State v. Barnette

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-308
NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

STATE OF NORTH CAROLINA

v. Gaston County
Nos. 13 CRS 7708, 55426, 55428,
55430
JOHNTIA LUWONZIA BARNETTE

Appeal by defendant from judgments entered 26 September

2013 by Judge Jesse B. Caldwell, III in Gaston County Superior

Court. Heard in the Court of Appeals 28 August 2014.

Roy Cooper, Attorney General, by Martin T. McCracken,
Assistant Attorney General, for the State.

Patterson Harkavy LLP by Narendra K. Ghosh for defendant-
appellant.

STEELMAN, Judge.

Where an officer’s affidavit in support of an application

for a search warrant was based upon the testimony of a named

witness, this constituted sufficient indicia of reliability to

support the issuance of the search warrant. Since defendant

failed to raise a constitutional issue at trial, it must be

dismissed and is not subject to plain error review. Where the
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State presented substantial evidence of each element of the

charges of felony maintaining a dwelling for controlled

substances, possession of cocaine with intent to manufacture,

sell, and deliver, and possession of drug paraphernalia, the

trial court did not err in denying defendant’s motions to

dismiss these charges.

I. Factual and Procedural Background

On 6 May 2013, Officer C.A. Cape of the Gastonia Police

Department (Officer Cape) stopped a prostitute in possession of

a crack pipe. Officer Cape learned that she had purchased crack

cocaine from a person named Sweat at Room 122 of the Red Carpet

Inn. Officer Cape went to Room 122, and met its occupant,

Jomonyak Sanders (Sanders), who consented to a search of the

room. The search revealed a digital scale with crack cocaine

residue, and several crack pipes. Sanders told Officer Cape

that he had purchased the cocaine from a man called R2 at a

house located at 403 North Boyce Street in Gastonia. The second

occupant of the room, identified only as a known prostitute,

identified R2 as Johntia Barnett (defendant). Sanders

identified the house when he rode past it with Officer Cape.

Based upon the statements of Sanders and the unnamed prostitute,

Officer Cape obtained a search warrant for 403 North Boyce.
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On 5 May 2012, at 11:32 p.m., Officer Cape and other law

enforcement officers executed the search warrant. When one of

the residents saw and recognized Officer Cape, he slammed the

door shut and locked it, requiring officers to use a battering

ram to force the door open. Upon entering the house, Officer

Cape found five persons in the house, one of whom was the

defendant. A search revealed a substance that Officer Cape

believed to be crack cocaine, a digital scale, and a .22 caliber

rifle. The crack cocaine and scale were in plain view on a

kitchen counter, next to a box of plastic baggies. The

substance was later confirmed by the North Carolina Crime Lab to

be approximately .73 grams of cocaine base, commonly known as

crack cocaine.

Officer Cape and his team seized the items, moved them to

the kitchen, and asked the persons in the house who owned them.

All of the persons denied ownership. When Officer Cape

indicated that he would have to arrest everyone, defendant made

the statement, “I’ll take the charges.” Officer Cape further

testified that, prior to being taken to jail, defendant stated

that “he was residing there because he didn't have anywhere else

to stay.”
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Defendant was charged with possession with intent to

manufacture, sell, and deliver cocaine; felony maintaining a

dwelling for keeping and selling controlled substances;

possession of drug paraphernalia; possession of a firearm by a

felon; and being an habitual felon. Prior to trial, defendant

moved to suppress the evidence seized, based upon a lack of

probable cause to issue the search warrant. On 24 September

2013, the trial court denied this motion.

The jury found defendant guilty of possession with intent

to manufacture, sell, and deliver cocaine, possession of drug

paraphernalia, and felony maintaining a place for controlled

substances. Defendant was found not guilty of possession of a

firearm by a felon. Defendant pled guilty to habitual felon

status. On 26 September 2013, the trial court entered a

consolidated judgment, sentencing defendant to 72-99 months

imprisonment.

Defendant appeals.

II. Motion to Suppress

In his first argument, defendant contends that the trial

court erred in denying his motion to suppress the evidence

seized pursuant to the search warrant. We disagree.
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A. Standard of Review

Our review of a trial court’s denial of a motion to

suppress is “strictly limited to determining whether the trial

judge’s underlying findings of fact are supported by competent

evidence, in which event they are conclusively binding on

appeal, and whether those factual findings in turn support the

judge’s ultimate conclusions of law.” State v. Cooke, 306 N.C.

132, 134, 291 S.E.2d 618, 619 (1982). “The trial court’s

conclusions of law . . . are fully reviewable on appeal.” State

v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

B. Analysis

Officer Cape submitted an affidavit to the magistrate in

support of his application for a search warrant, attesting that

he had learned about the defendant being the source of cocaine,

and the location of the house where the cocaine was sold, from

Sanders and the unnamed prostitute. The affidavit did not state

that either was a reliable informant. Defendant contends that

Sanders and the prostitute were not reliable informants, that

the search warrant was issued in error, and that the trial court

erred in denying his motion to suppress.

Our Supreme Court has held that the fact that an informant

was named and identified in a search warrant affidavit provides
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a magistrate with enough information to permit him to determine

the informant to be reliable. State v. Eason, 328 N.C. 409,

420, 402 S.E.2d 809, 814 (1991). Further, our Supreme Court has

also held that statements against penal interest carry their own

indicia of credibility sufficient to support a finding of

probable cause to search. State v. Arrington, 311 N.C. 633,

641, 319 S.E.2d 254, 259 (1984).

Defendant contends, however, that this reliability should

not apply to criminals. Defendant cites to authority from other

states, which is not binding upon this court, to support his

argument. Defendant does not cite to any cases from North

Carolina supporting his argument.

While we recognize that there exist arguments for holding

that a criminal cannot be a “citizen-informant” and thus

considered reliable, we are bound by North Carolina precedent,

which holds that a named informant offers sufficient indicia of

reliability for a magistrate to properly issue a search warrant.

We hold that the trial court did not err in denying defendant’s

motion to suppress.

This argument is without merit.

III. Exclusion of Incriminating Statements
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In his second argument, defendant contends that the trial

court committed plain error in failing to exclude defendant’s

incriminating statements. We disagree.

A. Standard of Review

“[A] constitutional issue not raised at trial will

generally not be considered for the first time on appeal.”

State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009).

We “review unpreserved issues for plain error when they

involve either (1) errors in the judge’s instructions to the

jury, or (2) rulings on the admissibility of evidence.” State v.

Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).

B. Analysis

When Officer Cape searched the residence at 403 North Boyce

and seized items from the kitchen, he asked the occupants of the

house to whom the seized items belonged. Cape indicated that he

would arrest all of the occupants. Defendant responded that he

would “take the charges.” Defendant further stated that he was

residing at the house because he “didn’t have anywhere else to

stay.” There was no evidence that defendant was advised of his
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Miranda rights prior to making these statements. Defendant

contends that the trial court committed plain error in admitting

these statements.

In the instant case, defendant did not object to the

admission of these statements, nor did he raise a constitutional

issue pursuant to Miranda. Our Supreme Court has “previously

decided that plain error analysis applies only to instructions

to the jury and evidentiary matters.” State v. Cummings, 352

N.C. 600, 613, 536 S.E.2d 36, 47 (2000) (quoting State v.

Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000)), cert.

denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). In Cummings,

the Supreme Court held that failure to object to constitutional

error at trial constituted waiver, and could not be raised on

appeal via plain error review. Id. This issue is not properly

before us, and is dismissed.

Even assuming arguendo that we could review this issue,

because defendant failed to object at trial, we could review

this issue only for plain error.

Defendant contends that these statements constitute plain

error because, absent the statements, there was no evidence that

defendant maintained the dwelling at 403 North Boyce. He

further contends that, without evidence that defendant
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maintained the dwelling, there was no evidence to support

possession of cocaine or possession of drug paraphernalia.

This is not correct. In defendant’s brief, he acknowledges

that Sanders testified at trial that he had purchased cocaine

from defendant at 403 North Boyce. Because this evidence

supports a finding that defendant maintained the residence for

purposes of controlled substances, defendant’s argument, which

is predicated upon the deficiency of the evidence with respect

to that charge, fails.

We hold that defendant has failed to show that he was

prejudiced by the admission of these statements. The trial

court did not commit plain error in admitting defendant’s

statements.

This argument is without merit.

IV. Motion to Dismiss

In his third and fourth arguments, defendant contends that

the trial court erred in denying his motions to dismiss the

charges of felony maintaining a dwelling, possession of cocaine

with intent to manufacture, sell, and deliver, and possession of

drug paraphernalia. We disagree.

A. Standard of Review
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“This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).

“‘Upon defendant’s motion for dismissal, the question for

the 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’s being the perpetrator

of such offense. If so, the motion is properly denied.’” State

v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting

State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)),

cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).

B. Analysis

Defendant first argues that there was not substantial

evidence to support the charge of maintaining a dwelling,

because there was no evidence that defendant maintained the

house at 403 North Boyce.

To obtain a conviction for maintaining a dwelling for the

purpose of keeping or selling controlled substances under N.C.

Gen. Stat. § 90-108(a)(7), “the State has the burden of proving

a defendant: (1) knowingly or intentionally kept or maintained;

(2) a building or other place; (3) being used for the keeping or

selling of a controlled substance.” State v. Fuller, 196 N.C.
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App. 412, 424, 674 S.E.2d 824, 832 (2009) (citation omitted).

“To determine whether a person keeps or maintains a place under

N.C. Gen. Stat. § 90–108(a)(7), the court considers the

following factors, none of which are dispositive: ownership of

the property, occupancy of the property, repairs to the

property, payment of utilities, payment of repairs, and payment

of rent.” Id. (citation and quotations omitted). “The

determination depends on the totality of the circumstances.” Id.

However, “occupancy, without more, will not support the element

of ‘maintaining’ a dwelling.” State v. Spencer, 192 N.C. App.

143, 148, 664 S.E.2d 601, 605 (2008). “A pivotal factor is

whether there is evidence that defendant owned, leased,

maintained, or was otherwise responsible for the premises.”

State v. Boyd, 177 N.C. App. 165, 174, 628 S.E.2d 796, 804

(2006).

In the instant case, defendant was found at the 403 North

Boyce residence when the search was executed. Sanders had told

police that he had purchased cocaine from defendant at 403 North

Boyce. Cocaine was found during the search of those premises.

Defendant further stated to police that he was staying at 403

North Boyce because he didn’t have any place else to stay. We

have previously held that a defendant’s statement that he
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resided at a particular place “was substantial evidence that

defendant maintained the dwelling.” Spencer, 192 N.C. App. at

148, 664 S.E.2d at 605. In the instant case, we hold that the

State presented substantial evidence of each element of the

charge of felony maintaining a dwelling for controlled

substances. The trial court did not err in denying the

defendant’s motion to dismiss the charge of felony maintaining a

dwelling.

Defendant next argues that there was not substantial

evidence to support the charges of possession of cocaine with

intent to manufacture, sell, and deliver, and possession of drug

paraphernalia, because there was no evidence that defendant

controlled the house at 403 North Boyce.

“A person has actual possession of a controlled substance

if it is on his person, he is aware of its presence, and, either

by himself or together with others, he has the power and intent

to control its disposition or use.” State v. Alston, 193 N.C.

App. 712, 715, 668 S.E.2d 383, 386 (2008) aff’d, 363 N.C. 367,

677 S.E.2d 455 (2009). “Constructive possession [of a controlled

substance] occurs when a person lacks actual physical

possession, but nonetheless has the intent and power to maintain

control over the disposition and use of the [controlled]
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substance.” Id. (quoting State v. Wilder, 124 N.C. App. 136,

139-40, 476 S.E.2d 394, 397 (1996)). “[U]nless 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.” Id. (quoting State v.

Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989)).

In the instant case, defendant was found in the same

residence as the cocaine and drug paraphernalia. Pursuant to

Alston, because defendant did not have sole possession of the

residence, the State had the burden of showing “other

incriminating circumstances” before it could prove constructive

possession. Once again, however, defendant’s statement that he

resided there, combined with Sanders’ testimony that he

purchased cocaine from defendant at 403 North Boyce, and the

presence of cocaine and drug paraphernalia, constituted “other

incriminating circumstances.” We hold that this constituted

substantial evidence of possession of both cocaine and drug

paraphernalia. The trial court did not err in denying

defendant’s motions to dismiss the charges of possession of

cocaine with intent to manufacture, sell, and distribute, and

possession of drug paraphernalia.

This argument is without merit.
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DISMISSED IN PART, NO ERROR IN PART.

Judge GEER concurs.

Judge HUNTER, Robert N., Jr. concurred prior to 6 September

2014.

Report per Rule 30(e).