State v. King

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-322

Filed 7 November 2023

Haywood County, Nos. 21CRS51242, 21CRS51280

STATE OF NORTH CAROLINA

v.

RICHARD JAMES KING

Appeal by defendant from judgment entered 26 August 2022 by Judge Steve R.

Warren in Haywood County Superior Court. Heard in the Court of Appeals 18

October 2023.

Attorney General Joshua H. Stein, by Assistant Attorney General Ronnie K.
Clark, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender David S.
Hallen, for the defendant-appellant.

TYSON, Judge.

Richard James King (“Defendant”) appeals from judgments entered after a

jury convicted him of: conspiracy to commit trafficking in methamphetamine by

possessing 28 grams or more, but less than 200 grams; one count of trafficking

methamphetamine by possessing 400 grams or more; one count of trafficking

methamphetamine by transporting 400 grams or more; and, one count of maintaining

a vehicle for a controlled substance. Our review shows no error.
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Opinion of the Court

I. Background

Haywood County Sheriff’s Detectives Micah Phillips and Jordan Reagan

(“Detectives”) were called to jail to speak with an inmate, Thomas Andrew Clark, on

30 April 2021. Clark agreed to provide information about the drug trade in Haywood

County. Detective Phillips knew Clark to be a low-level drug dealer. Clark was in

jail awaiting trial. Clark spoke with the Detectives around 12:30 p.m.

The Detectives drove to the America’s Best Value Inn in Canton around 2:00

p.m. based upon Clark’s information. Detective Phillips observed James Welch’s

vehicle parked in the Inn’s parking lot. Welch was known to both Detectives to be

involved in drug dealing in Haywood County.

The Detectives observed Welch exit room 213 at the Inn, retrieve a large box

out of the trunk of a Pontiac sedan, and return to the room. Detective Phillips

estimated Welch spent approximately twenty seconds reaching inside the trunk of

the Pontiac. Ten minutes later the Detectives observed Defendant, Welch, and

Welch’s daughter, Ashley Maggard, leave room 213 and enter the parking lot.

Defendant returned to room 213. Welch and Maggard entered a red vehicle and left

the property.

Sheriff’s Sergeant Craig Campbell effected a stop of the red vehicle. A short

time later officers with a canine arrived to assist with the vehicle’s stop. Maggard

told the officers a marijuana pipe was inside her purse. Welch was asked to step out

of the vehicle. He complied, and the officers conducted a pat down, and conducted a

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Opinion of the Court

search of the vehicle.

The officers located 2.5 to 2.8 grams of methamphetamine within Maggard’s

pants. The officers also located a bag of methamphetamine in Welch’s pants and a

bag of methamphetamine inside his underwear.

Detectives Phillips and Reagan continued to monitor the motel. Defendant

and Samantha Rich left room 213, entered the Pontiac, and left the property. Rich

was also known to Detective Phillips, due to her involvement in the Haywood County

drug trade.

The Detectives followed Defendant as he drove into the parking lot of a Dairy

Queen restaurant. The Detectives activated their blue lights and conducted a stop of

the Pontiac. Detective Phillips had confirmed prior to the surveillance that

Defendant’s driver’s license was revoked. Rich immediately exited the Pontiac and

began walking away. Detective Reagan stayed with Defendant, while Detective

Phillips went to ensure Rich did not destroy any evidence.

Defendant admitted to possessing marijuana located in the center console of

the Pontiac. The Detectives located a Marlboro cigarette package containing

marijuana inside the center console. The Detectives also located a duffel bag inside

the vehicle containing $3,900 in currency, a set of digital scales, and men’s clothing.

Deputy Hayden Green arrived with his canine and conducted a canine sniff test

around the Pontiac. The canine alerted to the presence of narcotics, but the officers

were unable to locate any additional contraband.

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Opinion of the Court

Defendant was arrested for conspiracy to traffic methamphetamine and was

incarcerated at the jail. A search warrant was executed for room 213 at the Inn on

30 April 2021. No contraband or currency was found inside the room, but a

methamphetamine pipe and portable air conditioner were found inside of Welch’s

truck located in the parking lot.

Defendant called Rebecca McMahan from the jail’s telephone on 3 May 2021.

Defendant asked McMahan about the Pontiac and told her to bring her toolbox.

Defendant contacted McMahan the next day and suggested McMahan go to a carwash

or someplace covered because it was raining. Defendant told McMahan “[t]here’s two.

There’s one big and one small.” Defendant instructed McMahan to open the trunk

and remove the passenger side taillight. Law enforcement monitored these

conversations.

McMahan picked up the Pontiac from the Sheriff’s impound lot, and she drove

the car to her friend’s house located in Candler. Once there, she removed the taillight

and found a magnetic box. McMahan placed the magnetic box underneath the

passenger side of her vehicle. The same evening, Detective Phillips contacted

McMahan, pretending to be an associate of Defendant, but McMahan denied having

any knowledge of the package during the conversation. Detective Phillips went to

McMahan’s house and presented her with the information he knew and asked her to

cooperate with the investigation. McMahan agreed to cooperate. She told Detective

Phillips she had located only the magnetic box and gave it to him. She took Detective

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Opinion of the Court

Phillips to the Pontiac parked in Candler and allowed him to search the Pontiac.

Detective Phillips opened the magnetic box and discovered a large bag of

methamphetamine inside, which he estimated to weigh approximately 50 grams.

Detective Phillips removed both taillights from the Pontiac and was able to see a

second package stuck in the center of the void between the taillights. The package

contained a large quantity of methamphetamine and some needles. Defendant was

charged with trafficking in methamphetamine by possession of more than 400 grams

and trafficking in methamphetamine by transporting more than 400 grams.

Defendant contacted Tina Hill, his cousin, from jail and told her he was

charged with trafficking because of his phone calls made from jail. Defendant also

told Hill he was “trying to tell [McMahan] where it was at.” Defendant contacted

McMahan a few months later from jail and asserted Welch had placed the two

packages into the back of the Pontiac.

Defendant was indicted and tried for conspiracy to commit trafficking in

methamphetamine by possessing 28 grams or more, but less than 200 grams; one

count of trafficking methamphetamine by possessing 400 grams or more; one count

of trafficking methamphetamine by transporting 400 grams or more; and, one count

of maintaining a vehicle for unlawfully keeping and/or using controlled substances.

At the close of the State’s evidence, Defendant moved to dismiss all charges. The trial

court denied Defendant’s motion. Defendant presented evidence and testified on his

own behalf. The jury returned guilty verdicts on all charges.

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Opinion of the Court

Defendant was sentenced as a prior record level V with 14 prior record level

points to 225 to 282 months for trafficking methamphetamine by possessing 400

grams or more, 225 to 282 months for trafficking methamphetamine by transporting

400 grams or more, 70 to 93 months for conspiracy to traffic methamphetamine, and

7 to 18 months for maintaining a vehicle for unlawfully keeping and/or using

controlled substances. All sentences were ordered to run consecutively. Defendant

appeals.

II. Jurisdiction

Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-

1444(a) (2021).

III. Issues

Defendant argues the trial court erred by denying his motion to dismiss for

conspiracy to commit trafficking in methamphetamine by possessing 28 grams or

more, but less than 200 grams; one count of trafficking methamphetamine by

possessing 400 grams or more; one count of trafficking methamphetamine by

transporting 400 grams or more; and, one count of maintaining a vehicle for

unlawfully keeping and/or using controlled substances.

IV. Defendant’s Motion to Dismiss

A. Standard of Review

“When a defendant moves for dismissal, the trial court is to determine whether

there is substantial evidence (a) of each essential element of the offense charged, or

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Opinion of the Court

of a lesser offense included therein, and (b) of defendant’s being the perpetrator of the

offense.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 222 (1994) (citation

omitted).

“[A]ll evidence is considered in the light most favorable to the State, and the

State receives the benefit of every reasonable inference supported by that evidence.”

State v. Fisher, 228 N.C. App. 463, 471, 745 S.E.2d 894, 900 (2013) (citation omitted).

“Whether the evidence presented at trial is substantial evidence is a question of law

for the court.” Id. (citation omitted). “Substantial evidence is relevant evidence that

a reasonable person might accept as adequate, or would consider necessary to support

a particular conclusion.” Id. (citation omitted).

“[I]t is for the jury to decide whether the facts, taken singly or in combination,

satisfy them beyond a reasonable doubt that the defendant is actually guilty.” State

v. Poole, 24 N.C. App. 381, 384, 210 S.E.2d 529, 530 (1975) (citation omitted).

“Circumstantial evidence may withstand a motion to dismiss and support a conviction

even when the evidence does not rule out every hypothesis of innocence.” State v.

Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (citation omitted).

“Substantial evidence is that amount of relevant evidence necessary to

persuade a rational juror to accept a conclusion.” Id. at 597, 573 S.E.2d at 869

(citation omitted). 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).

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B. Trafficking by Possession

Defendant argues the trial court erred by denying his motion to dismiss the

charge of trafficking methamphetamine by possession. Defendant asserts he did not

“knowingly possess[ ] methamphetamine.” The essential elements of trafficking by

possession are: “(1) knowingly possessed [a controlled substance], and (2) that the

amount transported was greater than [the statutory threshold amount].” State v.

Christian, 288 N.C. App. 50, 53, 884 S.E.2d 492, 497, disc. review denied, __ N.C. __,

891 S.E.2d 267 (2023). The “‘knowing possession’ element of the offense of trafficking

by possession may be established by showing either: (1) the defendant had actual

possession; (2) the defendant had constructive possession; or, (3) the defendant acted

in concert with another to commit the crime.” Id. at 53-54, 884 S.E.2d at 497 (citation

omitted).

The State’s evidence asserted Defendant constructively possessed

methamphetamine. “Constructive possession [of methamphetamine] 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 substance. 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 can be shown with evidence tending to

show a defendant has “exclusive possession of the property in which the drugs are

located.” State v. Lakey, 183 N.C. App. 652, 656, 645 S.E.2d 159, 161 (2007) (citation

omitted). Constructive possession can also be shown with evidence tending to show

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Opinion of the Court

a defendant's “nonexclusive possession of the property where the drugs are located”

if there is also other incriminating evidence “connecting the defendant to the drugs.”

Id. (citation omitted).

Our Supreme Court has articulated factors of “other incriminating

circumstances” to establish constructive possession:

(1) the defendant’s ownership and occupation of the
property . . . ; (2) the defendant’s proximity to the
contraband; (3) indicia of the defendant’s control over the
place where the contraband is found; (4) the defendant’s
suspicious behavior at or near the time of the contraband’s
discovery; and (5) other evidence found in the defendant’s
possession that links the defendant to the contraband.

State v. Checkanow, 370 N.C. 488, 496, 809 S.E.2d 546, 552 (2018).

This Court has held a large amount of currency can be evidence tending to

establish constructive possession. Alston, 193 N.C. App. at 716, 668 S.E.2d at 386

(citation omitted). Evidence of conduct by a defendant indicating his knowledge of

the presence of a controlled substance is also sufficient for a jury to find constructive

possession. Id.

Viewed in the light most favorable to the State, the evidence tends to show

Defendant regularly used the Pontiac vehicle. He had prior access to and was driving

the Pontiac the day he was pulled over, arrested, and the vehicle was impounded.

Defendant’s duffel bag containing $3,900 in currency and a set of digital scales were

found inside the trunk. Defendant was aware of the location of the packages of

methamphetamine, instructed McMahan, and attempted to have her remove the

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Opinion of the Court

hidden packages from the vehicle. A jury could reasonably conclude Defendant

knowingly trafficked methamphetamine by possession. Defendant’s argument is

overruled.

C. Trafficking by Transportation

Defendant argues the trial court erred when it denied his motion to dismiss

the charge of knowingly trafficking methamphetamine by transportation. He denies

knowingly transporting methamphetamine. The essential elements of trafficking

methamphetamine by transportation are: “(1) knowingly . . . transported

methamphetamine, and (2) that the amount possessed was greater than 28 grams.”

Christian, 288 N.C. App. at 57, 884 S.E.2d at 499 (citation omitted).

Transportation requires a “substantial movement” of contraband and can be

defined as “real carrying about or [movement] from one place to another.” Id. (citation

omitted). Even very slight movement may be real or substantial enough, “depending

upon the purpose of the movement and the characteristics of the areas from which

and to which the contraband is moved.” State v. McRae, 110 N.C. App. 643, 646, 430

S.E.2d 434, 436 (1993) (citation omitted). Merely witnessing a drug transaction in a

vehicle stationary in a parking lot is not movement when the officers did not witness

the vehicle in motion. State v. Williams, 177 N.C. App. 725, 729, 630 S.E.2d 216, 220

(2006).

Viewed in the light most favorable to the State, the evidence tends to show the

Detectives observed Defendant driving the Pontiac from the America’s Best Value

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Opinion of the Court

Inn to the Dairy Queen parking lot, where he was arrested and the Pontiac was

searched and impounded. Defendant called McMahan from jail, asked her about the

Pontiac, and instructed her how to access the methamphetamine hidden within the

vehicle. The fact that all the containers were not discovered until days later does not

suggest a lack of knowledge given the hidden location of the packages and the

Defendant’s knowledge of the location of and extraction method for the packages. A

jury could reasonably conclude Defendant knowingly trafficked methamphetamine

by transportation. Defendant’s argument is overruled.

D. Maintaining a Vehicle for Controlled Substances

Defendant argues the trial court erred by denying his motion to dismiss the

charge of maintaining a vehicle for unlawfully keeping and/or using controlled

substances. He asserts he did not maintain the Pontiac for the purpose of unlawfully

keeping and/or using controlled substances. He also argues he lacked exclusive

access to the areas where the methamphetamine was found, and he did not knowingly

possess the methamphetamine. Defendant’s arguments are without merit. As

explained above, a jury could reasonably conclude Defendant knowingly possessed

methamphetamine.

N.C. Gen. Stat. § 90-108(a)(7) prescribes a Class I felony for a person to

intentionally and knowingly keep or maintain a vehicle, “which [is] resorted to by

persons using controlled substances in violation of this Article for the purpose of using

such substances, or which is used for the keeping or selling of the same in volitation

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of this Article.” N.C. Gen. Stat. § 90-108(a)(7) (2021).

In State v. Mitchell, our Supreme Court held the State had presented

insufficient evidence of maintaining a vehicle, despite the fact “the defendant had two

bags of marijuana while in his car, that his car contained a marijuana cigarette the

following day, and that his home contained marijuana and drug paraphernalia[.]”

State v. Mitchell, 336 N.C. 22, 34, 442 S.E.2d 24, 31 (1994).

Similarly, in State v. Lane, this Court held the State had presented insufficient

evidence of maintaining a vehicle for unlawfully keeping and/or using controlled

substances where the defendant possessed eight Ziploc bags of cocaine only once

inside of the vehicle. The statute does not prohibit the mere temporary possession of

[controlled substances] within a vehicle. State v. Lane, 163 N.C. App. 495, 500, 594

S.E.2d 107, 111 (2004) (citing Mitchell, 336 N.C. at 32-33, 442 S.E.2d at 30).

Upon arrest, Defendant admitted to possessing marijuana located in the center

console of the Pontiac which was recovered by the Detectives. The Detectives also

located a duffel bag inside the vehicle containing $3,900 in currency and a set of

digital scales. The State presented other evidence tending to show both bags of

methamphetamine were present inside the vehicle on 30 April 2021 and on 4 May

2021. Whether sufficient evidence was presented of the “keeping or maintaining”

element depends upon a totality of the circumstances, and no single factor is

determinative. Mitchell, 336 N.C. at 34, 442 S.E.2d at 30.

The State presented evidence of other factors, including Defendant’s

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knowledge and actions to access and dispose of the methamphetamine within the

Pontiac, which indicated Defendant kept the vehicle for the purpose of keeping

controlled substances. The trial court did not err in denying Defendant’s motion to

dismiss for maintaining a vehicle for the unlawful keeping and/or using of controlled

substances. N.C. Gen. Stat. § 90-108(a)(7). Defendant’s argument is overruled.

E. Conspiracy to Commit Trafficking in Methamphetamine

Defendant argues the trial court erred by denying his motion to dismiss the

conspiracy to commit trafficking in methamphetamine. “[C]riminal conspiracy is an

agreement between two or more persons to do an unlawful act . . . [and] no overt act

is necessary to complete the crime of conspiracy. As soon as the union of wills for the

unlawful purpose is perfected, the offense of conspiracy is completed.” State v.

Bindyke, 288 N.C. 608, 615-16, 220 S.E.2d 521, 526 (1975).

“The State need not prove an express agreement;” rather, “evidence tending to

show a mutual, implied understanding will suffice.” State v. Morgan, 329 N.C. 654,

658, 406 S.E.2d 833, 835 (1991) (citation omitted). Direct or circumstantial evidence

may be used to establish the existence of a conspiracy, although it is generally

“established by a number of indefinite acts, each of which, standing alone, might have

little weight, but, taken collectively, they point unerringly to the existence of a

conspiracy.” State v. Worthington, 84 N.C. App. 150, 162, 352 S.E.2d 695, 703 (1987)

(citation omitted). “Mere passive cognizance of the crime or acquiescence in the

conduct of others will not suffice to establish a conspiracy. The conspirator must

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share in the purpose of committing [the] felony.” State v. Merrill, 138 N.C. App. 215,

221, 530 S.E.2d 608, 612 (2000) (citation and internal quotation marks omitted).

Viewing the evidence in the light most favorable to the State on a motion to

dismiss, sufficient evidence tended to show and supported submitting the conspiracy

charge to the jury. The alleged co-conspirators, Welch, Maggard, and Rich were all

found with methamphetamine after leaving the motel. Defendant had $3,900 in

currency and a set of digital scales with his clothing in the vehicle at the time of his

arrest. The trial court did not err in denying Defendant’s motion to dismiss the

charge of conspiracy to traffic methamphetamine. Defendant’s argument is

overruled.

V. Conclusion

The State’s evidence, taken as a whole, is sufficient for a reasonable jury to

find and conclude Defendant is guilty of conspiracy to commit trafficking in

methamphetamine by possessing 28 grams or more, but less than 200 grams; one

count of trafficking methamphetamine by possessing 400 grams or more; one count

of trafficking methamphetamine by transporting 400 grams or more; and, one count

of maintaining a vehicle for keeping and/or using a controlled substance.

Defendant received a fair trial, free from prejudicial errors he preserved and

argued. We find no error in the jury’s verdicts or in the judgments entered thereon.

It is so ordered.

NO ERROR.

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Judges DILLON and GRIFFIN concur.

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