State v. Clawson

894 S.E.2d 809

STATE of North Carolina

v.Desjaun Montre CLAWSON, Omar Sirree Jackson, and Damarcus Jeremale Wiggins

No. COA22-787

Court of Appeals of North Carolina.

Filed November 7, 2023

Appeal by Defendants from judgments entered 31 August 2021 by Judge Bradley B. Letts in Haywood County Superior Court. Heard in the Court of Appeals 3 October 2023. Haywood County, Nos. 18CRS053666, 19CRS000293-95, 19CRS000314, 19CRS000316, 18CRS053662, 19CRS000326-28

Attorney General Joshua H. Stein, by Special Deputy Attorney General Nicholas R. Sanders, for the State.

Grace, Tisdale & Clifton, P.A., Winston-Salem, by Michael A. Grace and Christopher R. Clifton, for Defendant Desjaun Montre Clawson; Anne Bleyman, for Defendant Omar Sirree Jackson; and Gammon, Howard & Zeszotarski, PLLC, Raleigh, by Joseph E. Zeszotarski, Jr., for Defendant Demarcus Jeremale Wiggins.

COLLINS, Judge.

Desjaun Montre Clawson, Damarcus Jeremale Wiggins, and Omar Sirree Jackson (collectively, "Defendants") appeal from the trial court’s judgments entered upon guilty verdicts of various drug-related offenses. Defendants argue that the trial court erred by allowing the State’s motion to join Defendants’ cases for trial. Wiggins argues that the trial court erred by admitting certain testimony at trial. Clawson and Wiggins each argue that the trial court erred by denying their motions to dismiss trafficking in opium or heroin and trafficking in cocaine charges. Finally, Defendants each argue that the trial court erred by denying their motions to dismiss conspiracy to traffic in opium or heroin and conspiracy to traffic in cocaine charges. We find no error.

I. Background

The evidence at trial tended to show the following: On 18 October 2018, Detective Matthew Rinehardt with the Haywood County Sheriff’s Department received an anonymous phone call alleging that there was drug activity at the Olive View Apartments. The apartment building was formerly a motel which had been converted into efficiency apartments. Rinehardt was familiar with the apartments because there had been numerous complaints concerning "narcotics, people with warrants, things like that."

Rinehardt relayed this information to, Detective Jordan Reagan, and Reagan went to the apartments and "put eyes on to start watching and seeing if there was any activity moving, any vehicles coming and going, or anything that we could act on." Reagan parked his unmarked patrol vehicle about one-tenth of a mile away from the apartments and used binoculars to observe the property. While conducting surveillance, Reagan observed a black Dodge Charger parked in front of the apartments. The Charger had a silver "swoop that follows the contour of the body." Reagan was familiar with the vehicle as it had been the subject of previous complaints and was being watched for "possibly being involved in narcotics[.]" Rinehardt had seen Wiggins operating the vehicle on multiple occasions.

Reagan also observed traffic in and out of the last two apartments, Rooms 14 and 15. Several vehicles would pull up, "[s]ometimes just one person would get out" and "[t]he driver would stay in the vehicle[,]" and "[t]he person would meet with people at the apartments, stay for a minute or go inside the apartment and leave[.]" On two occasions, Reagan witnessed "two black males come out of Apartment 14 and walk into 15, stay for a couple minutes, [and] come back out." One of the black males had a "tall, skinnier-type build with dreads, and the other black male was short and heavier set, short hair and had a bright pair of pants."

Reagan called officers from the criminal suppression unit for assistance. Several officers began conducting traffic stops of vehicles exiting the apartments based on information from Reagan, including "occupants of the vehicle, description of the vehicle, make, model, color, and the direction of travel." At some point, Reagan observed a female leave Room 14, get into the black Charger, and drive out of the parking lot. An officer conducted a traffic stop of the vehicle near the Dollar General, and Reagan arrived on the scene for backup. Upon searching the vehicle, the officer discovered a mirror with a white powdery residue and a needle.

Based upon the information gathered, search warrants were issued for Rooms 14 and 15, and separate teams of law enforcement conducted the searches simultaneously. Room 15 was unoccupied, but the bed was "askew as if someone had been in it[.]" Rinehardt requested a K-9 search of the room, and the K-9 alerted to the dresser. In the top drawer of the dresser, a Bojangles bag was found containing 58.4 grams of a gray chalky substance, 27.2 grams of a tan rock substance, 37.2 grams of a white powdery substance, and two digital scales, which "are used to take quantities of drug and break them down into a smaller quantity." The substances found in the Bojangles bag were chemically analyzed; the gray chalky substance was determined to be a heroin and fentanyl mixture, the tan rock substance was determined to be cocaine base, and the white powdery substance was determined to be cocaine hydrochloride.¹

Room 14 was occupied by Clawson, Jackson, Wiggins, and Craig Hambrick, and they were sitting in the living area smoking a joint. The officers detained the four men and patted them down for weapons. Rinehardt patted Wiggins down and found $2,175 in his front pants pocket. The cash was not consistently folded or in a single stack, but rather was "in a wad" and "kind of all jumbled up in his pocket." Another officer patted Clawson down and found a total of $5,330 on his person.

Plastic bags containing 3.3 grams of a gray chalky substance and .9 grams of a tan rock substance were found on the floor of Room 14. The substances were chemically analyzed; the gray chalky substance was determined to be a heroin and fentanyl mixture and the tan rock substance was determined to be cocaine base. A document appearing to be a rental application for the Olive View Apartments was found in the kitchenette area. Jackson’s name and driver’s license number appeared at the top of the document, and "a signature that appeared to be consistent with the name Omar Jackson" appeared at the bottom of the document. The rental application was dated 18 October 2018, the same day the search warrants were executed. A key to Room 15 was found next to the rental application.

The following items were also found in Room 14: multiple Bojangles bags, boxes, and cups throughout the room; a rolled-up dollar bill on the futon; a lighter and tin foil on the floor near the futon; a hide-a-can in the kitchenette area, which "has the actual identical weight, label, and look of a soda can, but if you twist the top, the top actually breaks off … [a]nd then there is a hollow portion on the inside where things can be hidden"; two razor blades with a white powdery residue in the kitchenette area; a large plastic bag containing smaller plastic bags in the kitchenette area; a Pyrex dish containing a butter knife, tongs, and "crystal substance and residue in the bottom" in the kitchenette area; a safe with the word "dope" written on it containing Narcan kits ² in the bedroom; and a black Coach bag containing Wiggins’ identification card in the bedroom.

Defendants were indicted for trafficking in opium or heroin, conspiracy to traffic in opium or heroin, trafficking in cocaine, and conspiracy to traffic in cocaine.³ The matter came on for trial on 23 August 2021. The State moved to join Defendants’ cases for trial, and the trial court allowed the State’s motion over Defendants’ objections?⁴ At the close of the State’s evidence, Defendants moved to dismiss the charges for insufficient evidence. The trial court denied the motions.

The jury returned guilty verdicts on all charges against Clawson; the trial court consolidated the convictions and sentenced him to 225 to 282 months of imprisonment. The jury returned guilty verdicts on all charges against Wiggins. The trial court consolidated Wiggins’ convictions for trafficking in opium or heroin and conspiracy to traffic in opium or heroin and sentenced him to 225 to 282 months of imprisonment; the trial court consolidated Wiggins’ convictions for trafficking in cocaine and conspiracy to traffic in cocaine into a separate judgment and sentenced him to a consecutive term of 35 to 51 months of imprisonment. The jury returned not guilty verdicts on the trafficking charges and guilty verdicts on the conspiracy charges against Jackson; the trial court consolidated the convictions and sentenced him to 225 to 282 months of imprisonment. Defendants appealed.

IL Discussion

A. State’s Motion for Joinder

Defendants first argue that the trial court erred by allowing the State’s motion to join Defendants’ cases for trial.

[1] Under N.C. Gen. Stat. § 15A-926(b)(2)(a), charges against two or more defendants may be joined for trial where "each of the defendants is charged with accountability for each offense[.]" N.C. Gen. Stat. § 15A-926(b)(2)(a) (2021). However, section 15A-927(c)(2)(a) requires the trial court to deny a motion for joinder "[i]f before trial … it is found necessary to promote a fair determination of the guilt or innocence of one or more defendants[.]" Id. § 15A-927(c)(2)(a) (2021). "Even though the defendants in a joint trial may offer antagonistic or conflicting defenses, that fact alone does not necessarily warrant severance. The test is whether the conflict in defendants’ respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial." State v. Lowery, 318 N.C. 54, 59, 347 S.E.2d 729, 734 (1986) (quotation marks and citations omitted).

[2] "Whether defendants should be tried jointly or separately pursuant to these provisions is a matter addressed to the sound discretion of the trial judge." State v. Rasor, 319 N.C. 577, 581, 356 S.E.2d 328, 331 (1987) (citation omitted). "Absent a showing that defendant has...