State v. Glover

• Citation: 833 S.E.2d 203,267 N.C.App. 315
• Decision Date: 03 September 2019
• Docket Number: No. COA18-538,COA18-538
• Parties: STATE of North Carolina v. Bruce Wayne GLOVER, Defendant.
• Court: Court of Appeal of North Carolina (US)

267 N.C.App. 315

833 S.E.2d 203

STATE of North Carolina

v.Bruce Wayne GLOVER, Defendant.

No. COA18-538

Court of Appeals of North Carolina.

Filed: September 3, 2019

Attorney General Joshua H. Stein, by Special Deputy Attorney General Jonathan D. Shaw, for the State.

Appellate Defender Glenn Gerding by Assistant Appellate Defender Sterling Rozear, for the Defendant.

DILLON, Judge.

Defendant Bruce Wayne Glover appeals from the trial court's judgment entered upon a jury verdict finding him guilty of possession of various controlled substances. The jury was instructed on alternative theories of possession; namely, that Defendant was in "constructive" possession of the controlled substances and, alternatively, that Defendant "acted in concert" with another to possess the controlled substances. Defendant contends the trial court improperly instructed the jury on "acting in concert" and, thereafter, failed to properly calculate his prior record level ("PRL") in sentencing.

After careful review, we conclude that there was sufficient evidence to support an instruction on possession by "acting in concert." However, we conclude that the trial court committed prejudicial error in calculating Defendant's PRL and remand for the limited purpose of resentencing.

I. Background

This case arises out of officers’ discovery of various drugs in Defendant's home. The evidence at trial tended to show as follows:

Defendant lived in a home shared with a number of people, including a woman referred to herein as Ms. Stepp.

In September 2016, officers arrived at Defendant's home to investigate drug complaints they had received. A detective spoke with Defendant in a bedroom of the home. Defendant told the detective that the bedroom was his private bedroom and that an alcove beyond the bedroom was also his "personal space." Defendant consented to a search of his bedroom and his personal space. Prior to the search, Defendant told the detective that he did not believe officers would find any illegal substances in his bedroom or personal space, but only drug paraphernalia. Also prior to the search, when asked if he had ingested any illegal substances, Defendant admitted to having used methamphetamine and prescription pills.

During the search of Defendant's bedroom, the detective found a white rectangular pill marked "G3722" masked in aluminum foil, a small bag of marijuana, scales, rolling papers, plastic bags, and a glass pipe in a dresser. But during the search of Defendant's "personal space" adjacent to the bedroom, the detective found more incriminating evidence; namely, a metal tin that contained, among other items, (1) methamphetamine, (2) cocaine, (3) heroin, and (4) a small white rectangular pill that was similar in size, shape, and markings to the white pill found in Defendant's bedroom.

Defendant was charged with and, following a jury trial, subsequently convicted of possession of methamphetamine, heroin, and cocaine, as well as having attained the status of an habitual felon. In sentencing, the trial court found Defendant to be a PRL VI and imposed two separate sentences of fifty (50) to seventy-two (72) months of imprisonment, running consecutively.

Defendant timely appealed.

II. Analysis

Defendant challenges his conviction in two respects, discussed below. In the alternative, Defendant contends that his sentencing based on a mistaken PRL was the result of ineffective assistance of counsel. We address each challenge in turn.

A. Jury Instructions on Acting in Concert

At trial, over Defendant's objection, the court instructed the jury that it could find Defendant guilty of possession on the theory of acting in concert, in addition to constructive possession. Defendant contends that the evidence did not support an instruction on acting in concert.

Whether evidence offered at trial is sufficient to warrant a jury instruction is a question of law; "therefore, the applicable standard of review is de novo ." State v. Cruz , 203 N.C. App. 230, 242, 691 S.E.2d 47, 54, aff'd per curiam , 364 N.C. 417, 700 S.E.2d 222 (2010).

To support an acting in concert instruction, the State must provide sufficient evidence that the defendant (1) was "present at the scene of the crime" and (2) "act[ed] [ ] together with another who [did] the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime." State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979) ; State v. Erlewine , 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991) (noting that each person may be actually or constructively present and is equally guilty of any crime committed in pursuance of their common purpose). A defendant may be guilty through acting in concert even where another person "does all the acts necessary to commit the crime." State v. Jefferies, 333 N.C. 501, 512, 428 S.E.2d 150, 156 (1993). "It is not, therefore, necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle[.]"

Joyner , 297 N.C. at 357, 255 S.E.2d at 395.

Possession of drugs requires proof that the defendant (1) knowingly (2) possessed (3) a controlled substance. See State v. Galaviz-Torres , 368 N.C. 44, 772 S.E.2d 434, 437 (2015). Though we have stated that "[t]he acting in concert theory is not generally applicable to possession offenses, as it tends to become confused with other theories of guilt[,] [o]ur courts have instructed juries on both constructive possession and acting in concert in possession cases." State v. Diaz , 155 N.C. App. 307, 314, 575 S.E.2d 523, 528 (2002) (internal citation omitted). "Under the doctrine of acting in concert, the State is not required to prove actual or constructive possession if it can establish that the defendant was present at the scene of the crime and the evidence is sufficient to show he [was] acting together with another who [did] the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime." State v. Holloway , ––– N.C. App. ––––, ––––, 793 S.E.2d 766, 774 (2016) (quotation omitted).

We conclude that there was not only sufficient evidence from which the jury could find that Defendant constructively possessed controlled substances, but also sufficient evidence from which the jury could alternatively find that Defendant acted in concert with Ms. Stepp to possess the controlled substances.

Defendant does not challenge that there was sufficient evidence that he constructively possessed the substances found in the metal tin; and, indeed, the evidence was sufficient to support the jury's finding that Defendant constructively possessed those substances. See State v. Davis , 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (holding that a person is in constructive possession of narcotics when "he has both the power and the intent to control its disposition or use even though he does not have actual possession [of the narcotics on his person]"). Indeed, Defendant was present and identified the area where the metal tin was found as his "personal space." Further, the jury could have inferred that Defendant admitted to having just ingested methamphetamine and prescription pills, substances which were found in the metal tin and nowhere else (except for the white pill found in his bedroom). And the white pill found in his bedroom matched a pill found in the metal tin. Based on Defendant's own admissions to the detective and the results of the search, the jury could have determined that Defendant had both the power and the intent to control the disposition of the controlled substances found in the metal tin.

But we conclude that there also was sufficient evidence from which the jury could have alternatively determined that Defendant acted in concert to aid Ms. Stepp's constructive possession of the controlled substances found in the metal tin. Specifically, Defendant called Ms. Stepp, who testified that she placed the metal tin in the dresser in Defendant's personal space, that the drugs therein were hers , that she intended to come back later to use them, and that she and Defendant had taken drugs together in the past. This testimony is evidence that Ms. Stepp possessed (constructively) the drugs in the metal tin. Further, based on Ms. Stepp's testimony along with the State's evidence, the jury could have found that Defendant was aware of the presence of the drugs in the metal tin: (1) he admitted to the detective to having just used methamphetamine, and the only methamphetamine found in the house was in the metal tin; and (2) he admitted to the detective to having just ingested prescription pills, and a pill found in his bedroom matched a pill found in the metal tin. And the evidence was sufficient to support findings that (1) Defendant facilitated Ms. Stepp's constructive possession by allowing her to keep her drugs in a place where they would be safe from others; (2) Defendant did not intend to exert control over the disposition of those remaining drugs, as they belonged to his friend, Ms. Stepp, and that she controlled their disposition; and (3) Defendant was actually present when the drugs were in Ms. Stepp's constructive possession.

We, therefore, conclude that the trial court did not err in instructing the jury on the theory of possession by "acting in concert." See State v. Garcia , 111 N.C. App. 636, 640-41, 433 S.E.2d 187, 189-90 (1993) (concluding that the evidence was sufficient to instruct on "constructive possession" and alternatively on possession by "acting in concert").

B. Calculation of Prior Record Level

Defendant next contends that the trial court erred by sentencing him as a PRL VI with twenty-one (21) points. We agree that Defendant should have been assigned fewer than twenty-one (21) points. We conclude that he should have been assigned seventeen (17) points, which would qualify Defendant to be sentenced as a PRL V offender. Therefore, we remand for resentencing.

A trial court's...