An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-95
Filed 7 January 2026
Mecklenburg County, Nos. 19CR222118-590, 19CR222119-590, 19CR222120-590, 19CR222123-590, 19CR222124-590
STATE OF NORTH CAROLINA
v.
JAVONTE TAVARIS MILLER, Defendant.
Appeal by defendant from final judgment entered 1 March 2024 by Judge
Donald Cureton in Mecklenburg County Superior Court. Heard in the Court of
Appeals 10 September 2025.
Attorney General Jeff Jackson, by Assistant Attorney General Allison J. Newton, for the State.
W. Michael Spivey for defendant-appellant.
DILLON, Chief Judge.
I. Background
During the night of 12 June 2019, officers from the Charlotte Mecklenburg
Police Department (“CMPD”) were conducting surveillance on Defendant Javonte
Miller. CMPD officers went to the Super 8 Motel (“Motel”) at 3200 Queen City Drive STATE V. MILLER
Opinion of the Court
in Charlotte, North Carolina pursuant to their investigation of Defendant and his
outstanding warrant. Officers observed Defendant driving a black Dodge Charger
into the Motel parking lot and parking approximately three parking spaces away
from Motel room 109. Officers positively identified Defendant, waited for Defendant
to exit the vehicle, and apprehended Defendant pursuant to a valid arrest warrant.
At the time of arrest, Defendant was holding keys and a cigarette pack. The cigarette
pack contained a paper sleeve with a handwritten “109” on it and inside was a
magnetic key card with the Motel’s logo on it. Officers observed an open beer can in
the drink console of the vehicle and searched the vehicle to find any additional
evidence. During the search, officers located a little over twenty-eight grams of
suspected ecstasy in the center console of the car among other items.
Following the vehicle search, a search warrant was obtained for Motel room
109. Inside the room, officers encountered an unidentified woman and a black
bookbag with pills similar to the pills found inside the vehicle. The pills were inside
one large bag, and within the large bag there were five individually wrapped baggies
with the similar-colored pills.
Following this encounter, Defendant was charged with trafficking in
methamphetamine by transportation in 28 grams or more, trafficking in
methamphetamine by possession of more than 400 grams, conspiracy to traffic in
drugs, possession with intent to sell or deliver cocaine, carrying a concealed weapon,
and possession of a firearm by a felon. At trial, Andrew Oprysko (“Expert”) from
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CMPD’s crime laboratory who tested the pills from the center console and black
bookbag, testified as a forensic chemistry expert. Expert tested a sample of the 100
pills collected from the center console and indicated the net weight was 33.58 grams
plus or minus 2.79 grams. Additionally, Expert tested twenty-two of the 1,121 pills
in the black bookbag for a gross weight of 421.76 grams and an estimated net weight
of 416 grams. Net weight is the weight of the pills minus the estimated weight of the
pills packaging. Expert’s testimony of 416 grams was considered an estimate because
the pills were tested in the packaging.
At the close of the State’s evidence, the trial court denied Defendant’s motion
to dismiss. At the close of all evidence, Defendant motion to dismiss was again
denied. Among other charges, the trial court instructed the jury on unlawful
possession of twenty-eight grams or more of methamphetamine for the trafficking in
methamphetamine by transportation charge. There were no objections to the jury
instruction. The jury returned a unanimous guilty verdict on all the charges against
Defendant. Defendant appeals.
II. Analysis
Defendant appeals on four grounds. We address each issue in turn.
A. Fatal Variance
Defendant contends the difference between the indictment and jury instruction
for how he trafficked the methamphetamine constitutes a fatal variance warranting
reversal on this charge. We disagree.
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The first issue is whether Defendant properly preserved his fatal variance
argument as a sufficiency of the evidence issue where he made general motions to
dismiss. North Carolina Rules of Appellate Procedure Rule 10(a) defines the general
rule for preserving issues for appellate review. See N.C. R. App. P. 10(a). This Court,
in State v. Juran, held a timely general motion to dismiss made pursuant to Rule
10(a)(3) is a “properly preserved sufficiency of the evidence issue [ ].” 294 NC. App.
81, 85 (2024); see State v. Golder, 374 N.C. 238, 245–46 (2020).
In Juran, the defendant alleged the indictment failed to conform to the trial
evidence. 294 N.C. App. at 83. The indictment against defendant was for assault or
affray on an emergency medical technician (“EMT”). Id. at 86. At trial, the assault
victim testified she was a paramedic, not an EMT. Id. There, the defendant argued
the State failed to provide substantial evidence at trial indicating the victim was an
EMT as stated in the indictment. Id. at 85. This Court held the fatal variance
argument was preserved by the defendant’s general motions to dismiss. Id.
Nonetheless, this Court found no fatal variance error. Id. at 87.
Here, Defendant’s fatal variance argument is based on the difference between
the indictment and jury instruction, not the indictment and evidence presented at
trial like in Juran. The decision in Juran regarding preservation is premised on a
direct argument regarding sufficiency of the evidence, Defendant’s is not.
Nonetheless, given our State Supreme Court’s holding in Golder and this Court’s
recent holding in Juran, we agree with Defendant in determining Defendant’s fatal
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variance argument is preserved pursuant to the general motions made at trial even
if there is no direct argument regarding sufficiency of the evidence. See N.C. R. App.
P. 10(a)(3).
The second issue is whether Defendant can show a fatal variance requiring
reversal of the possession conviction. Defendant’s fatal variance argument is
pursuant to the trial court’s denial of his motion to dismiss. “Whether the State
presented substantial evidence of each essential element of the offense is a question
of law; therefore, we review the denial of a motion to dismiss de novo.” State v.
Crockett, 368 N.C. 717, 720 (2016). Motions to dismiss are reviewed in a light most
favorable to the State in determining whether “there is substantial evidence of (1)
each essential element of the offense charged . . . and (2) [the] defendant [is] the
perpetrator of the offense.” State v. Powell, 299 N.C. 95, 98 (1980). When these two
elements are present, the motion to dismiss is properly denied. Id. “Substantial
evidence is relevant evidence that a reasonable mind might accept as adequate to
support a conclusion.” State v. Turnage, 362 N.C. 491, 493 (2008) (citation omitted).
A fatal variance exists when there is a discrepancy between “either the
allegations and the offense or the allegations and the jury instruction.” Juran, 294
N.C. App. at 83. A fatal variance is both (1) material, and (2) prejudices the
defendant. Id. Material means the variance goes to an essential element of the crime
charged. Id. Prejudice may be shown by a defendant’s inability to prepare her
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defense via lack of notice or by showing the defendant is subject to double jeopardy.
Id. at 87. A defendant carries the burden to establish how she is prejudiced. Id.
The purpose of this rule in prohibiting a variance between the indictment and
evidence presented at trial is “(1) insur[e] the defendant is able to prepare his defense
against the crime with which he is charged, and (2) protect the defendant from
another prosecution for the same incident.” State v. Norman, 149 N.C. App. 588, 594
(2002) (citing State v. Coffey, 289 N.C. 431, 438 (1976); State v. McDowell, 1 N.C. App.
361, 365 (1968)). A variance requires a reversal when a defendant is prejudiced.
State v. Christopher, 307 N.C. 645, 649–50 (1983).
The first issue regarding the merits of Defendant’s fatal variance argument is
whether the difference between the indictment and jury instruction is material. We
believe it is. A grand jury indictment must “conform to the equivalent material
aspects of the jury charge[.]” State v. Williams, 318 N.C. 624, 631 (1986). “A variance
between the criminal offense charged and the offense established by the evidence is
in essence a failure of the State to establish the offense charged.” State v. Barnett,
368 N.C. 710, 713 (2016).
The essential elements of trafficking by transportation and trafficking by
possession require different essential elements. Trafficking by transportation
requires (1) knowingly transporting methamphetamine, and (2) in an amount greater
than 28 grams. See N.C.G.S. § 90-95(h)(3b). Transportation requires a “substantial
movement” of contraband. State v. Greenidge, 102 N.C. App. 447, 451 (1991).
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Substantial movement may be defined as “real carrying about or [movement] from
one place to another.” State v. Outlaw, 96 N.C. App. 192, 197 (1989) (quoting Cunard
S.S. Co. v. Mellon, 262 U.S. 100, 122 (1923)).
Alternatively, the essential elements of trafficking by possession require (1)
knowingly possessing methamphetamine, and (2) the amount possessed was greater
than 28 grams. See N.C.G.S. § 90-95(h)(3b). The “knowing possession” element may
be established by actual or constructive possession. State v. Reid, 151 N.C. App. 420,
428 (2002). Therefore, because transportation and possession are inherently
different, the difference is material. However, concluding the difference is material
is not the end of this inquiry. Next, we must determine whether this material
difference prejudices Defendant. Defendant asserts the difference failed to put him
on notice of the charges against him and subjects him to double jeopardy. We
disagree.
There is no fatal variance prejudice where a criminal defendant is indicted and
charged under the same “catch-all” provision. See State v. Davis, 223 N.C. App. 296,
299 (2012); see also State v. Williams, 242 N.C. App. 361, n.2 (2015). This Court in
Davis dealt with a fatal variance issue concerning a charge under N.C.G.S. § 90-
95(h)(4) (2011) providing “[a]ny person who sells, manufactures, delivers, transports,
or possess four grams or more of opium, opiate, or any salt, compound, derivative, or
preparation of opium or opiate . . . shall be guilty of ‘trafficking in opium or heroin.’ ”
223 N.C. App. at 298. There, defendant argued there was a fatal variance because
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the indictment alleged the defendant was trafficking in “opium,” and evidence at trial
indicated defendant was trafficking in an opium derivative. Id. This Court reasoned
because the plain language of the statute does not create distinct crimes of possession
or transportation of an opium derivative but rather permits possession or
transportation to constitute trafficking in opium or heroin, no fatal variance between
the indictment and evidence existed. Id.
Applying the plain language reasoning in Davis, N.C.G.S. § 90-95(h)(3b) does
not create distinct crimes of possession or transportation. Instead, either may qualify
as “trafficking in methamphetamine.” Defendant was indicted under N.C.G.S. § 90-
95(h)(3b) which mirrors the language of the statute in Davis: “[a]ny person who sells,
manufactures, delivers, transports, or possesses . . . shall be guilty of ‘trafficking in
methamphetamine.’ ” Defendant’s indictment was for the transport of
methamphetamine, but the jury instruction was for possession of methamphetamine.
Therefore, while the verbs charging Defendant under N.C.G.S. § 90-95(h)(3b) were
distinct, the resulting crime is not. Additionally, as explained below, there was
sufficient evidence to charge Defendant with either possession or transportation.
Thus, Defendant was on notice of the crime for which he was eventually charged and
cannot claim prejudice.
Additionally, Defendant does not indicate the evidence was insufficient to
charge Defendant with transportation or possession. Despite the material difference,
the evidence was sufficient to establish trafficking by transportation or possession.
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Possession of a controlled substance can be actual or constructive. State v.
Minor, 290 N.C. 68, 73 (1976). The constructive possession doctrine is typically used
in cases where contraband is found in a home or vehicle associated with a defendant.
State v. Chekanow, 370 N.C. 488, 491 (2018). Constructive possession of a controlled
substance requires a defendant to have “the intent and capability to maintain control
and dominion over’ it.” State v. Beaver, 317 N.C. 643, 648 (1986). “Intent” and
“capability” for constructive possession are analyzed under a totality of the
circumstances analysis. See Miller, 363 N.C. at 99; see also State v. James, 81 N.C.
App. 91, 93 (1986).
“[A]n inference of constructive possession can . . . arise from evidence which
tends to show that a defendant was the custodian of the vehicle where [contraband]
was found.” State v. Mitchell, 224 N.C. 171, 177 (2012) (citing State v. Best, 214 N.C.
App. 39, 47 (2011)). This rule applies to both a vehicle owner and simply a person
borrowing a vehicle. Id. This power to control the vehicle is enough to provide the
inference of “knowledge and possession to go to the jury.” Id.
Regarding the trafficking by possession charge, Defendant constructively
possessed the methamphetamine found in the car. Defendant was the sole occupant
of the Dodge Charger at the time of apprehension. Additionally, while it is not clear
whether Defendant owned the Dodge Charger, it is clear he was the only person
exercising control of the car at the time of apprehension. These factors indicate
Defendant was the sole custodian of the vehicle at the time of apprehension and
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maintained sole control over the vehicle. Therefore, Defendant constructively
possessed the methamphetamine found in the center console.
Likewise, the facts are sufficient for trafficking by transportation charge.
Defendant undoubtedly substantially moved the 28 grams of methamphetamine, as
he was observed driving the Dodge Charger back into the Motel parking lot where
the methamphetamine was soon found. Therefore, the difference in the essential
elements of “transport” versus “possession” is a distinction without a difference.
Thus, despite the material difference between the indictment and jury
instruction, there is no prejudice to Defendant for the resulting “trafficking in
methamphetamine” charge because the evidence was sufficient to support either.
B. Constructive Possession
Defendant contends the trial court incorrectly denied his motion to dismiss
because the evidence was insufficient to prove Defendant possessed 400 grams of
methamphetamine found in a black bookbag of Motel room 109. For the following
reasons, we disagree.
A motion to dismiss based on insufficient evidence is reviewed de novo. State
v. Crockett, 368 N.C. 717, 720 (2016). Motions to dismiss are reviewed in a light most
favorable to the State in determining whether “there is substantial evidence (1) of
each essential element of the offense charged . . . and (2) [the] defendant [is] the
perpetrator of the offense.” State v. Powell, 299 N.C. 95, 98 (1980). Competent and
incompetent evidence may be considered and any reasonable inferences drawn from
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such. State v. McKinney, 288 N.C. 113, 117 (1975). This evidence and inferences are
considered in a light most favorable to the State. Id.
As previously stated, the constructive possession doctrine is typically used in
cases where contraband is found in a home or vehicle associated with a defendant.
State v. Chekanow, 370 N.C. 488, 491 (2018). However, in a case where a defendant
lacks exclusive possession over the area where the contraband is found, other
incriminating circumstances must be shown by the State. State v. Davis, 325 N.C.
693, 697 (1989). Our State Supreme Court considers the following factors for a
constructive possession analysis:
(1) the defendant’s ownership and occupation of the property [ ]; (2) the defendant’s proximity to the contraband; (3) indicia of the defendant’s control over the place where the contraband is found; (4) the defendant’s suspicious behavior at or near the time of the contraband’s discovery; and (5) other evidence found in the defendant’s possession that links the defendant to the contraband.
Miller, 363 N.C. at 99–100; see Chekanow, 370 N.C. at 496. The proximity and indica
of control factors are frequently considered in this analysis. Miller, 363 N.C. at 100.
Defendant constructively possessed the 400 grams of methamphetamine found
in the black bookbag in room 109. Considering the foregoing factors, at the time of
apprehension, Defendant had parked approximately three parking spaces away from
room 109, Defendant possessed a key card to room 109 indicating a certain degree of
control over the room and its contents, and the pills found in the black bookbag in
room 109 were similar to pills found in the center console of the Dodge Charger
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Defendant was driving. Therefore, in the light most favorable to the State, Defendant
constructively possessed the 400 grams of methamphetamine found in Motel room
109.
C. Jury Instructions
Defendant next contends the trial court erred when it failed to instruct the jury
on the lesser included offense of trafficking in drugs pursuant to N.C.G.S. § 90-
95(h)(3b)(c). Defendant did not request this instruction at the trial court; therefore,
our standard of review is plain error. N.C. R. App. P. 10(a)(4).
The plain error rule is traditionally applied in the “exceptional case where,
after reviewing the entire record, the claimed error is [considered] a ‘fundamental
error, something so basic, so prejudicial, so lacking in its elements that justice cannot
have been done.’ ” State v. Odom, 307 N.C. 655, 660 (1983) (quoting United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (emphasis in original)); see State v.
Lawrence, 365 N.C. 506, 516 (2012). A defendant shows plain error when “the jury
probably would have reached a different result.” State v. Garcell, 363 N.C. 10, 35
(2009). A charge on a lesser included offense is required when evidence is equivocal
on the greater offense indicating the jury could (1) reasonably find the presence or
non-presence of this element, and (2) without this element only a conviction of the
lesser included offense makes sense. State v. Riera, 276 N.C. 361, 368 (1970).
Defendant contends a rational juror could have found him guilty of possessing
less than 400 grams of methamphetamine due to the “somewhat confusing” or
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equivocal testimony of Expert. Defendant contends Expert erred by (1) not testifying
to the crime laboratory’s uncertainty level, and (2) determining the net weight
without a scale. Defendant’s arguments are without merit.
There is nothing exceptional about Defendant’s case where the trial court
failed to provide unrequested instructions for a lesser included offense of trafficking
methamphetamine. As to the uncertainty level, Defendant concedes even if the crime
laboratory’s uncertainty level was applied, the net weight would exceed 400 grams.
Regarding the net weight, Defendant’s counsel did not cross-examine Expert
regarding the estimation at trial. Overall, it seems the only way the jury would have
probably reached a different result regarding this charge against Defendant is if the
jury suspended their belief regarding Expert’s testimony and concluded the pills
packaging weighed approximately 17 grams.1 Therefore, the trial court did not
commit plain error by failing to instruct on the lesser included offense.
D. Effective Assistance of Counsel
Defendant contends he was denied effective assistance of counsel because his
trial counsel failed to object to the trafficking by possession instruction and failed to
request the lesser included offense instruction. We disagree.
A de novo standard of review applies when reviewing an ineffective assistance
1 The lesser included offense is, N.C.G.S. § 90-95(h)(3b)(b), for possession of more than 200 grams but
less than 400 grams; subtracting seventeen grams would be below the 400 grams threshold for what Defendant claims is the greater offense.
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of counsel claim on direct appeal. State v. Martin, 64 N.C. App. 180, 181 (1983). A
defendant’s right to counsel includes the right to effective assistance of counsel.
McMann v. Richardson, 397 U.S. 759, 771 (1970). To prevail, a defendant must show
his counsel’s conduct was below an objective standard of reasonableness. State v.
Braswell, 312 N.C. 553, 561–62 (1985) (citing Strickland v. Washington, 466 U.S. 668,
688 (1984)). First, a defendant is required to show his counsel’s performance was
deficient, making serious errors that deny him his Sixth Amendment right to counsel.
Id. at 562, 687. Second, a defendant must show the counsel’s performance prejudiced
him to the extent of denying defendant a fair trial. Id.
To establish these elements, a defendant is required to show there is a
“reasonable probability that but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State v. Allen, 360 N.C. 297, 316 (2006)
(emphasis added). There is “a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance” and to overcome such, a
defendant must show the challenged action cannot be trial strategy. State v. Lane,
271 N.C. App. 307, 319 (2020) (quoting Strickland, 466 U.S. at 689)).
Establishing an ineffective assistance of counsel claim based on jury
instructions require “the defendant [to] prove that without the requested jury
instruction there was plain error in the charge.” State v. Pratt, 161 N.C. App. 161,
165 (2003); see e.g., State v. Lynn, 290 N.C. App. 532, 538 (2023) (holding defense
counsel’s failure to object to trial court’s instruction was not ineffective assistance of
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counsel); see also State v. Lane, 271 N.C. App. 307, 311 (2020).
Defendant fails to show trial counsel’s failure to object to the possession jury
instruction was deficient. Defendant is charged with trafficking methamphetamine
which may include either transportation or possession and there is sufficient evidence
to prove either. Trial counsel’s failure to object does not fall below an objective
standard of reasonableness. Likewise, as previously discussed, there is no plain error
regarding the failure of the trial court to instruct on the lesser included offense.
Therefore, Defendant’s ineffective assistance of counsel claim fails.
III. Conclusion
In sum, Defendant properly preserved the fatal variance argument for
appellate review. However, there is no fatal variance warranting reversal because
Defendant is not prejudiced. Defendant constructively possessed the 400 grams of
methamphetamine found in the black bookbag in the Motel room. The trial court did
not err in failing to instruct on the lesser included offense. Defendant fails to show a
basis for an ineffective assistance of counsel claim.
NO ERROR.
Judges ZACHARY and FREEMAN concur.
Report per Rule 30(e).
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