{ "id": 4163506, "name": "STATE OF NORTH CAROLINA, Plaintiff v. SHANNON COWAN, Defendant", "name_abbreviation": "State v. Cowan", "decision_date": "2008-12-16", "docket_number": "No. COA08-470", "first_page": "330", "last_page": "337", "citations": [ { "type": "official", "cite": "194 N.C. App. 330" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "664 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641634 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "605", "parenthetical": "citations omitted" }, { "page": "605", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0601-01" ] }, { "cite": "661 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641157 ], "year": 2008, "pin_cites": [ { "page": "772-73", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0770-01" ] }, { "cite": "661 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641205, 12641206, 12641207 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/661/0883-01", "/se2d/661/0883-02", "/se2d/661/0883-03" ] }, { "cite": "362 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12641517, 12641206, 12641591 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/663/0428-03", "/se2d/661/0883-02", "/se2d/664/0314-02" ] }, { "cite": "651 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639641 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "601-02", "parenthetical": "citation and ellipses omitted" }, { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0598-01" ] }, { "cite": "661 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640989 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "26" }, { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0023-01" ] }, { "cite": "361 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "324" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358426 ], "year": 1987, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0380-01" ] }, { "cite": "442 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "30" } ], "opinion_index": 0 }, { "cite": "336 N.C. 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538166 ], "year": 1994, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0022-01" ] }, { "cite": "192 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160825 ], "year": 2008, "pin_cites": [ { "page": "148", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0143-01" ] }, { "cite": "547 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135969, 135939, 135945, 135839 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0383-02", "/nc/353/0383-01", "/nc/353/0383-03", "/nc/353/0383-04" ] }, { "cite": "535 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "873", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 217", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12124180 ], "year": 2000, "pin_cites": [ { "page": "221", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0217-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-108", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)(7)" }, { "page": "(a)(7)" }, { "page": "(a)(7)" } ], "opinion_index": 0 }, { "cite": "399 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "362", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 245", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527583 ], "year": 1991, "pin_cites": [ { "page": "252", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0245-01" ] }, { "cite": "191 N.C. App. 124", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159001 ], "year": 2008, "pin_cites": [ { "page": "126", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0124-01" ] }, { "cite": "186 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8156788 ], "year": 2007, "pin_cites": [ { "page": "369", "parenthetical": "citation and ellipses omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0364-01" ] }, { "cite": "190 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157917 ], "year": 2008, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0505-01" ] }, { "cite": "591 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "17", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 259", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8916392 ], "year": 2004, "pin_cites": [ { "page": "266", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0259-01" ] } ], "analysis": { "cardinality": 686, "char_count": 17510, "ocr_confidence": 0.76, "pagerank": { "raw": 5.78078655242355e-08, "percentile": 0.3608683363393001 }, "sha256": "faa1863d0311359a6258623fbbf45a4f6e7f9f67b2be2aeb7abcc4f19e982ed7", "simhash": "1:0b2a52250c7eda66", "word_count": 2801 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and JACKSON concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. SHANNON COWAN, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant was convicted by a jury of eight different offenses related to controlled substances and firearm possession. Defendant appeals arguing the trial court erred in (1) allowing \u201cirrelevant and highly prejudicial\u201d testimony, (2) failing to dismiss six of the charges as the State did not prove the element of \u201cpossession,\u201d and (3) failing to dismiss the charge of maintaining a dwelling for keeping or selling controlled substances when the State did not prove defendant \u201cke[pt] or maintained\u201d the property and how he was \u201cusing\u201d the property.\nI. Background\nOn 27 September 2006, members of the Rowan County Sheriffs Department executed a search warrant at 1763-B Flat Rock Road. Defendant was the subject of the search warrant. In the residence, the police found marijuana, cocaine, methamphetamine, firearms, thousands of dollars, and drug paraphernalia including razor blades and digital scales.\nOn or about 4 December 2006, defendant was indicted for (1) trafficking in cocaine, (2) possession of cocaine with intent to sell, (3) possession of marijuana with intent to sell, (4) possession of methamphetamine with intent to sell and deliver, (5-7) three counts of possession of a firearm by a felon, and (8) maintaining a dwelling used for keeping or selling controlled substances. Defendant was found guilty of all eight offenses. Defendant appeals arguing the trial court erred in (1) allowing \u201cirrelevant and highly prejudicial\u201d testimony, (23 failing to dismiss six of the charges as the State did not prove the element of \u201cpossession,\u201d and (3) failing to dismiss the charge of maintaining a dwelling for keeping or selling controlled substances when the State did not prove defendant \u201cke[pt] or maintained\u201d the property and how he was \u201cusing\u201d the property.\nII. Testimony Regarding Marlene Chambers\nDefendant\u2019s first two arguments contend that the trial court erred by allowing testimony, over defendant\u2019s objections, from Rahesia Chambers and defendant regarding the drug trafficking trial and conviction of defendant\u2019s aunt, Marlene Chambers. Defendant argues that this evidence was \u201cirrelevant and highly prejudicialf.]\u201d We agree that the evidence was irrelevant, but do not conclude that it prejudiced defendant\u2019s case.\nAlthough the trial court\u2019s rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal. Because the trial court is better situated to evaluate whether a particular piece of evidence tends to make the existence of a fact of consequence more or less probable, the appropriate standard of review for a trial court\u2019s ruling on relevancy pursuant to Rule 401 is not as deferential as the \u201cabuse of discretion\u201d standard which applies to rulings made pursuant to Rule 403.\nDunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (citations and quotation marks omitted).\n\u201c \u2018Relevant evidence\u2019 \u201d means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401. \u201cEvidence which is not relevant is not admissible.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 402. We conclude that evidence about defendant\u2019s aunt\u2019s prior trial and conviction is irrelevant as it does not \u201cmake the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d See N.C. Gen. Stat. \u00a7 8C-1, Rule 401. There was no evidence that Marlene Chambers\u2019 criminal activities had any relation whatsoever to the crimes for which defendant was charged. As we deem- the testimony regarding Marlene Chambers drug trial and conviction irrelevant, the testimony was inadmissible. See N.C. Gen. Stat. \u00a7 8C-1, Rule 402.\nHowever,\n[a] defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\nN.C. Gen. Stat. \u00a7 15A-1443(a) (2005). \u201cIf the other evidence presented was sufficient to convict the defendant, then no prejudicial error occurred.\u201d State v. Bodden, 190 N.C. App. 505, 510, 661 S.E.2d 23, 26 (2008). We first note that the evidence contested by defendant regarding Marlene Chambers was very minimal: (1) The State asked Ms. Rahesia Chambers about her mother, Marlene Chambers: \u201cThe same mom that I just prosecuted about three months ago for drug trafficking. . . . That\u2019s your relative, isn\u2019t it?\u201d to which Rahesia stated, \u201cThat\u2019s my mom.\u201d (2) The State asked defendant \u201cDid you give Marlene Chamber\u2019s name [to Officer Bebber as your nearest relative] because she\u2019s involved in the drug business with you?\u201d Defendant answered, \u201cNo, I didn\u2019t.\u201d The State then asked, \u201cYou know she was convicted of trafficking, don\u2019t you? . . . And that\u2019s why you gave the name, didn\u2019t you? She was going to help you out, wasn\u2019t she, if you helped her out[,]\u201d to which defendant responded, \u201cNo, I wasn\u2019t and, no, I didn\u2019t.\u201d In the course of an eight day trial, these are the only instances of evidence regarding Marlene Chambers or her convictions which defendant has brought to our attention. The irrelevant evidence defendant contested was minimal, and there was sufficient evidence to convict defendant based upon the controlled substances and firearms found in the residence. We therefore do not find that there was a reasonable possibility that the jury would have reached a different result in the absence of this evidence; so'defendant was not prejudiced by the irrelevant testimony. See N.C. Gen. Stat. \u00a7 15A-1443(a); Bodden at 510, 661 S.E.2d at 26.\nIII. Motions to Dismiss\nDefendant contends the trial court erred by failing to grant his motion to dismiss as to six of the charges.\nA. Standard of Review\nOur standard of review for the denial of a defendant\u2019s motion to dismiss is\nwhether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied. 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; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all 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.\nState v. Estes, 186 N.C. App. 364, 369, 651 S.E.2d 598, 601-02 (2007) (citation and ellipses omitted), appeal dismissed and disc. review denied, 362 N.C. 365, 661 S.E.2d 883 (2008).\nB. Possession\nDefendant\u2019s next three arguments contend that the trial court erred in failing to grant defendant\u2019s motion to dismiss the charges of trafficking in cocaine, possession of marijuana with intent to sell or deliver, and the three charges of possession of a firearm by a felon, because the State failed to prove the element of \u201cpossession\u201d as to all of these charges. Defendant contends that\n[t]he State presented a very weak case of constructive possession. There was no surveillance of this apartment, no eyewitnesses, and no confidential informants. Although there were two envelopes addressed to . . . [defendant] at that address and days later the police said he gave that address when he was arrested, there was nothing to tie him to drugs and guns and the occupancy of Ms. Bennett\u2019s apartment the day of the raid.\nNone of . . . [defendant\u2019s] clothes were in that apartment but there was testimony that the clothing of other men were [sic] in that closet. There was no evidence that . . . [defendant] had been in that apartment around the time of the raid but there was testimony that at least four other people were in that apartment around this time and had access to that closet. No toiletries belonging to . . . [defendant] were found in that apartment. . . . [Defendant] had no key. The lease was not in his name as were none of the utilities. Even in the light most favorable to the State, the State failed to prove the element of possession for these offenses.\nHowever,\n[i]f the defendant is not in actual possession of contraband when it is discovered, the State may survive a motion to dismiss by presenting substantial evidence of constructive possession. Evidence of constructive possession is sufficient to support a conviction if it would allow a reasonable mind to conclude that defendant had the intent and capability to exercise control and dominion over the drugs.\nState v. Miller, 191 N.C. App. 124, 126, 661 S.E.2d 770, 772-73 (2008) (citations and quotation marks omitted). \u201cWhen the substance is found on premises under the exclusive control of the defendant, this fact alone may support an inference of constructive possession. If the defendant\u2019s possession over the premises is nonexclusive, constructive possession may not be inferred without other incriminating circumstances.\u201d State v. Autry, 101 N.C. App. 245, 252, 399 S.E.2d 357, 362 (1991) (citation omitted).\nConstructive possession depends on the totality of circumstances in each case.... [A] showing by the State of other incriminating circumstances permits an inference of constructive possession. Incriminating circumstances which have been identified by this Court and the North Carolina Supreme Court as relevant to constructive possession include evidence that defendant: (1) owned other items found in proximity to the contraband, (2) was the only person who could have placed the contraband in the position where it was found, (3) acted nervously in the presence of law enforcement, (4) resided in, had some control of, or regularly visited the premises where the contraband was found, (5) was near contraband in plain view, or (6) possessed a large amount of cash....\nSee Miller at 127, 661 S.E.2d at 773 (citations, quotations, ellipses, and brackets omitted).\nHere, the evidence supported at least two of the \u201cincriminating circumstances\u201d which allow an inference of constructive possession. See id. First, the State presented evidence that at 1763-B Flat Rock Road the police found, inter alia, defendant\u2019s birth certificate and a bill with defendant\u2019s name on it and noting his address as 1763-B Flat Rock Road in the same closet where the controlled substances were found. The police also found a show cause order directed to defendant and an insurance policy in defendant\u2019s name issued only days prior to the search which showed 1763-B Flat Rock Road as his home address. Second, defendant was also arrested at 1763-B Flat Rock Road and was seen coming out of the bedroom where the controlled substances and firearms were found. Defendant also told the police that he resided at 1763-B Flat Rock Road. Viewing the evidence \u201cin the light most favorable to the State[,]\u201d Estes at 369, 651 S.E.2d at 602, we conclude the State presented sufficient evidence of constructive possession through incriminating circumstances, including that defendant \u201cowned other items found in proximity to the contraband,\u201d and \u201cresided in, had some control of, or regularly visited the premises where the contraband was found . . . .\u201d See Miller at 127, 661 S.E.2d at 773. Therefore, the trial court did not err in denying defendant\u2019s motion to dismiss. These arguments are overruled.\nC. Maintaining a Dwelling\nLastly, defendant argues the trial court erred in failing to dismiss the charge of maintaining a dwelling for keeping or selling controlled substances because\n[t]here was absolutely no evidence that . . . [defendant] contributed in any way to the maintenance of Ms. Bennett\u2019s apartment. None of the factors under Bowens, supra, are present: no ownership of the property; no occupancy of the property; no repairs to the property; no payment of taxes; no payment of utility expenses; no payment of repair expenses; and no payment of rent. There was no testimony that any of . . . [defendant\u2019s] clothing or personal effects were present but there was testimony of other men\u2019s clothing. The State failed to prove that. . . [defendant] used Ms. Bennett\u2019s apartment in any unlawful way.\nThus, defendant argues the State failed to prove that he \u201cke[pt] or maintain[ed]\u201d the property and how he was using the property.\nN.C. Gen. Stat. \u00a7 90-108(a)(7) reads,\nIt shall be unlawful for any person:\nTo knowingly keep or maintain any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by persons using controlled substances in violation of this Article for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this Article[.]\nN.C. Gen. Stat. \u00a7 90-108(a)(7) (2005). State v. Bowens, lays out several factors which indicate that an individual is \u201ckeeping] or main-tainting]\u201d property pursuant to N.C. Gen. Stat. \u00a7 90-108(a)(7) which includes: \u201cownership 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.\u201d 140 N.C. App. 217, 221, 535 S.E.2d 870, 873 (2000) (citation omitted), disc. review denied, 353 N.C. 383, 547 S.E.2d 417 (2001). \u201c[0]ccupancy, without more, will not support the element of \u2018maintaining\u2019 a dwelling. However, evidence of residency, standing alone, is sufficient to support the element of maintaining.\u201d State v. Spencer, 192 N.C. App. 143, 148, 664 S.E.2d 601, 605 (2008) (citations omitted). In State v. Spencer, this Court determined that \u201ca purported confession by defendant to police, that defendant resided at the home at 178 Loggerhead Road.. . . was substantial evidence that defendant maintained the dwelling.\u201d Spencer at 148, 664 S.E.2d at 605 (citation omitted). Here defendant told the police that he resided at 1763-B Flat Rock Road, and thus this is \u201csubstantial evidence that defendant maintained the dwelling.\u201d See id.\nFurthermore, as to \u201cuse,\u201d \u201c[t]he determination of whether a vehicle, or a building, is used for keeping or selling controlled substances will depend on the totality of the circumstances.\u201d State v. Mitchell, 336 N.C. 22, 34, 442 S.E.2d 24, 30 (1994). In State v. Rich, this Court concluded that\n[t]he evidence showing that defendant resided in the house, that she was cooking dinner, and that she possessed cocaine and materials related to the use and sale of cocaine, is sufficient to allow conviction under G.S. 90-108(a)(7) for maintaining a dwelling used for the keeping or selling of controlled substances.\n87 N.C. App. 380, 384, 361 S.E.2d 321, 324 (1987).\nHere, as in Rich, there is evidence defendant resided at 1763-B Flat Rock Road. See id. There is also evidence that defendant possessed controlled substances, \u201cmaterials related to the use and sale\u201d of controlled substances, and firearms at 1763-B Flat Rock Road which \u201cis sufficient to allow conviction under [N.C.]G.S. [\u00a7] 90-108(a)(7) for maintaining a dwelling used for the keeping or selling of controlled substances.\u201d See id. Therefore, the trial court did not err in denying defendant\u2019s motion to dismiss as to the charge of maintaining a dwelling for keeping or selling controlled substances, and this argument is overruled.\nIV. Conclusion\nFor the foregoing reasons, we find no prejudicial error.\nNO PREJUDICIAL ERROR.\nJudges STEELMAN and JACKSON concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Thomas H. Moore, for the State.", "D. Tucker Chams, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. SHANNON COWAN, Defendant\nNo. COA08-470\n(Filed 16 December 2008)\n1. Evidence\u2014 crimes of family member \u2014 irrelevant but not prejudicial\nTestimony about the drug trafficking conviction of defendant\u2019s aunt was irrelevant but not prejudicial in defendant\u2019s drug trafficking trial. There was no evidence that the aunt\u2019s activities had any relationship to the crimes with which defendant was charged, the evidence was minimal, and there was sufficient other evidence to convict defendant.\n2. Drugs\u2014 constructive possession \u2014 sufficiency of evidence\nMotions to dismiss several drug trafficking and possession of firearms by a felon charges in which possession was challenged were correctly denied where the evidence supported circumstances allowing an inference of constructive possession. Items were found at the house that was searched with defendant\u2019s name and the address of the house (including his birth certificate in a closet with the controlled substances), defendant was seen coming out of the bedroom where the controlled substances and firearms were found, defendant was arrested in the house, and defendant told police that he resided at that address.\n3. Drugs\u2014 maintaining dwelling \u2014 sufficiency of evidence\nThe trial court did not err by not dismissing a charge of maintaining a dwelling for keeping or selling controlled substances where there was evidence that defendant resided at the house and possessed controlled substances, related items, and firearms at that house.\nAppeal by defendant from judgments entered on or about 14 November 2007 by Judge John L. Holshouser, Jr. in Superior Court, Rowan County. Heard in the Court of Appeals 8 October 2008.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Thomas H. Moore, for the State.\nD. Tucker Chams, for defendant-appellant." }, "file_name": "0330-01", "first_page_order": 362, "last_page_order": 369 }