              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1213

                              Filed: 5 September 2017

Mecklenburg County, Nos. 14 CRS 224971, 225816, and 43298

STATE OF NORTH CAROLINA, Plaintiff,

             v.

CHARLES BERNARD ROBINSON, Defendant.


      Appeal by defendant from judgment entered 19 February 2016 by Judge R.

Gregory Horne in Mecklenburg County Superior Court.          Heard in the Court of

Appeals 10 August 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Martin T.
      McCracken, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Hannah H.
      Love, for defendant-appellant.


      ZACHARY, Judge.


      Charles Bernard Robinson (defendant) appeals from the judgments entered

upon his conviction of possession of cocaine with the intent to sell or deliver and

possession of a firearm by a felon, and from his plea of guilty to having attained the

status of an habitual felon. On appeal, defendant argues that the trial court erred by

denying his motion to suppress evidence, and committed plain error in its instructions

to the jury on actual and constructive possession. After careful consideration of
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                                  Opinion of the Court



defendant’s arguments, we conclude that the court did not err by denying his

suppression motion, and that the court’s instructions did not constitute plain error.

                                        Background

      On 26 June 2014, Detective C.T. Davis of the Charlotte-Mecklenburg Police

Department applied for and was issued a search warrant authorizing him to search

a house located at 3627 Corbett Street, in Charlotte, North Carolina. During the

search, law enforcement officers seized two firearms, marijuana, and cocaine.

Defendant was present during the search and made inculpatory statements to a law

enforcement officer, admitting ownership of the firearms and the cocaine.

      On 3 November 2014, defendant was indicted for possession of cocaine with the

intent to sell or deliver, possession of marijuana, maintaining a dwelling for the

purpose of keeping or selling controlled substances, possession of a firearm by a

person previously convicted of a felony, and having attained the status of an habitual

felon. Prior to trial, the State dismissed the charges of possession of marijuana and

maintaining a dwelling for the purpose of keeping or selling controlled substances.

On 6 November 2015, defendant filed a motion asking the court to suppress the

evidence that was seized during the search of the Corbett Street residence and the

statements defendant made to law enforcement officers during the search. Defendant

alleged that the search warrant was not based upon probable cause and that the

statements he made “were involuntary and made as the result of mental or



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psychological pressure[.]” Defendant was tried before the trial court and a jury

beginning on 16 February 2016. Prior to trial, the trial court conducted a hearing on

defendant’s suppression motion, and orally denied defendant’s motion to suppress

evidence. The court entered a written order on 1 March 2016.

      The State’s evidence at trial tended to show, in relevant part, the following:

Detective Todd Hepner of the Charlotte-Mecklenburg Police Department testified

that he and several other officers executed the search warrant for the Corbett Street

residence. When Detective Hepner entered the house, defendant was present, along

with his wife, Armisher Glenn, and the couple’s two children. In the master bedroom,

Detective Hepner and another officer found a .44 caliber revolver, a shotgun, cocaine,

and marijuana. Detective Charlie Davis testified that on 26 June 2014 he obtained

and executed a search warrant for the house located at 3627 Corbett Street,

Charlotte. He described for the jury the process of searching the house and the items

that were seized. After the contraband had been located and placed on the bed,

defendant was brought into the bedroom by another officer and accurately identified

the location within the bedroom where each of the items had been stored. Andrew

Oprysko, a chemist for the Charlotte-Mecklenburg Police Department, testified as an

expert in forensic chemistry that forensic testing had identified the material seized

during the search of the Corbett Street house as cocaine.




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      Detective Sidney Lackey testified that while other officers were searching the

house, he interviewed defendant. During this interview, defendant admitted that the

cocaine, marijuana, and firearms discovered by the law enforcement officers belonged

to him. The State accepted defendant’s stipulation to the fact of his prior conviction

of a felony for purposes of the charge of possession of a firearm by a felon.

      Defendant also presented evidence at trial. Armisher Glenn testified that she

was defendant’s wife and that she had never known defendant to be in possession of

cocaine or to sell drugs. Neither she nor defendant owned any firearms; however, Ms.

Glenn’s brother had asked to store two guns at her house and she assumed that these

were the firearms seized by the police. In June of 2014, defendant and Ms. Glenn

were separated due to marital difficulties; however, defendant sometimes visited the

family home. On one occasion, Ms. Glenn’s sister, Ms. Luba Hill, watched the children

while defendant and Ms. Glenn went out to supper. Upon their return, defendant

engaged in a conflict with his nephew, Ms. Hill’s son. Assault charges were filed

against defendant and his nephew, but were later dismissed. Ms. Hill remained

angry at defendant after this altercation and made false reports about Ms. Glenn to

the Department of Social Services. Ms. Hill’s daughter, Kiarra Hill, testified about

Ms. Hill’s anger about the conflict between her son and defendant, and about

statements her mother made in which she threatened to “get” an unnamed person.

Candace Glenn testified that Armisher Glenn and Luba Hill were her daughters, and



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that Ms. Hill was very angry about the fight between defendant and Ms. Hill’s son.

At one point Ms. Hill was holding a “rock” of some substance and threatened to “get”

defendant.

      Defendant testified on his own behalf at trial. He denied owning firearms or

cocaine or selling cocaine in 2014. Defendant testified about the fight between him

and his nephew and about his belief that his arrest was the result of being “set up”

by Ms. Hill. He was not aware that there were drugs or firearms in the house on 26

June 2014. Although the contraband did not belong to him, defendant made

inculpatory statements to Detective Lackey in order to prevent the police from

arresting Ms. Glenn and placing his children in the custody of DSS. On cross-

examination, defendant admitted to having prior criminal convictions, including a

2009 conviction for identity theft.

      Following the presentation of evidence, the arguments of counsel, and the trial

court’s instructions, the jury returned verdicts finding defendant guilty of possession

of cocaine with the intent to sell or distribute and with possession of a firearm by a

convicted felon. Defendant then entered a plea of guilty to having the status of an

habitual felon. The trial court sentenced defendant to concurrent sentences of 83 to

112 months’ imprisonment for possession of a firearm by a felon, and 73 to 100

months’ imprisonment for possession of cocaine with the intent to sell or deliver.

Defendant gave notice of appeal in open court.



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                                          Standard of Review

       Defendant argues that the trial court erred by denying his motion to suppress.

“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. Biber, 365 N.C. 162, 167-68,

712 S.E.2d 874, 878 (2011) (citation omitted).

       Defendant also argues that the trial court erred by instructing the jury that it

could find that he was in either actual or constructive possession of the firearms and

cocaine in the house, on the grounds that there was no evidence to support a finding

of actual possession. As defendant did not object to this instruction at trial, we review

only for plain error. Under this standard, the 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.”

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

                                    Denial of Suppression Motion

       Defendant argues that the trial court erred by denying his motion to suppress

the evidence seized pursuant to the search of the Corbett Street residence.1



       1On appeal, the State argues that defendant lacked standing to challenge the search warrant,
and that he failed to object at trial to the introduction of the evidence that was seized during the
search. We conclude that these arguments lack merit and do not require further discussion.

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Defendant’s motion also sought to suppress the statements defendant made to

Detective Lackey at the time of the search; however, defendant has not pursued this

argument on appeal and, accordingly, it is deemed to be abandoned. See N.C. R. App.

P. 28(a) (“Issues not presented and discussed in a party’s brief are deemed

abandoned.”). The sole basis of defendant’s appellate argument that the trial court

erred by denying his suppression motion is his contention that, when Detective Davis

executed a sworn affidavit in support of his application for a search warrant, he made

“a knowingly false statement that, if omitted, would render the search warrant

insufficient to establish probable cause.” However, at the trial level, defendant did

not argue that the statements which Detective Davis included in the affidavit were

made in bad faith or reckless disregard of the truth. As a result, defendant has not

preserved this issue for appellate review. Moreover, even assuming, arguendo, that

this issue were preserved, defendant has failed to show that the trial court erred by

denying his motion to suppress.

      It is well-established that:

             The requirement that a search warrant be based on
             probable cause is grounded in both constitutional and
             statutory authority. U.S. Const. amend. IV; N.C.G.S. §
             15A-244 [(2015)]. Probable cause for a search is present
             where facts are stated which establish reasonable grounds
             to believe a search of the premises will reveal the items
             sought and that the items will aid in the apprehension or
             conviction of the offender. It is elementary that the Fourth
             Amendment’s requirement of a factual showing sufficient



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             to constitute “probable cause” anticipates a truthful
             showing of facts.

State v. Fernandez, 346 N.C. 1, 13, 484 S.E.2d 350, 358 (citing Franks v. Delaware,

438 U.S. 154, 164-65, 57 L. Ed. 2d 667, 678 (1978)). However:

             There is a presumption of validity with respect to the
             affidavit supporting the search warrant. Before a
             defendant is entitled to a hearing on the issue of the
             veracity of the facts contained in the affidavit, he must
             make a preliminary showing that the affiant knowingly, or
             with reckless disregard for the truth, made a false
             statement in the affidavit. . . . A claim under Franks is not
             established merely by evidence that contradicts assertions
             contained in the affidavit, or even that shows the affidavit
             contains false statements. Rather, the evidence must
             establish facts from which the finder of fact might conclude
             that the affiant alleged the facts in bad faith.

Fernandez, 346 N.C. at 14, 484 S.E.2d at 358 (citations omitted).

      The motion that defendant filed seeking the suppression of evidence seized

pursuant to the execution of a search warrant for the Corbett Street house disputes

the accuracy of two sections of the affidavit. First, defendant objects to the statement

in the affidavit that he gave 3627 Corbett Street as his address “in April of 2013

during a domestic violence arrest.” The incident to which this allegation refers was

the altercation between defendant and his nephew, which resulted in both being

charged with assault. At the hearing on his suppression motion, defendant argued

that this was not a “domestic violence” arrest. In addition, during the hearing on his

motion, the parties agreed that the arrest had actually taken place in May of 2014,



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rather than April, 2013. However, defendant neither disputed that at the time of his

arrest he gave 3627 Corbett Street as his address, nor argued that these inaccuracies

were made in bad faith or with a reckless disregard for the truth. Furthermore,

defendant did not argue at the hearing or on appeal that the details of this arrest

were important to the magistrate’s determination that probable cause existed for the

issuance of the search warrant.

      Defendant’s primary challenge was to the section of Detective Davis’s affidavit

concerning the use of a confidential and reliable informant, referred to in the affidavit

as a “CRI.” The affidavit states the following:

             In June of 2014, this applicant began utilizing a CRI to
             complete the investigation on Charles Bernard Robinson.
             This Applicant obtained a 2006 Mug shot photo of Charles
             Bernard Robinson and showed the photograph to the CRI.
             The CRI advised that Charles Bernard Robinson was
             known on the streets as “Red.” The CRI confirmed that
             Charles Bernard Robinson sold crack cocaine and that he
             operated from the telephone number (704)-819-4383. This
             confirmed the information that was provided by the Crime
             Stoppers tipster.
             Within the past 72 hours this confidential and reliable
             informant has purchased “crack” cocaine from Charles
             Bernard Robinson at the residence located on 3627 Corbett
             Street under this Applicant’s direct supervision.
             This Applicant has known this confidential informant for
             over (28) months. During this time, this informant has
             provided intelligence information regarding Drug
             distributors in the Charlotte area that this Applicant has
             verified to be true and factual. This informant has
             admitted to using and selling controlled substances in the
             past and is familiar with how they are packaged and sold
             on the streets of Charlotte. This informant has made


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              purchases of controlled substances under this Applicant’s
              direct supervision.

       In his suppression motion, defendant states that he was not known by the

street name Red, was not selling cocaine from the Corbett Street house, and had not

sold crack cocaine “in the recent past.” However, the suppression motion does not

assert that these alleged inaccuracies were the result of bad faith, intentional

misstatement, or reckless indifference to the truth. Instead, the thrust of defendant’s

suppression motion and of his argument before the trial court was that the allegations

in Detective Davis’s affidavit were insufficiently detailed to establish probable cause

for the issuance of a search warrant. Defendant contends in the suppression motion

that the information in the affidavit concerning the CRI’s purchase of crack cocaine

was “insufficient to reach the level of probable cause[.]” Defendant supports this

assertion with quotations from State v. Taylor, 191 N.C. App. 587, 664 S.E.2d 421

(2008).

       At the hearing on the suppression motion, defendant argued that the

characterization of his arrest for assault as a “domestic violence” incident was

misleading. Regarding the information in the affidavit about the controlled buy,

defense counsel informed the trial court that “the case [he was] relying on” was State

v. Taylor, cited above. Defendant’s counsel discussed the holding of Taylor at length

as it related to the level of detail required for an affidavit’s description of a controlled

buy of drugs. Defense counsel summarized his argument as follows:


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            MR. CLIFTON: In this case, we’ve got the past 72 hours
            this confidential reliable informant has purchased crack
            cocaine from Charles Bernard Robinson at the residence
            located on 3627 Corbett Street under this affiant’s direct
            supervision, and to me that just doesn’t fit what State v.
            Taylor is calling for. It appears to me to be insufficient, and
            that’s why I’m arguing this motion to suppress should be
            granted. There’s nothing about the cocaine being turned
            over to the officer, and it doesn’t even say in here that he
            saw him go into the house or make the buy. So in other
            words, to me, it does not meet the standards that are set
            out in Taylor. In Taylor, you know, the motion -- they
            affirmed the trial court’s granting of the defendant’s
            motion to suppress. This case is dated from 2008, which I
            believe this postdates all these cases that [the prosecutor]
            presented to you, so it just looks to me like there’s not
            enough in this affidavit to lead to a finding of probable
            cause in order to go into somebody’s house.

      The prosecutor argued that the facts of Taylor were distinguishable, and then

addressed the issue of whether the affidavit contained incorrect statements:

            MS. HONEYCUTT: As far as the other sub issue, incorrect
            information in the search warrant, I was referring to . . .
            the issue Mr. Clifton already addressed as far as the
            previous arrest at that location. . . . [State v.] Fernandez
            says that when a search warrant is issued on the basis of
            an affidavit containing false facts which are necessary to a
            finding of probable cause, the defendant has to prove by a
            preponderance of the evidence that the facts were asserted
            with knowledge of their falsity or reckless disregard for the
            truth. Fernandez also says that before the defendant is
            entitled to a hearing on the issue of the veracity of the facts
            contained in the affidavit, he has to make a preliminary
            showing that the affiant either knowingly or with reckless
            disregard for the truth made a false statement in the
            affidavit and that he must establish facts from which the
            finder of fact might conclude that the affiant alleged the
            facts in bad faith. . . . [T]he defendant hasn’t made -- in any


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             way established that the affiant was acting in bad faith
             when he alleged the incorrect date and that the defendant
             was arrested at this address.

      Thereafter, defense counsel called defendant to testify about the facts set out

in the affidavit. Defendant testified in detail regarding the altercation with his

nephew, his living situation at the time of his arrest, and his lack of recent criminal

activity. He also made a single, conclusory, statement about the controlled buy:

             MR. CLIFTON: Okay. All right, now the affidavit that
             Detective Davis filed states that the confidential informant
             bought cocaine from you three days before -- sometime in
             the three days before the search warrant was served. What
             do you have to say about that?

             DEFENDANT: I say that’s a lie.

             MR. CLIFTON: Okay.

      After hearing the testimony offered to support or challenge the issuance of a

search warrant, the trial court asked defense counsel if he wished to be heard on the

issue of Detective Davis’s good faith in executing the affidavit, and defendant’s

attorney said he did not want to address the issue. The prosecutor then argued that

defendant’s bare denial did not establish bad faith, citing an unpublished case from

this Court, State v. Price, __ N.C. App. __, __ S.E.2d __ (2005 N.C. App. Lexis 556)

(unpublished):

             MS. HONEYCUTT: Your Honor, I’ll just point out that in
             State v. Price, which is one of the first cases I handed up, it
             also addresses the issue of the defendant testifying as far
             as incorrect or false information in the affidavit. It


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              specifically says in that case that the defendant’s testimony
              that he didn’t sell was mere contradictory evidence that
              doesn’t show bad faith. In that case, the defendant took the
              stand and said he didn’t sell to an informant, and the Court
              ruled that that was not enough to show bad faith on the
              facts of the affiant which is contradictory evidence to what
              was in the search warrant, and I would say that’s what we
              have here.

       In response to the prosecutor’s argument, defendant’s attorney did not contend

that bad faith on the part of Detective Davis could be established on the basis of

defendant’s bare denial, and repeated that the basis for the suppression motion was

the lack of detail in the affidavit:

              MR. CLIFTON: Okay. And, Your Honor, I understand that.
              I mean, I’m hanging my hat on the -- State v. Taylor
              basically. I don’t know how we could get into it at trial
              where the State’s going to say this happened, he’s going to
              say no, there’s no way that happened. That’s not going to
              do any good, but certainly the State v. Taylor language, I
              think, does.

              THE COURT: Thank you, Mr. Clifton.

       On appeal, defendant limits his argument to the section of the affidavit

concerning the purchase of crack cocaine by a CRI. Defendant contends that the issue

of Detective Davis’s bad faith was raised at the trial level and that defendant’s

statement at the hearing that these allegations were “a lie” served to “establish” that

the detective knowingly made false statements in the affidavit.

       We have carefully reviewed defendant’s suppression motion and the transcript

of the hearing on the motion. We conclude that at no time did defendant argue that


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                                  Opinion of the Court



Detective Davis had knowingly made false statements in the affidavit or that he had

acted in bad faith or in reckless disregard for the truth. Instead, defendant’s

suppression motion was based on a question of law: whether the allegations contained

in the affidavit were sufficiently detailed to permit the magistrate to issue a search

warrant upon a finding of probable cause. “This Court has long held that where a

theory argued on appeal was not raised before the trial court, ‘the law does not permit

parties to swap horses between courts in order to get a better mount in the Supreme

Court.’ ” State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v.

Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). See also State v. Benson, 323 N.C.

318, 321-22, 372 S.E.2d 517, 518-19 (1988) (applying the “no swapping horses” rule

where defendant relied on one theory at trial as basis for written motion to suppress

and then asserted a different theory on appeal).

      On appeal, defendant asserts that the “veracity” of Detective Davis’s

allegations in the affidavit was “before the trial court” at the hearing on his

suppression motion. However, defendant has failed to identify any instances in which

he argued before the trial court that Detective Davis had knowingly made false

statements in the affidavit or had acted in bad faith.

      Defendant also directs our attention to selected excerpts from Detective Davis’s

testimony at trial. During cross-examination, defense counsel attempted to ask the

detective for the basis of the information about defendant’s home address contained



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in the affidavit. The prosecutor objected, saying that they “had already dealt with

the search warrant” and the trial court sustained the objection. In the absence of the

jury, defense counsel brought up the issue of Detective Davis’s good faith for the first

time, and only as it related to the characterization of defendant’s arrest as being for

domestic violence:

             THE COURT: In terms of the second issue, I was going to
             allow you to make a proffer, if you wish, with regard to your
             question concerning the search warrant. Again, this being
             outside the presence of the jury. I sustained the objection
             but if you wish to be heard further regarding that outside
             the presence of the jury, I’m happy to hear it.

             MR. CLIFTON: It’s my client’s concern that it was done out
             of bad faith by Detective Davis. That sentence in the search
             warrant about it being a domestic violence connected to an
             arrest at this address. He sees that as a bad faith --
             something put into the search warrant out of bad faith on
             the part of the detective, and that’s why he wants me to
             bring it up.

                                           ...

             MS. HONEYCUTT: Your Honor, I would say that the
             Court has already addressed the issue of bad faith. This is
             not a situation where the search warrant is in front of the
             jury and they’re thinking that something is true that
             wasn’t because of what’s in that search warrant. They don’t
             have that before them, and I think we’ve already addressed
             that issue.

             THE COURT: All right. I have sustained the State’s
             objection previously. I will continue with that same ruling,
             but it is on the record the basis by which the question is
             reserved for review.



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      On appeal, defendant contends that this dialogue establishes that Detective

Davis’s good faith in asserting that a CRI had made a controlled buy of cocaine “is

properly before this Court.” However, defense counsel’s belated reference to the

detective’s “bad faith” in using the term “domestic violence” does not alter the fact

that neither defendant’s written motion nor his argument during the hearing on the

suppression motion ever asserted that Detective Davis had made knowingly false

statements regarding the controlled buy. We conclude that defendant’s appellate

argument, that the allegations in the affidavit concerning the purchase of cocaine by

a CRI were knowingly false and made in bad faith, was not raised before the trial

court and therefore was not preserved for appellate review.

      Our conclusion on this question does not reflect a technical default, but an

issue of fundamental fairness. On appeal, defendant stresses that Detective Davis

“did not testify at the suppression hearing” and that “the State did not put on any

evidence relating to the controlled buy.” Appellate counsel argues that defendant’s

“uncontroverted testimony that he did not sell cocaine in the 72 hours before the

search warrant was executed was evidence of bad faith.” However, as discussed

above, at the hearing on his suppression motion, defendant relied upon a legal

argument - that, even if the allegations in the affidavit were true, they were

insufficient to establish probable cause for the issuance of a search warrant. Given

that defendant did not argue at the hearing that Detective Davis had acted in bad



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faith, the State had no reason to offer testimony from the officer on the issue of his

good faith. Moreover, the trial court was not asked to rule on this issue; in fact, when

the prosecutor argued that defendant’s conclusory statement that the affidavit was

“a lie” did not establish bad faith, defense counsel conceded as much and stated that

he was “hanging his hat” on the legal argument based on State v. Taylor.

      Finally, we observe that even assuming that this issue were preserved,

defendant has failed to show that he is entitled to relief.        The sworn affidavit

submitted by Detective Davis contained a comprehensive explanation of the basis for

the application for a search warrant, including information as to (1) Detective Davis’s

extensive experience in law enforcement and specifically in the investigation of

crimes involving controlled substances; (2) the tip received through the Crime

Stoppers organization that included many details about defendant’s drug dealing; (3)

corroboration of defendant’s address through investigative research; (4) the fact that

defendant’s prior criminal record included a 2001 conviction for possession of cocaine;

(5) the basis of Detective Davis’s belief that the CRI was a reliable informant, and;

(6) the CRI’s purchase of cocaine from defendant. Defendant’s opposition to the

affidavit consisted of a conclusory assertion that it was “a lie.” It is axiomatic that:

             An appellate court’s review of a trial court’s order on a
             motion to suppress “is strictly limited to a determination of
             whether its findings are supported by competent evidence,
             and in turn, whether the findings support the trial court’s
             ultimate conclusion.” Because the trial court, as the finder
             of fact, has the duty to pass upon the credibility of the


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             evidence and to decide what weight to assign to it and
             which reasonable inferences to draw therefrom, “the
             appellate court cannot substitute itself for the trial court in
             this task.”

State v. Villeda, 165 N.C. App. 431, 437-38, 599 S.E.2d 62, 66 (2004) (quoting State v.

Allison, 148 N.C. App. 702, 704, 559 S.E.2d 828, 829 (2002), and Nationsbank of North

Carolina v. Baines, 116 N.C. App. 263, 269, 447 S.E.2d 812, 815 (1994)).

      In this case, the trial court found that the affidavit established that the CRI

had purchased cocaine from defendant within 72 hours before the issuance of the

search warrant. Defendant objects to the use of the word “established,” and argues

that because defendant called the affidavit a lie, “the affidavit could not ‘establish’

evidence of its own truthfulness.” Defendant contends that the trial court should

have instead found only that the affidavit “stated” certain things. However, the trial

court’s use of the word “established” clearly indicates that the court is finding the

statement to be accurate. In contrast, a court’s recitation of what a witness or

document “stated” does not constitute a finding of fact. Moore v. Moore, 160 N.C. App.

569, 571-72, 587 S.E.2d 74, 75 (2003) (“Recitations of the testimony of each witness

do not constitute findings of fact by the trial judge[.]”). Furthermore, defendant has

offered no reason why the trial court could not consider both defendant’s testimony

that the affidavit was “a lie” as well as the contents of the sworn affidavit, in order to

make a determination of the facts.




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      For the reasons discussed above, we conclude that defendant failed to preserve

for appellate review the argument that Detective Davis knowingly and in bad faith

made false statements in the affidavit. We further conclude that, even assuming that

this issue were preserved, defendant has not shown that the trial court erred in its

assessment of the weight and credibility of the evidence.

                                 Instructions on Possession

      Defendant also argues that the trial court erred by instructing the jury on both

actual and constructive possession, on the grounds that there was no evidence to

support an instruction on actual possession. We conclude that defendant is not

entitled to relief on the basis of this argument.

      At the close of all the evidence, the prosecutor requested that the trial court

instruct the jury on both actual and constructive possession, and defense counsel

agreed to this. Upon review of the printed copies of the instructions that the trial

court intended to give the jury, defendant’s attorney had no requests for changes.

After the jury was instructed, defense counsel informed the trial court that he had no

objections or requests for additions or modifications. We conclude that defendant did

not object at trial to the instruction that he challenges on appeal.

      “Because defendant did not object to the instruction as given at trial, we

consider whether this instruction constitutes plain error. See N.C. R. App. P. 10(a)(4);

see also State v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012).” State v.



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Juarez, __ N.C. __, __, 794 S.E.2d 293, 299 (2016). The plain error standard requires

a defendant to “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.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (internal

quotation omitted). “For plain error to be found, it must be probable, not just possible,

that absent the instructional error the jury would have returned a different verdict.”

Juarez, __ N.C. at __, 794 S.E.2d at 300 (citing Lawrence).

      Our appellate courts previously held that it was per se plain error for a trial

court to instruct the jury on a theory of the defendant’s guilt that was not supported

by the evidence. See, e.g., State v. Tucker, 317 N.C. 532, 540, 346 S.E.2d 417, 422

(1986) (“[I]t would be difficult to say that permitting a jury to convict a defendant on

a theory . . . not supported by the evidence is not plain error even under the stringent

test required to invoke that doctrine.”) However, in State v. Boyd, 222 N.C. App. 160,

167-68, 730 S.E.2d 193, 198 (2012), reversed and remanded, 366 N.C. 548, 742 S.E.2d

798 (2013), the jury was instructed that it could convict the defendant of kidnapping

based upon a finding that the defendant had confined, restrained, or removed the

victim. There was no evidence to support the theory that the defendant had removed

the victim, and on appeal this Court held that the trial court’s instruction constituted




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                                  Opinion of the Court



plain error. Judge Stroud, relying upon standard for plain error set out in State v.

Lawrence, 365 N.C. 506, 723 S.E.2d 326 (2012), dissented:

             I do not believe that defendant has shown “that, absent the
             error, the jury probably would have returned a different
             verdict. Thus, he cannot show the prejudicial effect
             necessary to establish that the error was a fundamental
             error. In addition, the error in no way seriously affects the
             fairness, integrity, or public reputation of judicial
             proceedings.” See Lawrence, [365] N.C. at [519], 723 S.E.2d
             at 335. The omission of approximately ten words relating
             to ‘removal’ from the above jury instructions would, under
             the facts of this particular case, make no difference at all
             in the result. Therefore, I would find no plain error as to
             the trial court’s instructions as to second-degree
             kidnapping.

Boyd, 222 N.C. App. at 173, 730 S.E.2d at 201 (Stroud, J., dissenting). On appeal,

the North Carolina Supreme Court, in a per curiam opinion, reversed for the reasons

stated in the dissent. State v. Boyd, 366 N.C. 548, 548, 742 S.E.2d 798, 799 (2013).

Thus, “under Boyd, a reviewing court is to determine whether a disjunctive jury

instruction constituted reversible error, without being required in every case to

assume that the jury relied on the inappropriate theory.” State v. Martinez, __ N.C.

App. __, __, 801 S.E.2d 356, __ (2017).

      “To prove that a defendant possessed contraband materials, the State must

prove beyond a reasonable doubt that the defendant had either actual or constructive

possession of the materials.” State v. Loftis, 185 N.C. App. 190, 197, 649 S.E.2d 1, 6

(2007) (citation omitted), disc. review denied, 362 N.C. 241, 660 S.E.2d 494 (2008). “A



                                          - 21 -
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                                   Opinion of the Court



person has actual possession of a substance if it is on his person, he is aware of its

presence, and either by himself or together with others he has the power and intent

to control its disposition or use.” State v. Reid, 151 N.C. App. 420, 428-29, 566 S.E.2d

186, 192 (2002) (citation omitted). “Constructive possession exists when the

defendant, ‘while not having actual possession, . . . has the intent and capability to

maintain control and dominion over’ the narcotics.” State v. Matias, 354 N.C. 549,

552, 556 S.E.2d 269, 270 (2001) (quoting State v. Beaver, 317 N.C. 643, 648, 346

S.E.2d 476, 480 (1986)).

      In the present case, Detective Davis testified without objection that he “had

obtained a search warrant for the residence in reference to drugs being sold from the

home” by defendant. When the law enforcement officers searched the Corbett Street

house, defendant was present along with his wife and children. Detective Hepner

and another officer searched the master bedroom, where they found a .44 caliber

revolver, a shotgun, cocaine, and marijuana.        During the search, defendant was

interviewed by Detective Lackey, to whom he admitted owning the firearms and the

cocaine. Defendant testified at trial that, although he and his wife were separated at

the time of the search, he was at the house “pretty much on a daily basis,” and when

defendant was brought into the bedroom, he accurately pointed out where the drugs

and firearms had been, indicating that he had been aware of their presence.




                                          - 22 -
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                                 Opinion of the Court



      Defendant’s defense at trial was that the contraband found in the house did

not belong to him.    Defendant’s wife testified that the marijuana in the house

belonged to her and that her brother had asked to store two firearms in the house.

Defendant and his wife testified that defendant did not own guns or cocaine and did

not sell drugs. In regard to the cocaine found in the house, defendant, his wife, and

several other witnesses testified to circumstances in support of defendant’s theory

that his sister-in-law had planted the drugs in his house in revenge for a fight

between defendant and his nephew.

      We conclude that there was substantial evidence that defendant constructively

possessed the items seized during the search, and defendant has not contested the

sufficiency of the evidence of constructive possession. We agree with defendant that

there was no evidence that defendant was in actual possession of either the firearms

or the narcotics seized from the house. These items were found in the master bedroom

of the home, rather than on defendant’s person. We conclude, however, that

defendant has failed to show that it is “probable, not just possible, that absent the

instructional error the jury would have returned a different verdict.” Juarez at __,

794 S.E.2d at 300. The primary factual issue for the jury to resolve was whether to

find defendant guilty based upon the State’s evidence or to believe defendant’s

explanations for the presence of firearms and cocaine in the house. Simply put, the

question for the jury was whether to believe that defendant’s sister-in-law planted



                                        - 23 -
                                  STATE V. ROBINSON

                                   Opinion of the Court



the drugs and that his wife’s brother was storing weapons in defendant’s house. We

conclude without difficulty that the distinction between actual and constructive

possession did not play a significant role in the jury’s decision.

                                          Conclusion

      For the reasons discussed above, we conclude that the trial court did not err by

denying defendant’s suppression motion and did not commit plain error in its

instructions to the jury. Defendant had a fair trial, free of reversible error.

      NO ERROR.

      Judges DILLON and BERGER, JR. concur.




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