IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-868
Filed: 3 July 2018
Forsyth County, No. 15CRS051950
STATE OF NORTH CAROLINA
v.
DENNIS RAYNARD STEELE, Defendant.
Appeal by defendant from judgment entered 2 March 2017 by Judge Susan E.
Bray in Forsyth County Superior Court. Heard in the Court of Appeals 30 January
2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Matthew L.
Liles, for the State.
Nils E. Gerber for defendant-appellant.
BERGER, Judge.
On March 2, 2017, a Forsyth County jury convicted Dennis Raynard Steele
(“Defendant”) of trafficking cocaine. Defendant asserts on appeal that (1) his Sixth
Amendment right to confront witnesses testifying against him was violated, (2) the
trial court abused its discretion by admitting out-of-court statements of a confidential
informant, and (3) the trial court erred in denying his motion to dismiss for
insufficiency of the evidence. We disagree.
Factual and Procedural Background
STATE V. STEELE
Opinion of the Court
On September 16, 2014, Investigator Jeremy Webster with the Forsyth County
Sheriff’s Department’s vice and narcotics unit met with a confidential informant who
had previously provided reliable information to the department several times. The
informant told Investigator Webster that a black male named “Dennis” was
manufacturing and selling cocaine, described Dennis as a stocky, dark-skinned black
male in his mid-thirties who was known on the streets as “Black,” and provided a
phone number at which Dennis could be contacted. According to the informant,
Dennis would sell crack cocaine packaged in plastic baggies for twenty dollars.
Typically, Dennis would sell one-tenth of a gram of crack cocaine, but had sold as
much as one-quarter ounce.
Investigator Webster set up a controlled purchase of crack cocaine from
Dennis. He had the informant call the phone number for Dennis. The call was
answered by a male subject, and the informant arranged a meeting on September 17,
2014 to purchase an eight-ball (one-eighth of an ounce or three and one-half grams)
of cocaine. Defendant drove a black Hyundai registered to Tyrice Lenard Hauser to
conduct the drug transaction with the informant. Following the controlled purchase,
the informant provided Investigator Webster with a plastic bag containing three and
one-half grams of crack cocaine.
Members of the narcotics unit subsequently became involved in a multi-agency
investigation in a neighboring jurisdiction, and, therefore, made no significant
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Opinion of the Court
progress in this case until December of 2014 when Investigator Webster observed the
black Hyundai from the controlled purchase parked at a home on Hanes Avenue in
Winston-Salem. By this time, according to the informant, Dennis continued to sell
crack cocaine. However, because Dennis was not accepting new customers,
investigators were unable to proceed further with an undercover investigation.
In January and February 2015, investigators conducted five trash-pulls at 631
Hanes Avenue to gather additional information, and found evidence of drug use and
distribution. The trash also contained dry cleaning tags with the name “Dennis Still”
and mail addressed to “Dennis Steele.”
Investigators executed a search warrant at the Hanes Avenue location on
March 4, 2015. Defendant and Monchea Cunningham were exiting one of the
bedrooms when officers first entered the house. Tyjuan Hauser was also found in the
residence, along with a two-year-old child. Investigators located digital scales and a
razor blade with white residue in the kitchen. Marijuana and a plastic bag containing
a capsule with white powder on it were found in a bedroom which also contained mail
addressed to Tyrice Hauser.1 A receipt with Defendant’s name on it to a local pawn
shop was found in the dining room.
When investigators searched the bedroom of Defendant and Cunningham, they
observed an unlatched padlock on the door. Defendant and Cunningham had the
1 Tyrice and Tyjaun Hauser are adult children of Monchea Cunningham.
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STATE V. STEELE
Opinion of the Court
only keys to the padlock, and used it to prevent others from accessing the bedroom.
A search of the room uncovered marijuana, mail addressed to Defendant, two cell
phones, a wallet containing Defendant’s driver’s license, and more than $400.00 in
cash. A box located near the nightstand contained latex gloves, a pair of goggles, and
two boxes of plastic baggies.
Three plastic bags containing cocaine and crack cocaine were found in a dresser
drawer, along with oxymorphone tablets. One bag contained eighteen individual
baggies of crack cocaine packaged for sale. The total weight of the drugs and
packaging was 65.8 grams. Chemical analysis of the materials showed 53.78 grams
of cocaine were recovered from the residence.
A Ford Crown Victoria registered to Defendant and the black Hyundai
registered to Tyrice Hauser that had been observed by officers at the controlled buy
were parked at the residence. A medical invoice was found in the Crown Victoria
addressed to Defendant at 631 Hanes Avenue, Winston-Salem, North Carolina.
Following the search of the premises, Defendant and Cunningham were
arrested. Defendant declined to speak with investigators. However, while being
processed at the jail, Defendant was asked for his address. Defendant was unable to
provide an address, stating, “The one on my license. 5919 or 5919 – 5939 Clemmons
– 5909 – whatever is on my license.” Defendant also told Corporal Michael Hudak
that he wanted to send a letter from the jail to his home, and asked Corporal Hudak
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STATE V. STEELE
Opinion of the Court
if he could write down the address listed on his license because he was unable to
remember the address.
While waiting in the magistrate’s office, officers overheard Defendant speaking
with another arrestee. The two discussed a heroin dealer in Mocksville, and
Defendant told the other individual he had been arrested for a little crack, but “he
wasn’t concerned because it was just a little over two ounces.” At the time, officers
had not weighed the cocaine, and could not have communicated to Defendant that
53.78 grams, or 1.9 ounces, had been recovered from the residence.
Cunningham waived her Miranda rights and told officers she had known
Defendant for more than ten years. She admitted that Defendant had keys to the
residence at 631 Hanes Avenue, and testified at trial that Defendant lived at the
residence. She also stated that she and Defendant had the only keys to the padlock
on the bedroom door, but denied knowledge of any controlled substances in the
residence, except marijuana. Regarding the cocaine found in the bedroom,
Cunningham told investigators, “I didn’t put it there.”
On August 17, 2015, the Forsyth County Grand Jury indicted Defendant for
trafficking in cocaine and possession of a Schedule II controlled substance. Defendant
was tried in Forsyth County Superior Court, and the jury convicted Defendant of
trafficking cocaine. Defendant was sentenced to thirty-five to fifty-one months in
prison and assessed a fine of $50,000.00. Defendant gave oral notice of appeal.
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STATE V. STEELE
Opinion of the Court
Analysis
I. Sixth Amendment
Defendant contends the trial court erred by admitting statements made by the
confidential informant through the testimony of Investigator Webster. He
specifically argues that the informant’s hearsay statements about Defendant’s prior
sale and manufacture of cocaine should not have been admitted because Defendant
was given no opportunity to confront and cross-examine the informant in violation of
his constitutional rights as protected by the Sixth Amendment. We disagree.
“The standard of review for alleged violations of constitutional rights is de
novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009) (citation
omitted), appeal dismissed, 363 N.C. 857, 694 S.E.2d 766 (2010).
The Sixth Amendment guarantees that “[i]n all criminal prosecutions the
accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”
U.S. Const. amend. VI. The United States Supreme Court has held the Confrontation
Clause applies only to testimonial evidence. Crawford v. Washington, 541 U.S. 36,
68, 158 L. Ed. 2d 177, 203 (2004). Testimonial evidence includes
material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine,
or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially, extrajudicial
statements contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or
confessions, and statements that were made under
circumstances which would lead an objective witness
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Opinion of the Court
reasonably to believe that the statement would be available
for use at a later trial[.]
Id. at 51-52, 158 L. Ed. 2d 177 (cleaned up). However, “[t]he [Confrontation] Clause
also does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.” Id. at 59 n.9, 158 L. Ed. 2d at 198 n.9.
“ ‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” N.C. Gen. Stat. § 8C-801(c) (2017). The Rules of Evidence generally
exclude the use of hearsay statements. N.C. Gen. Stat. § 8C-802 (2017).
However, “[o]ut of court statements offered for purposes other than to prove
the truth of the matter asserted are not considered hearsay.” State v. Anthony, 354
N.C. 372, 403-04, 555 S.E.2d 557, 579 (2001) (citation and quotation marks omitted),
cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002). Moreover, “statements of one
person to another to explain subsequent actions taken by the person to whom the
statement was made are admissible as nonhearsay evidence.” Id. at 404, 555 S.E.2d
at 579 (citation omitted). “[A]dmission of nonhearsay raises no Confrontation Clause
concerns.” State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (citation and
quotation marks omitted), cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002).
This Court has consistently held that statements by a confidential informant
to law enforcement officers which explain subsequent steps taken by officers in the
investigative process are admissible as nonhearsay and “not barred by the
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Opinion of the Court
Confrontation Clause.” State v. Wiggins, 185 N.C. App. 376, 384, 648 S.E.2d 865, 871
(citing Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 198 n.9), disc. review denied,
361 N.C. 703, 653 S.E.2d 160 (2007); see also State v. Batchelor, 202 N.C. App. 733,
690 S.E.2d 53 (2010); State v. Leyva, 181 N.C. App. 491, 640 S.E.2d 394 (2007); State
v. Rogers, ___ N.C. App. ___, 796 S.E.2d 91, writ allowed, 369 N.C. 526, 797 S.E.2d 2
(2017).
Here, Investigator Webster testified about the information provided by the
confidential informant and the subsequent steps he took to investigate Defendant.
[The State:] What did the confidential informant tell you
at that time?
[Webster:] On that date, the confidential informed us --
informant -- excuse me -- advised us that they had
knowledge of a black male who was using the name
"Dennis" and occasionally using the street name of "Black,"
who was selling and manufacturing crack cocaine. The C.I.
described Dennis as being a 34-year-old, dark-skinned,
black male, average height, stocky build, who kept a short
haircut. C.I. stated that Dennis was selling crack cocaine
in $20 bags, with a $20 bag typically being around a tenth
of a gram in their estimation. They said that Dennis had
sold up to a quarter ounce of crack cocaine in the past, that
the crack cocaine was typically packaged in plastic bags.
The C.I. also provided the phone number . . . as a phone
number to reach Dennis.
[The State:] Investigator Webster, based on that
information you received, were you able to set up what's
known as a controlled purchase?
[Webster:] We did. On that particular date, September
16th, the C.I. placed a phone call in my presence to the
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STATE V. STEELE
Opinion of the Court
[phone] number and spoke to a male subject. They priced
the -- inquired as to the price of 3 1/2 grams of cocaine, or
what's commonly referred to as an eight ball of cocaine.
Investigator Webster then described the controlled purchase and law enforcement’s
subsequent actions to investigate Defendant.
The trial court gave a limiting instruction to the jury before accepting this
testimony to ensure the statements would be properly considered by the jury.
[THE COURT:] Members of the jury, I anticipate you're
going to hear some testimony about a confidential
informant and what this investigator and other officers
may have done as a result of their contact with that
confidential informant.
Now, ordinarily any statements that that informant
may have made would be hearsay because that informant
is not here testifying in front of you under oath, but the
State is not offering that evidence for the truth of it, and
you're not to consider any evidence of what the statement
the confidential informant made for its truth. You may
consider it for what this officer and other officers may have
done as a result of that confidential informant's
information.
The defendant in this case, Mr. Steele, is not charged
with anything relating to any alleged contact he had with
the confidential informant. He is not charged with
anything related to that. But you can consider this
testimony for what these officers did subsequently in their
investigation for the charges that he is on trial for.
Does everybody understand that?
ALL JURORS: (Indicating in the affirmative.)
THE COURT: And can you follow that instruction?
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STATE V. STEELE
Opinion of the Court
ALL JURORS: (Indicating in the affirmative.)
THE COURT: All right. We'll let the record reflect that all
jurors have indicated they do understand that.
The nonhearsay statements were not offered to prove the truth of the matter
asserted, but rather to explain how and why the investigation of Defendant began.
Such statements are not precluded by Crawford v. Washington, and admission of the
same does not violate Defendant’s Sixth Amendment rights under the Confrontation
Clause. Therefore, the trial court did not err in admitting the confidential informant’s
statements.
II. Rule 403
Defendant contends the admission of the confidential informant’s statements
was unfairly prejudicial. We disagree.
“We review a trial court’s decision to exclude evidence under Rule 403 for abuse
of discretion.” State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008) (citation
omitted). “Abuse of discretion results where the court’s ruling is manifestly
unsupported by reason or is so arbitrary that it could not have been the result of a
reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)
(citation omitted).
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . .” N.C. Gen. Stat.
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STATE V. STEELE
Opinion of the Court
§ 8C-403 (2017). Probative evidence in criminal cases tends to have a prejudicial
effect on defendants; however, “the question . . . is one of degree.” State v. Mercer,
317 N.C. 87, 93-94, 343 S.E.2d 885, 889 (1986).
Here, Defendant asserts he was prejudiced by admission of the confidential
informant’s statements. Specifically, Defendant contends the statements concerning
his distribution of illegal drugs were used to show he acted in conformity with the
charge of trafficking in cocaine. However, the confidential informant’s statements
were relevant, and explained the steps taken by officers during the investigation.
Further, the trial court’s limiting instruction demonstrated that the trial court
thoughtfully considered the nature of the testimony and how it could potentially be
used by the jury. Defendant has failed to demonstrate that the trial court abused its
discretion.
III. Motion to Dismiss
Defendant argues the trial court erred in denying his motion to dismiss for
insufficiency of the evidence. We disagree.
“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) (citation omitted).
“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
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Opinion of the Court
offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526
S.E.2d 451, 455 (citation omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d
164, 169 (1980) (citations omitted). “Evidence must be viewed in
the light most favorable to the State with every reasonable inference drawn in the
State's favor.” State v. Coley, ___ N.C. App. ___, ___, 810 S.E.2d 359, 363 (2018)
(citation omitted). “[S]o long as the evidence supports a reasonable inference of the
defendant's guilt, a motion to dismiss is properly denied even though the evidence
also permits a reasonable inference of the defendant's innocence.” State v. Miller, 363
N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (citation and quotation marks omitted).
To be convicted of trafficking in cocaine by possession, the State must prove,
(1) the defendant knowingly possessed cocaine, and (2) the amount was at least
twenty-eight grams. N.C. Gen. Stat. § 90-95(h)(3) (2017). Defendant contests the
first element, and argues there was no evidence presented by the State that he
possessed the cocaine.
“[P]ossession of contraband can be either actual or constructive[.]” State v.
McNeil, 359 N.C. 800, 806, 617 S.E.2d 271, 275 (2005) (citation omitted).
“Constructive possession exists when a person, while not having actual possession,
has the intent and capability to maintain control and dominion over a controlled
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Opinion of the Court
substance.” State v. Williams, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983) (citation
omitted). “Unless a defendant has exclusive possession of the place where the
contraband is found, the State must show other incriminating circumstances
sufficient for the jury to find a defendant had constructive possession.” Miller, 363
N.C. at 99, 678 S.E.2d at 594 (citation omitted). This Court has held that constructive
possession “depends on the totality of the circumstances in each case. No single factor
controls, but ordinarily the questions will be for the jury.” State v. McBride, 173 N.C.
App. 101, 106, 618 S.E.2d 754, 758, disc. review denied, 360 N.C. 179, 626 S.E.2d 835
(2005) (citation and quotation marks omitted).
Here, the totality of the evidence tended to show, and the jury could reasonably
infer, that Defendant lived with Cunningham in the home at 631 Hanes Avenue.
Defendant was unable to provide officers with the address on his driver’s license, or
any other information regarding his living arrangements. Defendant and
Cunningham shared a bedroom which also contained drug paraphernalia and illegal
contraband, and was padlocked from the outside to prevent entry. Defendant and
Cunningham had the only keys to the padlock barring access to the bedroom.
The jury could infer that the items on the nightstand, where Defendant’s wallet
and mail were located, also belonged to Defendant. Officers found more than four
hundred dollars in cash on this nightstand. A box located near the nightstand
contained latex gloves, a pair of goggles, and two boxes of plastic baggies, which the
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Opinion of the Court
jury could infer were used to manufacture, package, or otherwise distribute crack
cocaine. A reasonable juror could infer from Cunningham’s statement to officers that
she did not put the cocaine in the dresser. Moreover, Cunningham stated that she
only knew about the marijuana in the home, and that the cocaine did not belong to
her. The jury could reasonably infer that Defendant, the only other individual with
access to the bedroom, was the individual who had control and dominion over the
cocaine found by officers. In addition, Defendant’s knowledge of the weight of cocaine
found in the bedroom, as demonstrated by his conversation with the other arrestee
in the magistrate’s office, is yet another incriminating circumstance from which the
jury could find Defendant’s constructive possession of cocaine.
When viewed in the light most favorable to the State, there was substantial
evidence that Defendant was in constructive possession of more than twenty-eight
grams of cocaine. Defendant’s motion to dismiss for insufficiency of the evidence was
properly denied.
Conclusion
The trial court properly admitted statements by the confidential informant
which were used to explain the steps officers took in their investigation, and
admission of these statements did not violate Defendant’s Sixth Amendment rights
under the Confrontation Clause. The trial court did not abuse its discretion by
admitting the confidential informant’s statements. Finally, the trial court did not err
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Opinion of the Court
in denying Defendant’s motion to dismiss for insufficiency of the evidence because the
State introduced substantial evidence of constructive possession. Therefore,
Defendant received a fair trial free from error.
NO ERROR.
Judges BRYANT and DIETZ concur.
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