{ "id": 4132546, "name": "STATE OF NORTH CAROLINA v. ZAVIER CHARLES CHISHOLM", "name_abbreviation": "State v. Chisholm", "decision_date": "2013-02-19", "docket_number": "No. COA12-901", "first_page": "592", "last_page": "598", "citations": [ { "type": "official", "cite": "225 N.C. App. 592" } ], "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": "618 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633881 ], "year": 2005, "pin_cites": [ { "page": "758" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0754-01" ] }, { "cite": "644 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638420 ], "year": 2007, "pin_cites": [ { "page": "623", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0615-01" ] }, { "cite": "342 S.E.2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "877" } ], "opinion_index": 0 }, { "cite": "316 N.C. 605", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4702383 ], "year": 1986, "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0605-01" ] }, { "cite": "386 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1989, "pin_cites": [ { "page": "190" }, { "page": "188-89" }, { "page": "188, 190" }, { "page": "190" }, { "page": "190" } ], "opinion_index": 0 }, { "cite": "325 N.C. 693", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488940 ], "year": 1989, "pin_cites": [ { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0693-01" ] }, { "cite": "187 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "173 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352960 ], "year": 2005, "pin_cites": [ { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0101-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)(1)(2011)" } ], "opinion_index": 0 }, { "cite": "535 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "873" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 217", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12124180 ], "year": 2000, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0217-01" ] }, { "cite": "208 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "698" } ], "opinion_index": 0 }, { "cite": "285 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569859 ], "year": 1974, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0735-01" ] }, { "cite": "693 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "204 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176446 ], "year": 2010, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc-app/204/0350-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(6)(b)(2011)" } ], "opinion_index": 0 }, { "cite": "596 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "317" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 638", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8899866 ], "year": 2004, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0638-01" ] }, { "cite": "548 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "700" } ], "opinion_index": 0 }, { "cite": "353 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135851 ], "year": 2001, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0599-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "183 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8204534 ], "year": 2007, "pin_cites": [ { "page": "526", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0514-01" ] } ], "analysis": { "cardinality": 630, "char_count": 15316, "ocr_confidence": 0.734, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13342341580532302 }, "sha256": "391b569ced5ff3721aa2d1985541861a584f62d116d131fc758ba2099a82b685", "simhash": "1:9b25c4ba34980c7a", "word_count": 2420 }, "last_updated": "2023-07-14T19:12:03.865649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUNTER, JR., Robert N. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ZAVIER CHARLES CHISHOLM" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere evidence was sufficient to establish one of three statutory factors defining a counterfeit controlled substance and to provide an inference of defendant\u2019s intent to sell or deliver, the trial court properly denied defendant\u2019s motion to dismiss the charge of possession with the intent to sell or deliver a counterfeit controlled substance. Where there was sufficient evidence of incriminating factors to support constructive possession, the trial court properly denied defend-ant\u2019s motion to dismiss the charge of possession with the intent to sell or deliver cocaine. Where testimony had been previously admitted referring to a bedroom as \u201cdefendant\u2019s bedroom,\u201d defendant could not show that he was prejudiced when the trial court overruled his objection to an officer\u2019s testimony that the room was \u201csolely controlled\u201d by defendant.\nI. Factual and Procedural Background\nOn 26 April 2010, police executed a search warrant for 3036 Chenango Drive in Charlotte and found what appeared to be controlled substances in Zavier Charles Chisholm\u2019s (defendant) bedroom. Defendant was in the room sleeping when police arrived. His girlfriend and his dog were also in the bedroom. When police searched the bedroom, they found razors, crack pipes, spoons, plastic baggies, an electronic scale containing white residue, $600 in cash, and substances that appeared to be controlled substances. Police found two baggies containing white substances, one inside the box springs of the bed and the other inside a duffel bag, which was leaning against the nightstand. Analysis of the substances indicated that the substance found in the box springs consisted of 13.60 grams of cocaine. The other white powder found in the duffel bag weighed 28.60 grams, but did not contain a controlled substance.\nDefendant was indicted for possession of drug paraphernalia, possession with the intent to sell or deliver cocaine, possession with the intent to sell or deliver a counterfeit controlled substance, and being an habitual felon. On 12 October 2011, a jury found defendant guilty of all offenses, including being an habitual felon. Defendant was sentenced as a Level V offender to two active terms of imprisonment of 101-131 months for possession with the intent to sell or deliver a counterfeit controlled substance and 101-131 months for possession of drug paraphernalia and possession with the intent to sell or deliver cocaine. The two sentences ran concurrently.\nDefendant appeals.\nII. Denial of Defendant\u2019s Motions to Dismiss\nIn his first and second arguments, defendant contends that the trial court erred in denying his motions to dismiss the charge of possession with the intent to sell or deliver a counterfeit controlled substance and the charge of possession with the intent to sell or deliver cocaine. We disagree.\nA. Standard of Review\n\u201cThe denial of a motion to dismiss for insufficient evidence is a question of law which this Court reviews de novo.\u201d State v. Bagley, 183 N.C. App. 514, 526, 644 S.E.2d 615, 623 (2007) (citations omitted). \u201cUpon defendant\u2019s motion for dismissal, the question for this Court 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\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u201d State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). We view the evidence in the light most favorable to the State and any conflicts are resolved in the State\u2019s favor. State v. Fowler, 353 N.C. 599, 621, 548 S.E.2d 684, 700 (2001). \u201cIf substantial evidence exists supporting defendant\u2019s guilt, the jury should be allowed to decide if the defendant is guilty beyond a reasonable doubt.\u201d Id.\nB. Counterfeit Controlled Substance\n\u201c[T]o obtain a conviction of possession with intent to sell and deliver a counterfeit controlled substance, the State must prove (1) that defendant possessed a counterfeit controlled substance, and (2) that defendant intended to \u2018sell or deliver\u2019 the counterfeit controlled substance.\u201d State v. Williams, 164 N.C. App. 638, 644, 596 S.E.2d 313, 317 (2004). Defendant challenges the sufficiency of the evidence under both elements.\nUnder the North Carolina General Statutes, a \u201ccounterfeit controlled substance\u201d is defined as:\nAny substance which is by any means intentionally represented as a controlled substance. It is evidence that the substance has been intentionally misrepresented as a controlled substance if the following factors are established:\n1. The substance was packaged or delivered in a manner normally used for the illegal delivery of controlled substances.\n2. Money or other valuable property has been exchanged or requested for the substance, and the amount of that consideration was substantially in excess of the reasonable value of the substance.\n3. The physical appearance of the tablets, capsules or other finished product containing the substance is substantially identical to a specified controlled substance.\nN.C. Gen. Stat. \u00a7 90-87(6)(b)(2011). Defendant contends that for a substance to be considered a counterfeit controlled substance, the State must prove all three factors under the statute. However, this reading of the statute is incorrect. See State v. Bivens, 204 N.C. App. 350, 354, 693 S.E.2d 378, 381 (2010) (holding that jury instructions omitting one part of a statutory factor were not misleading because \u201cthe statute clearly states that \u2018[i]t is evidence that the substance has been intentionally misrepresented as a controlled substance if the following factors are established[,]\u2019 not that those factors are required to find that a controlled substance has been intentionally misrepresented.\u201d). The statute does not require the State to prove all three elements. See id.\nTo establish the second element of intent to sell or deliver, the \u201camount of the substance found, the manner in which it was packaged and the presence of other packaging materials\u201d give rise to an inference of defendant\u2019s intent to sell or deliver. State v. Baxter, 285 N.C. 735, 738, 208 S.E.2d 696, 698 (1974).\nIn the instant case, there was substantial evidence supporting the defendant\u2019s possession of a counterfeit controlled substance under the first statutory factor and his intent to sell or deliver the substance. The evidence, taken in the light most favorable to the State, showed: the duffel bag was leaning against the nightstand, and inside the duffel bag, police found 28.6 grams of a white substance, plastic baggies, a razor blade, and a Brillo pad, an item used for consuming cocaine. The evidence also showed that the white powder was packaged in a knotted plastic baggie, the manner of packaging was consistent with the manner in which cocaine is typically packaged, and the weight of the substance was consistent with the weight in which cocaine is sold. The packaging, the weight of the substance, and the presence of other materials used for the packaging of narcotics were substantial evidence supporting the submission of the issues of whether the substance was a counterfeit controlled substance and whether defendant had the intent to sell or deliver the substance to the jury.\nThis argument is without merit.\nC. Constructive Possession\nTo obtain a conviction for possession of a controlled substance with the intent to sell or deliver, \u201cthe State has the burden of proving: (1) [defendant possessed the controlled substance, and (2) with the intent to sell or distribute it.\u201d State v. Bowens, 140 N.C. App. 217, 222, 535 S.E.2d 870, 873 (2000); see also N.C. Gen. Stat. \u00a7 90-95(a)(1)(2011). Defendant contends that there was insufficient evidence to prove he had actual or constructive possession of the cocaine.\n\u201cThe State is not required to prove actual physical possession of the controlled substance or paraphernalia; proof of constructive possession by the defendant is sufficient to carry the issue to the jury and such possession need not be exclusive.\u201d State v. McBride, 173 N.C. App. 101, 106, 618 S.E.2d 754, 758 (2005). \u201cWhere such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.\u201d State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). When an accused does not have exclusive possession of the premises where narcotics are found, \u201cthe 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 Davis, officers executing a search warrant for a mobile home found seven adults in the living room, including the defendant, and controlled substances throughout the premises. Id. at 694-95, 386 S.E.2d at 188-89. Our Supreme Court upheld the trial court\u2019s denial of defendant\u2019s motion to dismiss the charges of trafficking in methadone and cocaine, holding that the \u201cevidence was sufficient to provide the other incriminating circumstances necessary for constructive possession when the possession is nonexclusive.\u201d Id. at 694, 697, 386 S.E.2d at 188, 190. The incriminating circumstances included: \u201ca bill of sale to a mobile home which matched the description of the mobile home being searched,\u201d \u201c[t]he name on the bill of sale was that of Grayson Davis, the defendant,\u201d \u201ca bottle of prescription drugs with the name of Grayson Davis was found on a coffee table beside the chair defendant was sitting in when the officers arrived,\u201d and white tablets found \u201cin the pockets of [defendant] and on the chair where he had been sitting.\u201d Id. at 697-98, 386 S.E.2d at 190. Our Supreme Court also emphasized \u201cthe defendant\u2019s presence in the mobile home,\u201d defendant\u2019s acceptance of the search warrant without protest, and the testimony received without objection referring to the mobile home as \u201cGrayson Davis\u2019 residence.\u201d Id. at 699, 386. S.E.2d at 191.\nIn the instant case, because the State did not show that defendant had exclusive possession of the bedroom, there must be \u201cother incriminating circumstances sufficient for the jury to find that defendant had constructive possession of the narcotics[.]\u201d Id. at 697, 386 S.E.2d at 190. The evidence, taken in the light most favorable to the State, shows: defendant was sleeping in the bed in the bedroom where drugs were found, defendant\u2019s dog was in the bedroom with him, defendant\u2019s clothes were in the closet, plastic baggies, drug paraphernalia, and an electronic scale containing white residue were also in the bedroom. The nightstand contained a wallet, which contained a Medicare Health Insurance Card and customer service card identifying defendant, a letter addressed to defendant at 3036 Chenango Drive, and $600 in cash. While police found a backpack containing women\u2019s clothes in the room, it did not contain any drugs, drug paraphernalia, or drug packaging materials, and it was found near the door. Other than that backpack, there were no other female items in the room. On several occasions the bedroom was referred to as \u201cdefendant\u2019s bedroom\u201d or \u201cZavier\u2019s room\u201d and defendant did not object to this testimony. This evidence constituted other incriminating circumstances sufficient to support the submission of the possession with the intent to sell or deliver cocaine charge to the jury under the theory of constructive possession.\nThis argument is without merit.\nHI. Lav Opinion Testimony\nIn his third argument, defendant contends that the trial court erred in admitting the testimony of Officer Pogue that the room in which the drugs were found was \u201csolely controlled\u201d by defendant. We disagree.\nA. Standard of Review\nWhen there has been an error committed by the trial court, the test for prejudicial error in matters not affecting constitutional rights is whether \u201cthere 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.\u201d N.C. Gen. Stat. \u00a7 15A-1443(a)(2011); see also State v. Gardner, 316 N.C. 605, 613, 342 S.E.2d 872, 877 (1986).\nB. Analysis\nIn the instant case, defendant objected to Officer Pogue\u2019s testimony that the \u201croom was solely controlled by [defendant].\u201d The transcript indicates that similar evidence had been previously admitted without objection. Prior to Officer Pogue\u2019s testimony, Officer Knaff was asked without objection if \u201cdefendant\u2019s bedroom\u201d was the one that was locked and whether he saw the defendant when he entered \u201cdefendant\u2019s bedroom.\u201d Officer Knaff also testified without objection that his \u201carea of responsibility for the search was not Zavier\u2019s room.\u201d Officer Pogue testified without objection that \u201cZavier and Carmen were found in his bedroom,\u201d a photo was taken from \u201cdefendant\u2019s bedroom,\u201d and certain items were \u201cseized out of Zavier Chisholm, the defendant\u2019s bedroom.\u201d\nEven assuming arguendo that the trial court erred in overruling defendant\u2019s objection to Officer Pogue\u2019s testimony that the room was \u201csolely controlled\u201d by defendant, based upon the previous testimony that was received without objection, defendant cannot show prejudice. Therefore, we do not reach defendant\u2019s argument that the lay opinion testimony was improper.\nThis argument is without merit.\nNO ERROR.\nJudges McGEE and HUNTER, JR., Robert N. concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper by Special Deputy Attorney General James M. Stanley, Jr. for the State.", "Appellate Defender Staples S. Hughes by Assistant Appellate Defender Constance E. Widenhouse for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ZAVIER CHARLES CHISHOLM\nNo. COA12-901\nFiled 19 February 2013\n1. Drugs \u2014 possession with intent to sell or deliver counterfeit controlled substance \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of possession with the intent to sell or deliver a counterfeit controlled substance. The evidence was sufficient to establish one of three statutory factors defining a counterfeit controlled substance and to provide an inference of defendant\u2019s intent to sell or deliver.\n2. Drugs \u2014 possession with intent to sell or deliver cocaine\u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 constructive possession\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of possession with the intent to sell or deliver cocaine. There was sufficient evidence of incriminating factors to support constructive possession.\n3. Evidence \u2014 officer testimony \u2014 drugs\u2014defendant\u2019s bedroom\u2014 sole control \u2014 similar evidence previously admitted\nThe trial court did not err in a drugs case by admitting the testimony of an officer that the room in which the drugs were found was solely controlled by defendant. Where testimony had been previously admitted referring to a bedroom as defendant\u2019s bedroom, defendant could not show that he was prejudiced.\nAppeal by defendant from judgment entered 12 October 2011 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 30 January 2013.\nAttorney General Roy Cooper by Special Deputy Attorney General James M. Stanley, Jr. for the State.\nAppellate Defender Staples S. Hughes by Assistant Appellate Defender Constance E. Widenhouse for defendant-appellant." }, "file_name": "0592-01", "first_page_order": 602, "last_page_order": 608 }