STATE v. SIMMONS

STEPHENS, Judge.

Defendant, Trotti Simmons, appeals a conviction of felony possession of marijuana. We find no prejudicial error.

At Defendant's trial in April 2005, the State's evidence tended to show that, on 12 August 2003, Officer Jonathan Steven Tobbe of the Charlotte-Mecklenburg Police Department received an anonymous 911 call for service at an Econo Lodge Motel. The caller indicated that Defendant would be sitting in the motel parking lot in a dark green Toyota Camry in possession of marijuana and a shotgun. When Officer Tobbe arrived, Officer Eric Herron was already at the scene and had observed Defendant exit the Camry and walk quickly into the motel. Officer Tobbe went to Defendant's motel room and spoke with him about the vehicle. Upon smelling marijuana, Officer Tobbe asked Defendant if he could search his room. Defendant was "very cooperative" and allowed the search. Officer McCarty joined Officer Tobbe in Defendant's motel room. The search revealed no marijuana and Officer Tobbe decided not to arrest Defendant at that time. However, when Officer Tobbe brought up the subject of the Camry, Defendant became "belligerent." After Officer Tobbe told Defendant that he was going to search the Camry, Defendant asked to speak privately with him.

Defendant told Officer Tobbe that Michael Cornwell had twenty pounds of marijuana that he needed to "unload." He then proceeded to give Officer Tobbe a "hypothetical" regarding the Camry, stating, "let's say there's a shotgun in the trunk and marijuana on the front seat. . . . [T]he marijuana could be in a black bag on the front seat."

Officer Tobbe thereupon sought and received consent from the owner of the car, who was at another location, to search it. Upon looking inside the car through the windows, Officer Tobbe saw a black bag on the front seat. Once Officer Tobbe opened the car door, he examined the black bag and found eleven bags of marijuana in a Ziploc baggie. In addition, there was another baggie of marijuana in the front compartment of the black bag. Defendant told Officer Tobbe that Michael Cornwell gave him twelve ounces of marijuana.

In the trunk of the Camry was a pistol-grip shotgun. Officer Tobbe confiscated both the gun and the drugs. Officers Herron and McCarty observed the gun and drugs being confiscated from the car. Officer Tobbe testified that the estimated value of the marijuana was $3,600.00. It was examined at the department's property control office and found to weigh thirteen ounces.

Tony Aldridge, the lead forensic chemist for the department's crime lab, separately weighed the small baggie and the larger baggie. They respectively weighed 21.43 grams and 302.62 grams. Each of the eleven individual baggies found inside the large bag weighed between one and 1.2 ounces, which Officer Tobbe characterized as the right amount for a sale package. The eleven baggies were all the same size. Officer Tobbe characterized the marijuana found in the front pocket of the black bag as a personal usage amount. Officer Herron testified that the manner in which the eleven individual baggies of marijuana were packaged indicated an intent to sell them.

On cross-examination, Officer Tobbe testified that Defendant told him a woman named "Candace" was the one who made the 911 call. Defendant also told Officer Tobbe that someone named "Shane" owned the marijuana. Defendant asked Officer Tobbe to speak with Shane on the phone so that Shane would not believe Defendant had absconded with Shane's drugs.

Narendrakumar Patel, the owner of the Econo Lodge, testified that he knew Defendant because Defendant lived at the motel from March 2001 to August 2003. On a prior occasion, Mr. Patel had observed Defendant apprehend someone who was trying to break into a customer's car. Defendant called the front desk of the motel and explained what was happening. While waiting for the police to arrive, Defendant apprehended the perpetrator and held him at bay with a shotgun.

Candie Ardrena Epps testified that she was Defendant's fianceé and had dated him for ten years. She and Defendant have two children, a nine-year-old son and a six-year-old daughter. Ms. Epps periodically lived with Defendant at the Econo Lodge after Defendant's home burned down.

Ms. Epps testified that Defendant had a shotgun, but she did not allow him to keep it in the motel room because she was afraid of guns and did not want them around her children. Because of her fear, Defendant kept the shotgun in the trunk of the car. On 12 August 2003, Ms. Epps found out the content of the black bag in the Toyota Camry and made the 911 call. This occurred shortly after she and Defendant had an argument.

Defendant also testified. He said he has worked as a mechanic for twenty-three years and owns a repair shop called Fast Track Auto Mart. One of his customers was First Class Exotic Car, which operated stretch limousines. The owner of First Class Exotic Car was Shane. On 31 July 2003, Shane brought Defendant a "limo" that needed mechanical work. In turn, Defendant loaned Shane the green Camry for about a week and a half. On 12 August 2003, Shane picked up the repaired limousine and returned the Toyota Camry to Defendant.

Defendant admitted that the gun found in the trunk of the Camry belonged to him. Two days after the 12 August 2003 incident, Defendant called Officer Tobbe because he wanted him to call Shane. Defendant's motions to dismiss at the close of the State's evidence and all the evidence were denied. The trial court submitted the following charges to the jury: (1) possession with intent to sell and deliver marijuana, (2) felony possession of marijuana, and (3) simple possession of marijuana. After deliberations, the jury found Defendant guilty of felony possession of marijuana. The trial court sentenced Defendant to an active sentence of six to eight months and a consecutive thirty months of supervised probation. Defendant appeals.

Defendant first argues that the trial court erred by summarily denying his motion to suppress without conducting a hearing because he failed to file the motion in a timely manner. We disagree.

Section 15A-976 of the North Carolina General Statutes governs the timing of pretrial motions to suppress, as follows:

(a) A motion to suppress evidence in superior court may be made at any time prior to trial except as provided in subsection (b).

(b) If the State gives notice not later than 20 working days before trial of its intention to use evidence and if the evidence is of a type listed in G.S. 15A-975(b), the defendant may move to suppress the evidence only if its motion is made not later than 10 working days following receipt of the notice from the State.

N.C. Gen. Stat. § 15A-976 (2005) (emphasis added). When the defendant fails to timely file a motion to suppress, "he has waived his right to contest the admissibility of the evidence at trial or on appeal on constitutional grounds." State v. Tate, 300 N.C. 180, 183, 265 S.E.2d 223, 226 (1980) (citing State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978)). See also United States v. Johnson, 953 F.2d 110 (1991), superceded by statute, United States v. Johnson, 370 F.3d 382 (4^th Cir., 2004) (holding that motions to suppress filed out of time are accepted at the discretion of the trial court, and the appellate court will not entertain challenges to the lower court's proper exercise of such discretion). Under the statute, there is no requirement that the trial court conduct a hearing on the matter when the motion to suppress is filed untimely. In the present case, the prosecution filed a Notice of Intent to Introduce Evidence at Trial on 7 March 2005. Defendant's attorney at the time filed a Notice of Objection to Evidence on 21 March 2005, challenging the State's intent to introduce crime lab evidence. On 6 April 2005, defendant was assigned new counsel, who then filed the motion to suppress on 26 April 2005, some fifty days after the notice was filed by the State. By this motion, Defendant sought suppression of "all physical evidence and any statements by the Defendant[.]" Defendant contends that the trial court should have conducted a hearing on the merits of the motion to suppress because of defense counsel's late appointment to the case within twenty days of trial.

However, Defendant is unable to support his contention with any statute or case law that provides relief from the statutory time mandate based on new appointment of counsel. Defendant cites State v. Langdon, 94 N.C. App. 354, 380 S.E.2d 388 (1989), for the proposition that the trial court should have conducted a hearing because of the late appointment of counsel and because the motion to suppress was filed before the jury was empaneled. A careful reading of Langdon, however, establishes that "[o]ur General Assembly may impose reasonable prerequisites on motions to suppress evidence, and the failure to meet those requirements constitutes a waiver of the right to challenge the admission of the evidence at trial on constitutional grounds." Id. at 356, 380 S.E.2d at 390 (citing State v. Detter, 298 N.C. 604, 616, 260 S.E.2d 567, 577 (1979)). Moreover, it is clear that the provisions of section 15A-976(b), which specifically imposes the ten-day deadline on filing a suppression motion, were not at issue in Langdon. We therefore hold that Defendant waived his right to challenge the admission of the evidence by failing to timely file his motion to suppress. The trial court thus did not err in summarily denying the motion. This assignment of error is overruled.

Defendant next argues that the trial court erred by admitting his shotgun in evidence because the gun had no connection to the criminal offense charged. Defendant contends that evidence regarding the shotgun was irrelevant and its admission was more prejudicial than probative. Relevant evidence is that evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2005). "All relevant evidence is admissible. . . . Evidence which is not relevant is not admissible." N.C. Gen. Stat. § 8C-1, Rule 402 (2005). Relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice[.]" N.C. Gen. Stat. § 8C-1, Rule 403 (2005). Defendant cites State v. Patterson, 59 N.C. App. 650, 654, 297 S.E.2d 628, 631 (1982), in support of his argument that admission of the shotgun was inflammatory and constituted improper impeachment on a collateral matter. Patterson involved an armed robbery with a pistol. At trial, the prosecutor introduced evidence that the defendant had a sawed-off shotgun in his car in addition to the pistol. On appeal, the defendant argued that there was no evidence connecting the shotgun to the robbery and that the presence of the shotgun in the car was irrelevant to the robbery charge. Noting that "[i]t is a well settled principle that weapons may be admitted into evidence when there is evidence tending to show that they have been used in the commission of a crime[,]" the Patterson Court held that the shotgun was not connected to the robbery, was not relevant to any issues in the case, and was erroneously admitted in evidence. Id. at 652-54, 297 S.E.2d 628 at 630-31 (citation omitted). The Court remanded the case for a new trial because admission of the shotgun may have confused or misled the jury on "a matter purely prejudicial to the defendant." Id. at 654, 297 S.E.2d at 631.

In the present case, there is no dispute that the shotgun was not used in the offense charged. In contrast to the circumstances at issue in Patterson, however, the admission of the shotgun here could not reasonably have misled or confused the jury. In Patterson, the evidence was conflicting regarding the identity of the defendant as the man who committed the robbery at issue. Thus, admission of the shotgun, which the defendant identified, could have reasonably contributed to his conviction. Here, the evidence is overwhelming that Defendant was in possession of the car in which a sufficient amount of marijuana was found to constitute felony possession. Accordingly, even assuming arguendo that admission of the shotgun was error because it had no connection to the crime charged, we hold that its admission was not prejudicial because there was no reasonable possibility that the jury's verdict was affected by the introduction of the shotgun. See, e.g., State v. Milby, 302 N.C. 137, 142, 273 S.E.2d 716, 720 (1981).

In his next argument, Defendant contends that the trial court erred by failing to dismiss the charges because the evidence that he possessed the marijuana with the intent to sell or deliver was insufficient. We disagree.

Upon a motion to dismiss, the trial court must determine whether there is substantial evidence, taken in the light most favorable to the State, of each essential element of the offense charged, or of a lesser offense included therein, and of the defendant being the perpetrator of the offense. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The evidence is considered in the light most favorable to the State, and the State is entitled to every reasonable inference arising from it. Powell, 299 N.C. at 99, 261 S.E.2d at 117. The trial court is concerned only with the sufficiency of the evidence to go to the jury, and not the weight to be accorded the evidence. State v. Thaggard, 168 N.C. App. 263, 281, 608 S.E.2d 774, 786 (2005).

To convict a defendant of possession of marijuana with intent to sell or deliver, the State must prove the following elements: (1) knowing, (2) possession, (3) of marijuana, (4) with the intent to sell or deliver it. N.C. Gen. Stat. § 90-95(a)(1) (2005); see also State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 902 (2001). Defendant contends that the State did not prove either possession or intent to sell or deliver.

A defendant has constructive possession of contraband when he "has the intent and capability to maintain control and dominion over" the drugs. State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). When the defendant does not have exclusive possession of the premises where the contraband was found, an inference of constructive possession may arise only if the State shows other incriminating circumstances regarding possession. State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 588-89 (1984). Here, the State argues that the evidence establishes Defendant's actual possession of the marijuana because Defendant was observed leaving the car in which the marijuana was found. In addition, other incriminating circumstances surrounding Defendant's possession of the marijuana include (1) Defendant knew the weight of the marijuana, (2) he told the police officers that he was given the marijuana by Michael Cornwell, (3) he explained the existence of the marijuana in the car in a "hypothetical" to Officer Tobbe before the police officers saw what was in the car, and (4) he testified at trial that he had control over the Toyota Camry. See State v. Munoz, 141 N.C. App. 675, 541 S.E.2d 218, cert. denied, 353 N.C. 454, 548 S.E.2d 534 (2001); State v. Alston, 131 N.C. App. 514, 508 S.E.2d 315 (1998); State v. Dow, 70 N.C. App. 82, 318 S.E.2d 883 (1984). We therefore hold that there was sufficient evidence of Defendant's possession of marijuana.

We now examine whether there was sufficient evidence of Defendant's intent to sell or deliver the marijuana to withstand his motion to dismiss. A defendant's intent to sell or deliver a controlled substance usually is established by inference based on circumstantial evidence rather than by direct observation. State v. Sexton, 357 N.C. 235, 238, 581 S.E.2d 57, 58 (2003) (citing State v. Richardson, 328 N.C. 505, 513, 402 S.E.2d 401, 406 (1991); State v. Childress, 321 N.C. 226, 229-30, 362 S.E.2d 263, 265-66(1987)). "Intent to sell or deliver can be inferred by the amount of the controlled substance, the manner of its packaging, along with the activities of a defendant, but no one factor is determinative." State v. Alderson, 173 N.C. App. 344, 348, 618 S.E.2d 844, 847 (2005) (quoting State v. Carr, 122 N.C. App. 369, 373, 470 S.E.2d 70, 73 (1996)).

In this case, evidence of (a) the amount of marijuana, (b) the number of bags containing marijuana, and (c) the fact that the smaller baggies were all the same weight supports the trial court's denial of Defendant's motion to dismiss the charge of possession with intent to sell or distribute a controlled substance. We therefore overrule this assignment of error.

Defendant's final argument is that the trial court erred by prohibiting him from presenting evidence that the marijuana belonged to someone else. Defendant sought to introduce the following evidence: (1) Ms. Epps received a call from Defendant's cell phone stating that Shane wanted to get his marijuana back, (2) Ms. Epps called 911 to get back at Defendant because she believed that he had been cheating on her, (3) Shane threatened to kill Defendant if he did not return the marijuana, (4) Defendant asked Officer Tobbe to call Shane and explain where the marijuana was, and (5) Officer Tobbe told Defendant that Shane denied knowledge of the marijuana during the telephone call. The trial court did not allow this testimony after a voir dire hearing, finding that the minimal probative value of the evidence outweighed the likelihood of unfair prejudice and that the evidence would constitute inadmissible hearsay since Shane had not been subpoenaed to testify.

In State v. Cotton, 318 N.C. 663, 667, 351 S.E.2d 277, 279-80 (1987), aff'd, 329 N.C. 764, 407 S.E.2d 514 (1991), our Supreme Court held:

Evidence that another committed the crime for which the defendant is charged generally is relevant and admissible as long as it does more than create an inference or conjecture in this regard. It must point directly to the guilt of the other party. State v. Hamlette, 302 N.C. 490, 276 S.E.2d 338 (1981); State v. Allen, 80 N.C. App. 549, 342 S.E.2d 571, disc. rev. denied, 317 N.C. 707, 347 S.E.2d 441 (1986). Under Rule 401 such evidence must tend both to implicate another and be inconsistent with the guilt of the defendant.

Here, Defendant's evidence that Shane was the owner of the marijuana was not inconsistent with Defendant's guilt. As the trial judge recognized, both Shane and Defendant could have intended to sell the marijuana. Therefore, Shane's guilt, if any, would not necessarily relieve Defendant of his own guilt. Because Defendant's evidence of Shane's possession does not meet the standard for admission of such evidence under Cotton, we hold that the trial court properly excluded the proffered evidence. In Defendant's trial and conviction, we thus find

No error.

Judges STEELMAN and LEVINSON concur.

Report per Rule 30(e).