in the Court of Appeals 10 August 2017.
by defendant from judgment entered 19 February 2016 by Judge
R. Gregory Horne in Mecklenburg County Nos. 14 CRS 224971,
225816, and 43298 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Martin T. McCracken, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Hannah H. Love, for defendant-appellant.
Bernard Robinson (defendant) appeals from the judgments
entered upon his conviction of possession of cocaine with the
intent to sell or deliver and possession of a firearm by a
felon, and from his plea of guilty to having attained the
status of an habitual felon. On appeal, defendant argues that
the trial court erred by denying his motion to suppress
evidence, and committed plain error in its instructions to
the jury on actual and constructive possession. After careful
consideration of defendant's arguments, we conclude that
the court did not err by denying his suppression motion, and
that the court's instructions did not constitute plain
June 2014, Detective C.T. Davis of the Charlotte-Mecklenburg
Police Department applied for and was issued a search warrant
authorizing him to search a house located at 3627 Corbett
Street, in Charlotte, North Carolina. During the search, law
enforcement officers seized two firearms, marijuana, and
cocaine. Defendant was present during the search and made
inculpatory statements to a law enforcement officer,
admitting ownership of the firearms and the cocaine.
November 2014, defendant was indicted for possession of
cocaine with the intent to sell or deliver, possession of
marijuana, maintaining a dwelling for the purpose of keeping
or selling controlled substances, possession of a firearm by
a person previously convicted of a felony, and having
attained the status of an habitual felon. Prior to trial, the
State dismissed the charges of possession of marijuana and
maintaining a dwelling for the purpose of keeping or selling
controlled substances. On 6 November 2015, defendant filed a
motion asking the court to suppress the evidence that was
seized during the search of the Corbett Street residence and
the statements defendant made to law enforcement officers
during the search. Defendant alleged that the search warrant
was not based upon probable cause and that the statements he
made "were involuntary and made as the result of mental
or psychological pressure[.]" Defendant was tried before
the trial court and a jury beginning on 16 February 2016.
Prior to trial, the trial court conducted a hearing on
defendant's suppression motion, and orally denied
defendant's motion to suppress evidence. The court
entered a written order on 1 March 2016.
State's evidence at trial tended to show, in relevant
part, the following: Detective Todd Hepner of the
Charlotte-Mecklenburg Police Department testified that he and
several other officers executed the search warrant for the
Corbett Street residence. When Detective Hepner entered the
house, defendant was present, along with his wife, Armisher
Glenn, and the couple's two children. In the master
bedroom, Detective Hepner and another officer found a .44
caliber revolver, a shotgun, cocaine, and marijuana.
Detective Charlie Davis testified that on 26 June 2014 he
obtained and executed a search warrant for the house located
at 3627 Corbett Street, Charlotte. He described for the jury
the process of searching the house and the items that were
seized. After the contraband had been located and placed on
the bed, defendant was brought into the bedroom by another
officer and accurately identified the location within the
bedroom where each of the items had been stored. Andrew
Oprysko, a chemist for the Charlotte-Mecklenburg Police
Department, testified as an expert in forensic chemistry that
forensic testing had identified the material seized during
the search of the Corbett Street house as cocaine.
Sidney Lackey testified that while other officers were
searching the house, he interviewed defendant. During this
interview, defendant admitted that the cocaine, marijuana,
and firearms discovered by the law enforcement officers
belonged to him. The State accepted defendant's
stipulation to the fact of his prior conviction of a felony
for purposes of the charge of possession of a firearm by a
also presented evidence at trial. Armisher Glenn testified
that she was defendant's wife and that she had never
known defendant to be in possession of cocaine or to sell
drugs. Neither she nor defendant owned any firearms; however,
Ms. Glenn's brother had asked to store two guns at her
house and she assumed that these were the firearms seized by
the police. In June of 2014, defendant and Ms. Glenn were
separated due to marital difficulties; however, defendant
sometimes visited the family home. On one occasion, Ms.
Glenn's sister, Ms. Luba Hill, watched the children while
defendant and Ms. Glenn went out to supper. Upon their
return, defendant engaged in a conflict with his nephew, Ms.
Hill's son. Assault charges were filed against defendant
and his nephew, but were later dismissed. Ms. Hill remained
angry at defendant after this altercation and made false
reports about Ms. Glenn to the Department of Social Services.
Ms. Hill's daughter, Kiarra Hill, testified about Ms.
Hill's anger about the conflict between her son and
defendant, and about statements her mother made in which she
threatened to "get" an unnamed person. Candace
Glenn testified that Armisher Glenn and Luba Hill were her
daughters, and that Ms. Hill was very angry about the fight
between defendant and Ms. Hill's son. At one point Ms.
Hill was holding a "rock" of some substance and
threatened to "get" defendant.
testified on his own behalf at trial. He denied owning
firearms or cocaine or selling cocaine in 2014. Defendant
testified about the fight between him and his nephew and
about his belief that his arrest was the result of being
"set up" by Ms. Hill. He was not aware that there
were drugs or firearms in the house on 26 June 2014. Although
the contraband did not belong to him, defendant made
inculpatory statements to Detective Lackey in order to
prevent the police from arresting Ms. Glenn and placing his
children in the custody of DSS. On cross-examination,
defendant admitted to having prior criminal convictions,
including a 2009 conviction for identity theft.
the presentation of evidence, the arguments of counsel, and
the trial court's instructions, the jury returned
verdicts finding defendant guilty of possession of cocaine
with the intent to sell or distribute and with possession of
a firearm by a convicted felon. Defendant then entered a plea
of guilty to having the status of an habitual felon. The
trial court sentenced defendant to concurrent sentences of 83
to 112 months' imprisonment for possession of a firearm
by a felon, and 73 to 100 months' imprisonment for
possession of cocaine with the intent to sell or deliver.
Defendant gave notice of appeal in open court.
argues that the trial court erred by denying his motion to
suppress. "The standard of review in evaluating the
denial of a motion to suppress is whether competent evidence
supports the trial court's findings of fact and whether
the findings of fact support the conclusions of law."
State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d
874, 878 (2011) (citation omitted).
also argues that the trial court erred by instructing the
jury that it could find that he was in either actual or
constructive possession of the firearms and cocaine in the
house, on the grounds that there was no evidence to support a
finding of actual possession. As defendant did not object to
this instruction at trial, we review only for plain error.
Under this standard, the 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." State v. Lawrence,
365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).
of Suppression Motion
argues that the trial court erred by denying his motion to
suppress the evidence seized pursuant to the search of the
Corbett Street residence. Defendant's motion also sought to
suppress the statements defendant made to Detective Lackey at
the time of the search; however, defendant has not pursued
this argument on appeal and, accordingly, it is deemed to be
abandoned. See N.C. R. App. P. 28(a) ("Issues not
presented and discussed in a party's brief are deemed
abandoned."). The sole basis of defendant's
appellate argument that the trial court erred by denying his
suppression motion is his contention that, when Detective
Davis executed a sworn affidavit in support of his
application for a search warrant, he made "a knowingly
false statement that, if omitted, would render the search
warrant insufficient to establish probable cause."
However, at the trial level, defendant did not argue that the
statements which Detective Davis included in the affidavit
were made in bad faith or reckless disregard of the truth. As
a result, defendant has not preserved this issue for
appellate review. Moreover, even assuming, arguendo,
that this issue were preserved, defendant has failed to show
that the trial court erred by denying his motion to suppress.
The requirement that a search warrant be based on probable
cause is grounded in both constitutional and statutory
authority. U.S. Const. amend. IV; N.C. G.S. § 15A-244
[(2015)]. Probable cause for a search is present where facts
are stated which establish reasonable grounds to believe a
search of the premises will reveal the items sought and that
the items will aid in the apprehension or conviction of the
offender. It is elementary that the Fourth Amendment's
requirement of a factual showing sufficient to constitute
"probable cause" anticipates a truthful showing of
State v. Fernandez, 346 N.C. 1, 13, 484 S.E.2d 350,
358 (citing Franks v. Delaware, 438 U.S. 154,
164-65, 57 L.Ed.2d 667, ...