An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-392
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
STATE OF NORTH CAROLINA
v. Buncombe County
Nos. 12 CRS 64142-43
MARQUES AUBREY DAVIS
Appeal by defendant from judgment entered 11 September 2013
by Judge James U. Downs in Buncombe County Superior Court.
Heard in the Court of Appeals 22 September 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Neal T. McHenry, for the State.
Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender James R. Grant, for defendant-appellant.
McCULLOUGH, Judge.
Defendant was tried on charges of possession of drug
paraphernalia and possession with intent to sell or deliver
(“PWISD”) marijuana. The jury found him guilty of possession of
drug paraphernalia and the lesser included offense of simple
possession of more than one-half ounce but less than one and
one-half ounces of marijuana. The trial court consolidated
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defendant’s offenses for judgment and sentenced him to 90 days
in county jail. Defendant gave notice of appeal in open court.
On 29 November 2012, Officer Matthew Kiser of the Buncombe
County Sheriff’s Office knocked on the front door of an
apartment in Lee Walker Heights, seeking to serve a warrant for
unpaid child support upon defendant. Defendant answered the
door but advised Officer Kiser “that Marques Davis did not live
at that address and . . . was not there.” Based on the
photograph that accompanied the warrant, Officer Kiser
recognized defendant as the Marques Davis in question. He also
detected a strong odor of marijuana emanating from inside the
apartment and asked defendant for consent to enter the apartment
to look for the marijuana. Defendant demurred, stating that the
apartment did not belong to him. Officer Kiser asked defendant
to come outside, detained him on the outstanding warrant, and
secured the apartment to prevent further ingress or egress. He
then contacted Narcotics Officer Edward Winslow, who arrived 30
minutes later and obtained defendant’s consent to search the
apartment.
A protective sweep revealed no additional occupants in the
apartment. Proceeding upstairs to a bedroom, Officer Winslow
observed “several bags of marijuana” in plain view on the bed.
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Also on the bed was a North Carolina photographic identification
card belonging to defendant. On top of a dresser in the corner
of the bedroom were “several bags of marijuana . . ., a set of
digital scales and some loose marijuana laying on the scales and
on top of the dresser.” On top of a second dresser were a box
of plastic sandwich baggies, several individual sandwich baggies
with the corners missing, and men’s deodorant. In a left-hand
drawer of this dresser, Officer Winslow also found a loaded .38
revolver and a box of ammunition. He opened the cylinder of the
revolver and saw that “one of the rounds had been fired.”
Prior to trial, defendant moved to suppress the evidence
found during the search of the apartment on the ground that his
consent to the search was involuntary or otherwise invalid.
Defendant also moved to suppress any statements he made to the
officers after he was detained but before he was advised of his
Miranda rights. The trial court denied the motion as to the
fruits of the search but granted the motion as to any statements
made by defendant after his initial exchange with Officer Kiser
regarding the warrant.
On appeal, defendant claims the trial court committed plain
error by allowing the State to introduce evidence of the loaded
handgun and ammunition that were found in the bedroom where the
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marijuana was found. He contends this “weapon evidence” had no
relevance to either of the charged crimes, inasmuch as “the
State never introduced any evidence suggesting the gun belonged
to [him].” Moreover, citing the “highly inflammatory nature” of
the loaded handgun and Officer Winslow’s testimony that the gun
had been fired, defendant argues that the evidence was
inadmissible and should have been excluded pursuant to N.C. Gen.
Stat. § 8C-1, Rules 401 and 403 (2013).
In seeking plain error review, defendant concedes he failed
to object to the evidence of the handgun and ammunition on
grounds of irrelevance. See N.C. R. App. P. 10(a)(1), (4).
Rather, defendant’s objection at trial was solely “based on
[defendant’s] prior motion” to suppress.1 Having “objected on
grounds other than those now argued on appeal, he has waived his
right to appellate review other than for plain error.” State v.
Locklear, 363 N.C. 438, 449, 681 S.E.2d 293, 303 (2009); see
also N.C. R. App. P. 10(a)(4). To establish plain error,
1
Although the trial court inquired sua sponte into the relevance
of photographs of the gun and ammunition tendered by the State,
this proffer occurred well after Officer Winslow’s initial
testimony about finding the gun in the bedroom dresser.
Moreover, the court allowed the photographs into evidence “for
illustration purposes only” and instructed the jury to consider
the photographs “for illustration only; that is, whether or not
they illustrate whatever this officer saw with respect to that
scene.”
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. . . a defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice — that,
after examination of the entire record, the
error had a probable impact on the jury's
finding that the defendant was guilty. . . .
In other words, the inquiry is whether the
defendant has shown that, absent the error,
the jury probably would have returned a
different verdict.
State v. Carter, 366 N.C. 496, 500, 739 S.E.2d 548, 551 (2013)
(citations and quotations omitted).
The North Carolina Rules of Evidence provide that “[a]ll
relevant evidence is admissible” unless otherwise prohibited by
law. N.C. Gen. Stat. § 8C-1, Rule 402 (2013). Rule 401 defines
evidence as “relevant” if it has “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.” N.C. Gen. Stat. § 8C-1, Rule
401. This standard “gives the judge great freedom to admit
evidence because the rule makes evidence relevant if it has any
logical tendency to prove any fact that is of consequence.”
State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228
(1991) (citation omitted), appeal dismissed and disc. rev.
denied, 331 N.C. 290, 416 S.E.2d 398 (1992). Although a trial
court’s rulings on relevancy are fully reviewable as a question
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of law, “we accord them great deference on appeal.” State v.
Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 223, cert. denied, __ U.S.
__, 181 L. Ed. 2d 529 (2011).
Defendant has not shown plain error here. For the purpose
of proving the crime of PWISD marijuana, it is clearly relevant
that known accoutrements of the drug trade, including a loaded
firearm, are found in the same room as the marijuana. See State
v. Huerta, __ N.C. App. __, __, 727 S.E.2d 881, 888-89 (2012)
(citing State v. Boyd, 177 N.C. App. 165, 171-72, 628 S.E.2d
796, 802 (2006) (noting that “as a practical matter, firearms
are frequently involved for protection in the illegal drug
trade”)). Defendant’s assertion that the State failed to link
him to the gun speaks to the weight to be accorded to this
evidence, not its relevance and admissibility under N.C. R.
Evidence 401 and 402.
Defendant also assigns plain error to the limiting
instruction given by the trial court when it allowed into
evidence three photographs depicting the gun and ammunition
found by Officer Winslow. The court instructed the jury as
follows:
The only reason you can consider these
particular items of evidence [is] for
illustration only; that is, whether or not
they illustrate whatever this officer saw
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with respect to that scene.
The defendant is not charged with any
offense having to do with possession of a
firearm, and that can’t be used against him
in any way whatsoever except to possibly
show whether or not the defendant
constructively knew or possessed any
contraband, if there was any, in that room.
But for using it for that limited –- very
limited purpose, you can’t consider that for
any other reason.
All right. Let them be admitted for
illustration purposes only.
Having affirmed the relevance of the handgun and ammunition, we
find nothing erroneous in this limiting instruction. Moreover,
inasmuch as the court admonished the jury not to consider the
photographs as substantive evidence, we conclude defendant
cannot show probable prejudice from the instruction, as required
to show plain error. See generally State v. Thompson, 328 N.C.
477, 492, 402 S.E.2d 386, 394 (1991) (noting that “the trial
court gave cautionary instructions on the use of the photographs
for illustrative purposes, thus limiting the likelihood of
unfair prejudice”).
To the extent defendant separately claims the trial court
committed plain error under N.C. R. Evidence 403 in weighing the
probative value of the evidence against the attendant risk of
unfair prejudice, we hold that this discretionary ruling is not
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subject to plain error review under N.C. R. App. P. 10(a)(4).
State v. Cunningham, 188 N.C. App. 832, 837, 656 S.E.2d 697, 700
(2008).
Finally, we reject defendant’s suggestion that “[t]he
incongruity of the jury’s verdicts” reflects the jury’s
“confusion or animus [toward defendant] resulting from the
erroneously admitted gun evidence and illogical instruction.”
There is nothing inherently inconsistent in finding that
defendant was engaged in simple possession of a controlled
substance, rather than PWISD, while also in possession of drug
paraphernalia.
No plain error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).