An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA14-1129

                                   Filed: 19 May 2015

Wilson County, No. 12 CRS 55006

STATE OF NORTH CAROLINA, Plaintiff,

              v.

RASHON DEVELL WILLIAMS, Defendant.


        Appeal by defendant from judgment entered 25 March 2014 by Judge Quentin

T. Sumner in Wilson County Superior Court. Heard in the Court of Appeals 6 May

2015.


        Attorney General Roy Cooper by Assistant Attorney General Oliver G. Wheeler
        IV, for the State.

        Adrian M. Lapas for defendant-appellant.


        STEELMAN, Judge.


        The trial court did not err by denying defendant’s motion to dismiss the charges

against him where there was sufficient evidence of incriminating circumstances to

support the submission of the theory of constructive possession to the jury. The

admission of evidence of defendant’s prior bad acts did not rise to the level of plain

error. Defendant's claim of ineffective assistance of counsel is dismissed without

prejudice to his right to file a motion for appropriate relief in the trial court.
                                  STATE V. WILLIAMS

                                   Opinion of the Court



                             I. Factual and Procedural History

      On 15 November 2012 Detective David Seagroves of the Wilson Police

Department obtained a search warrant for the premises located at 1009 Washington

Street, Wilson. The search warrant was executed on 16 November 2012, and items

were seized from the house. On 5 August 2013 defendant was indicted for felonious

possession of cocaine, possession with intent to sell or deliver cocaine, and the felony

of intentionally maintaining a dwelling for keeping and selling controlled substances.

Prior to trial the State dismissed the possession of cocaine charge. The charges

against defendant came on for trial at the 25 March 2014 criminal session of Superior

Court for Wilson County.

                                     A. State’s Evidence

      In November 2012 Detective Seagroves was in the narcotics division of the

Wilson Police Department. On 15 November 2012 Detective Seagroves observed

defendant at the residence engaging in a controlled drug sale of crack cocaine to a

confidential informant. Detective Seagroves obtained a search warrant for the

Washington Street house and the next day he led several law enforcement officers in

executing the search warrant. When the officers entered the house, defendant’s

mother was in the living room, and defendant and his brother, Broderick Hagins,

were sleeping in the middle bedroom. The officers seized the following items from

defendant’s bedroom: (1) plastic baggies containing a white residue; (2) a pill bottle



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                                   Opinion of the Court



with a white residue; (3) a digital scale with white residue on it; (4) a red bandana,

which Detective Seagroves associated with gang membership; (5) a pot scrubber of a

type that Detective Seagroves testified was often used as a filter in a crack pipe; (6)

a marijuana roach; and (7) mail addressed to defendant at 1009 Washington Street,

including a release order from another criminal case.

      Defendant’s brother and mother were released, but defendant was arrested

and taken to the police station, where he made a statement after being informed of

his Miranda rights. In defendant’s statement, he stated (1) that he lived at 1009

Washington Street, (2) that he knew the scale contained cocaine residue, (3) that he

had previously sold cocaine, (4) that he was not selling cocaine “right now” or “lately”

because “the dope out there isn’t any good,” and (5) that the drugs found in the

bedroom belonged to his brother. In addition to the testimony of Detective Seagroves,

the State presented expert testimony that the digital scale and pill bottle contained

a residue amount of crack cocaine.

                                  B. Defendant’s Evidence

      Defendant testified that on 16 November 2012 he was living at 1009

Washington Street, where he shared a bedroom with his brother, Broderick. He had

previous convictions for larceny, possession of cocaine, and several misdemeanor

offenses. Defendant denied belonging to a gang, but admitted that he “was affiliated

with guys that [were] in the gang.” He had sold cocaine within the six months before



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                                   Opinion of the Court



his arrest, but was not selling cocaine on 15 November 2012. He was unemployed at

that time, and earned money through illegal gambling. He had used “pills and

cocaine” a few days before trial, but did not own the drugs found in his bedroom. His

brother also sold drugs, and his mother was “a cocaine addict.”

      On 25 March 2014 the jury found defendant guilty of felonious possession with

intent to sell or deliver cocaine, and the misdemeanor offense of knowingly

maintaining a dwelling for keeping or selling controlled substances. The trial court

imposed a consolidated judgment, sentencing defendant to eight to nineteen months

imprisonment.

      Defendant appeals.

                                 II. Constructive Possession

      In his first argument, defendant contends that the trial court erred in denying

his motions to dismiss at the close of the State’s evidence and again at the close of all

the evidence. Defendant argues that the State failed to show that he had constructive

possession of the cocaine. We disagree.

                                    A. Standard of Review

      “ ‘This Court reviews the trial court’s denial of a motion to dismiss de novo.’

‘Upon defendant’s motion for dismissal, the question for the Court is whether there

is substantial evidence (1) of each essential element of the offense charged, or of a

lesser offense included therein, and (2) of defendant’s being the perpetrator of such



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                                    Opinion of the Court



offense. If so, the motion is properly denied.’ ” State v. Ruffin, __ N.C. App. __, __, 754

S.E.2d 685, 690 (2014) (quoting State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29,

33 (2007) (citation omitted), and State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,

455 (2000) (internal 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) (citation omitted). “ ‘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.’ ‘Contradictions and discrepancies do not warrant dismissal of the case;

rather, they are for the jury to resolve. Defendant’s evidence, unless favorable to the

State, is not to be taken into consideration.’ In this case, since defendant presented

evidence, we only review the sufficiency of the evidence as of the close of all of the

evidence.” Ruffin, __ N.C. App. at __, 754 S.E.2d at 690 (quoting State v. Rose, 339

N.C. 172, 192, 451 S.E.2d 211, 223 (1994), and State v. Franklin, 327 N.C. 162, 172,

393 S.E.2d 781, 787 (1990) (citations omitted), and citing State v. Britt, 87 N.C. App.

152, 154, 360 S.E.2d 291, 292 (1987)).

      Defendant challenges only the sufficiency of the evidence that he possessed the

cocaine. “[D]efendant was convicted of possession of cocaine with intent to sell or

deliver. The elements of this offense are ‘1) possession, 2) of a controlled substance,



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                                   Opinion of the Court



and 3) with intent to sell or deliver[.]’ ” State v. Mack, 214 N.C. App. 169, 174, 718

S.E.2d 637, 640 (2011) (quoting State v. Peoples, 167 N.C. App. 63, 67, 604 S.E.2d 321,

324 (2004)). The sufficiency of the evidence of possession is pertinent to that charge.

However, “[p]ossession is not an element of the offense of maintaining a dwelling for

keeping and selling a controlled substance.” State v. Rosario, 93 N.C. App. 627, 634,

379 S.E.2d 434, 438, disc review denied, 325 N.C. 275, 384 S.E.2d 527 (1989). Thus,

defendant has failed to challenge his conviction for maintaining a residence and we

do not address that offense.

                                        B. Discussion

      Defendant contends that there was insufficient evidence of incriminating

circumstances to support submission of the theory of constructive possession to the

jury, given that defendant’s use of the premises was non-exclusive.

             Possession may be either actual or constructive. ‘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.’ . . . [If] the
             defendant does not have exclusive control of the premises,
             then ‘other incriminating circumstances must be
             established for constructive possession to be inferred.’
             Nevertheless, this Court has held that ‘[t]he State is not
             required to prove that the defendant . . . was the only
             person with access to [the controlled substance.]’ Indeed,
             ‘the State may overcome a motion to dismiss . . . by
             presenting evidence which places the accused within such
             close juxtaposition to the narcotic drugs as to justify the
             jury in concluding that the same was in his possession.’ ”



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                                  STATE V. WILLIAMS

                                   Opinion of the Court



State v. Henry, __ N.C. App. __, __, 765 S.E.2d 94, 101 (2014) (quoting State v. Davis,

325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (internal quotation omitted), State v.

Neal, 109 N.C. App. 684,686, 428 S.E.2d 287, 289 (1993), State v. Rich, 87 N.C. App.

380, 382, 361 S.E.2d 321, 323 (1987), and State v. Harvey, 281 N.C. 1, 12-13, 187

S.E.2d 706, 714 (1972) (internal quotation omitted) (additional citations omitted)).

      “[O]ur review of the relevant decisions reveals that the cases finding sufficient

proof of constructive possession frequently include evidence of one or more of the

following: First, constructive possession cases often include evidence that the

defendant had a specific or unique connection to the place where the drugs were

found.” State v. Ferguson, 204 N.C. App. 451, 460-61, 694 S.E.2d 470, 477-78 (2010)

(citing State v. Butler, 356 N.C. 141, 144, 567 S.E.2d 137, 139 (2002) (other citations

omitted)). “Secondly, many constructive possession cases involve evidence that the

defendant behaved suspiciously, [or] made incriminating statements admitting

involvement with drugs[.]” Id. (citations omitted). “Finally, constructive possession is

often based, at least in part, on other incriminating evidence in addition to the fact

that drugs were found near the defendant.” Id. (citing State v. McNeil, 359 N.C. 800,

801, 617 S.E.2d 271, 272 (2005), and State v. Wiggins, 185 N.C. App. 376, 388, 648

S.E.2d 865, 873 (2007)).

      In this case, defendant admitted that he lived at 1009 Washington Street, and

that the cocaine was found in his bedroom. Detective Seagroves had personally



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                                 STATE V. WILLIAMS

                                  Opinion of the Court



observed defendant selling cocaine from his home the day before defendant’s arrest.

In addition, defendant admitted that he had sold cocaine within several months of

his arrest, and had used cocaine and pills within a few days of trial. Moreover, in the

statement given by defendant at the time of his arrest, he did not claim to have given

up selling cocaine, but stated that he was not selling drugs at the moment because

the available cocaine was of low quality. We easily conclude that the State presented

an abundance of incriminating circumstances, and that the evidence was sufficient

to allow a reasonable juror to find, although defendant’s access to the cocaine was

non-exclusive, that he was in constructive possession of the evidence seized from his

room. The trial court did not err by denying defendant’s motion to dismiss the charge.

      Defendant’s argument that the State failed to offer adequate evidence of

incriminating circumstances tying him to the items seized in his room rests primarily

on his assertions that his brother also had access to the area where the drugs were

found, and that there were deficiencies in the State’s evidence, such as the absence of

fingerprints. For “circumstantial evidence to be sufficient to overcome a motion to

dismiss, it need not, however, point unerringly toward the defendant’s guilt so as to

exclude all other reasonable hypotheses.” State v. Steelman, 62 N.C. App. 311, 313,

302 S.E.2d 637, 638 (1983) (citing State v. Jones, 303 N.C. 500, 279 S.E. 2d 835

(1981)). Regarding the absence of certain forensic evidence, “[a]lthough defendant

was certainly free to argue this theory to the jury, these additional facts make the



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                                  STATE V. WILLIAMS

                                   Opinion of the Court



State's evidence no less sufficient to send to the jury.” Butler, 356 N.C. at 148, 567

S.E.2d at 141.

      Defendant also asserts that the outcome of the present case is controlled by

State v. McLaurin, 320 N.C. 143, 357 S.E.2d 636 (1987). However, McLaurin is

readily distinguishable, as in that case “there was no evidence of other incriminating

circumstances linking [the defendant] to [the contraband.]” McLaurin, 320 N.C. at

147, 357 S.E.2d at 638. In the present case, as detailed above, there were numerous

incriminating circumstances.

      This argument is without merit.

                               III. Evidence of Prior Bad Acts

      In his second argument, defendant contends that it was plain error for the trial

court to admit evidence of defendant’s prior criminal activity and his association with

a street gang. Defendant characterizes this as evidence admitted under North

Carolina Rules of Evidence 404(b), which provides that evidence of “other crimes,

wrongs, or acts” may be admissible for purposes “such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or

accident.” Because defendant did not object to admission of the evidence, we have no

way to know whether the prosecutor might have sought its admission on some other

basis. We conclude, however, that admission of the challenged evidence, even if error,

did not amount to plain error on the facts of this case.



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                                 STATE V. WILLIAMS

                                  Opinion of the Court



      “In criminal cases, an issue that was not preserved by objection noted at trial

and that is not deemed preserved by rule or law without any such action nevertheless

may be made the basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to plain error.” N.C. R.

App. P. 10(a)(4). However:

             For 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 testimony to which defendant objects on appeal falls into two main

categories. First, defendant challenges the admission of testimony by Detective

Seagroves indicating that defendant had previously been charged with or convicted

of criminal offenses, including his testimony that he had arrested defendant at the

Washington Street address, that he knew defendant through his work as a police

officer, and that there was a release order in defendant’s bedroom. However,

Defendant testified at trial, was examined about his criminal record, and admitted to

engaging in illegal activities, including gambling and selling drugs. We hold that


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                                   Opinion of the Court



Detective Seagroves’s references to defendant’s criminal past did not add appreciably

to defendant’s own admissions, and did not have a probable effect on the jury’s finding

that defendant was guilty.

      Secondly, defendant argues that it was plain error to allow Detective Seagroves

to suggest that defendant was involved with a street gang, and directs our attention

to the officer’s testimony that the red bandana found in defendant’s bedroom was a

type favored by gang members and that there was a “file” on defendant in the police

department’s gang unit. However, defendant admitted at trial that he “was affiliated

with” gang members. Defendant also argues on appeal that the officer testified

“without objection” that defendant had a gang tattoo, and that the State “elicited from

the detective during its case-in-chief that on a previous occasion [defendant] had ‘self-

admitted’ to being involved in gang activity.” Contrary to defendant’s assertion, it

was defendant who elicited this testimony on cross-examination:

             DEFENSE COUNSEL: . . . [Y]ou said you had a file or
             something on Mr. Williams previously? Is that correct?

                                           ...

             A. Are you talking about the gang? Anytime we have
             interactions with anybody, we create a file on someone . . .
             if there was another case where they’re observed wearing
             a flag or if they self-admitted.

             Q. All right. Did Mr. Williams ever self-admitted?

             A. He self-admitted to me before.



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                                  STATE V. WILLIAMS

                                   Opinion of the Court



                                           ...

               Q. Did he admit that he was involved in any gang activity?

               A. Yes, sir. He actually has a gang tattoo right on his
               forehead.


         We agree with defendant that his affiliation with a gang was not relevant to

the issues in this case. However, given defendant’s admissions at trial and the

strength of the State’s evidence, we hold that the references to defendant’s possible

gang membership did not have a probable impact on the jury’s finding that he was

guilty. Defendant has failed to establish that the admission of evidence regarding his

prior criminal record and his affiliation with a gang, even if error, amounted to plain

error.

         This argument lacks merit.

                             IV. Ineffective Assistance of Counsel

         Defendant's final argument is that he was denied the effective assistance of

counsel. “Generally, claims of ineffective assistance of counsel should be considered

through motions for appropriate relief and not on direct appeal. A motion for

appropriate relief is preferable to direct appeal[.]’ ” State v. Johnson, 203 N.C. App.

718, 722, 693 S.E.2d 145, 147 (2010) (quoting State v. Stroud, 147 N.C. App. 549, 554,

557 S.E.2d 544, 547 (2001)). Defendant’s claim of ineffective assistance of counsel is

dismissed, without prejudice to his right to file a motion for appropriate relief in the

trial court.

                                          - 12 -
                                  STATE V. WILLIAMS

                                   Opinion of the Court



                                        V. Conclusion

      For the reasons discussed above, we conclude that defendant had a fair trial,

free of reversible error, and that his claim of ineffective assistance of counsel should

be dismissed without prejudice.

      NO    ERROR      AS   TO    TRIAL,     DISMISSED      AS    TO   INEFFECTIVE

ASSISTANCE OF COUNSEL CLAIM.

      Judges STEPHENS and McCULLOUGH concur.

      Report per Rule 30(e).




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