-1, Rule 402 (2013).              Rule 401 defines

evidence    as   “relevant”   if   it     has      “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 evidence.”              N.C. Gen. Stat. § 8C-1, Rule

401.      This standard “gives the judge great freedom to admit

evidence because the rule makes evidence relevant if it has any

logical tendency to prove any fact that is of consequence.”

State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228

(1991)    (citation   omitted),     appeal         dismissed    and    disc.      rev.

denied, 331 N.C. 290, 416 S.E.2d 398 (1992).                   Although a trial

court’s rulings on relevancy are fully reviewable as a question
                                         -6-
of law, “we accord them great deference on appeal.” State v.

Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 223, cert. denied, __ U.S.

__, 181 L. Ed. 2d 529 (2011).

      Defendant has not shown plain error here.                     For the purpose

of proving the crime of PWISD marijuana, it is clearly relevant

that known accoutrements of the drug trade, including a loaded

firearm, are found in the same room as the marijuana.                        See State

v. Huerta, __ N.C. App. __, __, 727 S.E.2d 881, 888-89 (2012)

(citing State v. Boyd, 177 N.C. App. 165, 171-72, 628 S.E.2d

796, 802 (2006) (noting that “as a practical matter, firearms

are   frequently     involved     for     protection     in    the    illegal     drug

trade”)).     Defendant’s assertion that the State failed to link

him to the gun speaks to the weight to be accorded to this

evidence,   not     its   relevance      and   admissibility         under    N.C.   R.

Evidence 401 and 402.

      Defendant     also       assigns     plain   error       to     the     limiting

instruction    given      by   the   trial     court    when    it    allowed     into

evidence    three    photographs      depicting        the   gun    and     ammunition

found by Officer Winslow.                The court instructed the jury as

follows:

                 The only reason you can consider these
            particular  items   of  evidence  [is]  for
            illustration only; that is, whether or not
            they illustrate whatever this officer saw
                                    -7-
           with respect to that scene.

                The defendant is not charged with any
           offense having to do with possession of a
           firearm, and that can’t be used against him
           in any way whatsoever except to possibly
           show   whether     or  not   the   defendant
           constructively    knew  or   possessed   any
           contraband, if there was any, in that room.
           But for using it for that limited –- very
           limited purpose, you can’t consider that for
           any other reason.

                All right.    Let them be admitted for
           illustration purposes only.

Having affirmed the relevance of the handgun and ammunition, we

find nothing erroneous in this limiting instruction.            Moreover,

inasmuch as the court admonished the jury not to consider the

photographs   as     substantive   evidence,   we    conclude   defendant

cannot show probable prejudice from the instruction, as required

to show plain error.      See generally State v. Thompson, 328 N.C.

477, 492, 402 S.E.2d 386, 394 (1991) (noting that “the trial

court gave cautionary instructions on the use of the photographs

for   illustrative    purposes,    thus   limiting   the   likelihood   of

unfair prejudice”).

      To the extent defendant separately claims the trial court

committed plain error under N.C. R. Evidence 403 in weighing the

probative value of the evidence against the attendant risk of

unfair prejudice, we hold that this discretionary ruling is not
                                          -8-
subject to plain error review under N.C. R. App. P. 10(a)(4).

State v. Cunningham, 188 N.C. App. 832, 837, 656 S.E.2d 697, 700

(2008).

    Finally,         we    reject     defendant’s   suggestion      that     “[t]he

incongruity      of       the   jury’s    verdicts”     reflects       the   jury’s

“confusion      or    animus    [toward    defendant]    resulting       from    the

erroneously admitted gun evidence and illogical instruction.”

There     is   nothing      inherently      inconsistent     in    finding      that

defendant      was    engaged    in   simple    possession   of    a    controlled

substance, rather than PWISD, while also in possession of drug

paraphernalia.

    No plain error.

    Judges CALABRIA and GEER concur.

    Report per Rule 30(e).
