State v. Spencer

• Decision Date: 19 August 2008
• Docket Number: No. COA07-1191.,COA07-1191.
• Citation: 664 S.E.2d 601
• Parties: STATE of North Carolina, Plaintiff, v. Rickey Nelson SPENCER, Defendant.
• Court: North Carolina Court of Appeals

664 S.E.2d 601

STATE of North Carolina, Plaintiff, v. Rickey Nelson SPENCER, Defendant.

No. COA07-1191.

Court of Appeals of North Carolina.

August 19, 2008.

Appeal by defendant from judgment entered on or about 30 January 2007 by Judge W. Erwin Spainhour in Superior Court, Iredell County. Heard in the Court of Appeals 19 March 2008.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Dennis Myers, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant-appellant.

STROUD, Judge.

Defendant Rickey Nelson Spencer appeals from judgment entered upon jury verdicts finding him guilty of felony possession of marijuana, possession with intent to sell or deliver marijuana, maintaining a dwelling for purposes of keeping or selling of a controlled substance, possession of drug paraphernalia, and attaining the status of habitual felon. Defendant contends the trial court erred when it denied his motion to dismiss the charge of maintaining a dwelling for the keeping or selling of controlled substances; denied his motion to dismiss one of the two counts of possession of marijuana; admitted his purported confession; and failed to properly instruct the jury on the elements of possession of drug paraphernalia.

After careful review of the record, we conclude that the State presented sufficient evidence to support both of the possession counts and the charge of maintaining a dwelling for purposes of keeping or selling of a controlled substance. We also conclude the trial court's instructions on possession of drug paraphernalia were not error. However, we conclude that the trial court erred by admitting defendant's purported confession. This error did not rise to plain error as to the charge of possession of marijuana with intent to sell or deliver or the charge of possession of drug paraphernalia, but it did rise to plain error as to the charge of maintaining a dwelling for purposes of keeping or selling a controlled substance. Because the trial court committed plain error, defendant is entitled to a new trial on the charge of maintaining a dwelling for purposes of keeping or selling a controlled substance. The trial court consolidated defendant's convictions for the purpose of sentencing, so as a result of granting defendant a new trial on one of the convictions, we remand for resentencing on the remaining convictions.

I. Background

The State presented evidence at trial tending to show the following: On 23 November 2004, Sergeant Walter Meyer of the Iredell County Sheriff's Office went to 178 Loggerhead Road in Statesville, North Carolina, with Sergeant David Prevette and Sergeant Dale Hawkins. Upon arrival at 178 Loggerhead Road, the officers knocked on the front door and defendant answered. Defendant was asked if he owned the house and he replied that he did not own the house. Ms. Sheena Elmore was introduced as the homeowner and she gave permission for the officers to search the house for marijuana. While searching the guest bedroom, Sergeant Meyer saw a partially smoked marijuana cigarette in an ashtray beside the bed.

During Sergeant Meyer's search, Sergeant Prevette, Sergeant Hawkins and defendant were in the living room. Sergeant Prevette observed defendant acting "extremely nervous," so he asked defendant "if he needed to tell me something." Defendant nodded affirmatively. Sergeant Prevette asked defendant if there were drugs in the house. Defendant again nodded affirmatively. Finally Sergeant Prevette asked where the drugs were and how much; defendant acknowledged there were about three ounces of marijuana "in the cabinet below the kitchen sink."

Sergeant Hawkins overheard the conversation between defendant and Sergeant Prevette and went into the kitchen. In the kitchen cabinet, Sergeant Hawkins discovered a cigar box containing three packages of marijuana weighing approximately one ounce each, two small brown bags of marijuana, "some drug paraphernalia," rolling papers, and a set of digital scales. The officers also discovered a semi-automatic pistol on top of the kitchen cabinet.

Sergeant Prevette arranged with defendant to come to the sheriff's office the next day to give a statement. The following day defendant and his mother arrived at the sheriff's office and met with Sergeant Prevette in an interview room. Defendant was informed that he wasn't in custody and that Sergeant Prevette wanted to hear about and write down what defendant had to say about the marijuana. During the interview, Sergeant Prevette asked questions and defendant answered while Sergeant Prevette recorded the conversation in scratch notes. At the end of the conversation, Sergeant Prevette began to write down what was said and read it back to defendant to make sure it was being recorded correctly. Before Sergeant Prevette finished writing the statement, defendant's mother needed to leave. She politely ended the interview and took defendant with her. When the meeting ended, defendant understood that Sergeant Prevette would continue writing down what had been discussed and that the officers expected defendant to return later to proofread and sign the statement. Defendant never returned to sign the statement written by Sergeant Prevette.

Sergeant Prevette weighed the marijuana on 23 November 2004 and determined that it weighed 87.4 grams, approximately three ounces.¹ On 6 February 2006, the marijuana was sent to the State Bureau of Investigation (SBI) laboratory for testing. Misty Icard, a special agent and forensic drug chemist with the SBI tested the marijuana on 26 May 2006. Her tests confirmed that the substance was marijuana and weighed 80.7 grams.²

On 31 January 2005, the Iredell County Grand Jury indicted defendant on charges of (1) possession of a controlled substance, (2) possession of a controlled substance with the intent to sell or deliver, (3) maintaining a place to keep controlled substances, (4) possession of drug paraphernalia, and (5) attaining the status of habitual felon. On 15 September 2005, defendant moved to suppress his purported confession made on 24 November 2004, and the evidence obtained during the search of the residence at 178 Loggerhead Road on 23 November 2004. On or about 2 February 2006, the trial court denied the motion to suppress.

Defendant was tried before a jury in Iredell County Superior Court on 29 and 30 January 2007. The jury found defendant guilty of (1) possession of more than one and one half ounces of marijuana, (2) possession with the intent to sell or deliver marijuana, (3) maintaining a dwelling for purposes of keeping or selling of a controlled substance, (4) possession of drug paraphernalia, and (5) attaining the status of habitual felon. Upon the jury verdict, the trial court sentenced defendant to 150 to 189 months. Defendant appeals.

II. Motions to Dismiss

A. Maintaining a Dwelling

Defendant argues the trial court erred by denying his motion to dismiss the charge of maintaining a dwelling for the keeping or selling of controlled substances because the State failed to show that defendant kept or maintained the house at 178 Loggerhead Road. We disagree.

On a motion to dismiss for insufficient evidence to sustain a conviction, "the question for the [c]ourt is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "[A]ll of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion." 299 N.C. at 99, 261 S.E.2d at 117. "The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom[.]" Id.

Defendant cites State v. Bowens, which listed seven factors to be considered in determining whether a dwelling is kept or maintained for purposes of N.C. Gen.Stat. § 90-108(a)(7), "none of which are dispositive" by themselves. 140 N.C.App. 217, 221, 535 S.E.2d 870, 873 (2000), disc. review denied, 353 N.C. 383, 547 S.E.2d 417 (2001). "Those factors include: ownership of the property; occupancy of the property; repairs to the property; payment of taxes; payment of utility expenses; payment of repair expenses; and payment of rent." 140 N.C.App. at 221 535 S.E.2d at 873. Defendant argues that because the State presented only evidence of occupancy, it has not presented sufficient evidence to show that defendant maintained the dwelling, and the motion to dismiss should have been granted.

Defendant is correct that occupancy, without more, will not support the element of "maintaining" a dwelling. State v. Kraus, 147 N.C.App. 766, 768-69, 557 S.E.2d 144, 147 (2001). However, evidence of residency, standing alone, is sufficient to support the element of maintaining. State v. Rosario, 93 N.C.App. 627, 638, 379 S.E.2d 434, 440, disc. review denied, 325 N.C. 275, 384 S.E.2d 527 (1989); State v. Rich, 87 N.C.App. 380, 384, 361 S.E.2d 321, 324 (1987).

The State presented evidence, in the form of a purported confession by defendant to police, that defendant resided at the home at 178 Loggerhead Road.³ This was substantial evidence that defendant maintained the dwelling. Rosario, 93 N.C.App. at 638, 379 S.E.2d at 440. Defendant did not argue that the State failed to present sufficient evidence on the other elements of the charge. Therefore, the trial court properly denied defendant's motion to dismiss the charge of maintaining a dwelling for purposes of keeping or selling of a controlled substance.

B. Two Counts of Possession

Defendant also contends that the trial court erred by denying his motion to dismiss one of the two counts of possession of marijuana because the State failed to show that two felonies occurred. We...