NO. COA14-752
NORTH CAROLINA COURT OF APPEALS
Filed: 20 January 2015
STATE OF NORTH CAROLINA
v. Wake County No. 13 CRS 203743 VAN LAMAR MCKNIGHT
Appeal by Defendant from judgment entered 6 December 2013
by Judge R. Allen Baddour in Wake County Superior Court. Heard
in the Court of Appeals 6 November 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General R. Marcus Lodge, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Jason Christopher Yoder, for Defendant.
STEPHENS, Judge.
Defendant Van Lamar McKnight was convicted in Wake County
Superior Court of one count of trafficking in marijuana by
possession and one count of trafficking in marijuana by
transportation. Defendant now appeals from the trial court’s
denial of his motion to suppress evidence that he alleges was
obtained in violation of his Fourth Amendment rights. Defendant
also contends that the trial court committed plain error by -2- denying his motion in limine to exclude evidence that was both
irrelevant and prejudicial. After careful review, we hold the
trial court did not err in denying Defendant’s motion to
suppress, nor did it commit plain error by admitting the
evidence Defendant challenges.
I. Facts and procedural history
On 5 August 2013, Defendant was indicted by a Wake County
grand jury on one count of trafficking in marijuana by
transportation. Those charges arose from Defendant’s arrest on
14 February 2013 after officers from the Raleigh Police
Department (“RPD”) stopped and searched his vehicle and
discovered more than ten pounds of marijuana concealed in two
packages during their ongoing investigation of Defendant’s
friend, Travion Stokes.
The evidence introduced at Defendant’s trial tended to show
that in November 2012, the RPD learned from a confidential
informant that Stokes, who at the time was on probation for a
federal cocaine trafficking conviction, was trafficking in large
amounts of marijuana. On 12 February 2013, after conducting
several weeks of undercover surveillance and a controlled buy
using the confidential informant, RPD Detective James Battle -3- searched a trash can left by the curb at Stokes’ residence at
601 Sawmill Road in Raleigh and found a plastic baggie
containing less than one-tenth of a gram of marijuana residue.
Based on this information, Detective Battle obtained a search
warrant for Stokes and his residence.
On the morning of 14 February 2013, Detective Battle and
RPD Detective Sarah Goree stationed themselves in unmarked
police vehicles near Stokes’ residence to conduct pre-raid
surveillance prior to executing the search warrant, while RPD
Officer Keith Pickens parked his marked patrol car farther away
at a nearby intersection as back-up. The officers did not have
access to a S.W.A.T. team that day, so their plan was to stop
Stokes in his automobile after he left his home and then execute
the search warrant for his residence. Around 8:30 a.m., Stokes
drove a pickup truck into his driveway, parked at the rear of
the house, and went inside. Around 8:45 a.m., Defendant——whom
RPD officers had not previously seen during the course of their
investigation——arrived at Stokes’ home driving a GMC Acadia
sport utility vehicle, which he parked in the front. Stokes then
came out of the house and the two men removed two large white
boxes from Stokes’ pickup truck, carried them around to the
front of the house, and placed them in the back of Defendant’s -4- vehicle. The boxes were sealed shut and did not appear very
heavy.
When Defendant got back in his Acadia and drove away,
Detective Goree and Sergeant Charles Lynch, another officer in
an unmarked vehicle, followed him, as did Officer Pickens at a
distance to avoid being seen in his patrol car. The officers
followed Defendant for roughly ten to fifteen minutes, during
which they did not observe any traffic violations, until
Defendant unexpectedly backed his Acadia into a residential
driveway at 7202 Shellburne Drive. Detective Goree continued
past the driveway and lost visual contact with Defendant.
Sergeant Lynch continued past the driveway as well and saw
Defendant pull back out into the road without getting out of his
car. Officer Pickens, who had not yet reached the driveway,
heard over the radio that his colleagues were unable to continue
following Defendant, and thereupon activated his patrol car’s
lights and pulled Defendant over.
Officer Pickens, who later testified that he noticed
Defendant seemed slightly nervous but was otherwise acting
normally, ordered Defendant out of the Acadia and had him sit on
the curb until RPD Detective Kenneth Barber joined them a few
minutes later. Detective Barber later testified that upon his -5- arrival, he smelled burnt marijuana through the Acadia’s open
window and decided to conduct a search. No burnt marijuana was
found during the search of Defendant’s vehicle, but when the
officers inspected the two boxes Defendant had taken from
Stokes’ house, they discovered that inside each box was another,
smaller box containing a shrink-wrapped orange plastic bucket.
These buckets, in turn, contained 5.8 and 4.9 pounds of
marijuana in sealed plastic bags.
Defendant was arrested and taken to a police station for
interrogation, during which Detective Battle found a key among
the contents of Defendant’s pockets. Detective Battle
subsequently discovered the key fit the lock on the front door
of the residence at 7202 Shellburne Drive, where he smelled
marijuana through the doorframe. After obtaining a search
warrant, RPD officers returned to that residence and found 91
grams of marijuana hidden above a kitchen cabinet. They also
found paraphernalia including two digital scales, Ziploc bags,
and a vacuum food saver machine in the kitchen. In the attic of
the home, the officers found a freezer-sealed bag of marijuana,
a black trash bag with sealed marijuana inside, and a small
orange-red bucket. The officers also searched for documents to
show who owned the house and found bank records in the name of -6- Revaune Moe, who had two prior drug arrests, as well as a
uniform citation for a man named Cory Robinson and letters
addressed to him and a man named Andre Turner. They found no
evidence linking Defendant to the house, and he was not charged
with possession of any of the drugs recovered there.
When Defendant’s trial in Wake County Superior Court began
on 2 December 2013, his primary defense was that he did not know
there was marijuana in the boxes he received from Stokes.
Defendant first moved to suppress the marijuana found in his
Acadia, arguing that it was the product of an unconstitutional
seizure because the RPD officers lacked reasonable suspicion to
stop his vehicle. Defendant’s voir dire examination of the
officers involved in his arrest showed that: (1) prior to
arriving at Stokes’ home on 14 February 2013, Defendant had not
previously been a target of the investigation and was not listed
on the search warrant for Stokes’ residence; (2) no money
changed hands when Defendant accepted the boxes from Stokes; and
(3) Defendant had not been driving erratically or committed any
traffic violations before being stopped by Officer Pickens. The
State opposed the motion to suppress, arguing that: (1) the RPD
officers did not initiate a search of Defendant while he was
still on Stokes’ property due to safety concerns given the lack -7- of a S.W.A.T. team but were still justified in stopping
Defendant after he left under a theory that he was taking
evidence from a crime scene; and (2) Defendant’s backing into
the driveway at 7202 Shellburne Drive and then leaving without
getting out of his vehicle constituted evasive action sufficient
to support a reasonable suspicion that criminal activity was
afoot. The trial court denied Defendant’s motion, concluding,
inter alia, that:
2. The officers possessed probable cause to search the residence and person of Travion Stokes for controlled substances, as evidenced by a lawfully issued search warrant.
3. The officers determined that their manpower did not permit the safe execution of the search warrant while [D]efendant was on the premises with Travion Stokes, and the observation of the officers of the transfer of two large packages into [D]efendant’s vehicle, [D]efendant’s evasive action of pulling into a residence momentarily, when viewed in light of the totality of the circumstances, support a finding of a reasonable, articulable suspicion justifying the officers in stopping the [D]efendant’s vehicle.
Defendant failed to object when this evidence was introduced at
trial.
Defendant also filed both a motion to suppress the evidence
found at 7202 Shellburne Drive and a motion in limine to exclude -8- it after the State gave notice that it planned to introduce that
evidence for the purpose of proving Defendant’s knowledge of the
contents of the boxes he received from Stokes, given the fact
that he “was taking [the boxes] from one residence where
[police] found marijuana directly to another residence where
they found marijuana,” as well as the similarities in packaging
between the marijuana found in the Acadia and the marijuana
found in the attic. The trial court denied Defendant’s motion to
suppress because, apart from possessing a key to 7202 Shellburne
Drive, Defendant could not establish any basis that would give
him a legitimate expectation of privacy at that residence. In
his motion in limine, Defendant argued that the evidence was
irrelevant, prejudicial, and would confuse the issues for the
jury because he had not been charged with any crime involving
7202 Shellburne Drive. Defendant also highlighted
dissimilarities between the evidence seized from his car and the
evidence seized from the attic, including differences in the
grade of marijuana, the types of bags containing it, and the
colors of the buckets found nearby. The trial court denied
Defendant’s motion, and Defendant failed to timely object when
the evidence was admitted at trial to preserve the issue for
review. -9- Defendant chose to testify at his trial, and although he
acknowledged to having pled guilty to possession of marijuana
with intent to sell and deliver in 2009, he insisted that he had
no knowledge that the boxes he received from Stokes on 14
February 2013 contained marijuana. Instead, he testified that
Stokes had called him that morning and said he was running late
for a doctor’s appointment, asked him to drop off the boxes at
7202 Shellburne Drive as a favor, and given him a key to the
residence. Defendant testified that he had known Stokes for
about a year and that the two men had become friends through
their shared enthusiasm for motorcycles. Defendant admitted that
he had been aware that Stokes was on federal probation for drug
charges, but assumed that this actually provided a strong
incentive for Stokes to avoid further illegal activity. In any
event, Defendant explained, the boxes were already sealed before
he received them, Defendant never asked what they contained, and
he did not have an opportunity to learn their contents before
the RPD pulled him over. Defendant testified that he was unaware
that he was being followed when he backed into 7202 Shellburne
Drive, and that the reason he left so quickly was that he
received a cellphone call from his wife——who was upset because
she needed her son’s car seat from the back of the Acadia to -10- give to a babysitter so the couple could enjoy a date together —
—and that even though he was already at his destination and did
not want to make another trip, he decided to drive back across
town and then return again to 7202 Shellburne Drive to deliver
the boxes because it was Valentine’s Day.
On 6 December 2013, the jury returned a verdict finding
Defendant guilty of both charges against him. The trial court
consolidated the counts into a single judgment and sentenced
Defendant to a term of 25 to 39 months in prison. Defendant gave
oral notice of appeal in open court.
II. Defendant’s motion to suppress
Defendant argues that the trial court erred in denying his
motion to suppress the marijuana found in the boxes he received
from Stokes because the RPD officers who stopped and searched
his vehicle lacked reasonable suspicion to do so and thus
violated his Fourth Amendment rights. We disagree.
Typically, this Court’s review of a denial of a motion to
suppress “is strictly limited to determining whether the trial
[court’s] underlying findings of fact are supported by competent
evidence, in which event they are conclusively binding on
appeal, and whether those factual findings in turn support the
[court’s] ultimate conclusions of law,” which are then subject -11- to de novo review. State v. Mello, 200 N.C. App. 437, 439, 684
S.E.2d 483, 486 (2009) (citation and internal quotation marks
omitted), affirmed per curiam, 364 N.C. 421, 700 S.E.2d 224
(2010). However, Defendant acknowledges that because he failed
to preserve this issue for appellate review by timely objecting
when the evidence was admitted at trial, the standard of review
is plain error. Under a plain error analysis, Defendant is
entitled to a new trial only if he can demonstrate that the
trial court committed an error “so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have
reached.” State v. Brunson, 187 N.C. App. 472, 477, 653 S.E.2d
552, 555 (2007) (citation omitted).
The Fourth Amendment protects the “right of the people . .
. against unreasonable searches and seizures,” U.S. Const.
amend. IV, and is applicable to the states through the Due
Process Clause of the Fourteenth Amendment. See Mapp v. Ohio,
367 U.S. 643, 655, 6 L. Ed. 2d 1081, 1090 (1961). It applies to
seizures of the person, including brief investigatory detentions
such as those involved in stopping a vehicle. Reid v. Georgia,
448 U.S. 438, 440, 65 L. Ed. 2d 890, 893 (1980). It is well
established that in order to conduct an investigatory stop, -12- police must have a reasonable suspicion that criminal activity
may be afoot. See Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d
889, 911 (1968).
As our Supreme Court has explained, “[a]n investigatory
stop must be justified by a reasonable suspicion, based on
objective facts, that the individual is involved in criminal
activity.” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67,
70 (1994) (citation and internal quotation marks omitted). In
reviewing whether a reasonable suspicion to make an
investigatory stop exists, this Court “must consider the
totality of the circumstances——the whole picture” to determine
if the stop was “based on specific and articulable facts, as
well as the rational inferences from those facts, as viewed
through the eyes of a reasonable, cautions officer, guided by
his experience and training.” Id. (citations and internal
quotation marks omitted).
In the present case, Defendant argues that the trial court
plainly erred in its finding of fact and conclusion of law that
his act of turning around in the driveway at 7202 Shellburne
Drive constituted evasive action sufficient to support a
reasonable suspicion for an investigatory stop of his vehicle.
Specifically, Defendant argues that the trial court’s findings -13- and conclusions were unsupported by competent evidence, given
that neither of the two RPD officers who followed him in
unmarked vehicles testified that his conduct provided any
indication that he was aware they were following him, let alone
that he was driving evasively. In support of his argument,
Defendant cites this Court’s holding in State v. White, 214 N.C.
App. 471, 712 S.E.2d 921 (2011), that to support a finding of
evasive action, the State must “establish a nexus between [a
d]efendant’s flight and the police officers’ presence.” Id. at
480, 712 S.E.2d at 928. Since the State failed to establish such
a nexus here, Defendant argues that the trial court plainly
erred by improperly admitting the only physical evidence that he
possessed and transported marijuana.
It is well established under state and federal law that
although mere presence in a high crime area is not sufficient to
support a reasonable suspicion that an individual is involved in
criminal activity, an individual’s presence in a suspected drug
area coupled with evasive action may provide an adequate basis
for the reasonable suspicion necessary for an investigatory
stop. See Illinois v. Wardlow, 528 U.S. 119, 145 L. Ed. 2d 570
(2000); State v. Butler, 331 N.C. 227, 233-34, 415 S.E.2d 719,
722–23 (1992). However, as we explained in White, in order for -14- an action to be considered evasive, the State must “establish a
nexus between [a d]efendant’s flight and the police officers’
presence.” 214 N.C. App. at 480, 712 S.E.2d at 928. Prior
decisions by this Court and our Supreme Court make clear that a
defendant cannot be found to have acted evasively unless there
is some evidence that he was aware he was being followed by, or
in the presence of, a police officer. See, e.g., Butler, 331
N.C. at 233, 415 S.E.2d at 722 (finding evasive action where
“upon making eye contact with the uniformed officers, [the]
defendant immediately moved away, behavior that is evidence of
flight”); State v. Willis, 125 N.C. App. 537, 539, 481 S.E.2d
407, 409 (1997) (finding evasive action where a defendant
behaved nervously and cut across a parking lot on foot after it
became “apparent to [him]” that he was being followed).
Here, Defendant’s argument about evasive action has some
merit. Neither of the two RPD officers who followed him in
unmarked cars testified that he acted evasively or that his
conduct indicated his awareness of the fact he was being
followed. Indeed, as Defendant notes, during the suppression
hearing the only testimony indicating evasive driving came from
Officer Pickens, who was following the two unmarked police cars
at a distance and did not directly observe Defendant until after -15- Defendant had already pulled out of the driveway. When asked
about Defendant’s driving, Officer Pickens testified:
Q: Do you remember anything significant about your approach to the vehicle?
A: No. I mean, some of the radio traffic that was being relayed to me, that the [D]efendant was being evasive in the way that he was operating his vehicle. Again, I believe he had maybe realiz[ed] that he was being followed.
[Defendant’s counsel]: Objection to that, [Y]our Honor; move to strike.
THE COURT: Sustained.
A: The information that I was hearing was that the operation of his vehicle was such that he would not be followed any longer by one of the detectives [who] was in one of the unmarked vehicles.
Officer Pickens further testified that he did not personally
observe anything unusual about how Defendant operated his
vehicle before pulling him over. Thus, we conclude that there is
no competent evidence in the record that indicates Defendant was
aware that his Acadia was being followed by police. Therefore,
because Defendant’s act of turning around in the driveway at
7202 Shellburne Drive cannot properly be considered evasive, we
hold that the trial court erred in its finding of fact and
conclusion of law that Defendant acted evasively. -16- However, that does not end our inquiry, as our Supreme
Court had made clear that “[a] correct decision of a lower court
[on a motion to suppress] will not be disturbed on review simply
because an insufficient or superfluous reason is assigned.”
State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650, cert.
denied, 484 U.S. 916, 98 L. Ed. 2d 224 (1987). Even where the
trial court’s reasoning for denying a defendant’s motion to
suppress is incorrect, “we are not required on this basis alone
to determine that the ruling was erroneous,” because “[t]he
crucial inquiry for [this Court] is admissibility and whether
the ultimate ruling was supported by the evidence.” Id.
(citations and internal quotation marks omitted).
Here, Defendant contends that absent the finding of evasive
action, the RPD officers’ personal observations of him at
Stokes’ residence provided no other basis for reasonable
suspicion to stop his vehicle. Specifically, Defendant contends
that the trial court erred in concluding that the search warrant
for Stokes’ residence was a factor supporting reasonable
suspicion against him because “[a]n individual’s presence in an
area of expected criminal activity, standing alone, is not
enough to support a reasonable, particularized suspicion that
the person is committing a crime.” Wardlow, 528 U.S. at 124, 145 -17- L. Ed. 2d at 586. Moreover, Defendant contends that the transfer
of boxes from Stokes’ truck to Defendant’s Acadia was also
insufficient to support a reasonable suspicion that a drug
transaction had occurred, given that the officers never observed
any money changing hands that morning and never in their months-
long surveillance of Stokes witnessed him sell any marijuana
from his home, utilize large boxes to transport it, or interact
with Defendant in any way.
We find Defendant’s argument unpersuasive. While it is true
that an individual’s mere presence in an area of expected
criminal activity does not by itself give rise to reasonable
suspicion, the record before us indicates that Defendant was
more than merely present at Stokes’ home, insofar as he accepted
two large boxes from Stokes, carried them to his Acadia, put
them inside, and drove away. Further, Defendant’s argument that
there was nothing inherently suspicious about those two large
boxes ignores the fact that RPD officers had already obtained a
warrant to search Stokes and his residence for evidence of
marijuana trafficking, which implicitly authorized them to
search any container capable of carrying marijuana, including
the boxes. See, e.g., State v. Bryant, 196 N.C. App. 154, 674
S.E.2d 753, disc. review denied, 363 N.C. 375, 679 S.E.2d 135 -18- (2009) (holding that officers executing a search warrant may
legally seize any object encompassed within its description of
items to be searched).
In his brief, Defendant suggests that the scope of the
search warrant did not include Stokes’ car; however, the warrant
was not included in the record on appeal and Defendant does not
specifically challenge its validity, nor would he have standing
to do so, given the absence of evidence that he either owned or
held a possessory interest in Stokes’ residence or maintained a
reasonable expectation of privacy there. See, e.g., State v.
Rodelo, __ N.C. App. __, 752 S.E.2d 766, disc. review denied, __
N.C. __, 762 S.E.2d 204 (2014) (holding that a defendant who
cannot show evidence of either his ownership or possessory
interest or a reasonable expectation of privacy lacks standing
to challenge an alleged Fourth Amendment violation). But even
assuming arguendo Defendant was correct in this assertion, the
scope of the warrant still included Stokes himself, which means
the officers would have had probable cause to search the boxes
once they saw Stokes and Defendant take them out of the pickup
truck. While the officers chose not to search at that time, due
to the unavailability of a S.W.A.T. team and concerns about
safety, the mere fact that the boxes were then placed inside -19- Defendant’s Acadia did not automatically immunize them from
future searches once the vehicle left the property simply
because the vehicle was not listed in the warrant. If anything,
in light of the totality of the circumstances, given the fact
that Stokes was under investigation for marijuana trafficking——
which is an offense that by definition involves moving narcotics
from one location to another, see N.C. Gen. Stat. § 90-95(h)(1)
(2013)——Defendant’s act of putting two boxes large enough to
contain marijuana into his vehicle and then driving away
immediately thereafter was more than sufficient to support a
reasonable suspicion that he was involved in criminal activity.1
1 In support of his argument to the contrary, Defendant cites this Court’s unpublished decision in State v. Majett, __ N.C. App. __, 675 S.E.2d 719 (2009) (unpublished), available at 2009 WL 1192726. We note first that Rule 30(e)(3) of our Rules of Appellate Procedure provides that this Court’s unpublished decisions do not constitute controlling legal authority. Moreover, despite superficial similarities, the present facts are easily distinguishable from those in Majett, where police received a tip from an anonymous informant that the defendant was distributing cocaine from his residence, then found crack cocaine on three men whom they saw entering and leaving the defendant’s residence. Although the police in Majett may well have been able to obtain a warrant to search the defendant’s residence, they instead chose to stop the defendant’s vehicle immediately, arrest him, and search for drugs, which they subsequently found. In reversing his conviction, this Court held that the stop amounted to an unreasonable seizure because the police lacked probable cause to effectuate a warrantless arrest given the absence of any evidence connecting the defendant’s suspected illegal conduct to his vehicle, which had not broken -20- That being the case, the officers did not need to wait until
Defendant committed a traffic violation or acted evasively to
conduct an investigatory stop. Thus, although the trial court’s
conclusion that Defendant acted evasively was erroneous, we
conclude it was also unnecessary to support a finding of
reasonable suspicion to conduct an investigatory stop in this
case. Accordingly, we hold that the trial court did not err in
denying Defendant’s motion to suppress or plainly err in
admitting this evidence at trial.
III. Defendant’s motion in limine
Defendant also argues that the trial court committed plain
error by admitting into evidence the marijuana and other
contraband found at 7202 Shellburne Drive for the purpose of
showing his knowledge that the boxes he received from Stokes
contained marijuana. Specifically, Defendant contends that this
evidence was irrelevant, inadmissible, and prejudicial under
Rules 401, 402, and 404(b) of our Rules of Evidence because
there was no evidence that he had ever been inside 7202
any traffic laws prior to the stop. In the present case, by contrast, the RPD officers properly obtained a search warrant for Stokes’ residence, where they directly observed the transfer of boxes to Defendant’s Acadia, which provided a sufficient basis for reasonable suspicion for an investigatory stop of his vehicle. -21- Shellburne Drive, knew its owner, or possessed or was even aware
of the drugs hidden therein. While Defendant’s argument has some
merit with regards to relevance and admissibility, we do not
agree that admission of this evidence was so prejudicial as to
constitute an error “so fundamental as to amount to a
miscarriage of justice” or “which probably resulted in the jury
reached.” Brunson, 187 N.C. App. at 477, 653 S.E.2d at 555.
Rule 401 of our Rules of Evidence defines relevant evidence
as “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 (2013). By contrast,
irrelevant evidence has no tendency to prove a fact at issue and
must be excluded. See N.C. Gen. Stat. § 8C-1, Rule 402. However,
irrelevant evidence is typically considered harmless “unless
[the] defendant shows that he was so prejudiced by the erroneous
admission that a different result would have ensued if the
evidence had been excluded.” State v. Moctezuma, 141 N.C. App.
90, 93-94, 539 S.E.2d 52, 55 (2000).
The issue here, then, is whether the evidence found at 7202
Shellburne Drive increased the probability that Defendant knew -22- that the boxes he received from Stokes contained marijuana. The
State argues that this evidence was properly admitted to show
Defendant’s knowledge under Rule 404(b), which provides that
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b). Defendant counters that
because there was no evidence that he actually or constructively
possessed the drugs and other contraband found at 7202
Shellburne Drive, it was improper to admit the evidence as
evidence of his knowledge under Rule 404(b). In support of his
argument, he cites this Court’s holding in State v. Moctezuma,
supra.
In Moctezuma, we held that the trial court erred in
admitting evidence under Rule 404(b) for the purpose of showing
a defendant’s knowledge where there was no evidence connecting
the evidence to any crime, wrong, or act by the defendant. 141
N.C. App. at 95, 539 S.E.2d at 56. There, a confidential
informant told police that three men in a white van with
Tennessee license plates would drive to a residence where a
large quantity of cocaine was located and then conduct a cocaine -23- deal in a grocery store parking lot. Id. at 91, 539 S.E.2d at
54. Pursuant to that tip, police conducted surveillance and
followed the van to a trailer where the defendant and another
man lived; watched the defendant and two other men exit the van,
enter the trailer, and reemerge shortly thereafter; and followed
the van to the grocery store before surrounding it and arresting
its occupants. Id. During the arrest, an officer noticed the
defendant, who had been driving the van, place something wrapped
in white tissue to the right of his seat. Id. Upon inspection,
police found over 136 grams of cocaine in a plastic bag wrapped
in white tissue to the right of the drivers’ seat. Id. When
police returned to the trailer, they found two kilos of cocaine
and other paraphernalia in a bathroom. Id. At trial, the
defendant claimed he was not aware there was cocaine in the van
or in the trailer. Id. at 92, 539 S.E.2d at 54. Over his
objections, the State introduced evidence of the cocaine found
in the trailer to show the defendant’s awareness that there had
been cocaine inside the van. Id.
On appeal to this Court, we held that the trial court erred
in admitting the cocaine from the trailer under Rule 404(b),
reasoning that because there was no evidence that the defendant
was aware of the cocaine in the trailer that he shared with -24- another man, that evidence could not constitute proof of his
awareness of cocaine in the van, thus rendering it irrelevant
and inadmissible. As we explained,
Rule 404(b) speaks of “[e]vidence of other crimes, wrongs, or acts.” Here, there are no crimes, wrongs, or acts with which [the] defendant is connected. There was no evidence introduced at trial to directly link [the] defendant to the drugs seized at the trailer in which he occupied a bedroom. [The d]efendant was not charged with any offense in connection with the drugs seized at the trailer, and [the] defendant consistently denied any knowledge of such drugs.
Further, the circumstantial evidence presented at trial——the fact that drugs belonging to other people were discovered at the trailer [the] defendant shared with others——was too weak to support an inference of knowledge on his part. . . . Under these circumstances, we find that there was insufficient evidence to show that [the] defendant knew about the drugs seized at the trailer.
Id. at 94-95, 539 S.E.2d at 56.
In the present case, with regards to the issues of
relevance and admissibility, we find strong parallels between
the marijuana and other contraband found at 7202 Shellburne
Drive and the cocaine found in the trailer in Moctezuma.
Although the State contends that the contraband found at 7202
Shellburne Drive should be admissible to prove Defendant’s -25- knowledge because of its similarity to the marijuana found in
the boxes Defendant received from Stokes, as we explained in
Moctezuma, “Rule 404(b) speaks of evidence of other crimes,
wrongs, or acts,” but here, “there are no crimes, wrongs, or
acts” to connect that contraband with Defendant. See id.
(internal quotation marks omitted). Here, as in Moctezuma,
Defendant was not charged with any offense in connection with
the contraband found at 7202 Shellburne Drive, nor is there any
evidence that Defendant actually or constructively possessed
that contraband or even knew of its existence. Indeed, there is
no evidence Defendant had ever previously visited 7202
Shellburne Drive, and when police searched the residence, they
found no evidence that connected Defendant to it. Moreover, as
Defendant repeatedly emphasized at trial, the contraband found
at 7202 Shellburne Drive was notably dissimilar from the
contraband found in his vehicle insofar as the marijuana was of
a different grade and the buckets were a different color. Under
these circumstances, we find insufficient evidence to show that
Defendant knew about the drugs found at 7202 Shellburne Drive.
Consequently, we do not believe that evidence was either
relevant or admissible to show Defendant’s knowledge of the
contents of the boxes he received from Stokes, and we therefore -26- hold that the trial court erred in denying Defendant’s motion in
limine to exclude it.
Defendant further contends that the erroneous admission of
this evidence was so prejudicial to him as to constitute plain
error, thus warranting a new trial. Defendant again relies on
Moctezuma to support his argument. There, in reversing the
defendant’s conviction, we held the erroneous admission of
irrelevant evidence to be prejudicial because “the jury could
have easily concluded, given the value and quantity of the
seized drugs, as well as the time spent at trial examining such,
that [the] defendant was a high level drug trafficker.” Id. at
95, 539 S.E.2d at 56. Defendant argues that the same logic
should apply here, and further supports his argument by citing
prior cases in which this Court has found that irrelevant
evidence that leads to the spurious conclusion that the accused
is linked to a huge drug trafficking operation can be
prejudicial. See, e.g., State v. Cuevas, 121 N.C. App. 553, 557-
58, 468 S.E.2d 425, 428, disc. review denied, 343 N.C. 309, 471
S.E.2d 77 (1996) (holding that the trial court erred by
admitting irrelevant evidence that the defendant who was charged
with cocaine trafficking had a stamp on his passport indicating
that he had visited Colombia approximately two months before his -27- arrest, as it tended to mislead the jury as to the level of his
involvement in drug trafficking, but nevertheless affirming his
conviction because the properly admitted evidence against him
was sufficiently overwhelming to make it “unlikely that a
different result would have occurred at trial but for the
introduction of the passport.”). However, given the record
before us, we do not agree that the trial court’s error was “so
fundamental as to amount to a miscarriage of justice” or that it
“probably resulted in the jury reaching a different verdict than
it otherwise would have reached.” Brunson, 187 N.C. App. at 477,
653 S.E.2d at 555.
Defendant’s argument ignores a critical distinction between
the facts here and what made the erroneous admission of
irrelevant evidence so prejudicial in Moctezuma——specifically,
the radical disparity between the quantity of narcotics found
when Moctezuma was arrested and the quantity found elsewhere
that was erroneously admitted into evidence under Rule 404(b).
In Moctezuma, the defendant was arrested driving a vehicle that
contained roughly 136 grams——or, about four ounces——of cocaine,
but the trial court subsequently admitted evidence that police
had recovered over four pounds of cocaine from his trailer. 141
N.C. App. at 95, 539 S.E.2d at 56. The erroneously admitted -28- contraband taken from the defendant’s shared home was
prejudicial because it magnified the amount of cocaine
purportedly associated with him by a factor of roughly 16, thus
leaving the jury to draw the inference that he was some kind of
drug kingpin. Id. By contrast, there is no such prejudicial
disparity in the present case, given that Defendant was arrested
with over ten pounds of marijuana in his vehicle, while the
police found far less marijuana in their search of 7202
Shellburne Drive. In other words, even without the erroneously
admitted evidence, the jury could still have concluded that
Defendant was a high level drug trafficker or otherwise involved
in a large drug trafficking operation based on the relevant and
properly admitted evidence before it.
Defendant nevertheless insists that he was prejudiced by
the trial court’s error, emphasizing that the only contested
issue at his trial was his knowledge that the boxes he received
from Stokes contained marijuana and that, apart from the
contraband found at 7202 Shellburne Drive, the State’s evidence
on this point was weak at best. However, this Court has
previously recognized that in narcotics prosecutions, “[i]n the
absence of a confession by [the] defendant that [he knew the
boxes contained marijuana], the State’s proof of [the knowledge] -29- element must of necessity be circumstantial.” State v. Nunez,
204 N.C. App. 164, 168, 693 S.E.2d 223, 226 (2010). Moreover,
“[i]n borderline or close cases, our courts have consistently
expressed a preference for submitting issues to the jury.” State
v. Jenkins, 167 N.C. App. 696, 701, 606 S.E.2d 430, 433 (2005)
(citation and internal quotation marks omitted).
In the present case, when Defendant took the stand to deny
any knowledge of what was in those boxes, he testified that he
knew Stokes was on federal probation for drug trafficking but
agreed to do him a favor by transporting two large boxes without
inquiring about their contents to an address he had never
previously visited. He also admitted to having pled guilty to
possession of marijuana with intent to sell and deliver in 2009.
Whether or not Defendant knew that the boxes contained marijuana
was a credibility determination for the jury, and although these
facts do not by themselves prove his guilt, they certainly
provided sufficient grounds for the jury to infer that Defendant
should have known what he was getting himself into.
We therefore conclude that the trial court’s erroneous
decision to admit irrelevant evidence was not “so fundamental as
to amount to a miscarriage of justice” and did not “probably
result[] in the jury reaching a different verdict than it -30- otherwise would have reached.” Brunson, 187 N.C. App. at 477,
653 S.E.2d at 555. Accordingly, we hold that the trial court did
not commit plain error in denying Defendant’s motion to exclude
the evidence found at 7202 Shellburne Drive.
NO ERROR.
Judges STEELMAN and GEER concur.