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    "judges": [
      "Judges STEPHENS and SMITH concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. KENNETH JAMES WIGGINS and ROBERT ALPHONSO CARTWRIGHT"
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      {
        "text": "McGEE, Judge.\nKenneth James Wiggins (Wiggins) and Robert Alphonso Cartwright (Cartwright) (collectively Defendants) were arrested on various drug-related charges after police found cocaine, drug paraphernalia, and opium derivatives in the vehicle in which they were riding and in their hotel rooms. Wiggins was convicted of (1) trafficking in cocaine by possession; (2) trafficking in cocaine by transportation; (3) possession of cocaine with intent to sell; (4) conspiracy to traffic cocaine by possession; (5) possession of drug paraphernalia; and (6) trafficking in opium by possession. Cartwright was convicted of (1) trafficking in cocaine by possession; (2) trafficking in cocaine by transportation; (3) possession of cocaine with intent to sell; and (4) conspiracy to traffic in cocaine by possession. Defendants appeal.\nBefore pretrial motions on 12 April 2006, Cartwright moved for a mistrial based upon comments made by a prospective juror during jury selection. During jury selection, a prospective juror commented that he knew Cartwright because he had \u201cpartied\u201d with Cartwright. The prospective juror was also asked if he knew \u201canyone else within the bar\u201d and the prospective juror indicated he knew his probation officer and pointed to a probation officer. Cartwright argued that these comments implied that the prospective juror was on probation, and that the prospective juror \u201c[hung] out [and] partie[d] with\u201d Cartwright, and that this implication tainted the jury. The trial court denied Cartwright\u2019s motion.\nAt trial, Deputy Kevin Duprey (Deputy Duprey), a narcotics investigator with the Dare County Sheriffs Department, testified that on 18 October 2004, while training outside of Dare County, he was contacted by a confidential informant (the informant). The informant stated that Defendants would be going to a hotel room the following day \u201cto use and sell drugs.\u201d Deputy Duprey stated that although he had spoken with the informant prior to that day, the informant had not done any work with the Dare County Sheriff\u2019s Department. The informant had, however, worked with the Chowan County Sheriff\u2019s Department, and had been \u201cproductive\u201d and \u201creliable[.]\u201d\nDeputy Duprey testified that the informant called him again on 19 October 2004 and stated that Defendants were staying at the Quality Inn in Kill Devil Hills in Rooms 208 and 209. The informant described the vehicle Defendants were using as \u201ca red over black pickup truck.\u201d The informant described Wiggins as a male \u201cin his forties with short brown hair and skinny with some facial hair.\u201d The informant described Cartwright as being \u201cbald with a goatee.\u201d Deputy Duprey testified that after receiving this information, he contacted a sergeant to act on the information while Deputy Duprey was out of the county.\nDeputy Duprey testified that the informant called him again on 20 October 2004 and stated that Wiggins would be leaving Dare County to travel to Gates County to pick up cocaine, and he would then return to the Quality Inn. The informant was unsure as to whether Cartwright would be accompanying Wiggins. The informant also stated that Wiggins had a handgun, but he was unsure whether Wiggins would take the gun with him. The informant again provided Deputy Duprey with a physical description of both Defendants and a description of Defendants\u2019 vehicle.\nDeputy Duprey testified that he returned to Dare County at approximately 7:30 p.m. on 20 October 2004 and waited in Currituck to see if a red and black pickup truck would pass him, traveling toward Dare County. At approximately 11:15 p.m., Deputy Duprey observed a vehicle that matched the informant\u2019s description. Deputy Duprey testified that he observed two males in the vehicle who matched the informant\u2019s description. Deputy Duprey followed the vehicle from Currituck to the Quality Inn in Dare County. Deputy Duprey and other law enforcement officers who were waiting at the Quality Inn surrounded the vehicle. Wiggins was driving and Cartwright was riding in the passenger seat. The officers informed Defendants they were being stopped because of information the officers had received that Defendants were bringing drugs into Dare County. Deputy Duprey testified that Wiggins stated \u201che didn\u2019t have anything\u201d and that the officers \u201ccould look.\u201d Defendants were separated and Deputy Duprey contacted a canine unit.. Deputy Duprey stated that when he spoke with Defendants separately, each gave a different account of where they had been.\nDuring this portion of Deputy Duprey\u2019s testimony, Defendants objected to testimony regarding the statements made to Deputy Duprey by the informant. Outside the presence of the jury, Cartwright\u2019s attorney argued that the statements were hearsay and requested a limiting instruction to avoid jury confusion. The State argued that the statements were not hearsay because they were not offered to prove the truth of the matter asserted, but rather, were offered to explain the actions of Deputy Duprey. The trial court agreed the testimony was not hearsay, but agreed to give a limiting instruction. The trial court asked Cartwright\u2019s attorney to draft the instruction he would like the trial court to give the jury. The trial court ultimately included that instruction in its charge to the jury.\nDeputy Duprey testified that a canine unit was deployed on the vehicle. The dog was trained to alert officers by scratching and/or biting at a specific area if the dog smelled a controlled substance. Deputy Duprey testified that the dog scratched at the passenger side of the vehicle and at the console area inside the vehicle. The officers searched the inside of the vehicle. In the console, the officers found digital scales and a .25 caliber handgun magazine containing one bullet.\nDeputy Duprey testified that he opened the hood of the vehicle because the hood was a common place for drugs to be hidden. He saw a plastic bag inside the right side of the fender well. He described the bag as \u201cvery clean[.]\u201d The officers brought the dog back to the vehicle, and the dog \u201cscratch[ed]\u201d and \u201cpull[ed]\u201d at the area where the bag was located. Deputy Duprey removed the bag from the vehicle. He saw a \u201cvery clean\u201d shirt inside the bag. He unrolled the shirt, smelled the odor of cocaine, and saw a bag containing white powder. Deputy Duprey testified that he then placed Defendants under arrest.\nDeputy Duprey asked Wiggins whether there was any contraband in his hotel room, and Wiggins stated that there was \u201csome marijuana and paraphernalia.\u201d Cartwright told Deputy Duprey that his room contained paraphernalia, but no drugs. Both Defendants consented to a search of their rooms.\nAccording to Deputy Duprey\u2019s testimony, Wiggins was staying in Room 208 of the Quality Inn. When Deputy Duprey entered Room 208, he found various items that had been converted into devices used for smoking drugs, including a pill bottle that had been converted for use in smoking marijuana, and \u201ca brass-type abrillo pad\u201d used for smoking crack cocaine. He also found several marijuana smoking pipes, a bottle of Clear Eyes, a second pill bottle, push rods used to clean out or pack a pipe, and a spoon containing white powder and burn marks suggesting that it had been used to liquify cocaine for injection. Deputy Duprey also recovered some white pills and some red and white pills in a brown bag in Room 208. In the same brown bag, Deputy Duprey recovered what he believed to be marijuana. In a black bag, he found a .25 caliber handgun containing six bullets. On a table, he found an open box of baking soda, which he stated could be used to create a base to turn cocaine into a solid, and a lighter. The State asked Deputy Duprey whether he was able to determine if another individual was staying with Wiggins. Deputy Duprey testified that some items in Room 208 could have belonged to another person, but the officers \u201cnever physically saw [another] person inside that room.\u201d\nDeputy Duprey testified that he next searched Room 209, Cartwright\u2019s room. Deputy Duprey observed a crack pipe and a needle. Deputy Duprey testified that he did not seize the items he saw in Cartwright\u2019s room.\nDeputy Duprey also testified that the reports received from the State Bureau of Investigation revealed (1) that the bag found in the vehicle contained 54.3 grams of cocaine hydrochloride; (2) that the white pills found in Room 208 were oxycodone and weighed 5.2 grams; and (3) that the white and red pills were a \u201cpharmaceutical preparation containing oxycodone[,]\u201d an opium derivative, and weighed 3.2 grams. He testified that the amount of cocaine found in the vehicle was an amount of cocaine that a person \u201cwould possess to sell.\u201d\nOn cross-examination by the attorney for Wiggins, Deputy Duprey was asked whether an individual named Nicole Ballard was staying in the hotel room with Wiggins. Deputy Duprey answered:\nI have no clue [whether] she was staying in the room. She was not seen in the room. There [were] pictures found of her inside the room but we [didn\u2019t] see[] that she was actually inside the room.\nDeputy Duprey was also asked:\n[Attorney for Wiggins]: Investigator Duprey, do you have any further knowledge of Nicole Ballard staying in the hotel room with Mr. Wiggins?\n[Deputy Duprey]: Except for his statement that she stayed there. Other than that, I do not.\n[Attorney for Wiggins]: She wasn\u2019t present at the hotel during the arrest, is that correct?\n[Deputy Duprey]: That\u2019s correct.\n[Attorney for Wiggins]: But there was some of her stuff in the hotel room?\n[Deputy Duprey]: There [were] two pictures other. There [were] female clothing items in the room.\nMajor Norman Johnson (Major Johnson), with the Dare County Sheriffs Department, testified that at the time of Defendants\u2019 arrest, Major Johnson was \u201cthe sergeant of narcotics\u201d for the Dare County Sheriffs Department. Major Johnson testified that he spoke with Deputy Duprey on 19 October 2004. Deputy Duprey asked Major Johnson to verify the information Deputy Duprey had received from the informant regarding the red and black pickup truck and the hotel rooms at the Quality Inn. Major Johnson located the vehicle in the parking lot of the Quality Inn, obtained the tag number, and noted some specific stickers on the vehicle. Major Johnson observed a white female go to Room 208 and knock on the door. He saw a \u201cskinny\u201d white male with brown hair open the door, have a short conversation with the female, and close the door. The female then went to Room 209 and knocked on the door. A \u201cbald\u201d white male answered the door, but he shut the door very quickly. The female then knocked again on the door of Room 208, but she received no answer. She then knocked again on the door of Room 209, but she received no answer. She waited for a few minutes and then left. Major Johnson testified that he recognized the woman as a known drag user and seller. Although Major Johnson could not recall whether he or Deputy Duprey ran the vehicle\u2019s tag, they learned the vehicle was registered to Wiggins.\nMajor Johnson testified that he spoke with Deputy Duprey again on 20 October 2004. Deputy Duprey told Major Johnson that he had received further information that Defendants would be traveling to Gates County that day to pick up cocaine. Major Johnson returned to the Quality Inn and saw that the vehicle was still there. He returned to the Quality Inn forty-five minutes later and the vehicle was gone. After determining that the vehicle was not at a local bar, Major Johnson returned to the Quality Inn to wait for the vehicle to return. Major Johnson was present for the arrest of Defendants and the search of their rooms.\nClint Friddle (Friddle), general manager of the Quality Inn, testified that Cartwright paid for the rental of Rooms 208 and 209. Friddle testified that both rooms contained two double beds, and that two adults were registered in Room 208. The State rested its case.\nDefendants moved to dismiss each of the charges against them. The trial court denied Defendants\u2019 motions. Neither Wiggins nor Cartwright presented any evidence. Cartwright also moved for a mistrial based upon Deputy Duprey\u2019s testimony referencing the statements made by the informant. Cartwright argued that, pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 403, admission of the statements was \u201cconfusing and prejudicial to the jury.\u201d The trial court denied the motion.\nI. Joint Issues\nAlthough Defendants filed separate briefs, they bring forward several identical issues for our review, which we address together.\nA. Statements of the informant\nDefendants argue that the trial court improperly admitted testimony regarding the statements made by the informant to Deputy Duprey in violation of Defendants\u2019 constitutional right to confrontation under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), and under state evidence rules.\nIn Crawford, the United States Supreme Court held that \u201c[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.\u201d Id. at 68,158 L. Ed. 2d at 203. However, where nontestimonial evidence is at issue, the ordinary rules of evidence govern admissibility. Id. In its analysis, the Court also noted that the Confrontation Clause does not prohibit \u201cthe use of testimonial statements for purposes other than establishing the truth of the matter asserted.\u201d Id. at 59, n.9, 158 L. Ed. 2d at 198, n.9.\nIn State v. Leyva, 181 N.C. App. 491, 640 S.E.2d 394 (2007), our Court addressed an argument similar to the one before us now. In Leyva, the trial court admitted testimony by detectives referencing statements made by a confidential informant. Id. at 498-99, 640 S.E.2d at 398-99. The defendant argued that his right to confrontation was violated by admission of that evidence. Id. at 500, 640 S.E.2d at 399. We concluded that the defendant incorrectly categorized the statements as testimonial because the evidence was introduced to explain the officers\u2019 presence at the location of a drug sale, not for the truth of the matter asserted. Id.\nApplying Crawford and Leyva to the present case, we find no error in the admission of Deputy Duprey\u2019s testimony referencing the statements of the informant. The State specifically noted that the statements were not offered for their truth. Rather, the statements were offered to explain how the investigation of Defendants unfolded, why Defendants were under surveillance at the Quality Inn, and why Deputy Duprey followed the vehicle to the Quality Inn. We further note that, as requested by Cartwright, the trial court gave the jury a limiting instruction pertaining to confidential informants. The instruction read:\nEvidence has been received of statements made by a confidential informant. You must not consider this evidence as evidence of the truth of what was said at that earlier time because it was not made under oath at this trial. If you believe that these statements were made then you may consider this evidence for the purpose of explaining the actions of the investigating officers. Except as it bears upon the actions of the investigating officers, the statements made by the confidential informant may not be used by you in your determination of any fact in this case.\nCrawford, explicitly states that testimonial statements are not barred by the Confrontation Clause if not offered for their truth. Crawford, 541 U.S. at 59, n.9, 158 L. Ed. 2d at 198, n.9. Because the challenged testimony was not offered for its truth, as was the case in Leyva, we conclude that no Crawford error occurred.\nWiggins also argues that the testimony was inadmissible hearsay. We disagree.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 801(c) (2005) defines hearsay as \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d Our Supreme Court has stated that \u201c[o]ut-of-court statements that are offered for purposes other than to prove the truth of the matter asserted are not considered hearsay. Specifically, statements are not hearsay if they are made to explain the subsequent conduct of the person to whom the statement was directed.\u201d State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (citations omitted), cert. denied, Gainey v. North Carolina, 537 U.S. 896, 154 L. Ed. 2d 165 (2002). Further, in Leyva, this Court applied the same reasoning to find that statements made to an officer by a confidential informant were properly admitted as nonhearsay. Leyva, 181 N.C. App. at 500-01, 640 S.E.2d at 399-400. As stated above, the challenged testimony was not offered for its truth and was therefore not inadmissible hearsay.\nBoth Defendants argue that the statements were also inadmissible under N.C. Gen. Stat. \u00a7 8C-1, Rule 403. We note that our review of the transcript reveals that Wiggins did not object on this basis at trial. By failing to obtain a ruling from the trial court, Wiggins failed to properly preserve this issue for our review pursuant to N.C.R. App. P. 10(b)(1). Further, even had Wiggins properly preserved this issue, and as it applies to Cartwright, we see no error in the trial court\u2019s decision.\nPursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2005), \u201c[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d The decision regarding \u201c[w]hether to exclude relevant but prejudicial evidence under Rule 403 is a matter left to the sound discretion of the trial court.\u201d State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992). Neither Defendant articulates an abuse of discretion, and we see none. Therefore, we overrule the relevant assignments of error.\nWe also note that Cartwright moved for a mistrial based upon the admission of this testimony. In his brief, Cartwright incorporates his argument that the testimony was improperly admitted under N.C. Gen. Stat. \u00a7 8C-1, Rule 403, to argue that the trial court improperly denied his motion for a mistrial on this basis. Because we have concluded that the trial court did not abuse its discretion by admitting this evidence, we also overrule this assignment of error.\nB. Sufficiency of the State\u2019s evidence\nDefendants next argue that the trial court erred by denying their motions to dismiss the following charges: (1) trafficking in cocaine by possession; (2) trafficking in cocaine by transportation; (3) possession of cocaine with intent to sell; and (4) conspiracy to traffic in cocaine by possession. We consider each charge separately.\nWhen a defendant moves to dismiss based on insufficiency of the evidence, the trial court must determine whether there is substantial evidence of each element of the crime charged and of the defendant being the perpetrator. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). \u201c \u2018Substantial evidence is evidence from which any rational trier of fact could find the fact to be proved beyond a reasonable doubt.\u2019 \u201d State v. Alston, 131 N.C. App. 514, 518, 508 S.E.2d 315, 318 (1998) (quoting State v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d 396, 399 (1986)). \u201cThe evidence must be viewed in the light most favorable to the State, and the State must receive every reasonable inference to be drawn from the evidence. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.\u201d State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (citations omitted).\n1. Trafficking in cocaine by possession\nN.C. Gen. Stat. \u00a7 90-95(h)(3) (2005) provides that \u201c[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine . . . shall be guilty of a felony . . . known as \u2018trafficking in cocainef.]\u2019 \u201d Further, \u201c[s]ale, manufacture, delivery, transportation, and possession of 28 grams or more of cocaine as defined under N.C.G.S. \u00a7 90-95(h)(3) are separate trafficking offenses for which a defendant may be separately convicted and punished.\u201d State v. Garcia, 111 N.C. App. 636, 641, 433 S.E.2d 187, 190 (1993). To establish trafficking by possession, the State must show that a defendant (1) knowingly possessed a given controlled substance; and (2) that the amount possessed was greater than 28 grams. State v. Shelman, 159 N.C. App. 300, 305, 584 S.E.2d 88, 93, disc. review denied, 357 N.C. 581, 589 S.E.2d 363 (2003).\nOur Supreme Court has noted that\npossession of a controlled substance may be either actual or constructive. A person is said to have constructive possession when he, without actual physical possession of a controlled substance, has both the intent and the capability to maintain dominion and control over it.\nState v. Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991) (citations omitted), aff\u2019d per curiam, 331 N.C. 113, 413 S.E.2d 798 (1992). \u201cMoreover, power to control [an] automobile where a controlled substance was found is sufficient, in and of itself, to give rise to the inference of knowledge and possession sufficient to go to the jury.\u201d State v. Dow, 70 N.C. App. 82, 85, 318 S.E.2d 883, 886 (1984). Further, we have held that \u201cevidence that [the defendant] owned the van and was present therein when the controlled substance was found was sufficient to allow the jury to infer that he had the power and intent to control the contraband found there.\u201d State v. Thompson, 37 N.C. App. 628, 636, 246 S.E.2d 827, 833 (1978), aff\u2019d, 296 N.C. 703, 252 S.E.2d 776, cert. denied, Thompson v. North Carolina, 444 U.S. 907, 62 L. Ed. 2d 143 (1979). \u201cHowever, unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.\u201d State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989).\nIn the present case, Wiggins argues there was no evidence that he actually or constructively possessed any cocaine. We disagree. We note that the State\u2019s evidence tended to show that the officers recovered 54.3 grams of cocaine in the fender well of the vehicle, which was registered to, and driven by, Wiggins. This evidence was sufficient \u201cto give rise to the inference of knowledge and possession sufficient to go to the jury.\u201d Dow, 70 N.C. App. at 85, 318 S.E.2d at 886. Further, digital scales were found in the center console of the vehicle, and paraphernalia for use with cocaine was found in Wiggins\u2019 hotel room. Accordingly, we find that the trial court did not err by denying Wiggins\u2019 motion to dismiss the charge of trafficking in cocaine by possession.\nCartwright argues that he was a mere passenger in a vehicle in which cocaine was recovered and that this fact, without more, was insufficient to submit the case to the jury. In support of his argument, Defendant cites State v. Weems, 31 N.C. App. 569, 230 S.E.2d 193 (1976). In Weems, the defendant was sitting in the right front seat of a vehicle which was stopped by police. Id. at 570, 230 S.E.2d at 194. A search of the automobile revealed packets of heroin in three different areas of the vehicle, two of which were near the defendant\u2019s seat. Id. There was no evidence the defendant owned or controlled the vehicle, nor was there evidence he had ever been in the vehicle prior to the short time during which police observed him in the vehicle. Id. at 571, 230 S.E.2d at 194. This Court noted that:\n[P]ower and intent to control the contraband material can exist only when one is aware of its presence. Therefore, evidence which places an accused within close juxtaposition to a narcotic drug under circumstances giving rise to a reasonable inference that he knew of its presence may be sufficient to justify the jury in concluding that it was in his possession. \u2018However, mere proximity to persons or locations with drugs about them is usually insufficient, in the absence of other incriminating circumstances to convict for possession.\u2019\nId. (quoting Annot., 91 A.L.R.2d 810, 811 (1963)). This Court held that there was insufficient evidence to connect the defendant in Weems to the illegal substances. Id. at 571, 230 S.E.2d at 195.\nIn the present case, unlike in Weems, there was sufficient evidence to infer that Cartwright knowingly possessed the cocaine in the vehicle. First, Cartwright was a passenger in the vehicle in which the cocaine was found. Deputy Duprey testified that when questioned as to their purpose for traveling, Wiggins and Cartwright provided different explanations to the officers as to why they had traveled to Gates County together. A drug-sniffing dog located digital scales and a .25 caliber handgun in the console between Wiggins\u2019 seat and Cartwright\u2019s seat. Further, the cocaine found in the fender well was located in a clean plastic bag that appeared to have been recently placed under the hood. Wiggins and Cartwright were also staying in adjacent hotel rooms, both of which Cartwright rented. A known drug seller and user visited the rooms of both Wiggins and Cartwright the day before their arrest. Deputy Duprey found drug paraphernalia associated with cocaine when he searched Cartwright\u2019s room. Thus, unlike in Weems, Cartwright was not simply found in close proximity to the cocaine found in the vehicle. Rather, the State presented evidence of other incriminating circumstances which permitted the inference that Cartwright had knowledge of the cocaine under the vehicle\u2019s hood. Both Defendants\u2019 assignments of error pertaining to this charge are overruled.\n2. Trafficking in cocaine by transportation\nBoth Defendants assigned error to the trial court\u2019s denial of their motions to dismiss the charge of trafficking in cocaine by transportation. Wiggins articulated no specific argument as to this charge. Cartwright confined his argument on this point to the contention that the State failed to show Cartwright\u2019s knowledge of the cocaine. We concluded above that the State produced sufficient evidence to support a finding of knowledge on the part of both Defendants. Therefore, for the same reasons stated above, we overrule the assignments of error pertaining to this charge.\n3. Possession of cocaine with intent to sell\n\u201cUnder the charge of possession with the intent to sell or deliver cocaine, the State has the burden of proving: (1) the defendant possessed the controlled substance; and (2) with the intent to sell or distribute it.\u201d State v. Diaz, 155 N.C. App. 307, 319, 575 S.E.2d 523, 531 (2002), cert. denied, 357 N.C. 464, 586 S.E.2d 271 (2003).\nDefendants argue only that the State\u2019s evidence of possession was insufficient as to this charge. For the same reasons stated above, we conclude that the trial court did not err by denying Defendants\u2019 motion to dismiss this charge.\n4. Conspiracy to traffic in cocaine by possession\nTo prove criminal conspiracy, the State must prove \u201can agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful manner.\u201d State v. Worthington, 84 N.C. App. 150, 162, 352 S.E.2d 695, 703, disc. review denied, 319 N.C. 677, 356 S.E.2d 785 (1987). The State need not prove an express agreement. Id. Evidence tending to establish a \u201cmutual, implied understanding will suffice to withstand a defendant\u2019s motion to dismiss.\u201d Id. Further,\n\u201c[d]irect proof of conspiracy is rarely available, so the crime must generally be proved by circumstantial evidence.\u201d State v. Burmeister, 131 N.C. App. 190, 199, 506 S.E.2d 278, 283 (1998). A conspiracy \u201cmay be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.\u201d State v. Whiteside, 204 N.C. 710, 712, 169 S.E.2d 711, 712 (1933).\nState v. Clark, 137 N.C. App. 90, 95, 527 S.E.2d 319, 322 (2000).\nWhen viewed in the light most favorable to the State, the evidence in the present case tended to show that Defendants stayed in two adjacent hotel rooms, both of which were rented and paid for by Cartwright. Major Johnson testified that a known drug user and seller knocked on Wiggins\u2019 door, then knocked on Cartwright\u2019s door. At the time the cocaine was recovered, Defendants were together in Wiggins\u2019 vehicle, after having traveled together into Dare County. The hotel rooms of both Defendants contained drug paraphernalia, and both rooms contained paraphernalia for use with cocaine. We conclude that this evidence, taken collectively, permitted the inference that Defendants had a \u201cmutual implied understanding\u201d sufficient to survive Defendants\u2019 motion to dismiss the conspiracy charge.\nII. Wiggins\u2019 Remaining Issue\nWiggins also argues that the State did not produce substantial evidence of his possession of the opium derivative recovered in his hotel room because he did not have exclusive control of the room. We disagree.\nN.C. Gen. Stat. \u00a7 90-95(h)(4) (2005) provides that \u201c[a]ny person who sells, manufactures, delivers, transports, or possesses four grams or more of opium or opiate, or any salt, compound, derivative, or preparation of opium or opiate\u201d is guilty of trafficking in opium or heroin. If a defendant does not maintain exclusive control of the place where the controlled substance is found, the State must show \u201cother incriminating circumstances\u201d to permit the inference of constructive possession. State v. Butler, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001), aff'd, 356 N.C. 141, 567 S.E.2d 137 (2002). \u201c \u2018No single factor controls, but ordinarily the questions will be for the jury[.]\u2019 \u201d Id. (quoting Jackson, 103 N.C. App. at 243, 405 S.E.2d at 357). Further, \u201c[t]he State is not required to prove that the defendant owned the controlled substance, or that [the] defendant was the only person with access to it.\u201d State v. Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987) (citations omitted).\nWe first note that the evidence was conflicting as to whether Wiggins maintained exclusive control over Room 208 of the Quality Inn. Deputy Duprey testified that he was \u201cnot able to determine\u201d whether another individual was staying in Room 208 with Wiggins. T.164.' He further stated that the law enforcement officers watching the room \u201cnever physically saw [another] person inside the room.\u201d However, Deputy Duprey also testified that some items in the room \u201cpossibly belonged to another person.\u201d Friddle\u2019s testimony also established that the registration cards for the hotel rooms indicated that there were two double beds and two adults registered in Room 208. Therefore, we conclude that to establish constructive possession, the State was required to show evidence of \u201cother incriminating circumstances.\u201d Butler, 147 N.C. App. at 11, 556 S.E.2d at 311.\nViewing the evidence in the light most favorable to the State, we find the State produced sufficient evidence that Wiggins constructively possessed the opium derivative. Wiggins consented to a search of Room 208 where the pills were found and he admitted to Deputy Duprey that marijuana and other paraphernalia would be found in the room. The pills were found in the same brown bag as the marijuana. Further, Major Johnson testified that he saw a man matching the general description of Wiggins open the door to Room 208 the day before Wiggins was arrested and Room 208 was searched. Based upon these circumstances, we conclude that the State produced sufficient evidence that Wiggins constructively possessed the opium derivative to survive Wiggins\u2019 motion to dismiss this charge. We overrule this assignment of error.\nIII. Cartwright\u2019s Remaining Issues\nCartwright also brings the following issues before this Court: (1) whether the trial court erred by denying his motion for a mistrial based on remarks made during jury selection; and (2) whether the trial court committed plain error by charging the jury as to the statements of the informant.\nA. Motion for mistrial based upon jury selection\nN.C. Gen. Stat. \u00a7 15A-1061 (2005) provides that:\nUpon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant\u2019s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant\u2019s case.\n\u201cThe decision whether to grant a motion for mistrial rests within the sound discretion of the trial judge and will not ordinarily be disturbed on appeal absent a showing of abuse of that discretion.\u201d State v. Primes, 314 N.C. 202, 215, 333 S.E.2d 278, 286 (1985).\nCartwright argues that his motion for a mistrial should have been granted because the statements made by the prospective juror in the presence of the other prospective jurors tainted the jury. At trial, Cartwright argued that the implications of the statements were that Cartwright \u201cpartie[d]\u201d with a person on probation for an unknown offense.\nIn support of this argument, Cartwright cites State v. Mobley, 86 N.C. App. 528, 358 S.E.2d 689 (1987). We find Mobley to be distinguishable from the present case. In Mobley, during jury selection, a potential juror \u201cidentified himself as a police officer [and] stated that he had \u2018dealings with the defendant on similar charges\u2019 \u201d in the presence of the other potential jurors. Id. at 532, 358 S.E.2d at 691. The trial court then \u201cexcused the juror and instructed the jury: ... \u2018to strike from their mind any reference the officer may have made to the defendant because it is not evidence in the case.\u2019 \u201d Id. at 532-33, 358 S.E.2d at 691. On appeal, this Court granted the defendant a new trial, holding that \u201c[a] statement by \u00e1 police officer-juror that he knows the defendant from \u2018similar charges\u2019 is likely to have a substantial effect on other jurors. The potential prejudice to the defendant is obvious.\u201d Id. at 533, 358 S.E.2d at 692. This Court also noted that \u201cthe trial court, at the least, should have made inquiry of the other jurors as to the effect of the statement.\u201d Id. at 534, 358 S.E.2d at 692.\nIn State v. McAdoo, 35 N.C. App. 364, 241 S.E.2d 336, disc. review denied, 295 N.C. 93, 244 S.E.2d 262 (1978), each of the defendants argued that the trial co\u00fart erred by failing to grant their motions for a mistrial when a potential juror announced in the presence of the other potential jurors that a defendant had tried to steal a power saw from him. Id. at 366, 241 S.E.2d at 337. The defendant\u2019s attorney was then permitted to ask if it was true the defendant was found not guilty of the charge, to which the juror answered, \u201cyes.\u201d Id. The trial court denied the defendant\u2019s motion for a mistrial. Id. On appeal, this Court affirmed the trial court\u2019s decision, holding that the potential juror\u2019s statement was not \u201cso prejudicial as to require a new trial.\u201d Id. at 366, 241 S.E.2d at 338.\nCartwright argues that, like the comments made in Mobley, the prospective juror\u2019s comments had a substantial effect on the other jurors and \u201ctended to color [Cartwright] as the very type [of] person who would deal (and had dealt) with unlawful drugs and prejudiced his case from the very beginning of the trial.\u201d In the present case, however, the prospective juror\u2019s statements did not contain the same potential for prejudice as the police officer\u2019s comments in Mobley. None of the statements indicated Cartwright had been involved in the use or sale of unlawful drugs. Moreover, the fact that the prospective juror had a probation officer was not enough to infer that Cartwright was involved with illegal drugs, nor did it result in \u201csubstantial and irreparable prejudice\u201d to Cartwright\u2019s case. N.C.G.S. \u00a7 15A-1061. We hold that the prospective juror\u2019s statements in the present case, like McAdoo, were not \u201cso prejudicial as to require a new trial.\u201d McAdoo, 35 N.C. App. at 366, 241 S.E.2d at 338. Thus, this assignment of error is overruled.\nB. Jury charge on informant\u2019s statements\nLastly, Cartwright argues that the trial court committed plain error by charging the jury on the out-of-court statements made by the informant to Deputy Duprey. We point out that the trial court\u2019s inclusion of this instruction was at Cartwright\u2019s request. Further, the trial court asked Cartwright\u2019s attorney to draft the instruction he desired, and the trial court then included that language in its final instructions. \u201cA criminal defendant will not be heard to complain of a jury instruction' given in response to his own request.\u201d State v. McPhail, 329 N.C. 636, 643, 406 S.E.2d 591, 596 (1991). While we express no opinion as to whether giving the instruction was error, \u201c[a]ny error in the giving of this jury instruction was invited by [Cartwright.]\u201d State v. Duke, 360 N.C. 110, 124, 623 S.E.2d 11, 21 (2005), cert. denied, Duke v. North Carolina, -U.S.-, 166 L. Ed. 2d 96 (2006). We therefore overrule Cartwright\u2019s assignment of error on this issue.\nDefendants do not argue their remaining assignments of error and we therefore deem them abandoned pursuant to N.C.R. App. 28(b)(6).\nNo error.\nJudges STEPHENS and SMITH concur.",
        "type": "majority",
        "author": "McGEE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General Marc Bernstein and Special Deputy Attorney General J. Allen Jemigan, for the State.",
      "Thomas R. Sallenger for Defendant-Appellant Kenneth James Wiggins; William D. Spence for Defendant-Appellant Robert Alphonso Cartwright."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. KENNETH JAMES WIGGINS and ROBERT ALPHONSO CARTWRIGHT\nNo. COA06-1481\n(Filed 21 August 2007)\n1. Constitutional Law\u2014 right to confrontation \u2014 statements to deputy\nThere was no Sixth Amendment Crawford error in a drug trafficking case where a deputy\u2019s testimony included statements made by an informant. The statements were not offered for their truth, but to explain how the investigation unfolded.\n2. Evidence\u2014 statements to deputy \u2014 not hearsay\nTestimony by a deputy in a drug trafficking prosecution that included statements by an informant was not offered for its truth and was not hearsay.\n3. Appeal and Error\u2014 preservation of issues \u2014 no objection at trial\nAn issue was not preserved for appellate review where there was no objection on that basis at trial.\n4. Evidence\u2014 testimony by deputy \u2014 statements by an informant \u2014 not unduly prejudicial\nThe probative value of testimony by a deputy that included statements by an informant was not outweighed by its prejudicial effect and there was no abuse of discretion in its admission. Also, there was no abuse of discretion in the denial of a motion for a mistrial on this basis.\n5. Drugs\u2014 trafficking by possession \u2014 sufficiency of evidence\nThere was sufficient evidence to deny a motion to dismiss a prosecution for trafficking in cocaine by possession where defendant argued that there was no evidence that he actually or constructively possessed the cocaine, but cocaine and digital scales were recovered from his vehicle, and paraphernalia from his hotel room.\n6. Drugs\u2014 trafficking by possession \u2014 proximity\nA passenger in a truck in which cocaine was found was not simply in close proximity; there were other incriminating circumstances permitting the inference that he had knowledge of the cocaine under the hood.\n7. Drugs\u2014 possession with intent to sell \u2014 sufficiency of evidence\nThere was sufficient evidence to deny defendant\u2019s motion to dismiss a charge of possession of cocaine with intent to sell.\n8. Drugs\u2014 trafficking by possession \u2014 conspiracy\u2014mutual implied understanding\nThe evidence in a prosecution for conspiracy to traffic in cocaine by possession was sufficient, taken collectively, to permit an inference of a mutual implied understanding.\n9. Drugs\u2014 constructive possession \u2014 control of motel room\nThere was sufficient evidence that defendant Wiggins constructively possessed an opium derivative even though he contended that he did not have exclusive control of a motel room in which the opium derivative was found.\n10. Jury\u2014 comments of prospective juror \u2014 not unduly prejudicial\nThe comments of a prospective juror in a narcotics prosecution were not so prejudicial as to require a new trial where defendant Cartwright contended that the comments implied that Cartwright \u201cpartied\u201d with a person on probation. None of the statements linked Cartwright to the use or sale of unlawful drugs, and the fact that the prospective juror had a probation officer was not enough to infer that Cartwright was involved with illegal drugs.\n11. Criminal Law\u2014 instructions \u2014 invited error\nThere was no plain error by charging the jury on out-of-court statements where the instruction was requested and drafted by defendant. Any error was invited.\nAppeal by Defendants from judgments entered 13 April 2006 by Judge Cy Anthony Grant, Sr. in Superior Court, Dare County. Heard in the Court of Appeals 6 June 2007.\nAttorney General Roy Cooper, by Special Deputy Attorney General Marc Bernstein and Special Deputy Attorney General J. Allen Jemigan, for the State.\nThomas R. Sallenger for Defendant-Appellant Kenneth James Wiggins; William D. Spence for Defendant-Appellant Robert Alphonso Cartwright."
  },
  "file_name": "0376-01",
  "first_page_order": 408,
  "last_page_order": 425
}
