State v. Glover

376 N.C. 420

851 S.E.2d 865

STATE of North Carolina

v.Bruce Wayne GLOVER

No. 392A19

Supreme Court of North Carolina.

Filed December 18, 2020

Joshua H. Stein, Attorney General, by Joseph Finarelli, Special Deputy Attorney General, for the State-appellee.

Glenn Gerding, Appellate Defender, by Sterling Rozear, Assistant Appellate Defender, for defendant-appellant.

MORGAN, Justice.

The appeal in this drug possession case presents two questions for our consideration: First, whether the evidence adduced at defendant's trial was sufficient to support the trial court's instruction to the jury on the theory of acting in concert, and second, if the evidence presented was insufficient to support the instruction, whether the error was harmless. On the facts here, we conclude that the evidence did not support the trial court's instruction on acting in concert. Further, given the potential for confusion on the part of the jury between the theories of acting in concert and constructive possession as bases for the return of guilty verdicts on the possession of controlled substance charges against defendant, the erroneous instruction was not harmless. Accordingly, the trial court's judgment in this case must be vacated and the matter remanded to the trial court for a new trial.

Factual Background and Procedural History

The charges in this matter arose from controlled substances discovered on 29 September 2016 by officers with the Henderson County Sheriff's Office who were investigating complaints of drug activity at a home where defendant Bruce Wayne Glover lived with several people, including Autumn Stepp. Stepp was not at the group's residence when the officers arrived, having departed earlier in the day. Stepp, who regularly used controlled substances such as marijuana, heroin, and methamphetamine, kept materials that she collectively called her "hard time stash"—small amounts of heroin, cocaine, marijuana, methamphetamine, a few pills, and various items of drug paraphernalia—in a small yellow tin. Before her departure from the home on 29 September 2016, Stepp placed the yellow tin in the drawer of a dresser that was located in an alcove near defendant's bedroom, without telling defendant or any of her other housemates about this act.

When the officers knocked on the door of the home, defendant stepped outside to speak with them. During the discussion, a detective asked defendant whether defendant had any contraband in his bedroom. Defendant told the detective that defendant had used methamphetamine and prescription pills, admitting that the bedroom likely contained drug paraphernalia in the form of "needles and pipes." However, defendant stated that he did not think that officers would find any illegal substances in his personal space in the home. Defendant gave consent for the officers to search his bedroom as well as the alcove near defendant's bedroom which defendant stated that he considered to be part of his "personal space."

In defendant's bedroom, the detective found a white rectangular pill wrapped in aluminum foil inside a dresser drawer; scales, rolling papers, plastic bags, and glass pipes in a small black pouch; and a small bag containing marijuana in a small safe. Officers also discovered the small yellow tin in the drawer of the dresser in the alcove where Stepp had placed it without defendant's knowledge. Inside the tin, officers discovered three plastic bags with crystallized substances. Field tests on the contents of each bag "gave a positive indication for the presence of methamphetamine, cocaine[,] and heroin." At trial, a State Crime Laboratory analyst testified that the three bags collectively contained 0.18 grams of heroin, 2.65 grams of methamphetamine, and less than 0.1 gram of both methamphetamine and cocaine, respectively.

On 20 March 2017, the Henderson County grand jury indicted defendant on one count each of possession with the intent to sell and deliver methamphetamine, heroin, and cocaine, as well as one count of maintaining a dwelling house for the sale of controlled substances. On 24 July 2017, the grand jury indicted defendant for having attained the status of an habitual felon.

Defendant's case came on for trial at the 18 September 2017 criminal session of Superior Court, Henderson County. In her trial testimony, Stepp testified that the yellow tin containing heroin, methamphetamine, and cocaine was her personal "hard time stash" and that she had not informed defendant or anyone else that she had placed the tin in the dresser drawer before Stepp left the group's house on 29 September 2016. When asked during her testimony if she realized that she was admitting to her own possession of controlled substances, Stepp responded, "Yes. Yes." On cross-examination, Stepp admitted to having used drugs with defendant, but denied that defendant had sold her any controlled substances. When asked again during her testimony about ownership of the drugs discovered in the dresser, Stepp reiterated "if it was in the tin, it was mine."

At the close of the State's evidence, defendant moved to dismiss the charges against him for possessing the controlled substances with the intent to manufacture, sell, and deliver them, and for maintaining a dwelling for the purpose of selling and using controlled substances. The trial court dismissed all charges against defendant except for the charge of simple possession of heroin, methamphetamine, and cocaine. During the jury charge conference, the State requested a jury instruction on the theory of acting in concert in addition to the constructive possession instruction that the trial court had already decided to give to the jury. Defendant objected to the acting in concert instruction; and the trial court denied defendant's request to refrain from giving the instruction. At the end of the jury charge conference, defendant renewed his objection to the acting in concert instruction, which the trial court again overruled. The trial court thereafter gave instructions to the jury on both constructive possession and acting in concert as legal theories underlying the drug possession charges.

The jury began its deliberations at 3:47 p.m. on the day that the case was submitted to it. At 4:02 p.m. of the same day, the trial court brought the jury back in to the courtroom to address a note sent by the foreperson to the trial court, asking for a transcript of Stepp's testimony. The trial court denied the jury's request, and the jury resumed its deliberations. A short time later, the jury returned to the courtroom at 4:30 p.m. in order to render its verdict. The jury found defendant guilty of simple possession of methamphetamine, heroin, and cocaine. The jury subsequently determined that defendant had attained the status of an habitual felon. In its judgment, the trial court imposed two consecutive sentences of 50 to 72 months of imprisonment. Defendant gave notice of appeal in open court to the Court of Appeals.

In the Court of Appeals, defendant raised several issues including, inter alia , that the trial court erred in instructing the jury, over defendant's objection, that the jury could find defendant guilty of possession of the controlled substances at issue on the theory of acting in concert in addition to the theory of constructive possession.¹ The Court of Appeals panel divided on this issue: the majority rejected defendant's contention that the evidence produced at trial was insufficient to support an instruction on acting in concert, State v. Glover , 267 N.C. App. 315, 320, 833 S.E.2d 203, 207 (2019), while the dissenting judge concluded both that the evidence was insufficient to support the instruction and that the erroneous instruction was not harmless error, thus entitling defendant to a new trial. Id. at 329, 833 S.E.2d at 213 (Collins, J., dissenting).

The entire Court of Appeals panel agreed on the pertinent case law applicable to the resolution of defendant's argument regarding the acting in concert jury instruction. "[I]t is error for the trial judge to charge on matters which materially affect the issues when they are not supported by the evidence." State v. Jennings , 276 N.C. 157, 161, 171 S.E.2d 447, 449 (1970). The charge at issue here was possession of drugs, which requires proof that the defendant knowingly possessed a controlled substance. State v. Galaviz-Torres , 368 N.C. 44, 48, 772 S.E.2d 434, 437 (2015). In turn,

[w]here the state seeks to convict a defendant using the principle of concerted action, that this defendant did some act forming a part of the crime charged would be strong evidence that he was acting together with another who did other acts leading toward the crimes’ commission.... It is not ... necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.

State v. Joyner , 297 N.C. 349, 356–57, 255 S.E.2d 390, 395 (1979). Thus, in the case at bar, a jury instruction on possession of controlled substances under the theory of acting in concert was proper only if sufficient evidence was produced at defendant's trial showing that defendant acted together with Stepp pursuant to a common plan or purpose to possess the contraband found in the yellow tin. See id. at 356, 255 S.E.2d at 395.

In the view of the majority, in this case there

was sufficient evidence from which the jury could have ... determined that [d]efendant acted in concert to aid ... Stepp's constructive possession of the controlled substances found in the metal tin. Specifically, [d]efendant called ... Stepp, who testified that she placed the metal tin in the dresser in [d]efendant's personal space, that the drugs therein were hers , that she intended to come

...