Fleming Willie by QGxl4qS

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									No. COA07-1299                                     EIGHTH DISTRICT


                 NORTH CAROLINA COURT OF APPEALS

         ****************************************************

STATE OF NORTH CAROLINA           )
                                  )
            v.                    )        From Wayne
                                  )
WILLIE J. FLEMING                 )

         ****************************************************

                   DEFENDANT-APPELLANT’S BRIEF

         ****************************************************
                       QUESTIONS PRESENTED

I.    WHETHER THE TRIAL COURT ERRED BY DENYING MR.
      FLEMING’S MOTIONS TO DISMISS THE CHARGE OF MAINTAINING
      A DWELLING AS THE STATE FAILED TO ESTABLISH THAT MR.
      FLEMING KEPT OR MAINTAINED THE APARTMENT LOCATED AT
      1401 COURTYARD CIRCLE?

II.   WHETHER THE TRIAL COURT ERRED BY DENYING MR.
      FLEMING’S MOTIONS TO DISMISS THE CHARGE OF POSSESSION
      OF A FIREARM BY A CONVICTED FELON AS THE STATE FAILED
      TO ESTABLISH THAT MR. FLEMING POSSESSED EITHER OF THE
      GUNS DISCOVERED IN BEDROOM CLOSETS AT THE APARTMENT
      LOCATED AT 1401 COURTYARD CIRCLE?

III. WHETHER THE TRIAL COURT ERRED BY DENYING MR.
     FLEMING’S MOTIONS TO DISMISS THE CHARGE OF POSSESSION
     WITH INTENT TO SELL AND DELIVER MARIJUANA AS THE STATE
     FAILED TO ESTABLISH THAT MR. FLEMING POSSESSED THE
     PLASTIC BAG OF MARIJUANA DISCOVERED IN HIS WIFE’S CIGAR
     BOX AT THE APARTMENT LOCATED AT 1401 COURTYARD
     CIRCLE?
                                               2

                             STATEMENT OF THE CASE

         This case came on to be tried at the May 1, 2007 Criminal Session of Wayne

County Superior Court, before the Honorable John E. Nobles, Jr., on indictments

alleging possession with intent to sell and deliver marijuana, knowingly and

intentionally maintaining a dwelling for the use of marijuana, possession of a

firearm by a felon, and habitual felon status. (Rpp. 8-15) 1

         On May 2, 2007, a jury found Mr. Fleming guilty of possession with intent

to sell and deliver marijuana, knowingly maintaining a dwelling, and possession of

a firearm by a felon. (Rpp. 30-32) After Mr. Fleming pled guilty to habitual felon

status (Rpp. 35-38), Judge Nobles consolidated the judgments and imposed a

sentence of 120 to 153 months imprisonment. (Rpp. 39-40) Mr. Fleming gave

notice of appeal in open court. (Rp. 41)

           STATEMENT OF GROUNDS FOR APPELLATE REVIEW

         Mr. Fleming appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b) and

15A-1444(a) from final judgments entered against him in Wayne County Superior

Court.

                            STATEMENT OF THE FACTS

         In July 2005, Mr. Fleming lived with his wife and his cousin, Billy

Troublefield, in the apartment located at 1401 Courtyard Circle. (2Tpp. 33, 129)

1
  References to pages in the Record on Appeal are cited as “Rp.” References to pages in the trial
transcript are cited as “1Tp.”, “2Tp.”, and “3Tp.”
                                        3

Troublefield had lived with the Flemings in apartment 1401 for about eighteen

months. (2Tp. 136)    He had his own bedroom. (2Tp. 139) There was a living

room and kitchen in the front of the apartment. There was a hallway that led from

the kitchen and living room area to the bedrooms. The apartment had two or three

bedrooms. (2Tpp. 34, 81, 87, 90, 103)

      On July 22, 2005, Officer Maurice Coxe of the Wayne County Sheriff’s

Department went to 1401 Courtyard Circle with a warrant to arrest Mr. Fleming

for failure to pay child support. (2Tpp. 44, 128) Coxe knocked on the front door,

and Mr. Fleming’s wife invited him in.      (2Tp. 34)    When Coxe entered the

apartment, Mr. Fleming and his wife were in the living room. Mr. Fleming was

asleep on the sofa. (2Tpp. 35, 88) His wife was on the loveseat. There was a

coffee table between them right in the middle of the living room. (2Tp. 88)

Troublefield was outside at the time. (2Tp. 131)

      Coxe told Mr. Fleming to wake up and explained that he was there for child

support. (2Tpp. 35, 128, 130) Mr. Fleming sat up on the couch and asked if he

could grab a cigarette. (2Tpp. 35, 130) Coxe responded, “I don’t care, just get

your cigarettes so we can go.” (2Tpp. 35-36) Mr. Fleming looked in a couple of

cigarette packs, but they were all empty. (2Tp. 36) He then reached across the

coffee table to a cigar box. (2Tpp. 36, 37, 88, 130) The cigar box belonged to his

wife. She kept hair bows in it. Mr. Fleming occasionally hid cigarettes in his
                                           4

wife’s cigar box so that house guests would not smoke them. (2Tp. 131) As Mr.

Fleming reached for the cigar box, his wife “tried to stop him before he opened

[it].” (2Tpp. 36, 89) When he opened it, he and Coxe looked down into the box

and saw a plastic bag containing individual baggies of marijuana. (2Tpp. 36, 37,

130) Coxe testified that after he opened the box, Mr. Fleming said “I didn’t need

you to see that.” (2Tp. 89)

      Mr. Fleming did not know that his wife’s cigar box contained marijuana.

(2Tp. 132)    Coxe testified that when Mr. Fleming opened the box, “he kind of

hesitated . . . like he just realized . . . that he opened up a box [containing] illegal

drugs.”   (2Tp. 36)     Mr. Fleming told Coxe that the marijuana was not his.

(2Tp. 133) Coxe arrested Mr. Fleming for failure to pay child support, seized the

bag of marijuana (2Tp. 38), and put it in the trunk of his patrol car. (2Tp. 132)

Coxe did not find any drugs on Mr. Fleming. (2Tp. 44) He did not charge Mr.

Fleming with any drug related offenses. (2Tpp. 44, 132)

      Later that afternoon, Coxe met Officer Dusty Johnson of the Wayne County

Sheriff’s Department in the parking lot at the sheriff’s department. (2Tp. 47)

Coxe showed Johnson the bag of marijuana and explained how he came to possess

it. (2Tp. 48) Johnson put the bag in the evidence room and subsequently sent it to

the SBI for chemical analysis. (2Tpp. 38, 49-50)           Expert witness SBI Agent
                                         5

Holshouser testified that the plastic bag contained 11.6 grams of marijuana that had

been divided up into eighteen individual baggies. (2Tp. 112)

      On August 8, 2005, four officers, including Officer Johnson and Officer

Max Staps, went to 1401 Courtyard Circle based on the information and marijuana

Johnson received from Coxe on July 22, 2005. (2Tpp. 53, 108) They did not have

a warrant (2Tp. 78) or probable cause. (2Tp. 79) They intended to conduct a

“knock and talk” and eventually gain consent to enter and search the apartment.

(2Tpp. 47, 78) When officers arrived, Mr. Fleming’s wife was sitting outside in a

chair in front of apartment 1401.    (2Tp. 54) After she allowed the officers to

follow her inside, she sat down in the living room. (2Tpp. 55, 56) Mr. Fleming,

who was sleeping on the sofa, woke up when his wife and the officers entered the

living room. (2Tpp. 55, 134) Troublefield had just stepped out. (2Tp. 135)

      Johnson testified that there were approximately six to twelve empty “corner

baggies” used to package cocaine and marijuana scattered around on the living

room floor. (2Tp. 56) Officers also observed a burnt “roach” in an ashtray.

(2Tpp. 56, 80) The roach was “[n]ot . . . a complete marijuana cigarette . . . .”

(2Tp. 80) It was only “the very bottom burnt paper that at one time was a

marijuana cigarette.” (2Tp. 80) Johnson testified that he did not seize the empty

baggies or the roach because he “was not charging [Mr. Fleming] with

misdemeanor possession of marijuana.” (2Tp. 80) Mr. Fleming testified that there
                                        6

were not any empty baggies or burnt roaches in the apartment. (2Tp. 135) No

empty baggies or burnt roaches were ever entered into evidence.

      Johnson testified that Mr. Fleming told officers “that he was a tenant”

(2Tp. 55) and gave consent for officers to search the apartment.        (2Tp. 57)

Johnson kept Mr. Fleming in the living room while the other officers searched.

(2Tp. 86) During the search, officers found a loaded sawed-off shotgun in the first

bedroom on the right side of the hallway. The gun was in the bottom of the

bedroom closet. (2Tpp. 59-60) They located another loaded sawed-off shotgun in

the first bedroom on the left side of the hallway. The gun was in a duffel bag in

the bottom of the bedroom closet. The duffel bag, which also contained some

shotgun shells, was partially hidden under some dirty laundry. (2Tpp. 60, 68-69,

70-73, 103-105) No other contraband was found. (2Tp. 72)

      Although Mr. Fleming and his wife were never asked who owned the guns

(2Tpp. 83, 138), Mr. Fleming informed officers that the guns were not his.

(2Tp. 135) While Mr. Fleming had never seen the guns before, he thought that the

duffel bag belonged to Troublefield. (2Tp. 139) Johnson testified that he asked

Mr. Fleming if he was a convicted felon, and that Mr. Fleming “advised [that] he

was.” (2Tp. 61)

      Johnson arrested Mr. Fleming and charged him with possession of a firearm

by a convicted felon based on the guns discovered that day. He was also charged
                                          7

with maintaining a dwelling and possession with intent to sell and deliver based on

the marijuana discovered in his wife’s cigar box by Coxe on July 22, 2005.

(2Tpp. 43, 61)

      Officers seized the duffel bag, guns, and shotgun shells and locked them in

the evidence room. (2Tpp. 61-66, 73) They ran the serial numbers and determined

that the guns were not stolen. (2Tp. 83) They did not determine to whom the guns

were registered to at the time. (2Tp. 83) They did not test the guns for fingerprints.

(2Tpp. 81, 106)

      Officers did not know if the apartment had two or three bedrooms.

(2Tpp. 34, 81, 87, 90, 103) They never obtained a list of residents or a copy of the

lease agreement from the apartment manager. (2Tp. 82) They did not find any

personal items, mail, or other documentation with names or addresses. (2Tp. 82)

Officer Johnson thought that Mr. Fleming and his wife lived in the apartment.

(2Tp. 81) Officer Staps “ha[d] no idea who lived there.” (2Tp. 106)

                                   ARGUMENT

I.    THE TRIAL COURT ERRED BY DENYING MR. FLEMING’S
      MOTIONS TO DISMISS THE CHARGE OF MAINTAINING A
      DWELLING AS THE STATE FAILED TO ESTABLISH THAT MR.
      FLEMING KEPT OR MAINTAINED THE APARTMENT LOCATED
      AT 1401 COURTYARD CIRCLE.

      Assignment of Error No. 10, Rp. 49
                                         8

Standard of Review

    Whether the State’s evidence at trial was sufficient presents a question of law,

subject to de novo review by this Court. State v. Bagley, ___ N.C. App. ___, 644

S.E.2d 615, 621 (2007).

Discussion

      Although Mr. Fleming was charged with and convicted of maintaining a

dwelling for the use of marijuana (Rpp. 8-9, 39-40), the State failed to establish

that he kept or maintained the apartment located at 1401 Courtyard Circle. While

Mr. Fleming lived in the apartment and was present when marijuana was

discovered in his wife’s cigar box, no evidence suggested that he owned the

property, bore any expense for renting or maintaining it, or otherwise took any

responsibility for its upkeep. As the State failed to establish that Mr. Fleming kept

or maintained the apartment, the trial court erred by denying his motions to dismiss

(2Tpp. 122, 153) and entering judgment against him for knowingly maintaining a

dwelling. (Rpp. 39-40)

      To obtain a conviction for maintaining a dwelling, the State must prove that

the defendant (1) knowingly or intentionally (2) kept or maintained (3) a dwelling

house, building, or other place (4) used for the keeping or selling of a controlled

substance. N.C. Gen. Stat. § 90-108(a)(7). See State v. Frazier, 142 N.C. App.

361, 365, 542 S.E.2d 682, 686 (2001). This Court has held that to “maintain” a
                                         9

dwelling in violation of § 90-108(a)(7) means to “bear the expense of[]” the

premises or to “carry on . . . hold or keep [the premises] 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)), rev’d on other grounds, 332

N.C. 123, 418 S.E.2d 225 (1992).

      To determine whether the defendant “maintained” a place in violation

of § 90-108(a)(7), the court must consider “several factors, none of which are

dispositive.” State v. Bowens, 140 N.C. App. 217, 221, 535 S.E.2d 870, 873

(2000) (citing Allen, 102 N.C. App. at 608, 403 S.E.2d at 913), disc. rev. denied,

353 N.C. 383, 547 S.E.2d 417 (2001). Those factors include evidence that the

defendant: (1) owned the property; (2) occupied the property; (3) made repairs to

the property; (4) paid repair expenses; (5) paid taxes on the property; (5) made rent

payments; or (6) made utility payments. Id.

      Because “maintain” means to “bear the expense of[]” or “carry on . . . hold

or keep in an existing state or condition[,]” Allen, 102 N.C. App. at 608, 403

S.E.2d at 913, evidence that the defendant lived in the dwelling and was present

when drugs were found “cannot alone support a conclusion that [he] kept or

maintained the dwelling.” Bowens, 140 N.C. App. at 222, 535 S.E.2d at 873.

Instead, the State must present proof that the defendant owned the property, bore

any expense for renting or maintaining it, or otherwise took any responsibility for
                                       10

its general upkeep. Id. See e.g., State v. Boyd, 177 N.C. App. 165, 174, 628

S.E.2d 796, 804 (2006) (finding insufficient evidence that defendant maintained

the dwelling when defendant lived in the house but no evidence suggested that he

participated in payment of rent, leasing of the house, or maintenance and upkeep

of the premises); State v. Harris, 157 N.C. App. 647, 651-53, 580 S.E.2d 63, 66-67

(2003) (finding insufficient evidence that defendant maintained the dwelling when

although defendant was present at the residence on several occasions and one of

the bedrooms contained his personal property, none of his personal papers listed

the residence as his address); State v. Hamilton, 145 N.C. App. 152, 154, 549

S.E.2d 233, 234-35 (2001) (finding insufficient evidence that defendant maintained

the dwelling when the State’s only proof was that defendant lived in the residence

and was present during the search and on several other occasions); State v. Kraus,

147 N.C. App. 766, 768-69, 557 S.E.2d 144, 147 (2001) (finding insufficient

evidence that defendant maintained a hotel room when although defendant was the

room’s sole occupant, possessed a room key, and spent the night in the room, no

evidence suggested that he bore any expense for renting the room); Bowens, 140

N.C. App. at 221-22, 535 S.E.2d at 873 (finding insufficient evidence that

defendant maintained the dwelling when although defendant lived in the house and

was present during the search and on several other occasions, there was no
                                          11

evidence that he paid rent, utilities, or had any responsibility for the general upkeep

of the premises).

      This case is indistinguishable from Bowens. While evidence established that

Mr. Fleming lived at apartment 1401 and was present when marijuana was

discovered in his wife’s cigar box, no evidence suggested that he owned the

property, bore any expense for renting or maintaining it, or otherwise took any

responsibility for its upkeep. Just as in Bowens, there was no evidence that Mr.

Fleming owned or leased the apartment. Although Mr. Fleming allegedly told

Johnson that he was a “tenant” (2Tp. 55), all evidence established that he was not

the only resident (2Tpp. 33, 129), and no evidence suggested that he was the lessee

of the apartment, was responsible for paying rent, or had ever made any rent

payments. Johnson testified that officers never contacted the apartment manager to

obtain a list of residents or a copy of the lease agreement or to otherwise determine

who was responsible for making rent payments under the lease. (2Tp. 82) As

evidence clearly established that Mr. Fleming and his wife shared the residence

and that Troublefield had also been living there, it would be mere speculation to

conclude that Mr. Fleming was the tenant under lease or participated in making

any rent payments.

      As in Bowens, the State also failed to produce any evidence that Mr.

Fleming bore any responsibility for the maintenance or general upkeep of the
                                         12

apartment. No evidence suggested that he paid taxes on the property, made repairs

to the property, or paid for any repair expenses. There was no evidence that any

utilities were established in his name or that he ever made any utility payments.

There was no evidence such as a utility service payment receipt, a utility bill, or a

phone bill in Mr. Fleming’s name that would tend to support a reasonable

inference that he participated in the maintenance or general upkeep of the

apartment. In fact, Johnson testified that officers did not find any mail or personal

papers that connected Mr. Fleming to the apartment. (2Tp. 82)

      While the State’s evidence established Mr. Fleming’s occupancy and

presence, no reasonable juror could have concluded beyond a reasonable doubt that

Mr. Fleming owned the property, bore any expense for renting or maintaining it, or

otherwise took any responsibility for its general upkeep. See State v. Earnhardt,

307 N.C. 62, 66, n. 1, 296 S.E.2d 649, 652, n. 1 (1982) (citing Jackson v. Virginia,

443 U.S. 307, 319, n. 12, 61 L.Ed.2d 560, 573, n. 12 (1979)). As evidence of his

occupancy and presence “c[ould] not alone support a conclusion that [he] kept or

maintained the dwelling[,]” see Bowens, 140 N.C. App. at 222, 535 S.E.2d at 873,

the State failed to establish that Mr. Fleming kept or maintained the apartment.

      Although the State’s proof might support a strong suspicion of guilt,

evidence that merely raises conjecture or suspicion fails to satisfy the State’s

burden of proof. Earnhardt, 307 N.C. at 65-66, 296 S.E.2d at 651-52. As the
                                          13

State failed to present substantial evidence of each essential element of the crime

charged, see State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990), the

trial court erred by denying Mr. Fleming’s motions to dismiss and entering

judgment against him for maintaining a dwelling. Mr. Fleming’s conviction must

be vacated.

II.    THE TRIAL COURT ERRED BY DENYING MR. FLEMING’S
       MOTIONS TO DISMISS THE CHARGE OF POSSESSION OF A
       FIREARM BY A CONVICTED FELON AS THE STATE FAILED TO
       ESTABLISH THAT MR. FLEMING POSSESSED EITHER OF THE
       GUNS DISCOVERED IN BEDROOM CLOSETS AT THE
       APARTMENT LOCATED AT 1401 COURTYARD CIRCLE.

       Assignment of Error No. 11, Rp. 49

Standard of Review

      Whether the State’s evidence at trial was sufficient presents a question of law,

subject to de novo review by this Court. State v. Bagley, ___ N.C. App. ___, 644

S.E.2d 615, 621 (2007).

Discussion

       Based on the two guns discovered in the bedroom closets at the apartment

located at 1401 Courtyard Circle, Mr. Fleming was charged with and convicted of

possession of a firearm by a convicted felon. (Rpp. 10, 39-40) As the State failed

to establish that Mr. Fleming owned, purchased, or was in actual possession of

either gun, Mr. Fleming could only be convicted on the theory of constructive

possession. While Mr. Fleming’s control of the premises was nonexclusive, the
                                       14

State failed to establish other incriminating circumstances sufficient to support

constructive possession. As the State failed to establish Mr. Fleming’s possession

of either gun, the trial court erred by denying his motions to dismiss (2Tpp. 122,

153) and entering judgment against him for possession of a firearm by a convicted

felon. (Rpp. 39-40)

      Section 14-415.1 makes it a crime for a convicted felon to possess a

handgun or other firearm. Possession of a weapon may be actual or constructive.

State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). Actual

possession may be established with proof that the defendant had “physical or

personal custody of the [weapon].” Id. If the defendant did not have actual

physical custody of the weapon, constructive possession may be established if he

had both the power and intent to maintain dominion and control over its use or

disposition. Id. (quoting State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714

(1972)).

      Evidence that the defendant had exclusive control of the location where the

weapon was found may be sufficient to establish his constructive possession

because such evidence supports an inference that he had knowledge of the

weapon’s existence and the intent and power to control its disposition. State v.

Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (quoting Harvey, 281 N.C.

at 12, 187 S.E.2d at 714). However, if the defendant had nonexclusive control of
                                        15

the place where contraband was found, the State must establish other incriminating

circumstances sufficient to support constructive possession. Id. (finding sufficient

incriminating evidence for constructive possession when defendant had

nonexclusive control of the trailer, owned the trailer, and was present when drugs

were found in his chair and on his person). See e.g., State v. Rich, 351 N.C. 386,

393-94, 527 S.E.2d 299, 303 (2000) (finding sufficient incriminating evidence to

support constructive possession when the female defendant had nonexclusive

control of the house, lived in the house, and was present when drugs were found in

a bedroom containing women’s clothing and letters addressed to defendant); State

v. Neal, 109 N.C. App. 684, 687-88, 428 S.E.2d 287, 290 (1993) (concluding

sufficient incriminating circumstances existed to establish constructive possession

when defendant had nonexclusive control of the residence, was seen in the

bathroom and running from the bathroom where drugs were found); State v.

Forbes, 104 N.C. App. 507, 513, 410 S.E.2d 83, 87 (1991) (finding insufficient

incriminating evidence for constructive possession when defendant, who lived in

the trailer, was using the bathroom when drugs were found in the hallway because

evidence did not show that defendant could maintain control over drugs in the

hallway while using the bathroom).

      Other than Mr. Fleming’s occupancy and presence in the apartment, the

State failed to produce any other incriminating evidence that would tend to support
                                        16

a reasonable inference that he had the intent and power to maintain control over

either gun. No evidence suggested that Mr. Fleming fired the guns. There was no

gunshot residue evidence. See State v. Glasco, 160 N.C. App. 150, 157, 585

S.E.2d 257, 262-63 (2003) (finding sufficient evidence of constructive possession

when defendant was in the yard where the gun was found and was seen carrying a

bag with a bullet hole and gunshot residue). While shotgun shells were found in

the duffel bag, none were discovered in any other location or on Mr. Fleming.

None of Mr. Fleming’s fingerprints were lifted from the duffel bag, guns, or

shotgun shells. (2Tpp. 81, 106) While Johnson testified that the serial numbers

were run to see if the guns were stolen (2Tp. 83), no officer testified that records

established any connection between Mr. Fleming and either gun.

      No evidence placed Mr. Fleming in close proximity to the contraband.

Unlike Neal, there was no evidence that Mr. Fleming was seen in the bedrooms or

running from the bedrooms.     Instead, officers testified that when they got to the

apartment, Mr. Fleming was asleep in the living room where he remained for the

duration of the search. (2Tpp. 55, 86) No evidence suggested that Mr. Fleming

had immediate access to the guns from his position on the sofa in the living room.

Contrary to Davis, the guns were not in plain view on the sofa or hidden under the

sofa or anywhere near Mr. Fleming. (2Tpp. 59-60, 70-71) Just as in Forbes,

where evidence that the defendant was using the bathroom when drugs were found
                                        17

in the hallway near the bathroom door did not support a reasonable inference that

the defendant could maintain control over the drugs, evidence that Mr. Fleming

was asleep in the living room just before guns were found in the bedroom closets,

likewise did not support a reasonable inference that Mr. Fleming had the power to

maintain control over the guns.

      There was no evidence that Mr. Fleming maintained control over the

bedrooms or that he stayed or kept his belongings in any particular bedroom. No

evidence suggested that the bedrooms or bedroom closets were locked or that Mr.

Fleming was in possession of any keys. While Mr. Fleming stated that he lived in

the apartment, he never testified that he could access all the bedrooms. In fact,

evidence showed that Troublefield had his own bedroom and that Mr. Fleming did

not go through his cousin’s belongings. (2Tp. 139)

      None of Mr. Fleming’s things were found in close proximity to the

contraband. Unlike Rich, no male clothing was found in close proximity to either

gun. Moreover, no personal items, identification cards, photographs, mail, or other

documentation with names or addresses were found in the bedrooms, bedroom

closets, or in close proximity to the contraband. Instead, Johnson testified that

officers did not find any mail or personal papers connecting Mr. Fleming to the

apartment. (2Tp. 82) While some dirty clothes were found on top of the duffel

bag, no evidence suggested that the clothing or duffel bag belonged to Mr.
                                        18

Fleming. Rather, evidence suggested that the duffel bag belonged to Troublefield.

(2Tp. 139) Significantly, the State wholly failed to present any evidence linking

any of the residents to any of the bedrooms.

      Although Mr. Fleming lived in the apartment and was present during the

search, those circumstances were mitigated by evidence that he was not the sole

resident and was not the only resident present during the search. Moreover, he did

not own or purchase the guns. No evidence suggested that he used them. The

guns were not in plain view. He was not in close proximity to them. No evidence

linked Mr. Fleming to any of the bedrooms. As the State failed to present any

incriminating evidence that connected Mr. Fleming to the contraband itself, the

bedrooms, or the bedroom closets where the contraband was discovered, no

reasonable juror could have concluded beyond a reasonable doubt that that Mr.

Fleming had the intent and capability to maintain dominion and control over either

shotgun. See State v. Earnhardt, 307 N.C. 62, 66, n. 1, 296 S.E.2d 649, 652, n. 1

(1982) (citing Jackson v. Virginia, 443 U.S. 307, 319, n. 12, 61 L.Ed.2d 560, 573,

n. 12 (1979)).

      As the State failed to present substantial evidence of each essential element

of the crime charged, see State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814

(1990), the trial court erred by denying Mr. Fleming’s motions to dismiss and
                                           19

entering judgment against him for possession of a firearm by a felon.              Mr.

Fleming’s conviction must be vacated.

III.    THE TRIAL COURT ERRED BY DENYING MR. FLEMING’S
        MOTIONS TO DISMISS THE CHARGE OF POSSESSION WITH
        INTENT TO SELL AND DELIVER MARIJUANA, AS THE STATE
        FAILED TO ESTABLISH THAT MR. FLEMING POSSESSED THE
        PLASTIC BAG OF MARIJUANA DISCOVERED IN HIS WIFE’S
        CIGAR BOX AT THE APARTMENT LOCATED AT 1401
        COURTYARD CIRCLE.

        Assignment of Error No. 9, Rp. 49

Standard of Review

       Whether the State’s evidence at trial was sufficient presents a question of law,

subject to de novo review by this Court. State v. Bagley, ___ N.C. App. ___, 644

S.E.2d 615, 621 (2007).

Discussion

        Based on the marijuana discovered in the cigar box, Mr. Fleming was

charged with and convicted of possession with intent to sell and deliver marijuana.

(Rpp. 8-9, 39-40) As Mr. Fleming did not have actual possession of the marijuana,

the State had to rely on the theory of constructive possession. Although Mr.

Fleming’s control of the premises was nonexclusive, the State failed to produce

evidence of other incriminating circumstances sufficient to establish constructive

possession.     As the State failed to establish possession, the trial court erred by
                                        20

denying Mr. Fleming’s motions to dismiss (2Tpp. 122, 153) and entering judgment

against him for possession with intent to sell and deliver marijuana. (Rpp. 39-40)

      To obtain a conviction for possession with intent to sell and deliver a

controlled substance, the State must prove that the defendant (1) possessed (2) with

the intent to sell or deliver (3) a controlled substance. N.C. Gen. Stat. § 90-

95(a)(1). See State v. Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985).

Possession of drugs may be actual or constructive. State v. McLaurin, 320 N.C.

143, 146, 357 S.E.2d 636, 638 (1987). Actual possession may be established when

the defendant had “physical or personal custody of the [drugs].” State v. Alston,

131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). If the defendant did not

have actual possession of the drugs, constructive possession may be established if

he had the intent and capability to maintain dominion and control over the drugs.

State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (quoting State v.

Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)).

      Evidence that the defendant had exclusive control of the premises where

drugs were found may be sufficient to establish defendant’s constructive

possession.   Id.   However, if the defendant’s control of the premises was

nonexclusive, the State must present other incriminating evidence sufficient to

establish constructive possession. Id. (finding sufficient incriminating evidence to

support defendant’s constructive possession of drugs found in the trailer when
                                         21

defendant had nonexclusive control of the trailer, owned the trailer, and was

present when drugs were found in his chair and on his person). See e.g., Alston,

131 N.C. App. at 519, 508 S.E.2d at 318 (finding insufficient evidence of

constructive possession when a handgun was found on the car’s front console

between defendant and defendant’s wife because no other incriminating

circumstances established that defendant, as opposed to his wife, had the intent and

power to control the handgun); State v. Autry, 101 N.C. App. 245, 252-53, 399

S.E.2d 357, 362 (1991) (finding sufficient incriminating circumstances for

constructive possession when two of four items on or near a table on which

cocaine was found belonged to defendant).

      Mr. Fleming and his wife both lived in the apartment and were both present

in the living room when Coxe discovered a bag of marijuana. Mr. Fleming was

“kind of bent over the sofa. . . . [and] was reaching across the [coffee] table to get

to the box.” (2Tp. 88) While the box was in Mr. Fleming’s reach, it was not right

next to him or in his lap. No evidence suggested that Mr. Fleming was in closer

proximity to the cigar box than his wife who was sitting on the nearby loveseat.

(2Tp. 88) While the discovery of Mr. Fleming in close proximity to the drugs was

incriminating, the discovery of his wife in equal proximity to the drugs mitigated

the circumstance. See State v. Alston, 91 N.C. App. 707, 710, 373 S.E.2d 306, 309

(1988) (finding that while defendant’s presence on the premises and close
                                          22

proximity to the drugs was a circumstance that could support an inference of

constructive possession, the effect of the circumstance was “mitigated by the fact

that others were present in the room”).

      Here, there were no additional incriminating circumstances otherwise

linking Mr. Fleming, as opposed to his wife, to the marijuana in the cigar box. See

State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). The cigar

box was not labeled with Mr. Fleming’s name. The box actually belonged to his

wife. (2Tp. 131) While Mr. Fleming testified that he occasionally hid cigarettes in

the cigar box (2Tp. 131), unlike Autry, there was no evidence that any of Mr.

Fleming’s personal items were found in or around the cigar box. Contrary to

Davis, no drugs were discovered on or around the sofa where Mr. Fleming was

napping, and Coxe testified that Mr. Fleming was not in possession of any drugs.

(2Tp. 44)

      Moreover, there was no evidence that Mr. Fleming had knowledge that the

marijuana was in the cigar box. No evidence suggested that the cigar box was

clear or that Mr. Fleming was otherwise able to determine the contents of the box

before opening it. In fact, Coxe testified that Mr. Fleming seemed like he did not

realize that the box contained drugs until he opened it. (2Tp. 36)

      At best, the evidence created mere “suspicion or conjecture” that Mr.

Fleming possessed the drugs in the cigar box, see State v. Malloy, 309 N.C. 176,
                                        23

179, 305 S.E.2d 718, 720 (1983), and was in fact more consistent with possession

by Mr. Fleming’s wife. While Mr. Fleming was asleep in the living room just

before the marijuana was discovered (2Tp. 130), his wife was awake in the living

room and invited Coxe into the apartment. (2Tp. 34) While Mr. Fleming had just

returned home after his shift at the bakery, his wife did not have a job (2Tp. 130),

and no evidence suggested that she ever left the apartment that day. Coxe testified

that Mr. Fleming did not realize that the cigar box contained marijuana (2Tp. 36)

which was consistent with Mr. Fleming’s testimony that he “had no idea” that

there were drugs in the box. (2Tp. 132) On the other hand, Coxe testified that Mr.

Fleming’s wife tried to stop Mr. Fleming from opening the box (2Tpp. 36, 89),

suggesting that she knew about the drugs. While the State’s evidence did not

support an inference that Mr. Fleming had knowledge or intent and power to

maintain control over the drugs, it was consistent with knowing possession by Mr.

Fleming’s wife.

      No reasonable juror could have concluded beyond a reasonable doubt that

Mr. Fleming had constructive possession of the marijuana. See State v. Earnhardt,

307 N.C. 62, 66, n. 1, 296 S.E.2d 649, 652, n. 1 (1982) (citing Jackson v. Virginia,

443 U.S. 307, 319, n. 12, 61 L.Ed.2d 560, 573, n. 12 (1979)). In fact, evidence

supported an inference that Mr. Fleming’s wife, not Mr. Fleming, knew about the

drugs in the cigar box. As the State failed to present substantial evidence of each
                                        24

essential element of the crime charged, see State v. Lynch, 327 N.C. 210, 215, 393

S.E.2d 811, 814 (1990), the trial court erred by denying Mr. Fleming’s motions to

dismiss and entering judgment against him for possession of a firearm by a felon.

Mr. Fleming’s conviction must be vacated.

                                CONCLUSION

      For the foregoing reasons and authorities, Mr. Fleming respectfully requests

that his convictions be vacated or, in the alternative, reversed and the cause

remanded for a new trial.



      Respectfully submitted, this the 15th day of January, 2008.




                               _________________________________________
                               Emily H. Davis
                               Assistant Appellate Defender

                               Staples Hughes
                               Appellate Defender
                               Office of the Appellate Defender
                               123 West Main Street, Suite 500
                               Durham, North Carolina 27701
                               919.560.3334

                               ATTORNEYS FOR DEFENDANT-APPELLANT
                                        25

         CERTIFICATE OF COMPLICANCE WITH RULE 28(J)(2)

       I hereby certify that Defendant-Appellant’s Brief is in compliance with Rule
28(j)(2) of the North Carolina Rules of Appellate Procedure in that it is printed in
fourteen point Times New Roman font and the body of the brief, including
footnotes and citations, contains no more than 8750 words as indicated by
Microsoft Word, the program used to prepare the brief.

      This the 15th day of January, 2008.




                                _________________________________________
                                Emily H. Davis
                                Assistant Appellate Defender
                                         26

                 CERTIFICATE OF FILING AND SERVICE

        I hereby certify that the original Defendant-Appellant’s Brief has been filed
pursuant to Rule 26 of the North Carolina Rules of Appellate Procedure by sending
it first-class mail, postage prepaid, to the Clerk of the North Carolina Court of
Appeals, Post Office Box 2779, Raleigh, North Carolina 27602-2779, by placing it
in a depository for that purpose.

       I further certify that a copy of the above and foregoing Defendant-
Appellant’s Brief has been duly served upon the State of North Carolina by
sending it first-class mail, postage prepaid, to Ms. Alexandra M. Hightower,
Assistant Attorney General, Transportation Section, North Carolina Department of
Justice, Post Office Box 629, Raleigh, North Carolina 27602-0629, by placing it in
a depository for that purpose.

      This the 15th day of January, 2008.




                                _________________________________________
                                Emily H. Davis
                                Assistant Appellate Defender

								
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