The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 25-405
Filed 3 December 2025
McDowell County, Nos. 22CR304386-580, 22CR304394-580, 23CR000067-580
STATE OF NORTH CAROLINA
v.
TIMOTHY ALLEN MITCHELL
Appeal by defendant from judgment entered 28 May 2024 by Judge Reggie E.
McKnight in McDowell County Superior Court. Heard in the Court of Appeals
15 October 2025.
Attorney General Jeff Jackson, by Special Deputy Attorney General Stuart M.
Saunders, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Mary
McCullers Reece, for defendant.
ARROWOOD, Judge.
Timothy Allen Mitchell (“defendant”) appeals from judgment entered after
trial by jury on five drug- and firearm-related convictions. Defendant contends that
the trial court erred by denying his motion to suppress statements he made to law
enforcement after his arrest because he had not first been informed of his
constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Defendant
also contends that the trial court erred by denying his motion to dismiss the charges
against him where the evidence was insufficient to submit the case to the jury.
STATE V. MITCHELL
Opinion of the Court
I. Background
A. The Events of 25 September 2022
Chet Saylor owns a 60-acre farm in Marion and lives in the property’s main
farmhouse, located at 2294 Mud Cut Road. Defendant lived as Mr. Saylor’s tenant in
a double wide trailer with his dog on the opposite side of the property, at 2290 Mud
Cut Road, accessible by a separate driveway. There is conflicting evidence as to the
extent of defendant’s work responsibilities on the property, which did not have an
active farming operation.
Mr. Saylor has a long criminal record, including larcenies and drug charges.
On 30 August 2022, he was arrested on a warrant in Burke County and remained in
custody until 25 September 2022. Mr. Saylor testified that he was on probation and
not keeping contraband in the house at the time of his arrest, though officers testified
that his home was under surveillance at the time for suspected drug activity.1 He
also testified that several people were staying on the property with his permission at
the time of his arrest. Nevertheless, he claimed to have learned from his family that
defendant moved into the farmhouse while he was in jail, and that he had become
concerned about ongoing criminal activity at the property in his absence, which would
affect his probation status.
On 25 September 2022, upon his release from jail, Mr. Saylor went directly to
1 All testimony discussed in this section was given in the State’s case-in-chief.
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the home of his friend Walter Taylor. He testified that he asked Mr. Taylor to carry
a message to the property, ordering the defendant to get everyone out of the house,
including himself. That evening, Mr. Taylor sent a group of four relatives to the
property, including two juveniles. When they arrived, a man drove to the gate at Mud
Cut Road and 16-year-old Amy Cowart exited the car to hand him the message. Ms.
Cowart testified that this man was not the defendant and was able to describe his
appearance. She and her aunt April Thomas both testified that when Ms. Cowart
asked him to deliver their note to defendant, the man pulled a gun on them and
chased them away from the property in his vehicle.
After they returned to Mr. Taylor’s home, Mr. Saylor called local police to
report the incident and, according to three officers’ testimony, gave them permission
to enter the farmhouse and remove its inhabitants. Deputy Alicia Lund and Deputy
Christopher Dvorak arrived at the property in separate patrol cars at about 8:45 p.m.
Officer Lund testified that she was familiar with the property, had been on the
premises before, and understood that its owner had consented to their entering the
property. Both officers testified that they knocked on the home’s sliding glass door,
where they saw defendant sitting in an armchair and two women, Hayley Johnson
and Candace Smith, sitting nearby. Both officers testified that he invited the officers
into the large living room, where they instantly saw copious drug paraphernalia in
plain view on surfaces throughout, describing empty cellophane baggies, aluminum
foil, burnt spoons, loaded and unloaded needles, and bottles of Narcan. Officer Lund
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testified that she was familiar with all three individuals and was aware that
defendant was a convicted felon. The officers collected the three individuals’
information to check for warrants.
At this time, the three inhabitants were still free to move around the living
room, and both officers testified that at one point, defendant got up from the chair to
get a drink, and Officer Dvorak testified that because of the report of the gun, they
were watching him carefully. Both officers testified that defendant denied knowing
anything about the earlier firearm incident and made two further statements: that
he had permission to be present in the house, and that he was supposed to keep people
out of the house. Officer Lund testified that the women said they were “just visiting.”
The officers received communication that defendant had an active warrant,
and they immediately told him to stand up from the armchair and handcuffed him,
hands in front. Both officers testified that they noticed for the first time a plastic bag,
which they believed to contain methamphetamine, in the seat of the armchair where
he had been sitting. Due to the officers’ relative inexperience and the amount of drug
paraphernalia, Officer Lund decided to call Lieutenant Kirk Hensley for back-up.
After the arrest, while waiting several minutes for Lt. Hensley to arrive on the scene,
neither officer gave defendant Miranda warnings.
Thereafter, Lt. Hensley arrived at the property and saw the two patrol cars
and defendant’s pick-up truck. He testified that the officers informed him that
defendant had said he had permission to be there, and that he immediately
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recognized all three individuals upon entering the living room. Lt. Hensley testified
that he then asked all three individuals, “Who lives here?” According to his
testimony, defendant responded that he lived there, that he had written permission
to stay in the house, and that the written permission was in the master bedroom. All
three officers testified that he then led Lt. Hensley into the master bedroom, where
he briefly looked for it but did not see it. Lt. Hensley testified that defendant said
that this was the bedroom where he stays, and that he uses the facilities in the
attached master bathroom. He testified that the room was “well lived in” and
extremely messy “like a Hoarders TV show,” strewn with male clothing, with an open
box of shotgun shells on the bed and a tablet screen turned on atop a corner shelf.
At this point, Lt. Hensley decided to freeze until he had written consent from
Mr. Saylor to fully search the house. Mr. Saylor arrived at the property, signed a
written consent form, and according to Lt. Hensley, expressed concern that he would
get in trouble for the “stuff” found in the house. With written permission secured, Lt.
Hensley testified that he returned to the bedroom and quickly found, under the bed,
a black bag containing two bundles of white powder substance, which he believed to
be fentanyl. In the adjoining bathroom, Lt. Hensley testified that they discovered a
shotgun partially hidden behind a bookcase. This was not the weapon used during
the earlier assault on Ms. Cowart. The officers seized the shotgun and the bags
containing suspected contraband. Neither Ms. Johnson nor Ms. Smith was arrested,
but Ms. Johnson was permitted to take defendant’s dog and the pick-up truck, which
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had been in defendant’s possession.
Although all officers testified that they saw no one else on the property, the
CAD report names two other individuals who were apparently present: Sandra
Labonte and Brian Russell. Mr. Saylor also confirmed on redirect that another
individual, T.J. Bowman, had been on the property at or around this time.
Lt. Hensley decided not to test the shotgun for fingerprints, both because he
had already formed the opinion that it was possessed by defendant, and because it
was not the gun used in the earlier incident. Officer Dvorak testified that the reason
he believed defendant possessed the shotgun and the items discovered in the bedroom
was because of defendant’s statements to Lt. Hensley. Defendant was charged with
possession of a firearm by a felon, trafficking opium or heroin, possession with intent
to sell and deliver a Schedule II controlled substance, maintaining a dwelling place
for controlled substance, and possession with intent to sell and deliver
methamphetamine.
B. Pretrial Hearing on Defendant’s Motions to Suppress
The case was heard at trial by jury before the Honorable Reggie E. McKnight
beginning 22 May 2024. Defendant filed motions to suppress his statements and
evidence obtained without a search warrant.
At the pretrial hearing, Lt. Hensley and Officers Lund and Dvorak testified as
witnesses for the State. All testified that they knew the residence belonged to Mr.
Saylor and understood that Mr. Saylor had given them verbal consent to enter the
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residence: Lund and Dvorak testified that defendant had invited them inside, where
they saw drug paraphernalia in plain view. Furthermore, the State introduced Mr.
Saylor’s written consent, which the officers obtained before the thorough search of
the residence was conducted. The court found that the officer seized the items
pursuant to valid consent, overruling defendant’s objection to the introduction of the
tangible evidence.
In support of the admission of the statements defendant made to Lt. Hensley,
the State conceded that defendant was in custody when Lt. Hensley asked, “Who lives
here?” but argued that the question did not constitute interrogation. According to the
State, Lt. Hensley “merely asked [defendant] to further explain the statement he had
voluntarily given” earlier: his assertion that he had permission to be in the house.
Therefore, Lt. Hensley did not “[intend] to elicit an inculpatory response.” For this
reasoning, the State relied upon State v. Porter, 303 N.C. 680 (1981), in which our
Supreme Court held: “An officer’s request in the heat of an emotional situation that
the accused explain or clarify a volunteered statement is not a procedure designed to
elicit an inculpatory response,” and therefore not an interrogation within the
meaning of Miranda. Id. at 692–93. The trial court agreed with the State and found
that defendant’s rights under state and federal law were not violated, overruling
defendant’s motion.
Defendant’s custodial statements were introduced at trial. Defendant moved
to dismiss for insufficient evidence at the close of the State’s evidence and again at
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the close of all evidence, which was denied by the trial court. Defendant was found
guilty on all counts, sentenced to a minimum term of 225 months, and fined
$500,000.00. Defendant entered notice of appeal in open court.
II. Discussion
On appeal, defendant first argues that the trial court erred when it overruled
his motion to suppress his post-arrest statements. Defendant also argues that the
trial court erred by denying his motions to dismiss the charges for insufficiency of the
evidence. For the following reasons, we conclude that the trial court erred when it
introduced defendant’s statements to Lt. Hensley. Furthermore, we conclude that
absent those statements’ introduction, the State’s evidence would have been
insufficient as to most of the charges, and the trial court would have been obligated
to grant defendant’s motion to dismiss them. However, because defendant’s counsel
failed to object to their introduction at trial, we are required to review for plain error,
a threshold defendant is unable to reach.
A. Defendant’s Motion to Suppress
In Miranda, the United States Supreme Court held that:
[T]he prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the
privilege against self-incrimination.... Prior to any
questioning, the person must be warned that he has a right
to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to
the presence of an attorney, either retained or appointed.
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Miranda v. Arizona, 384 U.S. 436, 444 (1966). In the present case, there is no dispute
that defendant was in custody and had not been apprised of his Miranda rights at
the time of his inculpatory statements. Thus, the dispositive issue is whether Lt.
Hensley’s question constituted interrogation. We conclude that it did, and therefore,
admission of defendant’s responsive statements was erroneous.
“The Supreme Court has defined the term ‘interrogation’ as follows: ‘Any words
or actions on the part of the police ... that the police should know are reasonably likely
to elicit an incriminating response from the suspect.’ ” State v. Brewington, 352 N.C.
489, 503 (2000) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). The State
is correct that Porter is relevant to our inquiry, insofar as it excludes from the
definition of interrogation “an officer's request in the heat of an emotional situation
that the accused explain or clarify a volunteered statement.” Porter, 303 N.C. at 686.
In that case, the defendant was in custody when a nearby officer contacted his
supervisor via radio to tell him that two suspects had been apprehended. Id. at 691.
The defendant had not yet been advised of his Miranda rights. Id. The supervisor
asked if the officer found a bank bag, and defendant, overhearing the question, said
the bag was “in the car.” Id. The nearby officer immediately responded, “What bank
bag?” and defendant replied, “The bag from the robbery.” Id. These statements were
introduced at trial, and on appeal, our Supreme Court found that the officer’s
question was a request to explain the preceding volunteered statement, and “an
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immediate response in an emotional situation, made before [he] had the opportunity
to form a design or motivation to elicit incriminating statements.” Id.
We have applied this reasoning in subsequent cases. In State v. Earwood, 155
N.C. App. 698 (2003), a defendant shot himself and sought out police, and responding
to initial questions by officers and again in an ambulance, the record showed that
defendant “spontaneously and voluntarily” told them he had killed his mother. Id. at
703. We cited Porter and held that “even if defendant had been in custody,” officers
had asked him to clarify volunteered spontaneous utterances, which did not
constitute interrogation. Id.
We later came to a different conclusion in an instructive unpublished case,
State v. Wright, 184 N.C. App. 380 (2007). In that case, while several officers arrested
defendant during a controlled purchase operation outside his home, one officer asked
the unwarned defendant whether “there [was] anything else in the residence that we
needed to know about.” Id. Defendant said there was “some stuff” still in the house
and said he would show them. Id. The defendant brought officers inside his bedroom,
and a second officer asked, “Where’s it at?” Id. Defendant “nodded with his forehead
to the closet door” and stated, “the last coat.” Id. The second officer asked, “[Is] that
it?” and defendant stated, “there [are] some scales in a gym bag.” Id. In both the coat
and the bag, the officers found contraband. Id. Defendant challenged the
introduction of the statements made inside the bedroom. Id. In our analysis, we
noted that the second officer’s questions were “at least several minutes after
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defendant was taken into custody outside the residence” and thus not “a request in
the heat of an emotional situation,” that the defendant’s questions were “a clear
response to the officer’s inquiries inside the residence…for the purpose of eliciting an
incriminating response in that they sought information…about the whereabouts of
additional contraband,” and that the defendant’s initial statements had been in
response to questioning and not “spontaneous volunteered statements like those in
Porter and Earwood.” Id. Thus, we determined that the trial court’s admission of the
statements constituted constitutional error. Id.
Though this case is not on all fours with the facts of Wright, both clearly
present a different set of factual circumstances from the interaction in Porter.
Analyzing the record, it is clear that Lt. Hensley’s question was neither a request to
clarify the earlier statements in the heat of an emotional situation, nor a question for
a purpose other than eliciting an incriminating response.
Here, before he was in custody and while still free to move around the home,
defendant volunteered to Officers Lund and Dvorak that he had permission to be in
the home. Several minutes later, Lt. Hensley arrived at the home, which he knew
belonged to Mr. Saylor. He then heard from the officers that defendant claimed
permission there and observed the vast supply of drug paraphernalia in plain view
throughout the home.
Importantly, several minutes had already passed because the officers had
“froze[n]” while waiting for Lt. Hensley. The officers’ own testimony shows they saw
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no overriding or urgent need for defendant to explain his volunteered statement once
he was in handcuffs, despite the unlocated gun. Furthermore, in the pretrial hearing,
the trial court received several arguments from the State justifying admission of the
challenged statements, including the public safety exception to Miranda due to the
officers’ concern about the firearm. The court quickly dismissed this argument,
reasoning that the women present were both under the influence and posed no threat,
defendant was already in custody, and “at least three law enforcement officers” were
present.
Crucially, Lt. Hensley must have known the question “Who lives here?” was
likely to invite an incriminating response. Consider the circumstances at that
moment. Lt. Hensley, knowing that Mr. Saylor was the home’s permanent resident,
entered the home and saw in plain view a plethora of syringes, Narcan bottles, and
empty baggies, which he described in great detail. Immediately, any experienced
officer would know that any person “living” in such a home at that moment, in its
owner’s absence, would likely be responsible for dangerous illegal drug activity,
irrespective of whether he had the owner’s “permission” to be there. Nevertheless,
he addressed all present, including a suspect he could see was already in custody, to
ask who was living there. Any affirmative disclosure in response to this question
would be seriously incriminating.
Furthermore, “Who lives here?” is not a logically apt or permissible follow-up
question that would have effectively clarified defendant’s volunteered statement.
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Porter is highly instructive here. “What bag?” is an inherently and obviously
clarifying simple question, immediately responsive to Porter’s volunteered statement,
“The bag is in the car.” In the present context, clarifying questions to defendant’s
volunteered statement may have been, for example, “Who gave you permission?” or
“When did you get permission?” or “Permission to be inside the house?” or even
“Written permission or verbal permission?” By comparison, asking “Who lives here?”
was a non-sequitur, unrelated to defendant’s statement, and unhelpful to understand
it. The inherent responsiveness and direct continuity of “What bag?” is nowhere to
be found in these facts. Indeed, determining whether a person lives in a house is a
wholly different inquiry from determining whether a person has permission to be
there.
Lastly, and crucially, Lt. Hensley was not even on the scene when the
defendant made volunteered statements, which places the case at bar at a significant
removal from the circumstances of Porter and Earwood, where officers made “an
immediate response in an emotional situation . . . before [they] had the opportunity
to form a design or motivation to elicit incriminating statements.” Porter, 303 N.C.
at 691 (emphasis added).
In sum, we cannot agree with the trial court that the question was intended to
clarify defendant’s prior volunteered statement, because no competent facts in the
record adequately support this conclusion. Therefore, Lt. Hensley’s question arose
pursuant to custodial interrogation, and the erroneous introduction of defendant’s
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responses was a clear violation of his fundamental constitutional protection against
self-incrimination.
B. For Some Charges, the State’s Evidence Would Have Been
Insufficient Without Defendant’s Coerced Statements
Before moving on to consider whether defendant has met the standard for plain
error, it is worthwhile considering whether the State could have properly proceeded
with its prosecution without this erroneous admission. Here, not all the charges
against defendant would have been affected by their exclusion. However, careful
review of the full record, as well as the State’s appellate brief, reveals that this
prosecution would have fallen short of its burden of proof on several of its charges
had the trial court properly excluded these statements.
Defendant’s counsel preserved the issue of sufficiency of the evidence by
making and renewing a motion to dismiss that the trail court denied. State v. Golder,
374 N.C. 238, 246 (2020). In evaluating the issue de novo, the reviewing court
examines the evidence in the light most favorable to the State, giving the State all
reasonable inferences. State v. Fritsch, 351 N.C. 373 (2000). We ask whether
substantial evidence supported every element of the offense and that defendant
committed the offense. State v. Jones, 110 N.C. App. 169, 177 (1993), disc. review
denied, 336 N.C. 612 (1994). Evidence is substantial if reasonable mind might accept
it as adequate to form a conclusion. State v. Smith, 300 N.C. 71, 78–79 (1980). “If,
however, when the evidence is so considered, it is sufficient only to raise a suspicion
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or conjecture as to either the commission of the offense or the identity of the defendant
as the perpetrator, the motion to dismiss must be allowed. This is true even when
the suspicion aroused by the evidence is strong.” State v. Malloy, 309 N.C. 176, 179
(1983) (citations omitted).
The charges against defendant fell into two categories: first, the possession of
various contraband, and second, keeping or maintaining a dwelling for sale of illegal
drugs. Because the possession charges here required application of the same rules,
we will briefly consider them here first. It is uncontested that defendant lacked
actual physical possession of any of the contraband in this case, so the State was
required to prove defendant’s constructive possession. State v. Chekanow, 370 N.C.
488, 492 (2018) (citation omitted). This occurs where a person lacking actual physical
possession nevertheless has, considering the totality of the circumstances, “the intent
and capability to maintain control” over the contraband. State v. Givens, 95 N.C.
App. 72, 76 (1989) (quotes omitted). However, where possession of the premises is
nonexclusive, as here, other incriminating circumstances are required. State v.
Brown, 310 N.C. 563, 569 (1984) (citation omitted). Therefore, the court must
consider the following factors: (1) defendant’s ownership and occupation of the
property, (2) defendant’s proximity to the contraband, (3) indicia of defendant’s
control over the place where the contraband is found, (4) defendant’s suspicious
behavior at or near the time of its discovery, and (5) other evidence found in his
possession linking him to the contraband. Id. at 496 (citations omitted). The most
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frequently considered factors are his proximity to and the indicia of control over the
place where the contraband is found. State v. Miller, 363 N.C. 96, 100 (2009).
With or without the incriminating statements, the State presented sufficient
evidence that defendant constructively possessed the bag of methamphetamine found
in the chair. Officer Lund and Dvorak both testified that defendant was seated in an
armchair when they arrived, that no other person sat in that chair between their
arrival and the arrest, and that they discovered that defendant had been sitting on
the bag when he stood up to be handcuffed. Although defendant argues that there
was no evidence as to defendant’s awareness of the bag or whether it was on the chair
before he entered the home, the officers’ testimony was fully sufficient to show
defendant’s proximity and control over it, as compared to other parties who had
access to the property. Further, because the officers discovered the bag before the
defendant made unwarned statements, the trial court’s error would have had no
effect on the State’s evidence on this charge.
For the fentanyl discovered in the bedroom and the firearm in the bathroom,
the same result does not follow. On appeal, the State points to only three pieces of
evidence from its case-in-chief showing defendant’s constructive possession of these
exhibits: (1) defendant’s statement to Lt. Hensley that he lived in the farmhouse and
had written permission to be there; (2) his familiarity with the bedroom when he
accompanied Lt. Hensley there to look for the permission; and (3) the presence of
men’s clothes, which Mr. Saylor testified belonged to defendant. Absent the trial
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court’s error, the first two would have been properly excluded. Further, on cross, Mr.
Saylor admitted that the clothes in the bedroom included articles defendant had given
to him before his jail time. The State’s case-in-chief also included testimony from
four different witnesses that defendant was not the only male present at and having
access to the property on the evening in question. Lastly, the jury heard from both
Officer Dvorak and Lt. Hensley that the inadmissible statements established the
basis for their belief that he possessed both the fentanyl and the firearm.
Thus, the constitutionally admissible evidence establishes the following: that
defendant was in the home, claimed he had permission to be present, and was sitting
on a bag of methamphetamine at the time of his arrest; that there was male clothing
in the bedroom where the other contraband was discovered, the ownership of which
was in controversy; that the home was strewn with a large amount of drug
paraphernalia; that two other individuals who appeared under the influence of drugs
were present in the home when officers arrived; and that at least two other males
(Mr. Bowman and Mr. Russell) were on the property on the evening in question.
Viewed in the light most favorable to the State and affording it all reasonable
inferences, this evidence is indeed sufficient to raise a reasonable “suspicion or
conjecture” that defendant constructively possessed the contraband. Malloy, 309
N.C. at 179. However, without admission of his statements to Lt. Hensley that he
stayed in the master bedroom, used its bathroom, and kept his written permission
there, the State would have fallen impermissibly short of its burden to prove the
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“identity of the defendant as the perpetrator,” as opposed to the other males present
that evening. Id.
As to the State’s burden to prove defendant maintained a dwelling to sell
controlled substances, the same conclusion follows. The question whether a person
keeps or maintains a dwelling is a multi-factor analysis, considering: ownership of
the property, occupancy of the property, repairs to the property, payment of taxes,
payment of utility expenses, payment of repair expenses, and payment of rent. State
v. Bowens, 140 N.C. App. 217, 221–23 (2000). Mere occupancy of a property is
insufficient, but “evidence of residency, standing alone, is sufficient to support the
element of maintaining.” State v. Moore, 188 N.C. App. 416, 424 (2008). In Moore,
defendant “used, treated, and perceived the dwelling as his residence and not merely
as a place he occupied . . . from time to time.” Id. at 424. By comparison, in Bowens,
there was no evidence that the defendant owned or leased the dwelling or had any
responsibility for its upkeep or utility payments; testimony that he was present in
the dwelling on multiple occasions, as well as testimony that an officer believed he
lived there, did not support the conclusion that he kept or maintained it. Bowens,
140 N.C. App. at 221–22.
Here, the State introduced no evidence that defendant owned, leased, or made
any payments for upkeep or services at the farmhouse. Its owner, Mr. Saylor,
testified in the State’s case-in-chief that defendant leased the doublewide trailer
across the property and had some responsibilities for the upkeep of the surrounding
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area. But other than the clothing, the only evidence which, viewed in the light most
favorable to the State and giving it all reasonable inferences, tended to show that
defendant treated the house as his present residency, rather than somewhere he had
permission to go, was contained in defendant’s inculpatory inadmissible statements.
Indeed, these are the only pieces of evidence on which the State relies on appeal.
Accordingly, absent the inadmissible statements, the State’s evidence would
have again fallen short of the minimum standard required to survive defendant’s
motion to dismiss. Therefore, the trial court would have been obligated to grant
defendant’s motion to dismiss as to all charges other than possession of
methamphetamine.
C. Plain Error
However, because defendant’s counsel failed to object at trial when his
statements were admitted, this is not the end of our analysis. Because of counsel’s
failure to object, we are limited to reviewing the erroneous admission of defendant’s
statements for plain error. N.C. R. App. P. 10(a)(4). Here, defendant must first show
that a fundamental and “grave” error occurred at trial, amounting to “a denial of a
fundamental right of the accused.” State v. Odom, 307 N.C. 655, 660 (1983) (citation
omitted). Defendant then must show both that the error “had a probable impact on
the outcome, meaning that absent the error, the jury probably would have returned
a different verdict” and that the “error is an exceptional case,” requiring a showing
that it “seriously affects the fairness, integrity, or public reputation of judicial
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proceedings.” State v. Reber, 386 N.C. 153, 158 (2024) (citations and quotation marks
omitted).
As to the probable impact of the error, this Court’s review requires defendant
to meet an extremely high bar. “The test examines the state of all the evidence except
for the challenged evidence and asks whether, in light of that remaining evidence,
the jury probably would have done something different.” Id. at 162. “In ordinary
English usage, an event will “probably” occur if it is “almost certainly” the expected
outcome; it is treated as synonymous with words such as “presumably” and
“doubtless.” ” Id. at 158. “A close case is not enough to prevail on the prejudice prong
of plain error.” Id at 162. Circumstantial evidence may be sufficient to support a
conviction even when “the evidence does not rule out every hypothesis of innocence.”
State v. Maddux, 371 N.C. 558, 566 (2018) (quotes omitted).
As already discussed, because the State did not rely on defendant’s erroneously
introduced statements to prove that defendant constructively possessed the
methamphetamine, defendant cannot meet his burden to show that the jury would
have returned a different result on that charge. However, the State’s other
evidentiary burdens present closer cases, and defendant must show, not that the
State’s constitutionally admissible evidence was insufficient, but that we can be
certain that absent the error the jury would have “almost certainly” and “doubtless”
returned a different result. Reber, 386 N.C. at 158. Despite the circumstantial nature
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of all the State’s remaining evidence, defendant does not meet this near-
insurmountable burden.
Our earlier finding that the remaining evidence would have been insufficient
to survive a motion to dismiss is relevant here, but it only leads us to the conclusion
that the jury very plausibly, or even very likely, would have reached a different
verdict. Again, the State’s admissible evidence was “sufficient only to raise a
suspicion or conjecture as to . . . the identity of the defendant as the perpetrator.”
Malloy, 309 N.C. at 179. But even this conclusion is below the plain error threshold.
The remaining evidence provided a framework, however shaky, within which a
reasonable jury could have spun the coarse web of conjecture necessary to convict
defendant, relying in part on its observation of his credibility. Our conclusion is
bolstered by the fact of the owner’s testimony, that it was defendant and not he who
was responsible for the presence of the contraband, and the lack of any evidence that
police had seen suspicious evidence of drug use and dealing behavior while surveilling
the house before the owner was taken into custody. Therefore, despite the State’s
insufficient and circumstantial evidence, defendant falls short of the plain error
standard by a hair’s breadth.
The other two prongs of this analysis are easily addressed. A defendant’s right
against compelled self-incrimination is enshrined in both the United States
Constitution and the Constitution of the State and is therefore integral to criminal
due process. Violation of this fundamental right affects the fairness, integrity, or
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STATE V. MITCHELL
Opinion of the Court
public reputation of judicial proceedings, because “it is the state judiciary that has
the responsibility to protect the state constitutional rights of the citizens; this
obligation to protect the fundamental rights of individuals is as old as the State.”
Corum v. Univ. of N.C., 330 N.C. 761, 783 (1992) (citing King v. South Jersey Nat.
Bank, 66 N.J. 161 (1974)).
Nevertheless, because defendant’s attorney did not object to the erroneous and
unconstitutional introduction of these statements at trial, defendant is bound by the
plain error standard on appeal, which he cannot meet.
D. Defendant’s Motion to Dismiss
Following the above conclusions on the evidence and defendant’s motion to
suppress, we return to defendant’s motion to dismiss.
We review a trial court’s denial of a motion to dismiss for insufficient evidence
de novo. State v. Smith, 186 N.C. App. 57, 62 (2007). Denial of a motion to dismiss
in a criminal trial is proper if there is substantial evidence of the essential elements
of the offense and that the defendant was the perpetrator. Fritsch, 351 N.C. at 378.
“In making its determination, the trial court must consider all evidence admitted,
whether competent or incompetent, in the light most favorable to the State, giving
the State the benefit of every reasonable inference and resolving any contradictions
in its favor.” State v. Teague, 286 N.C. App. 160, 181–82 (2022) (citation omitted),
writ denied, review denied, 891 S.E.2d 281 (N.C. 2023).
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STATE V. MITCHELL
Opinion of the Court
Viewing all the evidence in the light most favorable to the State, we find the
State presented sufficient evidence to withstand defendant’s motion to dismiss on
each of the charges.
III. Conclusion
For the foregoing reasons, we find no error with respect to defendant’s
conviction for possession of methamphetamine and no plain error with respect to the
remaining charges.
NO ERROR; NO PLAIN ERROR.
Judges TYSON and ZACHARY concur.
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