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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-16 NORTH CAROLINA COURT OF APPEALS Filed: 2 July 2013 STATE OF NORTH CAROLINA v. THERESA MICHELLE HAWKINS, Defendant. Guilford County No. 11CRS070417-18

Appeal by defendant from judgments entered on 14 and 25 June 2012 by Judge James M. Webb in Superior Court, Guilford County. Heard in the Court of Appeals 22 May 2013.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Lisa K. Bradley, for the State. Gilda C. Rodriguez, for defendant-appellant. STROUD, Judge. Defendant appeals from judgments sentencing her for drugrelated offenses. For the following reasons, we find no error. I. Background

The State's evidence tended to show that on 9 March 2011 at around 8:15 p.m., as part of a drug investigation, Detectives Patrena Caviness and Dwayne James of the Greensboro Police

Department parked near defendant's house which she shared with her husband. A vehicle registered to defendant was in her

-2driveway, and the front porch light was on at the house. About

fifteen minutes later, a car pulled into defendant's driveway. The driver got out of the car and walked to the front door of defendant's house. The front porch light turned off, and an

individual wearing a white tee shirt answered the door and gave the driver a package. Thereafter, the porch light came back on, A detective stopped the

and the driver got in his car and left.

car and found cocaine packaged in a FoodSaver brand plastic bag in the floorboard. Detective James knocked on the front door of defendant's house, but no one answered. When law enforcement officers

opened the door, they found defendant standing in the living room in a white tee shirt. During a search of the kitchen,

officers found four FoodSaver brand plastic bags of cocaine in the pantry. A jury found defendant guilty of "trafficking in

cocaine by possession of 400 grams or more" ("trafficking") and "knowingly keeping and maintaining a building, to wit: a

dwelling house used for the purpose of unlawfully keeping and selling a controlled substance, to wit: in all caps.) cocaine[.]" (Original

Defendant was sentenced accordingly, and appeals

from the trial court's judgments. II. Motion to Dismiss

-3As to her trafficking conviction, defendant first contends that "the trial court erred when it denied . . . [her] motion to dismiss because there was insufficient evidence that . . . [she] had constructive possession of the cocaine seized in the house over which she did not have exclusive control." all caps.) The standard of review for a motion to dismiss is well known. A defendant's motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant's being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The Court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence. State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and quotation marks omitted). "To prove the offense of trafficking in cocaine by (Original in

possession, the State must show . . . knowing possession of cocaine[.]" State v. Acolatse, 158 N.C. App. 485, 488, 581

S.E.2d 807, 809 (2003) (citations and quotation marks omitted). Knowing possession may be established by showing that the

defendant had constructive possession.

State v. Garcia, 111

N.C. App. 636, 639-40, 433 S.E.2d 187, 189 (1993) (citation

-4omitted). when he, "A person is said to have constructive possession without actual physical possession of a controlled

substance, has both the intent and the capability to maintain dominion and control over it." State v. Jackson, 103 N.C. App.

239, 243, 405 S.E.2d 354, 357 (1991), aff'd per curiam, 331 N.C. 113, 413 S.E.2d 798 (1992). If a defendant does not have

exclusive possession of the place where the controlled substance "is found, the State must show other incriminating circumstances sufficient for the jury to find a defendant had constructive possession." 594 (2009). In State v. Rich, the defendant made an argument similar to the one before us. (1987). 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592,

This Court noted, The State is not required to prove that the defendant owned the controlled substance, or that defendant was the only person with access to it. The State's evidence showed that defendant was seen on the premises the evening before, that on the night of her arrest she was cooking dinner at the house when the agents arrived, that women's casual clothes and undergarments were found in the bedroom, and that mail addressed to defendant, including an insurance policy listing the house as her residence, was found in the house. This is sufficient to show defendant had nonexclusive control of the premises. Where control of the premises

-5is nonexclusive, however, constructive possession may not be inferred without other incriminating circumstances. Here, the evidence established more than defendant's mere residence in the house. The evidence showed that defendant was present on the premises when the cocaine was found, that women's clothes and undergarments were in the room and in the dresser where the cocaine was found, and that letters with defendant's name on them were also found in the room. This is evidence of other incriminating circumstances, sufficient to allow the jury to infer that defendant was in constructive possession of the cocaine. State v. Rich, 87 N.C. App. 380, 382-83, 361 S.E.2d 321, 323 (1987) (citations and quotation marks omitted). Here, defendant shared her home with her husband, making her control over the home and the cocaine nonexclusive and

requiring the State to "show other incriminating circumstances sufficient for the jury to find . . . [she] had constructive possession." Defendant Miller, that 363 N.C. at a 99, 678 S.E.2d of at 594.

argues

there

was

lack

incriminating

circumstances because the cocaine or other items "suggestive of drug activity" were not found in plain view; defendant did not possess "large amounts of cash or other items associated with drug activity[;]" and other individuals not in the house at the time of the search "were the targets of the investigation." Despite defendant's contentions that certain incriminating

-6circumstances were not present, the evidence demonstrates that other incriminating circumstances did exist. Here, defendant resided in the home where the cocaine was found and was the only adult in the house at the time of the search. Furthermore, no other adults were seen coming or going

from defendant's house besides the individual who was handed a package from defendant's home and was thereafter found with a package of cocaine. Accordingly, there were "other

incriminating circumstances sufficient for the jury to find a defendant had constructive possession." 678 S.E.2d at 594. denying defendant's Miller, 363 N.C. at 99,

As such, the trial court did not err by motion to dismiss, so this argument is

overruled. 148.

See Johnson, 203 N.C. App. at 724, 693 S.E.2d at

III. Plain Error Defendant also argues that the trial court committed plain error as to two evidentiary issues. For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice--that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the

-7exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings[.] State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations, quotation marks, and brackets omitted). A. Odor of Marijuana Defendant contends that "[t]hree detectives gave testimony about a strong marijuana odor they encountered upon entering" her home and that the admission of such testimony was plain error. Defendant specifically argues that evidence of the odor

of marijuana in her home was irrelevant; "its only probative value was to show that . . . [defendant] had the propensity or disposition to commit an offense involving contraband

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