State v. Clawson

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-787

Filed 7 November 2023

Haywood County, Nos. 18CRS053666, 19CRS000293-95, 19CRS000314,
19CRS000316, 18CRS053662, 19CRS000326-28

STATE OF NORTH CAROLINA

v.

DESJAUN MONTRE CLAWSON, OMAR SIRREE JACKSON, and DAMARCUS
JEREMALE WIGGINS

Appeal by Defendants from judgments entered 31 August 2021 by Judge

Bradley B. Letts in Haywood County Superior Court. Heard in the Court of Appeals

3 October 2023.

Attorney General Joshua H. Stein, by Special Deputy Attorney General
Nicholas R. Sanders, for the State.

Grace, Tisdale & Clifton, P.A., by Michael A. Grace and Christopher R. Clifton,
for Defendant Desjaun Montre Clawson; Anne Bleyman for Defendant Omar
Sirree Jackson; and Gammon, Howard & Zeszotarski, PLLC, by Joseph E.
Zeszotarski, Jr., for Defendant Demarcus Jeremale Wiggins.

COLLINS, Judge.

Desjaun Montre Clawson, Damarcus Jeremale Wiggins, and Omar Sirree

Jackson (collectively, “Defendants”) appeal from the trial court’s judgments entered

upon guilty verdicts of various drug-related offenses. Defendants argue that the trial

court erred by allowing the State’s motion to join Defendants’ cases for trial. Wiggins

argues that the trial court erred by admitting certain testimony at trial. Clawson
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Opinion of the Court

and Wiggins each argue that the trial court erred by denying their motions to dismiss

trafficking in opium or heroin and trafficking in cocaine charges. Finally, Defendants

each argue that the trial court erred by denying their motions to dismiss conspiracy

to traffic in opium or heroin and conspiracy to traffic in cocaine charges. We find no

error.

I. Background

The evidence at trial tended to show the following: On 18 October 2018,

Detective Matthew Rinehardt with the Haywood County Sheriff’s Department

received an anonymous phone call alleging that there was drug activity at the Olive

View Apartments. The apartment building was formerly a motel which had been

converted into efficiency apartments. Rinehardt was familiar with the apartments

because there had been numerous complaints concerning “narcotics, people with

warrants, things like that.”

Rinehardt relayed this information to Detective Jordan Reagan, and Reagan

went to the apartments and “put eyes on to start watching and seeing if there was

any activity moving, any vehicles coming and going, or anything that we could act

on.” Reagan parked his unmarked patrol vehicle about one-tenth of a mile away from

the apartments and used binoculars to observe the property. While conducting

surveillance, Reagan observed a black Dodge Charger parked in front of the

apartments. The Charger had a silver “swoop that follows the contour of the body.”

Reagan was familiar with the vehicle as it had been the subject of previous complaints

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Opinion of the Court

and was being watched for “possibly being involved in narcotics[.]” Rinehardt had

seen Wiggins operating the vehicle on multiple occasions.

Reagan also observed traffic in and out of the last two apartments, Rooms 14

and 15. Several vehicles would pull up, “[s]ometimes just one person would get out”

and “[t]he driver would stay in the vehicle[,]” and “[t]he person would meet with

people at the apartments, stay for a minute or go inside the apartment and leave[.]”

On two occasions, Reagan witnessed “two black males come out of Apartment 14 and

walk into 15, stay for a couple minutes, [and] come back out.” One of the black males

had a “tall, skinnier-type build with dreads, and the other black male was short and

heavier set, short hair and had a bright pair of pants.”

Reagan called officers from the criminal suppression unit for assistance.

Several officers began conducting traffic stops of vehicles exiting the apartments

based on information from Reagan, including “occupants of the vehicle, description of

the vehicle, make, model, color, and the direction of travel.” At some point, Reagan

observed a female leave Room 14, get into the black Charger, and drive out of the

parking lot. An officer conducted a traffic stop of the vehicle near the Dollar General,

and Reagan arrived on the scene for backup. Upon searching the vehicle, the officer

discovered a mirror with a white powdery residue and a needle.

Based upon the information gathered, search warrants were issued for Rooms

14 and 15, and separate teams of law enforcement conducted the searches

simultaneously. Room 15 was unoccupied, but the bed was “askew as if someone had

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been in it[.]” Rinehardt requested a K-9 search of the room, and the K-9 alerted to

the dresser. In the top drawer of the dresser, a Bojangles bag was found containing

58.4 grams of a gray chalky substance, 27.2 grams of a tan rock substance, 37.2 grams

of a white powdery substance, and two digital scales, which “are used to take

quantities of drug and break them down into a smaller quantity.” The substances

found in the Bojangles bag were chemically analyzed; the gray chalky substance was

determined to be a heroin and fentanyl mixture, the tan rock substance was

determined to be cocaine base, and the white powdery substance was determined to

be cocaine hydrochloride.1

Room 14 was occupied by Clawson, Jackson, Wiggins, and Craig Hambrick,

and they were sitting in the living area smoking a joint. The officers detained the

four men and patted them down for weapons. Rinehardt patted Wiggins down and

found $2,175 in his front pants pocket. The cash was not consistently folded or in a

single stack, but rather was “in a wad” and “kind of all jumbled up in his pocket.”

Another officer patted Clawson down and found a total of $5,330 on his person.

Plastic bags containing 3.3 grams of a gray chalky substance and .9 grams of a

tan rock substance were found on the floor of Room 14. The substances were

chemically analyzed; the gray chalky substance was determined to be a heroin and

fentanyl mixture and the tan rock substance was determined to be cocaine base. A

1 Cocaine base is “sometimes called crack cocaine[,]” whereas cocaine hydrochloride is “a salt

form” and is “more powdery, and it will dissolve more readily in water than cocaine base will.”

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Opinion of the Court

document appearing to be a rental application for the Olive View Apartments was

found in the kitchenette area. Jackson’s name and driver’s license number appeared

at the top of the document, and “a signature that appeared to be consistent with the

name Omar Jackson” appeared at the bottom of the document. The rental application

was dated 18 October 2018, the same day the search warrants were executed. A key

to Room 15 was found next to the rental application.

The following items were also found in Room 14: multiple Bojangles bags,

boxes, and cups throughout the room; a rolled-up dollar bill on the futon; a lighter

and tin foil on the floor near the futon; a hide-a-can in the kitchenette area, which

“has the actual identical weight, label, and look of a soda can, but if you twist the top,

the top actually breaks off . . . [a]nd then there is a hollow portion on the inside where

things can be hidden”; two razor blades with a white powdery residue in the

kitchenette area; a large plastic bag containing smaller plastic bags in the kitchenette

area; a Pyrex dish containing a butter knife, tongs, and “crystal substance and

residue in the bottom” in the kitchenette area; a safe with the word “dope” written on

it containing Narcan kits2 in the bedroom; and a black Coach bag containing Wiggins’

identification card in the bedroom.

2 A Narcan kit is “either given nasally or through an injection to reverse the effects of an

overdose on heroin or opiates[.]”

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Opinion of the Court

Defendants were indicted for trafficking in opium or heroin, conspiracy to

traffic in opium or heroin, trafficking in cocaine, and conspiracy to traffic in cocaine.3

The matter came on for trial on 23 August 2021. The State moved to join Defendants’

cases for trial, and the trial court allowed the State’s motion over Defendants’

objections.4 At the close of the State’s evidence, Defendants moved to dismiss the

charges for insufficient evidence. The trial court denied the motions.

The jury returned guilty verdicts on all charges against Clawson; the trial

court consolidated the convictions and sentenced him to 225 to 282 months of

imprisonment. The jury returned guilty verdicts on all charges against Wiggins. The

trial court consolidated Wiggins’ convictions for trafficking in opium or heroin and

conspiracy to traffic in opium or heroin and sentenced him to 225 to 282 months of

imprisonment; the trial court consolidated Wiggins’ convictions for trafficking in

cocaine and conspiracy to traffic in cocaine into a separate judgment and sentenced

him to a consecutive term of 35 to 51 months of imprisonment. The jury returned not

guilty verdicts on the trafficking charges and guilty verdicts on the conspiracy

charges against Jackson; the trial court consolidated the convictions and sentenced

him to 225 to 282 months of imprisonment. Defendants appealed.

3 Jackson was also indicted for two counts of maintaining a dwelling for the purpose of

keeping or selling controlled substances, but the State dismissed these charges prior to trial.
4 Hambrick was also indicted for trafficking in opium or heroin, conspiracy to traffic in opium

or heroin, trafficking in cocaine, and conspiracy to traffic in cocaine. The State initially included
Hambrick in its motion for joinder. However, Hambrick was tried separately from Defendants and is
not a party to this appeal.

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II. Discussion

A. State’s Motion for Joinder

Defendants first argue that the trial court erred by allowing the State’s motion

to join Defendants’ cases for trial.

Under N.C. Gen. Stat. § 15A-926(b)(2)(a), charges against two or more

defendants may be joined for trial where “each of the defendants is charged with

accountability for each offense[.]” N.C. Gen. Stat. § 15A-926(b)(2)(a) (2021).

However, section 15A-927(c)(2)(a) requires the trial court to deny a motion for joinder

“[i]f before trial . . . it is found necessary to promote a fair determination of the guilt

or innocence of one or more defendants[.]” Id. § 15A-927(c)(2)(a) (2021). “Even though

the defendants in a joint trial may offer antagonistic or conflicting defenses, that fact

alone does not necessarily warrant severance. The test is whether the conflict in

defendants’ respective positions at trial is of such a nature that, considering all of the

other evidence in the case, defendants were denied a fair trial.” State v. Lowery, 318

N.C. 54, 59, 347 S.E.2d 729, 734 (1986) (quotation marks and citations omitted).

“Whether defendants should be tried jointly or separately pursuant to these

provisions is a matter addressed to the sound discretion of the trial judge.” State v.

Rasor, 319 N.C. 577, 581, 356 S.E.2d 328, 331 (1987) (citation omitted). “Absent a

showing that defendant has been deprived of a fair trial by joinder, the trial judge’s

discretionary ruling on the question will not be disturbed on appeal.” Id. (citation

omitted).

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Opinion of the Court

Here, Defendants were indicted for trafficking in opium or heroin, conspiracy

to traffic in opium or heroin, trafficking in cocaine, and conspiracy to traffic in cocaine

stemming from the same incident on 18 October 2018. There were “no statements or

confessions which [the State] intend[ed] to offer at this trial,” and there were “no

affirmative defenses such as alibi or other matters which might impact the ability of

the defendants to be joined at this trial.” Because there were no antagonistic or

conflicting defenses that would deprive Defendants of a fair trial, the trial court did

not err by allowing the State’s motion to join Defendants’ cases.

B. Admission of Certain Evidence and Testimony

Wiggins argues that the trial court erred by admitting testimony that law

enforcement had seen him operating the black Charger on multiple occasions, that

the vehicle had been the subject of previous complaints, and that the vehicle was

being watched for possibly being involved in narcotics.5

“The standard of review for admission of evidence over objection is whether it

was admissible as a matter of law, and if so, whether the trial court abused its

discretion in admitting the evidence.” State v. Gayles, 233 N.C. App. 173, 176, 756

S.E.2d 46, 48 (2014). An abuse of discretion results where the court’s ruling is

5 Within Clawson’s argument that the trial court erred by denying his motion to dismiss, he

asserts that the trial court erred by admitting “evidence of [the] monies found in Clawson’s pocket at
the time of the bust” and by admitting testimony regarding the anonymous phone call. However,
Clawson failed to cite any supporting authority for these assertions and any argument is thus
deemed abandoned. N.C. R. App. P. 28(b)(6).

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Opinion of the Court

manifestly unsupported by reason or is so arbitrary that it could not have been the

result of a reasoned decision. Id.

Hearsay is a statement other than one made by the declarant while testifying

at trial that is offered in evidence to prove the truth of the matter asserted. N.C. Gen.

Stat. § 8C-1, Rule 801. “Out-of-court statements that are offered for purposes other

than to prove the truth of the matter asserted are not considered hearsay.” State v.

Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (2002) (citation omitted). “Specifically,

statements are not hearsay if they are made to explain the subsequent conduct of the

person to whom the statement was directed.” Id.

Here, Rinehardt testified as follows:

[RINEHARDT]: The black Dodge Charger was known to
me. We had gotten previous complaints on it, and I had --
....
[RINEHARDT]: And I had been following it and
conducting surveillance on the Olive View Apartments
prior to this date.
[THE STATE]: Okay. Were you familiar with this vehicle?
[RINEHARDT]: I was.
....
[THE STATE]: And do you have personal knowledge of
who the operator of that vehicle was at a relevant time to
this investigation?
[RINEHARDT]: I do.
[THE STATE]: And how do you have that knowledge?
[RINEHARDT]: I observed Mr. Wiggins driving the black
Dodge Charger.
[THE STATE]: Okay. And was that here in our

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Opinion of the Court

community?
[RINEHARDT]: Yes, sir.
[THE STATE]: And was that on one time or more than one
time?
[RINEHARDT]: More than one time.

Rinehardt testified that he had personal knowledge of the black Charger and that he

had seen Wiggins operating the vehicle on multiple occasions. As these statements

were based on Rinehardt’s personal knowledge, they were not hearsay. Furthermore,

his statement that “[w]e had gotten previous complaints on it” was not offered for the

truth of the matter asserted, but instead was offered to explain his subsequent

surveillance of the Charger; accordingly, it was not hearsay. See id.

Furthermore, Reagan testified as follows:

[THE STATE]: . . . Do you recognize the building or any
vehicles depicted in State’s Exhibit 2?
[REAGAN]: Yes, sir. This is the Olive View Apartments,
and that’s the black Dodge Charger sitting in front of it.
....
[THE STATE]: Were you familiar with that vehicle?
[REAGAN]: Yes, sir.
[THE STATE]: How were you familiar with that vehicle?
[REAGAN]: Just from other officers advising me of that
vehicle and who had been riding around in it.
[THE STATE]: I understand. So officers generally share
information with each other?
[REAGAN]: Yes, sir.
[THE STATE]: That was a vehicle that was being
watched?

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Opinion of the Court

[REAGAN]: Yes, sir.
[THE STATE]: By your agency?
[REAGAN]: Yes, sir.
....
[THE STATE]: Why were y’all watching that vehicle?
[REAGAN]: For possibly being involved in narcotics --

Reagan’s statements were not hearsay because they were offered to explain his

subsequent conduct. See id. After Reagan observed the black Charger and traffic in

and out of Rooms 14 and 15, he “contacted Sergeant Mark Mease . . . on [the] criminal

suppression unit with Haywood County . . . , advised him of what [he] had been

watching and observing, and they came and set up in marked patrol cars and started

conducting traffic stops on vehicles leaving this area.” As these statements were

offered to explain Reagan’s subsequent conduct, they were not hearsay.

Accordingly, as the challenged statements were not hearsay, the trial court did

not err by admitting the testimony.

C. Motion to Dismiss

Defendants each argue that the trial court erred by denying their motion to

dismiss at the close of the State’s evidence. Specifically, Clawson and Wiggins argue

that the trial court erred by denying their motions to dismiss the charges of

trafficking in opium or heroin and trafficking in cocaine, and Defendants each argue

that the trial court erred by denying their motion to dismiss the charges of conspiracy

to traffic in opium or heroin and conspiracy to traffic in cocaine.

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Opinion of the Court

We review a trial court’s denial of a motion to dismiss de novo. State v. Chavis,

278 N.C. App. 482, 485, 863 S.E.2d 225, 228 (2021). “In ruling on a motion to dismiss,

the trial court need determine only whether there is substantial evidence of each

essential element of the crime and that the defendant is the perpetrator.” State v.

Chekanow, 370 N.C. 488, 492, 809 S.E.2d 546, 549 (2018) (quotation marks and

citations omitted). “Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” State v. Rivera, 216 N.C.

App. 566, 568, 716 S.E.2d 859, 860 (2011) (quotation marks and citation omitted).

“In making its determination, the trial court must consider all evidence

admitted, whether competent or incompetent, in the light most favorable to the State,

giving the State the benefit of every reasonable inference and resolving any

contradictions in its favor.” Chekanow, 370 N.C. at 492, 809 S.E.2d at 549-50

(quotation marks and citation omitted). Any contradictions or discrepancies in the

evidence are for the jury to decide. State v. Wynn, 276 N.C. App. 411, 416, 856 S.E.2d

919, 923 (2021).

1. Trafficking in Opium or Heroin and Trafficking in Cocaine

Clawson and Wiggins were convicted of trafficking in opium or heroin and

trafficking in cocaine.

Under North Carolina law, “[a]ny person who sells, manufactures, delivers,

transports, or possesses four grams or more of opium, . . . including heroin, or any

mixture containing such substance, shall be guilty of a felony which felony shall be

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Opinion of the Court

known as ‘trafficking in opium, opiate, opioid, or heroin[.]’” N.C. Gen. Stat.

§ 90-95(h)(4) (2021). Furthermore, “[a]ny person who sells, manufactures, delivers,

transports, or possesses 28 grams or more of cocaine . . . shall be guilty of a felony,

which felony shall be known as ‘trafficking in cocaine[.]’” N.C. Gen. Stat. § 90-95(h)(3)

(2021).

Possession of a controlled substance may be either actual or constructive. State

v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d 172, 174 (2005). “A person has actual

possession of a 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. Ferguson, 204 N.C. App. 451, 459, 694 S.E.2d 470, 477

(2010) (quotation marks and citations omitted). “Constructive possession 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 substance.” State v.

Acolatse, 158 N.C. App. 485, 488, 581 S.E.2d 807, 810 (2003) (quotation marks and

citation omitted).

“Constructive possession depends on the totality of the circumstances in each

case.” State v. Taylor, 203 N.C. App. 448, 459, 691 S.E.2d 755, 764 (2010) (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.” State v.

Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (citation omitted). When

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Opinion of the Court

determining whether other incriminating circumstances exist to support a finding of

constructive possession, we consider, among other things: (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.” Chekanow, 370 N.C. at 496,

809 S.E.2d at 552 (citations omitted).

Because neither Clawson nor Wiggins had exclusive possession of Room 15

where the substances were found, the State was required to show other incriminating

circumstances sufficient for the jury to find that each defendant constructively

possessed the contraband. Miller, 363 N.C. at 99, 678 S.E.2d at 594.

a. Room 15

A Bojangles bag containing 58.4 grams of a gray chalky substance, 27.2 grams

of a tan rock substance, 37.2 grams of a white powdery substance, and two digital

scales were found in the top drawer of a dresser in Room 15. The substances were

chemically analyzed; the gray chalky substance was determined to be a heroin and

fentanyl mixture, the tan rock substance was determined to be cocaine base, and the

white powdery substance was determined to be cocaine hydrochloride.

b. Room 14

Clawson, Jackson, Wiggins, and Hambrick occupied Room 14. Bojangles bags,

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Opinion of the Court

boxes, and cups were found throughout the room. Plastic bags containing 3.3 grams

of a gray chalky substance and .9 grams of a tan rock substance were found on the

floor. The substances were chemically analyzed; the gray chalky substance was

determined to be a heroin and fentanyl mixture and the tan rock substance was

determined to be cocaine base.

c. Clawson’s Person

After Clawson was detained, an officer conducted a pat down and found $5,330

on his person.

d. Wiggins’ Person

Rinehardt conducted a pat down of Wiggins and found $2,175 in his front pants

pocket. The cash was not consistently folded or in a single stack, but rather was “in

a wad” and “kind of all jumbled up in his pocket.” Furthermore, a black Coach bag

containing Wiggins’ identification card was found in the bedroom of Room 14.

The Bojangles bags found in both Rooms 14 and 15; the gray chalky substance

that was determined to be a heroin and fentanyl mixture found in both Rooms 14 and

15; the tan rock substance that was determined to be cocaine base found in both

Rooms 14 and 15; and the large amount of cash found on Clawson’s person was

sufficient evidence of other incriminating circumstances from which the jury could

find that Clawson constructively possessed the contraband found in Room 15.

Likewise, the Bojangles bags found in both Rooms 14 and 15; the gray chalky

substance that was determined to be a heroin and fentanyl mixture found in both

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Opinion of the Court

Rooms 14 and 15; the tan rock substance that was determined to be cocaine base

found in both Rooms 14 and 15; and the large amount of cash found on Wiggins’

person was sufficient evidence of other incriminating circumstances from which the

jury could find that Wiggins constructively possessed the contraband found in Room

15.

Accordingly, the trial court did not err by denying Clawson’s and Wiggins’

motions to dismiss the trafficking in opium or heroin and trafficking in cocaine

charges.

2. Conspiracy to Traffic in Opium or Heroin and Conspiracy to Traffic
in Cocaine

Defendants were convicted of conspiracy to traffic in opium or heroin and

conspiracy to traffic in cocaine.

“A criminal conspiracy is an agreement between two or more people to do an

unlawful act or to do a lawful act in an unlawful manner. In order to prove

conspiracy, the State need not prove an express agreement; evidence tending to show

a mutual, implied understanding will suffice.” State v. Winkler, 368 N.C. 572, 575,

780 S.E.2d 824, 826-27 (2015) (quotation marks and citation omitted). “This evidence

may be circumstantial or inferred from the defendant’s behavior.” State v. Shelly,

176 N.C. App. 575, 586, 627 S.E.2d 287, 296 (2006) (citation omitted). “The crime of

conspiracy does not require an overt act for its completion; the agreement itself is the

crime.” Id. “Proof of a conspiracy is generally established by a number of indefinite

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Opinion of the Court

acts, each of which, standing alone, might have little weight, but, taken collectively,

they point unerringly to the existence of a conspiracy.” State v. Jenkins, 167 N.C.

App. 696, 700, 606 S.E.2d 430, 433 (2005) (quotation marks, brackets, and citation

omitted).

To convict Defendants of conspiracy to traffic in opium or heroin, the State was

required to prove that Defendants entered into an agreement to possess four grams

or more of opium, including heroin, or any mixture containing such substance. N.C.

Gen. Stat. § 90-95(h)(4). Furthermore, to convict Defendants of conspiracy to traffic

in cocaine, the State was required to prove that Defendants entered into an

agreement to possess 28 grams or more of cocaine. N.C. Gen. Stat. § 90-95(h)(3).

In addition to the above evidence of Clawson’s and Wiggins’ constructive

possession of the contraband found in Room 15, a document appearing to be a rental

application for the Olive View Apartments was found in the kitchenette area of Room

14. Jackson’s name and driver’s license number appeared at the top of the document,

and “a signature that appeared to be consistent with the name Omar Jackson”

appeared at the bottom of the document. The rental application was dated 18 October

2018, the same day the search warrants were executed. A key to Room 15 was found

next to the rental application. This evidence, when taken collectively, was sufficient

to establish that Defendants entered into an agreement to traffic in opium or heroin

and to traffic in cocaine.

Accordingly, the trial court did not err by denying Defendants’ motions to

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dismiss the conspiracy to traffic in opium or heroin and conspiracy to traffic in cocaine

charges.

III. Conclusion

The trial court did not err by allowing the State’s motion to join Defendants’

cases for trial. Furthermore, the trial court did not err by admitting certain testimony

at trial. Finally, the trial court did not err by denying Defendants’ motions to dismiss.

Accordingly, we find no error.

NO ERROR.

Judges GRIFFIN and THOMPSON concur.

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