NO. COA09-420 DISTRICT 20
NORTH CAROLINA COURT OF APPEALS
*******************************
STATE OF NORTH CAROLINA )
)
vs. ) From Richmond
) File No. 08-CRS-50573
ANTHONY SHAUN DEBERRY, )
Defendant. )
)
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BRIEF FOR APPELLANT-DEFENDANT
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INDEX
Table of Authorities ii
Questions Presented 1
Statement of the Case 2
Statement of the Grounds for Appellate Review 3
Statement of the Facts 3
Argument:
I. THE TRIAL COURT ERRED BY DENYING MR. DEBERRY‟S 7
MOTIONS TO DISMISS AT THE CLOSE OF THE STATE‟S
EVIDENCE AND AT THE CLOSE OF ALL THE EVIDENCE, AS
THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SUSTAIN A
CONVICTION WHEN THE EVIDENCE RAISED NO MORE THAN A
SUSPICION OF GUILT FOR THE OFFENSES CHARGED
Conclusion 14
Certificate of Compliance 15
Certificate of Filing and Service 16
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TABLE OF AUTHORITIES
CASES
State v. Allen, 102 N.C. App. 598, 608, 403 9
S.E. 2d 907, 913 (1991)
State v. Baldwin, 161 N.C. App. 382, 393, 9
588 S.E.2d. 497, 506 (2003)
State v. Bowens, 140 N.C. App. 217, 535 S.E.2d 9
870 (2000)
State v. Brown, 310 N.C. 563, 568, 313 S.E.2d 12
585, 588 (1984)
State v. Finney, 290 N.C. 755, 228 S.E.2d 443 13
(1976)
State v. Frazier, 142 N.C. App. 361, 542 S.E.2d 10
682 (2001)
State v. Fuller, No. COA08-589 (2009) 9
State v. Givens, 95 N.C. App. 72, 381 S.E.2d 13
869 (1989)
State v. Harris, 157 N.C. App. 647,651, 580 8
S.E. 2d 63, 66 (2003)
State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 12
(1972)
State v. Kraus, 147 N.C. App. 766, 557 S.E.2d 10
144 (2001)
State v. LeDuc, 306 N.C. 62, 291 S.E.2d 607 8
(1982)
State v. Toney, ___N.C. App. ___, 653 S.E.2d 9
187 (2007)
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STATUTES
N.C. Gen. Stat. § 7A-27(b)(2005) 5
N.C. Gen. Stat. § 90-108(a)(7) (2007) 11
NO. COA09-420 DISTRICT 20
NORTH CAROLINA COURT OF APPEALS
*******************************
STATE OF NORTH CAROLINA )
)
vs. ) From Richmond
) File No. 08-CRS-50573
ANTHONY SHAUN DEBERRY, )
Defendant. )
)
******************************
BRIEF FOR APPELLANT-DEFENDANT
*******************************
QUESTIONS PRESENTED FOR REVIEW
I. DID THE TRIAL COURT ERR BY DENYING MR. DEBERRY‟S MOTIONS
TO DISMISS AT THE CLOSE OF THE STATE‟S EVIDENCE AND AT THE
CLOSE OF ALL THE EVIDENCE, AS THE EVIDENCE PRESENTED WAS
INSUFFICIENT TO SUSTAIN A CONVICTION WHEN THE EVIDENCE RAISED
NO MORE THAN A SUSPICION OF GUILT FOR THE OFFENSES CHARGED?
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STATEMENT OF THE CASE
This case came on for trial before the Honorable Michael E.
Beale, Judge Presiding, at the 3 November 2008 Criminal Session
of Richmond County Superior Court. Defendant Anthony Shaun
Deberry was indicted for maintaining a dwelling to keep
controlled substances; possession of drug paraphernalia and
possession of precursor chemicals (R. pp. 7, 14). After a jury
was duly impaneled, a trial was held on all charges (T. pp. 1-
318). During the trial, the court dismissed the charge against
Mr. Deberry for possession of drug paraphernalia but denied Mr.
Deberry‟s motion to dismiss the charges for maintaining a
dwelling to keep controlled substances and possession of
precursor chemicals (T. p. 212).
The jury found Mr. Deberry guilty of “intentionally keeping
a place for keeping a controlled substance” and “possession of
immediate precursor chemical” (R. pp. 32-33). Mr. Deberry
stipulated to being a Level II for sentencing purposes, having
one prior record point (R. p. 34, 36). Judge Beale sentenced
Mr. Deberry to serve a sentence of between 18 and 22 months in
the North Carolina Department of Corrections (R. p. 34). Mr.
Deberry gave written notice of appeal on 13 November 2008 and
the Appellate Defender‟s Office was appointed to perfect
Defendant‟s appeal. On 24 November 2008, the Appellate Defender
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appointed undersigned counsel to perfect Mr. Deberry‟s appeal.
The Record on Appeal in this case was filed on 27 March 2009 and
docketed on 31 March 2009 (R. p. 48).
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
The grounds for appellate review is the final judgment of
the Superior Court under N.C. Gen. Stat. § 7A-27(b).
STATEMENT OF THE FACTS
On 25 February 2008 Detective Smith from the Richmond
County Sherriff‟s Office received a call from the Department of
Social Services, stating that they had received information
about people using or cooking meth in an outbuilding next to a
residence in Hamlet, North Carolina (T. p. 40). Detective Smith
went to the site with Detective Bowman and saw a woman and two
children outside the home (T p. 42). After explaining to the
woman that they had come to investigate a possible meth lab, the
woman told the Detectives that her husband was not home, that he
had gone to the Hamlet Auto Parts Store, and that she would like
the Detectives to wait for her husband to return, which they did
(T. p. 43-44). About five or six minutes later, two white males
pulled up to the home in a Jeep Cherokee (T. p. 44). One of the
males identified himself as the defendant, Mr. Deberry (T.
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p. 44-45). When the officers explained why they were there and
asked for consent to search the outbuilding, Mr. Deberry gave
them permission to search (T. p. 45). According to Detective
Smith, Mr. Deberry did not appear nervous and was, in fact,
“very cooperative” (T. pp. 46, 85). When Detective Smith asked
for a key to the outbuilding, Mr. Deberry looked in his house
before finding the key in his vehicle (T. p. 47-48). As the
three men walked towards the outbuilding, one of Mr. Deberry‟s
children ran ahead and entered the outbuilding through an
unlocked entrance (T. p. 48). A white male then exited the
outbuilding, who identified himself as Brian Lewis, and who told
the officers that he had been sleeping in the outbuilding (T. p.
57-58). The case against Mr. Lewis was later closed after he
died in custody (T. p. 113).
The Detectives entered the outbuilding with Mr. Deberry
once Mr. Lewis stepped outside (T. p. 58). Inside the
outbuilding the Detectives saw mason jars, plastic bottles,
coffee filters, aerosol cans, grinders, scissors, electrical
tape, pliers, salt, tubing, and other items (T. p. 58-61). They
found part of a blender, mason jars, paint thinner, camping
fuel, and aluminum foil (T. p. 68). The Detectives also found a
car seat that “looked like somebody may have been sleeping on
it” with a blanket, a backpack, a heater and a surveillance
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monitor that was connected to a camera on top of the outbuilding
(T. pp. 61, 64-65, 89). After looking around inside the
building, Detective Smith felt that they had confirmed the
presence of a meth lab and needed to exit the outbuilding for
safety reasons (T. p. 61). Mr. Deberry and Mr. Lewis were
handcuffed and removed to the outside of the building, and the
Detectives began calling their supervisors and other emergency
personnel (T. p. 61). Detectives Smith and Bowman called their
supervisor to begin the process of securing a search warrant (T.
p. 70).
While the Detectives were waiting for the search warrant, a
white car pulled up to the home (T. p. 71). Detective Smith
walked up to the car, explained that the area was a crime scene
and asked that the driver and passenger leave (T. p. 71). The
men in the car said that they did not want to leave, and
Detective Smith again asked them to go (T. p. 71). The driver
got out of the car, said he “wasn‟t going anywhere without his
grandkids,” and started walking towards the house (T p. 71).
When Detective Smith stepped in his path, they “got into a
little tussle” and both the defendant‟s father (the driver) and
defendant‟s brother (the passenger) were arrested (T. p. 72).
SBI agents arrived and sometime later the officers‟
supervisor, Lieutenant Jebo Starling, secured a search warrant
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(T. pp. 73, 72). The SBI agents searched the house and the
outbuilding (T. p. 73). The only item of interest found in the
house was a piece of tin foil with burn marks that was found on
top of a cabinet (T. p. 73). No methamphetamine or precursor
chemicals were found in the home (T. p. 96). According to
Special Agent Charles Lee Newcombe, all of the items were found
“either in the shed or close to the shed” (T. p. 94, 110).
Special Agent Todd Hummel, an SBI forensic chemist at the
time, was one of the SBI agents called to the scene (T. p. 126).
Agent Hummel found nothing of interest in the house, and then
surveyed the outbuilding for signs of methamphetamine production
(T p. 128). In the outbuilding, Agent Hummel saw a stove,
electronics, a table, a dresser, tool boxes and a cabinet (T. p.
130). He found coffee filters, a digital scale, a funnel, mason
jars, foil, toluene, drain opener, a blender and salt (T. p.
136). The coffee filters later tested positive for residual
methamphetamine and pseudoephedrine, and the blender parts
tested positive for pseudoephedrine (T. p. 153). In a burn pile
directly outside the outbuilding, Agent Hummel found lithium
battery packaging, sulfuric acid bottles, tubing, and plastic
bottles (T. pp. 142-147). Agent Hummel said he found “two and a
half” of the three parts needed to make methamphetamine,
specifically, pseudoephedrine, lithium and ammonia; Agent Hummel
did not, however, find any finished controlled substance (T. pp.
-7-
166, 173). According to Agent Hummel, meth labs are easy to set
up quickly, and production takes just two to three hours (T. pp.
73-74).
Another item found in the burn pile, a CVS receipt, was
confirmed by a CVS pharmacist to correspond to a purchase Mr.
Deberry had made about a month prior (T. p. 194). According to
the receipt and CVS records, on 28 January 2008 at 11:44 a.m.,
Mr. Deberry purchased 1.44 grams of pseudoephedrine, which the
pharmacist said was likely a box of 48 30-milligram tablets (T.
p. 195). To make the purchase, Mr. Deberry was required to show
his driver‟s license, which was recorded as listing his address
as 234 Gin Mill Road, the address of the residence next to the
outbuilding (T. p. 195). Apart from the CVS receipt in the burn
pile, the State introduced no evidence that linked Mr. Deberry
to the production of methamphetamine in the outbuilding.
ARGUMENT
I. THE TRIAL COURT ERRED BY DENYING MR. DEBERRY‟S MOTIONS TO
DISMISS AT THE CLOSE OF THE STATE‟S EVIDENCE AND AT THE CLOSE OF
ALL THE EVIDENCE, AS THE EVIDENCE PRESENTED WAS INSUFFICIENT TO
SUSTAIN A CONVICTION WHEN THE EVIDENCE RAISED NO MORE THAN A
SUSPICION OF GUILT FOR THE OFFENSES CHARGED.
Assignments of Error Nos. 1, 2, 3 and 4 (R. p. 42)
Appellant will argue the above-referenced assignments
of error simultaneously
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Standard of Review
“In reviewing the denial of a motion to dismiss, this Court
must examine the evidence produced at trial in the light most
favorable to the State to determine if there is substantial
evidence of every essential element of the crime. Evidence is
„substantial‟ if a reasonable person would consider it
sufficient to support the conclusion that the essential element
exists.” State v. Harris, 157 N.C. App. 647,651, 580 S.E. 2d
63, 66 (2003), citing State v. Williams, 151 N.C. App. 535, 539
566 S.E. 2d 155, 159 quoting State v. McKinnon, 306 N.C. 288,
289, 293 S.E. 2d 118, 125 (1982), cert. denied, 356 N.C. 313,
571 S.E. 2d 214 (2002). “If the evidence „is sufficient only
to raise a suspicion or conjecture as to either the commission
of the offense or the identity of the defendant as the
perpetrator of it, the motion for nonsuit should be
allowed....This is true even though the suspicion so aroused by
the evidence is strong.‟” State v. LeDuc, 306 N.C. at 75, 291
S.E.2d at 615, quoting In re Vinson, 298 N.C. 640, 656-57, 260
S.E.2d 591, 602 (1979).
____________________________
A. Intentionally keeping a place for keeping a controlled
substance.
“To obtain a conviction for knowingly or intentionally
keeping or maintaining a place for the purpose of keeping or
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selling controlled substances under N.C. Gen. Stat. § 90-
108(a)(7) (2007), the State has the burden of proving the
Defendant: (1) knowingly or intentionally kept or maintained;
(2) a building or other place; (3) being used for the keeping or
selling of a controlled substance.‟” State v. Fuller, No.
COA08-589 (2009) quoting State v. Frazier, 142 N.C. App. 361,
542 S.E.2d. 682 (2001). “To determine whether a person keeps or
maintains a place under N.C. Gen. Stat. § 90-108(a)(7), the
court considers the following factors, none of which are
dispositive: „ownership of the property, occupancy of the
property, repairs to the property, payment of the utilities, and
payment of rent.‟” State v. Baldwin, 161 N.C. App. 382, 393,
588 S.E.2d. 497, 506 (2003). “A „pivotal‟ question under this
statute „is whether there is evidence that defendant owned
leased, maintained, or was otherwise responsible for the
premises.‟” State v. Toney, ___ N.C. App. ___, 653 S.E.2d 187
(2007) quoting State v. Boyd, 177 N.C. App. 165, 174, 628 S.E.2d
796, 804 (2006). “Maintain means to „bear the expense of; carry
on . . . hold or keep in an existing state or condition.‟”
State v. Allen, 102 N.C. App. 598, 608, 403 S.E. 2d 907, 913
(1991)(quoting Black‟s Law Dictionary 859 (5th ed. 1979)).
In State v. Bowens, 140 N.C. App. 217, 535 S.E.2d 870
(2000), this Court found the evidence inadequate to support
defendant‟s conviction for maintaining and keeping a place to
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keep or sell a controlled substance when it showed only that the
defendant was observed frequenting a residence and male clothes
were found in a closet there, but there was no evidence that
defendant‟s name was on a lease or utility bills or that he was
in any way responsible for the dwelling‟s upkeep. In State v.
Harris, 157 N.C. App. 647, 580 S.E.2d 63 (2003), this Court held
that the State‟s evidence was insufficient when the record
contained no evidence that the defendant owned the property,
bore any expense of renting or maintaining the property or took
any other responsibility for the property.
In State v. Frazier, 142 N.C. App. 361, 542 S.E.2d 682
(2001) the evidence was held to be sufficient to prove that
defendant kept or maintained a hotel room where the State
presented evidence that the defendant lived in the hotel room
where the drugs were found for six or seven weeks, sometimes
paid rent for the room, and was present in the hotel room during
daytime hours. On the other hand, in State v. Kraus, 147 N.C.
App. 766, 557 S.E.2d 144 (2001), this Court held that the
evidence was insufficient to uphold a conviction under N.C. Gen.
Stat. § 90-108(a)(7) when the State‟s evidence only tended to
show that defendant had access to a key, spent the previous
night in the motel room, and was present when the police
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discovered the contraband. In Kraus, the police found the
defendant “glassy-eyed,” “lethargic” and “stoned” in a motel
room with marijuana, marijuana seeds and stems, a box cutter,
cigar wrappers, small plastic bags, and pill bottles. The
police also discovered a small bag containing eighty-five grams
of marijuana in a trash can and a quantity of crack cocaine and
a room key in the drawer of a night stand. Because the State
presented no evidence that the defendant bore the expense of or
otherwise maintained the motel room by renting the room or
otherwise financing its upkeep, the Court held that the State
failed to present sufficient evidence from which a reasonable
jury could infer that defendant maintained the motel room. Id.
In the instant case, the State introduced no evidence that
Mr. Deberry occupied the outbuilding, owned the outbuilding,
maintained the outbuilding, bore the expense of the outbuilding,
was aware of what was going on in the outbuilding or was ever
even in the outbuilding. According to Agent Hummel, meth labs
are easy to set up quickly, and production takes just two to
three hours (T. pp. 73-74). While Mr. Deberry did voluntarily
produce a key to enter the outbuilding, the key was never
confirmed to open the outbuilding and Mr. Deberry could not
immediately recall the key‟s location. Because the evidence was
insufficient to sustain the conviction of intentionally keeping
a place for keeping a controlled substance, the trial court
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erred in denying Mr. Deberry‟s motion to dismiss at the close of
the State‟s evidence.
B. Possession of immediate precursor chemical.
Possession of a substance may be either actual or
constructive. Constructive possession is established by showing
that a person has power and control over the substance at issue.
State v. Allen, 279 N.C. 406, 183 S.E.2d 680 (1971). When an
illegal substance is found in a residence controlled by a
defendant, it permits an inference that the defendant knowingly
possessed and controlled that substance. State v. Harvey, 281
N.C. 1, 187 S.E.2d 706 (1972). It is not necessary to show that
a defendant exclusively possesses the premises where controlled
substances are found, but when possession of the premises is
non-exclusive, constructive possession of the controlled
substance may not be inferred without other incriminating
circumstances. State v. Brown, 310 N.C. 563, 313 S.E.2d 585
(1984).
In the instant case, Mr. Deberry did not maintain exclusive
possession of the outbuilding; therefore, it must be determined
whether sufficient incriminating circumstances existed to infer
that Mr. Deberry had the intent and capability to maintain
control and dominion over the precursor chemical, for which he
was convicted. “Constructive possession of contraband material
exists when there is no actual personal dominion over the
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material, but there is an intent and capability to maintain
control and dominion over it.” State v. Brown, 310 N.C. 563,
568, 313 S.E.2d 585, 588 (1984). ”Where sufficient
incriminating circumstances exist, constructive possession of
the contraband materials may be inferred even where possession
of the premises is nonexclusive.” See id. at 569, 313 S.E.2d at
588-589. Evidence placing the accused within close proximity to
the contraband may support a jury‟s conclusion that the
contraband was in the accused‟s possession, thereby justifying
the denial of a motion to dismiss. See State v. Harvey, 281
N.C. 1, 12-13, 187 S.E. 2d 706, 714 (1972).
The fact that an apartment is leased in a defendant‟s name
is not sufficient to establish he constructively possessed the
marijuana found within the apartment. State v. Finney, 290 N.C.
755, 228 S.E.2d 443 (1976). Even if a defendant knows that
illegal substances are located on the premises of a building he
owns or possesses, there must be additional evidence that the
defendant had the capacity to exercise control and dominion over
it. State v. Givens, 95 N.C. App. 72, 381 S.E.2d 869 (1989).
In State v. McLaurin, 320 N.C. 143, 357 S.E.2d 636 (1987),
the North Carolina Supreme Court held that even when there was
ample evidence that the defendant resided in the residence where
the drug paraphernalia was found and that she was in control of
the premises, because her control was nonexclusive, the evidence
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was not sufficient without any other incriminating circumstances
to prove that she had constructive possession.
In the case sub judice, Mr. Lewis, not Mr. Deberry,
was in the outbuilding when law enforcement arrived. The State
introduced no evidence that Mr. Deberry knew of the precursor
chemicals as nothing in the outbuilding linked Mr. Deberry to
the chemicals. Agent Hummel testified that meth labs are easy
to set up quickly, and production takes just two to three hours
(T. pp. 73-74). Moreover, no evidence was introduced to prove
that Mr. Deberry had the intent and capability to maintain
control and dominion over the chemicals. While Mr. Deberry
appeared to be in possession of a key to the outbuilding, the
Supreme Court held in McLaurin that occupancy and control of a
premise, when not exclusive, is insufficient to support
constructive possession of an illegal material or substance
found on the premises.
CONCLUSION
For the foregoing reasons, the defendant, Anthony Shaun
Deberry, respectfully submits that the evidence was insufficient
to allow the charges of intentionally keeping a place for keeping
a controlled substance and possession of immediate precursor
chemical to go to a jury for a verdict.
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Respectfully submitted the 4th day of May, 2009.
________________________________
Betsy J. Wolfenden
Attorney for Appellant-Defendant
N.C. Bar No. 29521
1829 E. Franklin St., Bldg 600
Chapel Hill, NC 27514
(919) 932-7680
Email: bwolfelaw@att.net
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 28 (j) of the Rules of Appellate
Procedure, counsel for the appellant certifies that the
foregoing brief, which is prepared using a proportional font,
is less than 35 pages (excluding cover, indexes, tables of
authorities, certificates of service, this certificate of
compliance and appendixes) as reported by the word-processing
software.
This the 4th day of May, 2009.
________________________________
Betsy J. Wolfenden
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CERTIFICATE OF FILING AND SERVICE
Pursuant to Rule 26(a)(1) of the North Carolina Rules of
Appellate Procedure, the signature below is a certification that
the foregoing BRIEF has been filed with the Clerk by depositing
said document in an official depository of the United States
Postal Service, first class postage prepaid and properly
addressed as follows:
Office of the Clerk
N.C. Court of Appeals
P.O. Box 2779
Raleigh, NC 27602
The signature below is a certification that a true and
correct copy of this BRIEF has been this date served on the
Attorneys for all known parties by enclosing said document in an
envelope and depositing it in a receptacle under the exclusive
custody and control of the United States Postal Service, first
class postage prepaid, and properly addressed as follows:
Barry h. Bloch, AAG
N.C. Dept. of Justice
P.O. Box 629
Raleigh, NC 27602-0629
This the 4th day of May, 2009.
_________________________________
Betsy J. Wolfenden
Attorney for Defendant-Appellant
1829 E. Franklin St., Bldg. 600
Chapel Hill, NC 27514
(919) 932-7680
Email: bwolfelaw@att.net