{
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  "name": "STATE OF NORTH CAROLINA v. DOROTHY MAE KEYS",
  "name_abbreviation": "State v. Keys",
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      "STATE OF NORTH CAROLINA v. DOROTHY MAE KEYS"
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    "opinions": [
      {
        "text": "ORR, Judge.\nI.\nDefendant first assigns error to the trial court\u2019s denial of her motion to suppress the State\u2019s evidence obtained by the search warrant. She contends the State, by refusing to disclose (1) the identity of one of its two informants, and (2) whether that informant was present at the time of her arrest, prevented her from formulating a defense with which to challenge the proffered evidence and, thus, deprived her of due process.\n\u201cNondisclosure of an informant\u2019s identity is a privilege justified by the need for effective law enforcement . . . State v. Grainger, 60 N.C. App. 188, 190, 298 S.E. 2d 203, 204 (1982), disc. rev. denied, 307 N.C. 579, 299 S.E. 2d 648 (1983).\nThis Court in State v. Gilchrist, 71 N.C. App. 180, 321 S.E. 2d 445 (1984), disc. rev. denied, 313 N.C. 332, 327 S.E. 2d 894 (1985), clearly stated the law in North Carolina on this question holding:\nThe prosecution is privileged to withhold the identity of an informant unless the informant was a participant in the crime or unless the informant\u2019s identity is essential to a fair trial or material to defendant\u2019s defense. State v. Beam, 45 N.C. App. 82, 262 S.E. 2d 350 (1980). A defendant must make a sufficient showing that the particular circumstances of his case mandate disclosure before the identity of a confidential informant must be revealed. State v. Watson, 303 N.C. 533, 279 S.E. 2d 580 (1981). When the defendant fails to make a sufficient showing of need to justify disclosure of the informant\u2019s identity he acquires no greater rights to compel disclosure of details about the informant than he initially had. State v. Beam, 45 N.C. App. 82, 262 S.E. 2d 350 (1980).\n71 N.C. App. at 182, 321 S.E. 2d at 447-48.\nOn appeal defendant first asserts that one of the State\u2019s two informants may have been a participant in the crime she is charged with, and hence that informant\u2019s identity was discoverable.\nDefendant was charged and convicted, pursuant to N.C.G.S. \u00a7 90-95(h)(4)a, of trafficking in heroin by possession of more than four grams but less than fourteen grams. This crime has two elements: (1) knowing possession (either actual or constructive) of (2) a specified amount of heroin. State v. Weldon, 314 N.C. 401, 403, 333 S.E. 2d 701, 702 (1985); State v. Rogers, 32 N.C. App. 274, 278, 231 S.E. 2d 919, 922 (1977). The defendant need not interact in any way with another individual to facilitate the commission of this crime.\nIn the present case, the information justifying the issuance of the search warrant was obtained from two informants prior to the police entry into 120 West 7th Street. Agent McLeod\u2019s discovery and examination of the pocketbook occurred in the ordinary course of the search of the premises and was not facilitated at the time of the search by any other person.\nTherefore, the information given in advance by either informant in no way indicates that one of the informants was or might have been a participant in the crime charged. No other evidence was introduced that would lead to a conclusion that either informant was a participant. For this reason, we find no grounds to conclude that the activity displayed by either informant in this case was that of a participant. Defendant\u2019s argument is rejected.\nNext defendant contends disclosure of the informant\u2019s identity is material to the preparation of her defense.\n\u201c[A] defendant who requests that the identity of a confidential informant be revealed must make a sufficient showing that the particular circumstances of his case mandate such disclosure.\u201d State v. Watson, 303 N.C. 533, 537, 279 S.E. 2d 580, 582 (1981); State v. Gilchrist, 71 N.C. App. 180, 321 S.E. 2d 445.\nDefendant argued at the voir dire hearing that the informant, if present at defendant\u2019s arrest, may have evidence favorable to defendant. Defendant failed, however, to tell the trial court what this favorable evidence might be. More importantly four persons \u2014 defendant\u2019s father, defendant\u2019s brother, an adult female, and an adult male, all of whom were known and recognized by defendant \u2014 were present at the time of her arrest. Through her discovery, defendant knew prior to trial that the State did not intend to call any of these persons as witnesses. Therefore, defendant could have subpoenaed one or all of these persons to testify at trial on her behalf and thereby gain the evidence necessary for her defense.\nWe find defendant failed to make a sufficient showing that disclosure of the informant\u2019s identity was essential to her defense.\nNext, defendant argues her motion to suppress was improperly denied because the search warrant, under which the evidence was gathered, lacked probable cause.\nRelying on State v. Goforth, 65 N.C. App. 302, 309 S.E. 2d 488 (1983), defendant asserts that the affidavit offered in support of the search warrant contained stale information and failed to implicate the premises to be searched.\nIn Goforth our Court said to test the timeliness of a search warrant,\n[t]he general rule is that no more than a \u2018reasonable\u2019 time may have elapsed. The test for \u2018staleness\u2019 of information on which a search warrant is based is whether the facts indicate that probable cause exists at the time the warrant is issued. Sgro v. United States, 287 U.S. 206, 77 L.Ed. 260, 53 S.Ct. 138 (1932); State v. King, 44 N.C. App. 31, 259 S.E. 2d 919 (1979).\nGoforth, 65 N.C. App. at 307, 309 S.E. 2d at 492, quoting, State v. Lindsey, 58 N.C. App. 564, 565-66, 293 S.E. 2d 833, 834, disc. rev. denied, 306 N.C. 747, 295 S.E. 2d 761 (1982).\nFurthermore in Goforth we held that \u201cto show probable cause, an affidavit must establish reasonable cause to believe that the proposed search for evidence of the designated offense will \u2018reveal the presence upon the described premises of the objects sought and that they will aid in the apprehension or conviction of the offender.\u2019 \u201d Goforth, 65 N.C. App. at 307-08, 309 S.E. 2d at 493, quoting in part, State v. Campbell, 282 N.C. 125, 129, 191 S.E. 2d 752, 755 (1972).\nThe affidavit offered to justify a finding of probable cause and now challenged by defendant, stated:\nOn 7-1-86 a confidential and reliable source of information who in the past has provided information that led to arrest of three persons in violation of the controlled substance act contacted this applicant and advised that with in [sic] the past 48 hours he had been to the above described location and had seen Dorthy [sic] Keys selling small packets containing white powder that Dorthy [sic] Keys represented to be heroin.\nBeaufort County ABC Officer William Boyd advised this applicant that he had received information from another confidential informant who has given reliable drug information in the past that Dorthy [sic] Keys was selling heroin in the Washington area and was bring [sic] the heroin to Washington from out of state.\nAs the affidavit recounts, the information justifying the search warrant was received from two reliable sources. The first informant relayed the information to Agent McLeod within forty-eight hours after gathering it. This information consisted of the informant\u2019s eyewitness statement that he was present and saw defendant sell packets of white powder identified by defendant as heroin. The second informant\u2019s statement to ABC Officer William Boyd affirmed that defendant\u2019s actions were ongoing and that the incident reported by the first informant was not an isolated occurrence.\nStatements in the affidavit made by the informants not only identified defendant as selling heroin in the Washington, North Carolina area, but the first informant also specifically designated 120 West 7th Street as the premises from which defendant was conducting her transactions and where the heroin she possessed could be found.\nThe information in the affidavit justifying the search warrant related timely facts and circumstances sufficient to identify defendant as a heroin dealer and to implicate the premises at 120 West 7th Street as a place where drugs were being sold. Therefore, we find that probable cause existed for the issuance of the search warrant.\nThis Court concludes the trial court properly denied defendant\u2019s motion for suppression and overrules this assignment of error.\nII.\nDefendant assigns as her second error the admission of Officer William Boyd\u2019s testimony that he had surveyed 120 West 7th Street for nine to twelve months and had personally observed defendant at that address prior to arresting her. On appeal defendant argues this testimony was irrelevant.\nAssuming arguendo that defendant is correct and this testimony was irrelevant, \u201cthe admission of irrelevant evidence is generally considered harmless error and not reversible error unless it is of such a nature as to mislead the jury.\u201d State v. Wingard, 317 N.C. 590, 599, 346 S.E. 2d 638, 645 (1986); State v. Alston, 307 N.C. 321, 298 S.E. 2d 631 (1983). \u201cThe defendant is not entitled to a new trial based on trial errors unless such errors were material and prejudicial.\u201d State v. Alston, 307 N.C. at 339, 298 S.E. 2d at 644; State v. Billups, 301 N.C. 607, 272 S.E. 2d 842 (1981). \u201cDefendant has the burden of showing that he was prejudiced by the admission of the evidence.\u201d State v. Wingard, 317 N.C. at 599-600, 346 S.E. 2d at 645; N.C.G.S. \u00a7 15A-1443 (1983). To meet this burden defendant must show \u201cthat, 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.G.S. \u00a7 15A-1443(a) (1983).\nIn the present case defendant argues only that the evidence was irrelevant and never addresses the effect of the error on her conviction. Therefore, we find defendant has failed to show she was prejudiced by the admission of the evidence and overrule this assignment of error.\nIII.\nDefendant\u2019s third assignment of error contends the trial court erred in instructing the jury concerning the amount of heroin which defendant must possess to be found guilty of the crime charged.\nThe record discloses that defendant failed to object to the jury instructions at trial. She is, therefore, precluded from raising the issue on appeal unless the trial court\u2019s charge was plain error. State v. Bennett, 308 N.C. 530, 302 S.E. 2d 786 (1983); State v. Abbitt, 73 N.C. App. 679, 327 S.E. 2d 590 (1985).\nIt is well established that a defendant is not entitled to have her requested instructions given verbatim as long as they are given in substance. State v. Green, 305 N.C. 463, 290 S.E. 2d 625 (1982); State v. Howard, 274 N.C. 186, 162 S.E. 2d 495 (1968).\nAfter reviewing the record, we find that the trial court\u2019s instruction in substance stated all the relevant and legally correct propositions requested by defendant. Further, the instruction given was a correct statement of the law as set forth in State v. Willis, 61 N.C. App. 23, 300 S.E. 2d 420, modified and affirmed on other grounds, 309 N.C. 451, 306 S.E. 2d 779 (1983). See also State v. Tyndall, 55 N.C. App. 57, 284 S.E. 2d 575 (1981). We overrule this assignment of error.\nIV.\nIn her fourth assignment, defendant contends the State\u2019s evidence was insufficient to show she possessed the heroin found in the pocketbook by police on 1 July 1986. Consequently, she argues, the trial court should have granted her motion to set aside the verdict and to order a new trial.\n\u201cMotions to set aside the verdict and for a new trial based upon insufficiency of the evidence are addressed to the discretion of the trial court and refusal to grant them is not reviewable on appeal in the absence of abuse of discretion.\u201d State v. Hamm, 299 N.C. 519, 523, 263 S.E. 2d 556, 559 (1980); State v. Jenkins, 311 N.C. 194, 317 S.E. 2d 345 (1984); State v. Charles, 53 N.C. App. 567, 281 S.E. 2d 438 (1981). \u201cA trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Wilson, 313 N.C. 516, 538, 330 S.E. 2d 450, 465 (1985); State v. Brown, 314 N.C. 588, 336 S.E. 2d 388 (1985).\nA review of the record disclosed the following evidence of defendant\u2019s possession of the heroin. When police entered the house at 120 West 7th Street, defendant was sitting alone on the couch in the living room. Laying next to her on the couch was a woman\u2019s pocketbook. Upon request, defendant handed the pocketbook to Agent McLeod without disclaiming ownership. Inside the pocketbook Agent McLeod found the heroin upon which defendant\u2019s conviction was based. In addition, he found a Piedmont identification card and a Mastercard, each issued in defendant\u2019s name, and a New York identification card bearing defendant\u2019s name and picture.\nIn State v. Harvey, 281 N.C. 1, 187 S.E. 2d 706 (1972), the Supreme Court clarified the element of possession, holding that:\n[An accused] has possession of the contraband material within the meaning of the law when he has both the power and intent to control its disposition or use. Where 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. Also, the State may overcome a . . . motion for judgment as of nonsuit by presenting evidence which places the accused \u2018within such close juxtaposition to the narcotic drugs as to justify the jury in concluding that the same was in his possession.\u2019\n281 N.C. at 12-13, 187 S.E. 2d at 714 (citations omitted).\nThe proximity of the pocketbook to defendant\u2019s person and the presence of defendant\u2019s identification within the pocketbook were sufficient to give rise to an inference of defendant\u2019s possession of the heroin.\nTherefore, based upon the law and the facts discussed above, we conclude a rational basis existed for the trial court\u2019s denial of defendant\u2019s motions to set aside the verdict and to order a new trial, and overrule this assignment of error.\nV.\nFinally, defendant contends that the indictment failed to specify the quantity of heroin necessary for conviction under the crime charged and was fatally defective.\nTwo indictments were filed in this action charging defendant with possession of heroin. The first indictment, filed in July 1986, did not specify the amount of heroin required for conviction. The second indictment, returned 29 September 1986, did include the requisite amount of heroin necessary for conviction. Further, the second indictment, pursuant to N.C.G.S. \u00a7 15A-646, superseded the first indictment and controls in the present case. N.C.G.S. \u00a7 90-95(h)(4)a, the offense charged, makes it a Class F felony to possess \u201cfour grams or more, but less than 14 grams\u201d of heroin. In contrast, the indictment charged defendant with possessing \u201cmore than four but less than fourteen grams of heroin.\u201d\nThis variance, defendant asserts, rendered the indictment fatally defective. In support of her contention defendant relies on State v. Goforth, 65 N.C. App. 302, 309 S.E. 2d 488. In Goforth three defendants were indicted and convicted of feloniously conspiring \u201cto commit the felony of trafficking in at least 50 pounds of marijuana G.S. 90-95(h) . . . .\u201d Goforth, 65 N.C. App. at 304, 309 S.E. 2d at 491 (emphasis added). The language of N.C.G.S. \u00a7 90-95(h)(l), however, makes it a felony to possess \u201cin excess of 50 pounds ... of marijuana.\u201d This Court arrested defendant\u2019s convictions under N.C.G.S. \u00a7 90-95(h)(l), after finding that possession of exactly 50 pounds of marijuana, while included in the wording of the indictment, did not constitute trafficking in marijuana under the statute. Therefore, the indictment was fatally at variance with the statute.\nIn the present case, the indictment excludes from criminal prosecution the possession of exactly four grams, whereas the statute includes the possession of exactly four grams. The indictment, while limiting the scope of defendant\u2019s liability, is clearly within the confines of the statute. Consequently, Goforth is inappropriate on these facts.\nWe conclude, therefore, that the indictment stated the essential elements of trafficking in heroin and overrule this assignment of error.\nFor the above reasons this Court finds that defendant received a fair trial, free from prejudicial error and affirms the judgment of the trial court.\nNo error.\nChief Judge HEDRICK and Judge ARNOLD concur.",
        "type": "majority",
        "author": "ORR, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Associate Attorney General James A. Wellons, for the State.",
      "Mary K. Nicholson and Mark V. L. Gray, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DOROTHY MAE KEYS\nNo. 872SC349\n(Filed 20 October 1987)\n1. Constitutional Law \u00a767\u2014 identity of informant \u2014 failure to show participation in crime\nIn a prosecution for trafficking in heroin by possession, defendant failed to show that a confidential informant was a participant in the crime so as to require the State to disclose his identity where the evidence showed that two informants gave police information used to obtain a search warrant for defendant\u2019s premises; the discovery of heroin in defendant\u2019s pocketbook occurred in the ordinary course of the search of defendant\u2019s premises and was not facilitated at the time of the search by any other person; and the information given in advance by either informant did not indicate that one of the informants was or might have been a participant in the crime charged.\n2. Constitutional Law \u00a7 67\u2014 identity of informant \u2014 failure to show necessary to defense\nDefendant failed to show that the disclosure of the identity of a confidential informant was material to the preparation of her defense on the ground that the informant, if present at her arrest, may have evidence favorable to her, where defendant failed to show what this favorable evidence might be, and where defendant knew and recognized the four persons who were present at the time of her arrest and could have gained the evidence necessary for her defense by subpoenaing such persons to testify.\n3. Searches and Seizures \u00a7 24\u2014 affidavit for search warrant \u2014 current information \u2014implication of premises to be searched\nAn affidavit contained sufficiently current information and sufficiently implicated the premises to be searched to establish probable cause for the issuance of a warrant to search defendant\u2019s residence where it was based on one informant\u2019s statement that he had seen defendant selling packets of heroin at a specified address within the past forty-eight hours and on a second informant\u2019s statement that defendant was selling heroin in the Washington area and was bringing the heroin to Washington from out of state.\n4. Narcotics \u00a7 3.1\u2014 irrelevant evidence \u2014 harmless error\nAssuming an officer\u2019s testimony that he had surveyed the address where heroin was found for some nine to twelve months and had observed defendant at that address prior to her arrest was irrelevant in this prosecution for trafficking in heroin by possession, the erroneous admission of such testimony was not prejudicial to defendant.\n5. Narcotics 8 4.6\u2014 trafficking by possession of heroin \u2014amount of heroin possessed \u2014 instructions\nIn a prosecution for trafficking in heroin by possession of more than four but less than fourteen grams of heroin, the trial court\u2019s instructions in substance stated all the relevant and legally correct propositions requested by defendant concerning the amount of heroin which defendant must have possessed to be found guilty of the crime charged.\n6. Narcotics 8 4.3\u2014 possession of heroin found in pocketbook \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to show that defendant possessed heroin found in a pocketbook in her residence so as to support her conviction of trafficking in heroin by possession where it tended to show that defendant was sitting alone on a couch in her living room when the police entered her residence; a woman\u2019s pocketbook was lying next to her on the couch; upon request, defendant handed the pocketbook to an officer without disclaiming ownership; and a search of the pocketbook revealed a large quantity of heroin and two identification cards and a charge account card issued in defendant\u2019s name.\n7. Narcotics 8 2\u2014 trafficking in heroin by possession \u2014 amount of heroin \u2014 indictment not fatally defective\nAn indictment for trafficking in heroin by possession was not fatally defective because it charged that defendant possessed \u201cmore than four but less than fourteen grams of heroin\u201d rather than \u201cfour grams or more, but less than 14 grams of heroin\u201d as stated in N.C.G.S. \u00a7 9-95(h)(4)a, since the amount stated in the indictment, while excluding a prosecution for exactly four grams as allowed by the statute, was clearly within the confines of the statute.\nAPPEAL by defendant from Lewis (John B., Jr.), Judge. Judgment entered 2 December 1986 in Superior Court, BEAUFORT County. Heard in the Court of Appeals 28 September 1987.\nDefendant Dorothy Mae Keys was arrested and indicted for felonious trafficking in heroin by possession, in violation of N.C.G.S. \u00a7 90-95(h)(4).\nAt trial the State\u2019s evidence tended to show the following.\nOn 1 July 1986 Agent Malcolm McLeod, relying upon information obtained from two reliable confidential informants, applied for and received a warrant authorizing a search of the premises at 120 West 7th Street, Washington, North Carolina, and for defendant\u2019s person. The search warrant was also executed on 1 July 1986.\nWhile searching the residence at 120 West 7th Street, Agent McLeod examined the contents of a woman\u2019s pocketbook he found sitting next to defendant on the living room couch. In the pocketbook Agent McLeod discovered a large quantity of white powder, cash, and three identification cards issued in defendant\u2019s name. A subsequent chemical analysis of the white powder disclosed it contained heroin.\nDefendant presented no evidence in her own behalf.\nAfter deliberation, a jury found defendant guilty of trafficking in heroin by possession of more than four grams but less than fourteen grams. The trial court sentenced defendant to an active term of sixteen years. After judgment was entered, defendant made motions to set aside the judgment and for a new trial, which were denied. Defendant appeals from this judgment.\nAttorney General Lacy H. Thornburg, by Associate Attorney General James A. Wellons, for the State.\nMary K. Nicholson and Mark V. L. Gray, for defendant appellant."
  },
  "file_name": "0349-01",
  "first_page_order": 377,
  "last_page_order": 387
}
