{
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  "name": "STATE OF NORTH CAROLINA v. MAJOR GIVENS; STATE OF NORTH CAROLINA v. CLEVELAND CANTY",
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    "judges": [
      "Judges PARKER and Orr concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. MAJOR GIVENS STATE OF NORTH CAROLINA v. CLEVELAND CANTY"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nAmong other arguments both defendants assign as error the denial of their motions to dismiss. After careful review of the record we find that the trial court erred in denying Canty\u2019s motion to dismiss. Accordingly, we reverse the judgment in defendant Canty\u2019s case. As to the denial of defendant Givens\u2019 motions to dismiss, we find no error. Additionally, Givens argues that his motion for appropriate relief was erroneously denied. He also argues that testimony by an arresting officer regarding prior visits to the premises searched and the \u201ccommon use\u201d of scales found on Givens\u2019 person was erroneously admitted. Givens also assigns as error the admission of exhibits 4, 5 and 6 into evidence. We are not persuaded by Givens\u2019 arguments and accordingly in his trial find no error.\nI. Canty\u2019s Appeal\nCanty argues that the trial court erred in failing to dismiss the charges against him. G.S. 90-95(a)(3) provides that it is unlawful for any person to possess a controlled substance. Possession of one gram or more of cocaine is a Class I felony. G.S. 90-95(d)(2). \u201cFelonious possession of a controlled substance has two essential elements. The substance must be possessed, and the substance must be \u2018knowingly\u2019 possessed.\u201d State v. Rogers, 32 N.C. App. 274, 278, 231 S.E.2d 919, 922 (1977). The State relies on the theory of constructive possession by Canty of the 1.16 grams of cocaine seized from the jacket found in the small back room and 5.9 grams found in the bicycle wheel. Defendant argues there was no evidence that he possessed one gram or more of cocaine.\n\u201cThe doctrine of constructive possession applies when a person lacking actual physical possession nevertheless has the intent and capability to maintain control and dominion over a controlled substance.\u201d State v. Baize, 71 N.C. App. 521, 529, 323 S.E.2d 36, 41 (1984), disc. rev. denied, 313 N.C. 174, 326 S.E.2d 34 (1985). Where controlled substances are found on the premises under the defendant\u2019s exclusive control, this fact alone may be sufficient to give rise to an inference of constructive possession and take the case to the jury. State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638 (1987). However, \u201cwhere possession of the premises [by defendant] is nonexclusive, constructive possession of the contraband materials may not be inferred without other incriminating circumstances.\u201d State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984).\nIn ruling on a motion to dismiss, all evidence admitted must be considered in the light most favorable to the State, giving the State the benefit of all reasonable inferences which can be drawn therefrom. State v. Rasor, 319 N.C. 577, 585, 356 S.E.2d 328, 333 (1987). If there is \u201csubstantial evidence\u201d of each element of the charged offense, the motion should be denied. State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984). \u201c\u2018Substantial evidence\u2019 is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981). Evidence of constructive possession is sufficient if it would allow a reasonable mind to conclude that the defendant had the intent and capability to maintain control and dominion over the contraband. State v. Beaver, 317 N.C. 643, 648, 346 S.E. 2d 476, 480 (1986).\nConsidering the evidence in the light most favorable to the State, there is no substantial evidence that the building was under the control of defendant Canty. First, there is no evidence that Canty owned the building. Furthermore, there is no evidence that Canty leased the premises or otherwise exercised any control over the building. The only key found that fit the lock on the front door was found in Mallette\u2019s possession. Mallette testified that he received the key from Allen. Although there is evidence that Canty knew that there was cocaine in the building, that he was \u201cwaiting for his\u201d and \u201che come [sic] to receive some drugs,\u201d this is not substantial evidence that Canty had the capability to maintain control and dominion over one gram or more of cocaine. See Brown, 310 N.C. at 569-70, 313 S.E.2d at 589 (sufficient control shown where defendant had on his person a key to the residence being searched and on every occasion the police observed defendant prior to the date of the search defendant was at the residence in question); State v. Allen, 279 N.C. 406, 412, 183 S.E.2d 680, 684-85 (1971) (sufficient control shown where utilities at the residence were in defendant\u2019s name, personal papers including an Army identification card bearing defendant\u2019s name were found on the premises and evidence that drugs belonged to defendant and were being sold at defendant\u2019s direction); State v. Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987) (sufficient control shown where defendant was seen on the premises the evening before the search, seen cooking dinner on the premises on the night of the search, mail was found on the premises addressed to the defendant and an insurance policy listing the premises in question as defendant\u2019s residence was also found on the premises). For this reason the trial court erred in denying Canty\u2019s motion to dismiss. Because of our determination of this issue we need not discuss the other issues raised in Canty\u2019s appeal.\nII. Givens\u2019 Appeal\nGivens\u2019 first argument is that the trial court erred in denying his motions to dismiss. Givens asserts there was insufficient evidence on which his conviction could be based. For the same reason, Givens argues his motion for appropriate relief was erroneously denied. We disagree.\nThe State relied on the theory of constructive possession. As stated above, where control of the premises is nonexclusive, constructive possession may not be inferred \u201cwithout other incriminating circumstances.\u201d Brown, 810 N.C. at 569, 313 S.E.2d at 589. Evidence of constructive possession is sufficient if it would allow a reasonable mind to conclude that the defendant had the intent and capability to maintain control and dominion over the contraband. Beaver, 317 N.C. at 648, 346 S.E.2d at 480.\nThere is some evidence that Givens exercised some control over the premises searched. The evidence showed that prior to the officers\u2019 entry to execute the search warrant, Givens answered a knock at the door and informed the person outside that they were closed and were not selling beer. Additionally, there are other incriminating circumstances sufficient to permit the jury to infer constructive possession. Defendant was arrested in the same room where police found cocaine in plain view. A defendant\u2019s presence on the premises and close proximity to a controlled substance is a circumstance which may support an inference of constructive possession. See State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972). Additional incriminating circumstances were shown through evidence tending to show that Givens arrived with an amount of cocaine in his possession, that he used cocaine while on the premises and he \u201cdumped\u201d his cocaine in the building when the police arrived. We also note that when Givens was searched, officers found a set of scales in his pocket. We find that these circumstances when considered together are sufficient to allow a reasonable mind to conclude that Givens had constructive possession of the cocaine found in the building. Givens\u2019 motions to dismiss and for appropriate relief based on insufficient evidence were properly denied.\nGivens also argues that the trial court erred in allowing testimony regarding an officer\u2019s prior visits to the premises searched. The officer testified that on two occasions prior to the search he had gone to 620 Campbell Street and purchased alcohol. The officer also testified that Givens was not on the premises on either occasion. Givens asserts that the evidence was prejudicial to him. The State argues that the testimony was background in nature and was admitted to show the basis for obtaining the search warrant. Additionally, the State asserts that even if the testimony was erroneously admitted, Givens has not shown he was prejudiced.\nRule 401 provides that relevant evidence is evidence \u201chaving 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 G.S. 8C-1, Rule 401. The testimony regarding prior sales of.alcohol at the premises searched was irrelevant in Givens\u2019 trial for manufacturing cocaine and possession of cocaine with intent to sell or deliver. The testimony was erroneously admitted. The test for prejudicial error, however, \u201cis whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.\u201d State v. Heard, 285 N.C. 167, 172, 203 S.E.2d 826, 829 (1974). See also G.S. 15A-1443. Givens has not shown that there is a reasonable possibility that he was prejudiced as a result of the admission of this testimony.\nGivens\u2019 third argument is that the trial court erred in allowing testimony regarding the \u201ccommon use\u201d of scales found by the police during the search of Givens. Givens asserts the testimony was not responsive to the prosecutor\u2019s question and the officer\u2019s opinion was without \u201cqualification ... or foundation.\u201d Defendant\u2019s arguments are without merit.\nThe question presented to the officer by the prosecutor was \u201ccan you describe what that object is?\u201d The officer answered, after Givens\u2019 objection was overruled, that the exhibit was \u201ca scale commonly used to weigh very light objects.\u201d The officer went on to relate that the scales were \u201ccommon drug paraphernalia.\u201d The officer\u2019s answer was responsive to the question asked.\nRule 701 provides that opinion testimony from a lay witness is limited to opinions which are \u201crationally based on the perception of the witness\u201d and are helpful to the jury. G.S. 8C-1, Rule 701. A lay witness must have a basis of personal knowledge for his opinion. However, a \u201c[preliminary determination of personal knowledge need not be explicit but may be implied from the witness\u2019 testimony.\u201d G.S. 8C-1, Rule 602, commentary. There is no showing in the record that the officer had a basis for his opinion testimony. However, defendant Givens has not shown he was prejudiced by the admission of the testimony.\nDefendant Givens\u2019 final argument is that the trial court erred in admitting State\u2019s exhibits 4, 5, and 6 into evidence. These exhibits consisted of the cocaine that was seized during the search of 620 Campbell Street and the Volkswagen car parked outside. Givens\u2019 argument is based on the asserted lack of evidence of Givens\u2019 possession of the cocaine. With respect to exhibit 6, the cocaine found in the car, the trial court correctly instructed the jury not to consider that evidence. \u201cIt is well-settled in this jurisdiction that when the court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured.\u201d State v. Smith, 301 N.C. 695, 697, 272 S.E.2d 852, 855 (1981). We find that any possible prejudice to defendant was cured by the court\u2019s instructions. We also find that the evidence presented was sufficient to infer Givens\u2019 constructive possession of the other cocaine which was found inside the building. Therefore exhibits 4 and 5 were properly admitted.\nFor the reasons stated above, defendant Canty\u2019s conviction is reversed and we find no prejudicial error in defendant Givens\u2019 trial.\nCanty \u2014 reversed.\nGivens \u2014no error.\nJudges PARKER and Orr concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Thornburg, by Assistant Attorney General Kathryn Jones Cooper, for the State.",
      "Kenneth B. Hatcher for defendant-appellant Canty.",
      "J. H. Corpening, II, for defendant-appellant Givens."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MAJOR GIVENS STATE OF NORTH CAROLINA v. CLEVELAND CANTY\nNo. 885SC1318\n(Filed 15 August 1989)\n1. Narcotics \u00a7 4.4\u2014 possession with intent to sell or deliver cocaine \u2014 constructive possession \u2014 insufficiency of evidence\nThe trial court erred in failing to dismiss charges against one defendant of possession with intent to sell or deliver cocaine and manufacturing cocaine where the State relied on the theory of constructive possession of cocaine seized from a \u201cdrink house\u201d and pool hall, but there was no evidence that the building was under the control of defendant and no evidence that he owned or leased the building; and there was some evidence that defendant knew that there was cocaine in the building and that he had come to receive some drugs, but this was not substantial evidence that defendant had the capability to maintain control and dominion over one gram or more of cocaine.\n2. Narcotics \u00a7 4.3\u2014 constructive possession of cocaine \u2014 sufficiency of evidence\nEvidence was sufficient to allow the jury to find that one defendant had constructive possession of cocaine found in a \u201cdrink house\u201d and pool hall where it tended to show that, prior to officers\u2019 entry to execute a search warrant, defendant answered a knock at the door and informed the person outside that they were closed and were not selling beer; defendant was arrested in the same room where police found cocaine in plain view; defendant had arrived at the building with cocaine in his possession, used cocaine while on the premises, and \u201cdumped\u201d his cocaine in the building when police arrived; and police found a set of scales on defendant\u2019s person when he was searched.\n3. Narcotics \u00a7 3.1\u2014 possession with intent to sell and deliver cocaine \u2014 prior sales of alcohol at scene of arrest \u2014 evidence improperly admitted \u2014 defendant not prejudiced\nIn a prosecution for possession with intent to sell and deliver cocaine and manufacturing cocaine, the trial court erred in admitting evidence concerning prior sales of alcohol at the building where defendant was arrested and searched, but defendant failed to show that there was a reasonable possibility that he was prejudiced as a result of the admission of this testimony. N.C.G.S. \u00a7 8C-1, Rule 401.\n4. Narcotics \u00a7 3.1\u2014 scales found on defendant \u2014 characterization as common drug paraphernalia \u2014 defendant not prejudiced\nDefendant was not prejudiced by testimony of a police officer that scales found on defendant\u2019s person were used \u201cto weigh very light objects\u201d and were \u201ccommon drug paraphernalia.\u201d N.C.G.S. \u00a7 8C-1, Rule 701.\n5. Narcotics \u00a7 3.1\u2014 cocaine seized outside building where defendant arrested \u2014 limiting instruction proper \u2014 cocaine found inside building properly admitted\nThe trial court properly instructed the jury not to consider as evidence cocaine seized from a car parked outside the building where defendant was arrested, and any possible prejudice to defendant by admission of the evidence was cured by the court\u2019s instructions; furthermore, evidence was sufficient to infer defendant\u2019s constructive possession of other cocaine found in the building where he was arrested, and cocaine seized from the building was therefore properly admitted.\nAPPEAL by defendants from Fountain, Judge. Judgments entered 13 July 1988 in Superior Court, New HANOVER County. Heard in the Court of Appeals 18 May 1989.\nThese are criminal cases involving constructive possession of cocaine. Defendants were charged and tried jointly for possession with intent to sell or deliver cocaine and manufacturing cocaine. Defendants Givens and Canty were both at a \u201cdrink house\u201d and pool hall when police entered the building and executed a search warrant. Two others, Mallette and Allen, were in the building as well. Mallette and Allen previously pled guilty to charges stemming from the search of the premises and testified here on behalf of the State.\nThe State\u2019s evidence tended to show that on the evening of 20 November 1987 Mallette and Allen were in the back room of a building located at 620 Campbell Street, Wilmington, North Carolina. Mallette had a key to the building that he testified he received from Allen. Defendant Canty arrived at the building some time later. The State\u2019s evidence tended to show that Allen was going to give Canty some cocaine. Givens arrived some time after Canty. Mallette and Allen testified that Givens had in his possession a few small bags of cocaine when he arrived and that he \u201cdumped\u201d the bags when the police knocked on the door. Allen testified that he, Mallette, Givens and Canty were all in the back room of the building, the cocaine was on the table and they were \u201cgetting high.\u201d Allen also testified that Canty was \u201cwaiting for his\u201d at the time the police arrived.\nThe State\u2019s evidence also tended to show that the white powder found during the search of the building and a Volkswagen automobile parked outside the building was cocaine. Exhibit #4 consisted of a total of 1.16 grams of undiluted cocaine packaged in eighteen (18) bags which were found in a jacket pocket. At trial, Mallette testified that the jacket belonged to him. Exhibit #5 consisted of five (5) bags, each containing approximately 1.25 grams of undiluted cocaine. The total weight of the powder in Exhibit #5 was 5.9 grams. These five (5) bags were found lodged among the spokes of a bicycle wheel in the building. There was no evidence presented regarding ownership of the bicycle. When the police entered the building, Canty was the person standing nearest to the bicycle. Exhibit #6 consisted of undiluted cocaine in two (2) bags of approximately seven (7) grams each and two (2) bags of approximately one and one-half (1.5) grams each. The total weight of Exhibit #6 was approximately 18 grams. Exhibit #6 was found in the Volkswagen automobile parked outside the building. Allen testified that he was driving the Volkswagen the evening of the search.\nAt the close of the State\u2019s evidence defendants Canty and Givens made motions to dismiss the charges for lack of evidence. The trial court denied both motions. Both defendants offered evidence. Defendant Givens testified that he did not have any cocaine with him when he arrived that evening but he admitted using some cocaine while he was there. Defendant Canty testified that he was driving to his girlfriend\u2019s house when he observed Allen\u2019s car parked at 620 Campbell Street. Canty stopped to see Allen because Allen owed him $35.00. Canty testified that when the police knocked on the door and the four men left the back room where they had been sitting, Allen walked behind Canty and placed some cocaine in the bicycle wheel. Canty also testified that he did not have any drugs in his possession at any time.\nAt the close of defendants\u2019 evidence and the close of all the evidence both defendants renewed their motions to dismiss. The motions were denied but the trial court submitted to the jury only the charge of unlawful possession of more than one gram of cocaine. The jury found both defendants guilty. Both defendants appeal from judgments entered on the verdicts.\nAttorney General Thornburg, by Assistant Attorney General Kathryn Jones Cooper, for the State.\nKenneth B. Hatcher for defendant-appellant Canty.\nJ. H. Corpening, II, for defendant-appellant Givens."
  },
  "file_name": "0072-01",
  "first_page_order": 100,
  "last_page_order": 108
}
