IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-538
Filed: 3 September 2019
Henderson County, Nos. 17CRS000236-238, 17CRS000613
STATE OF NORTH CAROLINA
v.
BRUCE WAYNE GLOVER, Defendant.
Appeal by Defendant from judgment entered 20 September 2017 by Judge W.
Erwin Spainhour in Henderson County Superior Court. Heard in the Court of
Appeals 27 February 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Jonathan D. Shaw, for the State.
Appellate Defender Glenn Gerding by Assistant Appellate Defender Sterling
Rozear, for the Defendant.
DILLON, Judge.
Defendant Bruce Wayne Glover appeals from the trial court’s judgment
entered upon a jury verdict finding him guilty of possession of various controlled
substances. The jury was instructed on alternative theories of possession; namely,
that Defendant was in “constructive” possession of the controlled substances and,
alternatively, that Defendant “acted in concert” with another to possess the controlled
substances. Defendant contends the trial court improperly instructed the jury on
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Opinion of the Court
“acting in concert” and, thereafter, failed to properly calculate his prior record level
(“PRL”) in sentencing.
After careful review, we conclude that there was sufficient evidence to support
an instruction on possession by “acting in concert.” However, we conclude that the
trial court committed prejudicial error in calculating Defendant’s PRL and remand
for the limited purpose of resentencing.
I. Background
This case arises out of officers’ discovery of various drugs in Defendant’s home.
The evidence at trial tended to show as follows:
Defendant lived in a home shared with a number of people, including a woman
referred to herein as Ms. Stepp.
In September 2016, officers arrived at Defendant’s home to investigate drug
complaints they had received. A detective spoke with Defendant in a bedroom of the
home. Defendant told the detective that the bedroom was his private bedroom and
that an alcove beyond the bedroom was also his “personal space.” Defendant
consented to a search of his bedroom and his personal space. Prior to the search,
Defendant told the detective that he did not believe officers would find any illegal
substances in his bedroom or personal space, but only drug paraphernalia. Also prior
to the search, when asked if he had ingested any illegal substances, Defendant
admitted to having used methamphetamine and prescription pills.
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Opinion of the Court
During the search of Defendant’s bedroom, the detective found a white
rectangular pill marked “G3722” masked in aluminum foil, a small bag of marijuana,
scales, rolling papers, plastic bags, and a glass pipe in a dresser. But during the
search of Defendant’s “personal space” adjacent to the bedroom, the detective found
more incriminating evidence; namely, a metal tin that contained, among other items,
(1) methamphetamine, (2) cocaine, (3) heroin, and (4) a small white rectangular pill
that was similar in size, shape, and markings to the white pill found in Defendant’s
bedroom.
Defendant was charged with and, following a jury trial, subsequently convicted
of possession of methamphetamine, heroin, and cocaine, as well as having attained
the status of an habitual felon. In sentencing, the trial court found Defendant to be
a PRL VI and imposed two separate sentences of fifty (50) to seventy-two (72) months
of imprisonment, running consecutively.
Defendant timely appealed.
II. Analysis
Defendant challenges his conviction in two respects, discussed below. In the
alternative, Defendant contends that his sentencing based on a mistaken PRL was
the result of ineffective assistance of counsel. We address each challenge in turn.
A. Jury Instructions on Acting in Concert
At trial, over Defendant’s objection, the court instructed the jury that it could
find Defendant guilty of possession on the theory of acting in concert, in addition to
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Opinion of the Court
constructive possession. Defendant contends that the evidence did not support an
instruction on acting in concert.
Whether evidence offered at trial is sufficient to warrant a jury instruction is
a question of law; “therefore, the applicable standard of review is de novo.” State v.
Cruz, 203 N.C. App. 230, 242, 691 S.E.2d 47, 54, aff’d per curiam, 364 N.C. 417, 700
S.E.2d 222 (2010).
To support an acting in concert instruction, the State must provide sufficient
evidence that the defendant (1) was “present at the scene of the crime” and (2) “act[ed]
[] together with another who [did] the acts necessary to constitute the crime pursuant
to a common plan or purpose to commit the crime.” State v. Joyner, 297 N.C. 349,
357, 255 S.E.2d 390, 395 (1979); State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280,
286 (1991) (noting that each person may be actually or constructively present and is
equally guilty of any crime committed in pursuance of their common purpose). A
defendant may be guilty through acting in concert even where another person “does
all the acts necessary to commit the crime.” State v. Jefferies, 333 N.C. 501, 512, 428
S.E.2d 150, 156 (1993). “It is not, therefore, necessary for a defendant to do any
particular act constituting at least part of a crime in order to be convicted of that
crime under the concerted action principle[.]” Joyner, 297 N.C. at 357, 255 S.E.2d at
395.
Possession of drugs requires proof that the defendant (1) knowingly (2)
possessed (3) a controlled substance. See State v. Galaviz-Torres, 368 N.C. 44, 772
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S.E.2d 434, 437 (2015). Though we have stated that “[t]he acting in concert theory is
not generally applicable to possession offenses, as it tends to become confused with
other theories of guilt[,] [o]ur courts have instructed juries on both constructive
possession and acting in concert in possession cases.” State v. Diaz, 155 N.C. App.
307, 314, 575 S.E.2d 523, 528 (2002) (internal citation omitted). “Under the doctrine
of acting in concert, the State is not required to prove actual or constructive
possession if it can establish that the defendant was present at the scene of the crime
and the evidence is sufficient to show he [was] acting together with another who [did]
the acts necessary to constitute the crime pursuant to a common plan or purpose to
commit the crime.” State v. Holloway, ___ N.C. App. ___, ___, 793 S.E.2d 766, 774
(2016) (quotation omitted).
We conclude that there was not only sufficient evidence from which the jury
could find that Defendant constructively possessed controlled substances, but also
sufficient evidence from which the jury could alternatively find that Defendant acted
in concert with Ms. Stepp to possess the controlled substances.
Defendant does not challenge that there was sufficient evidence that he
constructively possessed the substances found in the metal tin; and, indeed, the
evidence was sufficient to support the jury’s finding that Defendant constructively
possessed those substances. See State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187,
190 (1989) (holding that a person is in constructive possession of narcotics when “he
has both the power and the intent to control its disposition or use even though he
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does not have actual possession [of the narcotics on his person]”). Indeed, Defendant
was present and identified the area where the metal tin was found as his “personal
space.” Further, the jury could have inferred that Defendant admitted to having just
ingested methamphetamine and prescription pills, substances which were found in
the metal tin and nowhere else (except for the white pill found in his bedroom). And
the white pill found in his bedroom matched a pill found in the metal tin. Based on
Defendant’s own admissions to the detective and the results of the search, the jury
could have determined that Defendant had both the power and the intent to control
the disposition of the controlled substances found in the metal tin.
But we conclude that there also was sufficient evidence from which the jury
could have alternatively determined that Defendant acted in concert to aid Ms.
Stepp’s constructive possession of the controlled substances found in the metal tin.
Specifically, Defendant called Ms. Stepp, who testified that she placed the metal tin
in the dresser in Defendant’s personal space, that the drugs therein were hers, that
she intended to come back later to use them, and that she and Defendant had taken
drugs together in the past. This testimony is evidence that Ms. Stepp possessed
(constructively) the drugs in the metal tin. Further, based on Ms. Stepp’s testimony
along with the State’s evidence, the jury could have found that Defendant was aware
of the presence of the drugs in the metal tin: (1) he admitted to the detective to having
just used methamphetamine, and the only methamphetamine found in the house was
in the metal tin; and (2) he admitted to the detective to having just ingested
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Opinion of the Court
prescription pills, and a pill found in his bedroom matched a pill found in the metal
tin. And the evidence was sufficient to support findings that (1) Defendant facilitated
Ms. Stepp’s constructive possession by allowing her to keep her drugs in a place where
they would be safe from others; (2) Defendant did not intend to exert control over the
disposition of those remaining drugs, as they belonged to his friend, Ms. Stepp, and
that she controlled their disposition; and (3) Defendant was actually present when
the drugs were in Ms. Stepp’s constructive possession.
We, therefore, conclude that the trial court did not err in instructing the jury
on the theory of possession by “acting in concert.” See State v. Garcia, 111 N.C. App.
636, 640-41, 433 S.E.2d 187, 189-90 (1993) (concluding that the evidence was
sufficient to instruct on “constructive possession” and alternatively on possession by
“acting in concert”).
B. Calculation of Prior Record Level
Defendant next contends that the trial court erred by sentencing him as a PRL
VI with twenty-one (21) points. We agree that Defendant should have been assigned
fewer than twenty-one (21) points. We conclude that he should have been assigned
seventeen (17) points, which would qualify Defendant to be sentenced as a PRL V
offender. Therefore, we remand for resentencing.
A trial court’s determination of a defendant’s PRL is a conclusion of law that
is subject to de novo review on appeal. State v. Bohler, 198 N.C. App. 631, 633, 681
S.E.2d 801, 804 (2009).
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A sentencing judge must determine a defendant’s PRL pursuant to Section
15A-1340.14 of our General Statutes. State v. Alexander, 359 N.C. 824, 827, 616
S.E.2d 914, 917 (2005). First, “[t]he State bears the burden of proving, by a
preponderance of the evidence, that a prior conviction exists.” N.C. Gen. Stat. § 15A-
1340.14(f) (2015). Second, the court determines the PRL by adding the points
attributed to each of the defendant’s prior convictions according to their
classifications. N.C. Gen. Stat. § 15A-1340.14(a) (2015).
The State may prove a prior conviction “by . . . [s]tipulation of the parties[,]”
among other methods. N.C. Gen. Stat. § 15A-1340.14(f). Typically, a “mere
worksheet, standing alone, is insufficient to adequately establish a defendant’s prior
record level.” Alexander, 359 N.C. at 827, 616 S.E.2d at 917. However, a worksheet
that has been agreed upon by both parties will suffice to meet the State’s
“preponderance of the evidence” requirement for each conviction. See Arrington, ___
N.C. at ___, 819 S.E.2d at 333.
When the parties stipulate to a completed worksheet, they are stipulating that
the facts underlying the conviction support the noted classification of each listed
offense:
This proof by stipulation necessarily includes the factual
basis and legal application to the facts underlying the
conviction. . . . Thus, like a stipulation to any other
conviction, when a defendant stipulates to the existence of
a prior second-degree murder offense in tandem with its
classification as either a B1 or B2 offense, he is stipulating
that the facts underlying his conviction justify that
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Opinion of the Court
classification.
Id. (emphasis added). “Once a defendant makes this stipulation, the trial court then
makes a legal determination by reviewing the proper classification of an offense so as
to calculate the points assigned to that prior offense.” Id.
Here, Defendant stipulated to the record pursuant to Section 15A-1340.14(f)
when his defense attorney signed and stipulated to the validity of the entire
worksheet used to determine Defendant’s PRL. “Although we have found that
[D]efendant stipulated to possessing a prior record level of [VI], we will review
[D]efendant's record level to determine if it was unauthorized at the time it was
imposed” or was otherwise invalid as a matter of law. State v. Mack, 188 N.C. App.
365, 380, 656 S.E.2d 1, 12 (2008).1 In so doing, and insofar as the law allows, we will
assume that the stipulated convictions listed in the worksheet are factually
supported. See Arrington, ___ N.C. at ___, 819 S.E.2d at 334 (explaining that judges
are not in the position to question convictions stipulated to by both parties).
Defendant’s PRL worksheet contains a total of forty-seven (47) prior
convictions from North Carolina, Georgia, and Florida. We must first determine
which convictions were eligible for inclusion in Defendant’s PRL calculation.
1. Convictions Supporting Habitual Felon Status
1 We briefly note, here, that Defendant did not object to his sentencing during the trial.
Regardless, a defendant’s appeal is statutorily preserved where he or she alleges the “[t]he sentence
imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was
illegally imposed, or is otherwise invalid as a matter of law.” State v. Meadows, ___ N.C. ___, ___, 821
S.E.2d 402, 406 (2018) (quoting N.C. Gen. Stat. § 15A-1446(d)(18) (2017)).
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Opinion of the Court
To start, we must first disregard the three convictions used by the jury to
convict Defendant of obtaining habitual felon status. Concurrent with his conviction
in this case of felony possession of controlled substances, Defendant was found to
have attained habitual felon status. And “convictions used to establish a person’s
status as an habitual felon shall not be used” to determine that person’s PRL.
N.C. Gen. Stat. § 14-7.6 (2015). As the jury used three of Defendant’s forty-seven (47)
convictions to assign Defendant habitual felon status, they may not be used in his
PRL calculations. This leaves forty-four (44) prior convictions.
2. Convictions Rendered in the Same Week or Session of Court
Next, though his convictions span nearly four decades, Defendant received
many of his convictions in groups on the same day or session of court. “[I]f an offender
is convicted of more than one offense in a single superior court during one calendar
week [or in a single district court in one session of court], only the conviction for the
offense with the highest point total is used.” N.C. Gen. Stat. § 15A-1340.14(d) (2015).
On 30 June 2006, Defendant was convicted in Henderson County district court
of twelve (12) crimes. The eleven (11) convictions with the lowest point total may not
be used to determine his PRL. Therefore, we are left with a single Class I felony
conviction from 30 June 2006. This reduces the number of prior convictions from
forty-four (44) to thirty-three (33).
On 14 May 2007, Defendant was convicted in Henderson County superior court
of four crimes. After removing the three convictions with the lowest points, we are
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Opinion of the Court
left with one Class I felony conviction from 14 May 2007. Therefore, after removing
three convictions, Defendant has thirty (30) remaining prior convictions.
On 16 October 2009, Defendant was convicted in Henderson County district
court of two crimes. After removing the conviction with the lowest points, we are left
with one Class 1 misdemeanor conviction from 16 October 2009. Therefore,
Defendant has twenty-nine (29) remaining prior convictions.
On 12 February 2010, Defendant was convicted in Henderson County district
court of five crimes. We must remove four of these convictions, leaving a single Class
1 misdemeanor conviction with the most points from 12 February 2010. Therefore,
after removing four convictions, Defendant has twenty-five (25) remaining prior
convictions.
Lastly, on 2 August 2013, Defendant was convicted in Henderson County
district court of six crimes. After removing his five convictions with the lower points,
we are left with one Class I felony conviction from 2 August 2013. Therefore, after
removing these five convictions, Defendant has twenty (20) prior convictions
remaining that may be considered in calculating his PRL.
3. Irrelevant Misdemeanor Convictions
Only prior felonies, “Class A1 and Class 1 nontraffic misdemeanor offense[s],
impaired driving, impaired driving in a commercial vehicle, and misdemeanor death
by vehicle” may be used to calculate a PRL in felony sentencing. N.C. Gen. Stat. Ann.
§ 15A-1340.14(b) (2015). Other misdemeanor traffic offenses, including driving while
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license revoked, may not be used to calculate a felony PRL. Id.; State v. Flint, 199
N.C. App. 709, 728, 682 S.E.2d 443, 454 (2009) (“Being that driving while license
revoked is a misdemeanor traffic offense, which is not included in Section 15A–
1340.14(b)(5), it is not a conviction that can be used in determining a defendant's
prior record level.”).
Of the remaining twenty (20) convictions on Defendant’s worksheet, five are
either classified as Class 2 or lower misdemeanor offenses or are factually described
as “DWLR,” a conviction for driving while license revoked. These five convictions
may not be used to calculate Defendant’s PRL following his present, felony conviction.
After removing these five convictions, Defendant has fifteen (15) prior convictions
remaining.
4. Split Crimes
Defendant’s remaining fifteen (15) convictions include two convictions for
possession of drug paraphernalia, from 1983 and 2008. Defendant contends that
these two convictions were improperly considered in the PRL calculation because the
crime has since been split into two categories, one of which is a Class 3 misdemeanor
not eligible for calculation.
It is true that “the classification of a prior offense is the classification assigned
to that offense at the time the offense for which the offender is sentenced [was]
committed.” N.C. Gen. Stat. § 15A-1340(c). Defendant committed the crimes for
which he is being sentenced in 2016. In 2014, possession of drug paraphernalia was
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Opinion of the Court
split into two separate crimes: (1) possession of marijuana paraphernalia under
N.C. Gen. Stat. § 90-113.22A (2014), a Class 3 misdemeanor; and (2) possession of
drug paraphernalia under N.C. Gen. Stat. § 90-113.22 (2014), a Class 1
misdemeanor. Defendant argues that the two instances of possession of drug
paraphernalia on his worksheet should be considered Class 3 misdemeanors, and
therefore not included in the PRL calculus, rather than Class 1 misdemeanors,
because no evidence was presented as to what sort of drug paraphernalia was
possessed.
However, following our Supreme Court’s recent decision in Arrington, we must
assume that the classifications stipulated to by the parties on the worksheet are
correct and sufficiently supported by the underlying facts of the crime. Arrington,
___ N.C. at ___, 819 S.E.2d at 333. Each of Defendant’s possession of drug
paraphernalia charges is classified as a Class 1 misdemeanor, and may be considered
in the present PRL calculation. Fifteen (15) of Defendant’s prior convictions still
remain.
5. Out-of-State Convictions
Of the fifteen (15) remaining convictions, six arise from offenses committed
outside of North Carolina. Defendant contends that these crimes were incorrectly
classified and received more points than allowed as a matter of law.
Out-of-state felony convictions are, by default, treated as Class I felony
convictions under North Carolina law. N.C. Gen. Stat. § 15A-1340.14(e) (2015).
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Similarly, out-of-state misdemeanor convictions are, by default, treated as Class 3
misdemeanor convictions, id., and are initially not usable in a felony PRL calculation,
N.C. Gen. Stat. § 15A-1340.14(b)(5) (2015). However, either party may overcome
these presumptions by proving, by a preponderance of the evidence, that the out-of-
state conviction reflects an offense that is substantially similar to an offense that
North Carolina classifies differently. N.C. Gen. Stat. § 15A-1340.14(e). If proven, the
felony conviction is not treated as a Class I felony, but rather is treated as the
classification given to the substantially similar North Carolina offense. Id.
Our Court has long held that, while the parties may stipulate that a defendant
was convicted of an out-of-state offense and that the offense was considered either a
felony or misdemeanor under that state’s law, neither party may stipulate that the
out-of-state conviction is substantially similar to a North Carolina felony or
misdemeanor.2 We have traditionally held that “the question of whether a conviction
under an out-of-state statute is substantially similar to an offense under North
Carolina statutes is a question of law to be resolved by the trial court.” State v.
Hanton, 175 N.C. App. 250, 255, 623 S.E.2d 600, 604 (2006).
2 State v. Burgess, 216 N.C. App. 54, 59, 715 S.E.2d 867, 871 (2011) (“This Court has repeatedly
held a defendant's stipulation to the substantial similarity of offenses from another jurisdiction is
ineffective because the issue of whether an offense from another jurisdiction is substantially similar
to a North Carolina offense is a question of law.”); see also State v. Powell, 223 N.C. App. 77, 81, 732
S.E.2d 491, 494 (2012); State v. Wright, 210 N.C. App. 52, 71, 708 S.E.2d 112, 125 (2011); State v.
Moore, 188 N.C. App. 416, 426, 656 S.E.2d 287, 293-94 (2008); State v. Palmateer, 179 N.C. App. 579,
581-82, 634 S.E.2d 592, 593-94 (2006).
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It may be argued that our Supreme Court’s reasoning in Arrington overrules
this line of precedent. In Arrington, our Supreme Court held that a conviction’s
classification may be stipulated to because it is, in essence, “fact driven.” Arrington,
___ N.C. at ___, 819 S.E.2d at 331. For the purposes of in-state convictions, when the
defendant stipulates to a conviction, “he is stipulating that the facts underlying his
conviction justify that classification.” Id. at ___, 819 S.E.2d at 333. Similarly, it can
be said that, when the parties stipulate to an out-of-state conviction and its
appropriate classification in North Carolina, they are stipulating that the underlying
facts correspond to a particular North Carolina offense and its respective
classification. We do not believe this is the appropriate interpretation of our Supreme
Court’s holding.
Allowing this form of stipulation requires an additional logical step that was
not present in Arrington. The facts of Arrington concern the appropriate
classification of the defendant’s prior conviction for second-degree murder.
Arrington, ___ N.C. at ___, 819 S.E.2d at 332. Between the time the defendant was
convicted of second-degree murder and the time of the sentencing at issue in the case,
our General Assembly split second-degree murder into two separate sentencing
classifications, B1 and B2, depending on the nature of the offender’s conduct. Id. The
defendant in Arrington stipulated that his conviction was classified as B1, but later
argued that this classification was improper as a matter of law because questions of
law are not subject to stipulation. Id. Our Supreme Court held that the defendant
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had stipulated that the nature of his conduct underlying his murder conviction
supported a B1 classification, and that such a stipulation was proper. Id. at ___, 819
S.E.2d at 333.
Notably, there was never any doubt that the facts underlying the conviction
corresponded to the crime of second-degree murder and the Court considered only the
classifications that may be attributed to that offense. For instance, if the offense in
consideration had been forgery instead of second-degree murder, we do not interpret
Arrington to allow a stipulation to a conviction for forgery with a classification of
Class A felony. While second-degree murder may be classified as either Class B1 or
B2, N.C. Gen. Stat. § 14-17(b)(1)-(2) (2017), there are no facts possible which would
support a conviction for a Class A forgery, as no such crime exists, see
N.C. Gen. Stat. § 14-119−125 (2017) (stating that each forgery crime is punishable as
either a Class G, H, or I felony).
In the same respect, in order to equate an out-of-state conviction with a North
Carolina offense, the parties must first establish that the elements of the out-of-state
offense are similar to those of a North Carolina offense. This additional legal
comparison must be made before an appropriate range of classifications can be
determined. A stipulation that a defendant committed “burglary” in another state
does not necessarily mean that he or she satisfied the elements of burglary in North
Carolina. Once the legal similarities have been drawn between an out-of-state
offense and its North Carolina corollary, it may be that the North Carolina offense
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can have an array of classifications; only then may a stipulation determine the
underlying facts and the respective classification.
For these reasons we do not interpret the holding in Arrington to overrule our
longstanding precedent that the parties may not stipulate to the substantial
similarity of an out-of-state conviction, nor its resulting North Carolina classification.
Here, the State put on no evidence to support a comparison of any of Defendant’s out-
of-state convictions to North Carolina offenses. Therefore, we must classify each
misdemeanor conviction as a Class 3 misdemeanor and each felony conviction as a
Class I felony.
On the worksheet, the parties appropriately stipulate that three of Defendant’s
six out-of-state convictions are misdemeanors in their state of origin, two are felonies,
and one does not have a classification noted. We must classify these misdemeanors
as Class 3 misdemeanors, and therefore may not include them in Defendant’s felony
PRL calculations. We must classify the two felony convictions as Class I felonies in
our calculations. There is no information regarding the remaining conviction’s
classification, so we elect to exclude it from our calculations.
After removing the three out-of-state misdemeanors and the conviction
without a classification, the total prior convictions eligible for calculating Defendant’s
PRL is reduced from fifteen (15) to eleven (11).
6. Calculation
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Our de novo review of Defendant’s sentencing worksheet shows a total of
eleven (11) convictions that may be used to calculate his felony PRL. The eleven
convictions, their stipulated or required classifications, and the point values assigned
to those classifications are as follows:
N.C.
Classification Point
Offense Date State
Misdemeanor (M) Value3
Or Felony (F)
Possession of Drug Paraphernalia 12/5/1983 N.C. M - Class 1 1
Felony Possession SCH II CS 5/14/2007 N.C. F - Class I 2
Assault on a Female 10/11/1988 N.C. M - Class 1 1
Driving While Impaired 10/20/1988 N.C. M - Class 1 1
Felony Possession SCH II CS 06/30/2006 N.C. F - Class I 2
Possession of Drug Paraphernalia 7/2/2008 N.C. M - Class 1 1
Simple Possession SCH II CS 2/12/2010 N.C. M - Class 1 1
Receiving Stolen Goods/Property 10/16/2009 N.C. M - Class 1 1
Possession Methamphetamine 8/2/2013 N.C. F - Class I 2
Delivery of Cocaine w/i 1000 Ft of
8/5/2003 FL F - Class I 2
a Place of Worship
VOP on Delivery of Cocaine 3/26/2004 FL F - Class I 2
Total Points: 16
Additionally, Defendant receives an extra point because his worksheet
includes previous convictions for felony possession of controlled substances, the same
crime he was convicted of in this case. N.C. Gen. Stat. § 15A-1340.14(b)(6) (2015) (“If
all the elements of the present offense are included in any prior offense for which the
offender was convicted, whether or not the prior offense or offenses were used in
3 The point values are derived from Section 15A-1340.14(b). See N.C. Gen. Stat. § 15A-
1340.14(b).
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determining prior record level, 1 point.”). Per our calculations, the Defendant should
have received only seventeen (17) total points, giving him a PRL of V. See
N.C. Gen. Stat. § 15A-1340.14(c) (2015). Therefore, as Defendant is entitled to have
his sentence bated, we remand to the trial court for the limited purpose of sentencing
Defendant within the range corresponding to PRL V.
C. Ineffective Assistance of Counsel
Lastly, Defendant has filed a Motion for Appropriate Relief (MAR) alongside
his appeal, arguing that he received ineffective assistance of counsel. We disagree,
and deny Defendant’s MAR.
The necessary components of ineffective assistance of counsel are “(1) ‘counsel's
performance was deficient,’ meaning it ‘fell below an objective standard of
reasonableness,’ and (2) ‘the deficient performance prejudiced the defense,’ meaning
‘counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.’ ” State v. Garcell, 363 N.C. 10, 51, 678 S.E.2d 618, 644 (2008)
(quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)); see also State v.
Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985).
Specifically, Defendant argues that his trial attorney was deficient because he
stipulated to the underlying facts and classifications of three prior convictions from
Florida in March of 2004 that should not have been considered at all. Defendant
contends that he was materially prejudiced because the trial court’s consideration of
these offenses raised his PRL. Further, Defendant argues, there is no rational trial
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strategy that would warrant stipulation to a higher class of offense than what was
actually committed. Attached to the MAR, Defendant provides the Florida court
records concerning the convictions and an affidavit by a Florida attorney.
Defendant has filed a MAR with our Court based on his erroneous
classification as a PRL VI offender. But we cannot say that any error by his trial
counsel prejudiced the sentence Defendant will receive on remand as a PRL V
offender. Our de novo review of Defendant’s convictions already removes most of his
out-of-court convictions from the PRL calculation. If we were to assume the
allegations in Defendant’s MAR were true, we would remove only the conviction for
“VOP on Delivery of Cocaine,” as “VOP” likely refers to a violation of probation that
may not be appropriately considered as a distinct crime. See State v. Clayton, 206
N.C. App. 300, 305, 697 S.E.2d 428, 432 (2010). Removing this conviction would
reduce Defendant’s point total from seventeen (17) to fifteen (15) points, leaving him
still within a PRL of V. Therefore, any deficient performance by Defendant’s trial
counsel was not prejudicial. We deny Defendant’s MAR.
III. Conclusion
We conclude that the trial court’s decision to instruct the jury on the theory of
acting in concert was not error, as there was sufficient evidence to support the
instruction. However, we further conclude that the trial court erred by sentencing
Defendant as a PRL VI, because the worksheet stipulated to by the parties supported
a PRL of V. Therefore, we remand the trial court’s judgment for the limited purpose
- 20 -
STATE V. GLOVER
Opinion of the Court
of entering a sentence appropriate for a PRL V. Further, by this opinion, we deny
Defendant’s MAR because, based on our disposition, any possible deficiency by his
trial counsel in the calculation of Defendant’s PRL did not cause Defendant to be
classified as a PRL V.
NO ERROR IN PART; REVERSED AND REMANDED IN PART FOR
RESENTENCING.
Judge INMAN concurs.
Judge COLLINS concurs in part and dissents in part by separate opinion.
- 21 -
No. COA18-538 – State v. Glover
COLLINS, Judge concurring in part and dissenting in part.
I concur in the majority’s opinion regarding Defendant’s prior record level.
However, I would not reach that issue because I conclude there was insufficient
evidence to support the trial court’s jury instruction on the theory of acting in concert.
I further conclude the trial court’s erroneous instruction was not harmless error and
entitles Defendant to a new trial. I therefore respectfully dissent.
Defendant was found guilty of possession of methamphetamine, possession of
heroin, and possession of cocaine. The elements of possession of a controlled
substance are that defendant (1) knowingly (2) possessed (3) a controlled substance.
State v. Galaviz-Torres, 368 N.C. 44, 48, 772 S.E.2d 434, 437 (2015).
The “knowingly possessed” elements of possession of a controlled substance
may be established by a showing that: “(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.” State v. Diaz, 155 N.C. App. 307, 313, 575 S.E.2d 523,
528 (2002) (citing State v. Garcia, 111 N.C. App. 636, 639-40, 433 S.E.2d 187, 189
(1993). “According to well-established North Carolina law, ‘it is error for the trial
judge to charge on matters which materially affect the issues when they are not
supported by the evidence.’” State v. Malachi, 371 N.C. 719, 731, 821 S.E.2d 407, 416
STATE V. GLOVER
COLLINS, J., concurring in part and dissenting in part.
(2018) (quoting State v. Jennings, 276 N.C. 157, 161, 171 S.E.2d 447, 449 (1970)
(citations omitted)).
“Actual possession requires that a party have physical or personal custody of
the item.” Malachi, 371 N.C. at 730, 821 S.E.2d at 416 (2018) (quotation marks and
citation omitted). In this case, it is un disputed that neither Defendant nor Ms. Stepp
actually possessed the narcotics found in the metal tin in the dresser drawer. 4
“Constructive possession of contraband material exists when there is no actual
personal dominion over the material, but there is an intent and capability to maintain
control and dominion over it.” State v. Brown, 310 N.C. 563, 568, 313 S.E.2d 585, 588
(1984). Where an accused has nonexclusive possession of the premises where the
contraband is found, “constructive possession of the contraband materials may not be
inferred without other incriminating circumstances.” Id. at 569, 313 S.E.2d at 588-
589 (citation omitted). The State’s evidence showed the metal tin containing
methamphetamine, heroin, and cocaine was found in a dresser drawer in Defendant’s
personal space. The personal space was separated from Defendant’s bedroom by a
door. Four people were in this personal space, while Defendant was in his bedroom,
when officers knocked on Defendant’s bedroom door and asked to search the
surrounding areas. Defendant admitted to officers to having ingested
4 Although the trial court instructed the jury on actual possession, Defendant did not object to
this instruction at trial and did not argue plain error on appeal. N.C. R. App. P. 10(a)(2), (a)(4). Any
argument related to this instruction is thus deemed abandoned. N.C. R. App. P. 28(a).
2
STATE V. GLOVER
COLLINS, J., concurring in part and dissenting in part.
methamphetamine, a substance found in the metal tin and nowhere else in the
residence, and the white, rectangular pill found in his bedroom was similar in shape
and markings to a pill found in the metal tin. As Defendant concedes on appeal, this
evidence was sufficient to support a jury instruction on constructive possession of a
controlled substance.
“To act in concert means to act together, in harmony or in conjunction one with
another pursuant to a common plan or purpose.” State v. Joyner, 297 N.C. 349, 356,
255 S.E.2d 390, 395 (1979). While it is not “necessary for a defendant to do any
particular act constituting at least part of a crime in order to be convicted of that
crime under the concerted action principle[,]” the defendant must be “present at the
scene of the crime and the evidence [must be] sufficient to show he is acting together
with another who does the acts necessary to constitute the crime pursuant to a
common plan or purpose to commit the crime.” Id. at 357, 255 S.E.2d at 395. Where
a defendant did not do any particular act forming a part of the crime charged,
evidence of the existence of concerted action must come from other facts. Id. at 356-
57, 255 S.E.2d at 395. “The acting in concert theory is not generally applicable to
possession offenses, as it tends to become confused with other theories of guilt.” Diaz,
155 N.C. App. at 314, 575 S.E.2d at 528 (citing State v. James, 81 N.C. App. 91, 97,
344 S.E.2d 77, 81 (1986)).
3
STATE V. GLOVER
COLLINS, J., concurring in part and dissenting in part.
Although Defendant was present when the narcotics were found in the dresser
drawer, and was thus present at the scene of the crime, there is no evidence that
Defendant was present when the tin containing the narcotics was placed in the
dresser drawer. Moreover, Ms. Stepp admitted on the stand to her possession of the
narcotics. Ms. Stepp testified that the tin was hers and that the last place she had it
was at Southbrook Drive, where she and Defendant used to live amongst other people.
When asked where she last left the tin, Ms. Stepp answered,
I put it inside a drawer. I want to say I tried to put
something over it. But I didn’t intend – I wasn’t there. I
wasn’t arrest that day, because I had just left. I didn’t
intend to be gone long. But I didn’t get back as quickly as
I would like to, and I didn’t tell anybody it was there,
because I didn’t think it was relevant.
While the evidence presented was sufficient evidence of Defendant’s
constructive possession, and the evidence presented was sufficient evidence of Ms.
Stepp’s constructive possession, the State failed to produce any evidence of concerted
action – Defendant acting together with Ms. Stepp pursuant to a common plan or
purpose to possess the contraband in the metal tin. Joyner, 297 N.C. at 356, 255
S.E.2d at 395. The majority concludes that the evidence was sufficient to support a
finding that “Defendant facilitated Ms. Stepp’s constructive possession by allowing
her to keep her drugs in a place where they would be safe from others[.]” I discern
no evidentiary support for this conclusion, and believe the acting in concert theory of
possession has become confused with the constructive theory of possession in this
4
STATE V. GLOVER
COLLINS, J., concurring in part and dissenting in part.
case, which is precisely why “[t]he acting in concert theory is not generally applicable
to possession offenses[.]” Diaz, 155 N.C. App. at 314, 575 S.E.2d at 528 (citation
omitted).
As there was insufficient evidence to support an acting in concert instruction,
the trial court erred in giving such instruction. Malachi, 371 N.C. at 731, 821 S.E.2d
at 416. The trial court’s error, however, is subject to harmless error analysis. Id. at
738, 821 S.E.2d at 421. Thus, Defendant must show “‘there is a reasonable possibility
that, had the error in question not been committed, a different result would have been
reached at the trial out of which the appeal arises.’” Id. at 738, 821 S.E.2d at 421
(quoting N.C. Gen. Stat. § 15A-1443(a) (2017)). Our North Carolina Supreme Court
has emphasized the serious nature of instructional error, as occurred in this case, and
the close scrutiny required, explaining that
the history of this Court’s decisions in cases involving the
submission of similar erroneous instructions and our
consistent insistence that jury verdicts concerning a
defendant’s guilt or innocence have an adequate
evidentiary foundation persuade us that instructional
errors like the one at issue in this case are exceedingly
serious and merit close scrutiny to ensure that there is no
“reasonable possibility” that the jury convicted the
defendant on the basis of such an unsupported legal theory.
However, in the event that the State presents exceedingly
strong evidence of defendant’s guilt on the basis of a theory
that has sufficient support and the State’s evidence is
neither in dispute nor subject to serious credibility-related
questions, it is unlikely that a reasonable jury would elect
to convict the defendant on the basis of an unsupported
legal theory.
5
STATE V. GLOVER
COLLINS, J., concurring in part and dissenting in part.
Malachi, 371 N.C. at 738, 821 S.E.2d at 421.
While the State’s evidence was adequate to support a conclusion of Defendant’s
constructive possession, and thus sufficient to support a jury instruction, it was not
“exceedingly strong evidence” of Defendant’s guilt based on a constructive possession
theory. On the other hand, the State’s evidence of Ms. Stepp’s constructive possession
is “exceedingly strong” and disputes the evidence of Defendant’s guilt. Ms. Stepp
testified, “The yellow tin is mine. . . . I put it inside a drawer. . . . I didn’t tell anybody
it was there, because I didn’t think it was relevant. . . .” When asked, “You realize
that you are admitting now that you had possession of drugs correct?”, Ms. Stepp
responded, “Yes. Yes.”
Where the evidence of Defendant’s constructive possession was not exceedingly
strong, Ms. Stepp admitted to possession of the controlled substances, and the jury
was allowed to convict Defendant for acting in concert with Ms. Stepp, there is
certainly a “reasonable possibility” that the jury elected to convict Defendant on the
basis of the unsupported legal theory of acting in concert to possess the controlled
substances. Accordingly, I would vacate Defendant’s convictions for possession of
methamphetamine, possession of heroin, possession of cocaine, and having attained
habitual felon status, and remand the case for a new trial.
6
State v. Glover
Combined Opinion