State v. Polk

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.

NO. COA13-849

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Rowan County

Nos. 11 CRS 51259

RODERICK TYRONE POLK, 11 CRS 51260

Defendant. 11 CRS 51261

11 CRS 55416

Appeal by defendant from judgments entered 13 December 2012

by Judge Anna Mills Wagoner in Rowan County Superior Court.

Heard in the Court of Appeals 8 January 2014.

Attorney General Roy Cooper, by Special Deputy Attorney

General Patrick S. Wooten, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate

Defender Mary Cook, for defendant-appellant.

GEER, Judge.

Defendant Roderick Tyrone Polk appeals from his convictions

of trafficking in opium, two counts of felony maintaining a

dwelling to keep or sell controlled substances, and two counts

of felony possession of cocaine. On appeal, defendant primarily

challenges the trial court's reinstruction of the jury with

respect to the two counts of maintaining a dwelling to keep or

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sell controlled substances. We hold that defendant has failed

to show any risk of a non-unanimous verdict given the initial

instructions and the verdict sheet and has failed to establish

any other error in the reinstruction.

Facts

On 24 February 2011, Detective Jamie Beach of the

Kannapolis Police Department executed a search warrant for

defendant's house in Kannapolis, North Carolina. Detective

Beach applied for the warrant based on three controlled buys of

crack cocaine that took place at defendant's house. The front

door of the one-story house opened into a living room. In back

of the living room was a kitchen, while to the left was the

front bedroom. To the left of the kitchen was the back bedroom,

and to the right, there was an "8 by 10" room furnished with

only a stool and a chair. The house's single bathroom was

connected to the back bedroom. The front bedroom belonged to

defendant, and the back bedroom belonged to Ronald Church and

Mr. Church's wife or girlfriend.

Defendant's girlfriend, Tiffany Spry, answered the door

when the police arrived to search the premises. Mr. Church and

his wife or girlfriend were in the back bedroom, while defendant

was undressed in the bathroom, claiming he had just showered.

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Detective Beach allowed defendant to dress, and then the

officers searched the house.

In defendant's room, the officers located defendant's

wallet, which contained $822.00 in cash, consisting of one

$100.00 bill, 29 $20.00 bills, seven $10.00 bills, 10 $5.00

bills, and 22 $1.00 bills. One of the $20.00 bills found in

defendant's wallet was a bill that Detective Beach had used in

one of the previous controlled buys of crack cocaine that took

place at defendant's house. There was also a Duke Power bill in

defendant's name in the bedroom.

Defendant's room contained a linen cabinet, and on top of

it, the officers found a soap dish with a red straw beside it --

both the dish and the straw contained a white powder residue.

There was also white powder on top of the cabinet itself. In

the middle of a stack of sheets on a shelf in the cabinet, the

officers found a plastic bag containing nine hydrocodone pills.

Also in the cabinet, the officers found an empty hydrocodone

pill bottle for Ms. Spry, but the dosage for the pills

prescribed was different than the dosage of those found in the

plastic bag.

Finally, the officers located 42 rounds of 9 millimeter

ammunition on top of a dresser in defendant's room, and 43

rounds of "45 automatic" ammunition in the bottom drawer of the

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same dresser. The two types of ammunition were in boxes that

each held 50 rounds, meaning that roughly "a clip full" of

ammunition was missing from each box.

In the kitchen, on a counter, the officers found a butter

dish containing a razor blade, with white powder residue on both

the dish and the razor. Residue from the razor blade tested

positive for cocaine. In the "8 by 10" room next to the

kitchen, the officers found an ash tray and chunks of brillo

commonly used to smoke crack cocaine. In the back bedroom, the

officers found a pill container with white residue that tested

positive for crack cocaine; two glass pipes and chunks of brillo

used for smoking crack cocaine; and marijuana paraphernalia.

On 21 July 2011, Detective Beach executed a second search

warrant for defendant's house. On this occasion, defendant and

Ms. Spry were the only people in the house. Prior to the

search, Detective Beach saw a black male's arm hanging out of

the house's bathroom window dropping on the ground a plastic

container that held a plastic bag containing over a gram of

crack cocaine. Defendant admitted the container "belong[ed] to

him," but claimed "[h]e was holding it for a friend." During

this search, officers also found, under the mattress in

defendant's bedroom, a single hydrocodone pill identical to the

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nine hydrocodone pills they found in defendant's bedroom during

the prior search.

On 5 July 2011, defendant was indicted for felony

possession of cocaine, felony maintaining a place to keep

controlled substances, trafficking in opium, and possession of

drug paraphernalia, all based on the 24 February 2011 search.

On 28 November 2011, defendant was further indicted for felony

possession of cocaine and felony maintaining a place to keep and

sell controlled substances, with both offenses based on the 21

July 2011 search.

At trial, Ms. Spry testified to the following for the

defense. Ms. Spry stayed at defendant's house, in defendant's

bedroom, five to six nights a week. Ms. Spry claimed that all

of the hydrocodone pills found in defendant's bedroom belonged

to her and that she had a valid prescription for the pills to

treat back pain. In addition, Ms. Spry testified she owned the

soap dish and straw found in defendant's room and used those

objects to crush and snort her prescription hydrocodone.

On 24 February 2011, Ms. Spry put the bag containing her

nine hydrocodone pills in the stack of sheets for safekeeping.

On 21 July 2011, Ms. Spry stuck a single hydrocodone pill under

defendant's mattress because she was getting ready to take it

and was "startled" by a knock at the door. According to Ms.

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Spry, defendant had no knowledge that she had hydrocodone in his

house on either date. Ms. Spry never witnessed anyone use or

buy drugs at defendant's house. In addition to Ms. Spry's

testimony, defendant also presented evidence of a hydrocodone

pill bottle in Ms. Spry's name for the dosage of the pills found

in his bedroom.

The State dismissed the charge for possession of drug

paraphernalia. The jury found defendant guilty of the remaining

charges. The trial court sentenced defendant to 70 to 84 months

imprisonment for trafficking in opium. The court consolidated

the remaining charges into a single judgment and sentenced

defendant to a consecutive, presumptive-range term of six to

eight months imprisonment, but suspended the sentence and placed

defendant on supervised probation for 24 months beginning upon

defendant's release from imprisonment on the trafficking

conviction. Defendant timely appealed to this Court.

I

Defendant first argues that the State failed to present

substantial evidence of defendant's charges for possession of

cocaine on 24 February 2011 and trafficking in opium. However,

defendant failed to move to dismiss any of his charges at trial.

Rule 10(a)(3) of the Rules of Appellate Procedure provides that

"a defendant may not make insufficiency of the evidence to prove

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the crime charged the basis of an issue presented on appeal

unless a motion to dismiss the action, or for judgment as in

case of nonsuit, is made at trial."

Recognizing his failure to preserve these issues for

appeal, defendant asks this Court to suspend the preservation

requirements of Rule 10 pursuant to Rule 2 of the Rules of

Appellate Procedure in order to reach the merits of his

arguments. Although Rule 2 allows for suspension of the Rules

of Appellate Procedure in order to "prevent manifest injustice

to a party, or to expedite decision in the public interest," we

find neither circumstance present here. We, therefore, decline

defendant's request to invoke Rule 2 and do not address

defendant's arguments. See Dogwood Dev. & Mgmt. Co. v. White

Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008)

(observing Rule 2 "must be invoked 'cautiously'" and reaffirming

"prior cases as to the 'exceptional circumstances' which allow

the appellate courts to take this 'extraordinary step'" (quoting

State v. Hart, 361 N.C. 309, 315, 317, 644 S.E.2d 201, 205, 206

(2007))).

II

Defendant next argues that the trial court erred in

instructing the jury on the issue of constructive possession

with respect to the charge of possession of cocaine on 24

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February 2011. Defendant concedes he failed to preserve this

issue for appeal and, therefore, seeks plain error review. Our

Supreme Court has explained that

[f]or error to constitute plain error, a

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.

Moreover, because plain error is to be

applied cautiously and only in the

exceptional case, the error will often be

one that seriously affect[s] the fairness,

integrity or public reputation of judicial

proceedings[.]

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal citations and quotation marks omitted).

The State contends that defendant invited any error with

respect to this issue and, as such, cannot now claim he was

prejudiced by the instruction. See N.C. Gen. Stat. § 15A-

1443(c) (2013) ("A defendant is not prejudiced by the granting

of relief which he has sought or by error resulting from his own

conduct."). The State points to an exchange between the court

and the attorneys that occurred during the State's case-in-

chief. The transcript, however, makes plain that this was

merely a preliminary discussion of possible instructions

generally. We have found no indication in the transcript that

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defense counsel ever specifically consented to the constructive

possession instruction.

Jury instructions must be "'based upon a state of facts

presented by some reasonable view of the evidence.'" State v.

Sweat, 366 N.C. 79, 89, 727 S.E.2d 691, 698 (2012) (quoting

State v. Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 699

(1973)). This Court reviews arguments that jury instructions

were not supported by the evidence de novo. State v. Osorio,

196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).

"Under the theory of constructive possession, a person may

be charged with possession of an item such as narcotics when he

has both the power and intent to control its disposition or use,

even though he does not have actual possession." State v.

Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (internal

citation and quotation marks omitted). "'Where such materials

are found on the premises under the control of an accused, this

fact, in and of itself, gives rise to an inference of knowledge

and possession which may be sufficient to carry the case to the

jury on a charge of unlawful possession.'" Id. (quoting State

v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)).

"However, unless the person has exclusive possession of the

place where the narcotics are found, the State must show other

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incriminating circumstances before constructive possession may

be inferred." Id.

Here, the State contended that defendant constructively

possessed the cocaine residue on the razor blade found in the

butter dish that was sitting on the kitchen counter. Defendant

argues that the evidence showed he was not in exclusive

possession of the razor blade in the kitchen since Detective

Beach testified that Mr. Church and his wife or girlfriend also

lived in the house. Defendant further contends the State failed

to show other incriminating circumstances allowing the inference

that he constructively possessed the razor blade. We disagree.

The State's evidence showed that Detective Beach first

"came into contact with [defendant] as a result of some

information [he] received" and that, as a result of that

information, the detective conducted three controlled buys of

crack cocaine from defendant's house prior to 24 February 2011.

As a result of those controlled buys, defendant was the subject

of the search warrant executed on 24 February. On 24 February,

one of the $20.00 bills in defendant's wallet was a bill that

had previously been used by Detective Beach to conduct a

controlled buy of cocaine at defendant's house. This evidence

created a reasonable inference that defendant sold cocaine to

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the informant during at least one of the three controlled buys

conducted in his house prior to 24 February.

Also on 24 February, defendant's wallet contained $822.00

in cash, consisting of one $100.00 bill, 29 $20.00 bills, seven

$10.00 bills, 10 $5.00 bills, and 22 $1.00 bills. Detective

Beach testified that this large amount of cash in various

denominations was indicative of drug sales, and that lower level

crack cocaine purchases are generally for $20.00 or $40.00 worth

of cocaine. The amount and denomination of cash in defendant's

wallet, therefore, also constituted an incriminating

circumstance. See State v. Brown, 310 N.C. 563, 569-70, 313

S.E.2d 585, 589 (1984) (holding State presented substantial

evidence that defendant constructively possessed cocaine in

apartment based, in part, on evidence that defendant had large

amount of cash in his pockets). Although no guns were found,

the officers did find two boxes of ammunition in defendant's

room, with each box missing several rounds, and Detective Beach

testified that "individuals known to sell and keep drugs carry

firearms."

When searching defendant's room on 24 February, the

officers located a soap dish and a "little cut piece of red

straw," with white powder residue on both objects and on the

surface where they were located. Detective Beach testified that

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the straw was "common with people snorting either cocaine or

crushing pills and snorting them."1 The presence of this item

used to ingest cocaine, and the powder residue on the straw and

surrounding surfaces, out in the open in defendant's bedroom on

24 February provided an additional incriminating circumstance

that defendant constructively possessed the cocaine in the

kitchen. See State v. Chisholm, ___ N.C. App. ___, ___, 737

S.E.2d 818, 822 (holding State presented substantial evidence of

constructive possession, in part, because "defendant was

sleeping in the bed in the bedroom where drugs were found, . . .

[and] plastic baggies, drug paraphernalia, and an electronic

scale containing white residue were also in the bedroom"), disc.

review denied, 366 N.C. 591, 743 S.E.2d 222 (2013); State v.

Peek, 89 N.C. App. 123, 126, 365 S.E.2d 320, 323 (1988) (holding

1

Defendant argues that Detective Beach's testimony

identifying the residue in the soap dish and on the straw as

cocaine was erroneously admitted since the State did not present

evidence of chemical analysis showing the residue was cocaine

and not hydrocodone, as defendant's evidence showed. See State

v. Meadows, 201 N.C. App. 707, 712-13, 687 S.E.2d 305, 309

(2010) (holding trial court erroneously admitted officer's

testimony that substance was cocaine based solely on his visual

observation since controlled substances defined in terms of

chemical composition can only be identified through use of a

chemical analysis rather than through use of lay testimony based

on visual inspection). While defendant is correct, the

detective's separate testimony that the straw was an object

commonly used to ingest cocaine, along with the powder residue

on the straw, soap dish, and surrounding surface, nonetheless

provided an incriminating circumstance with respect to

defendant's constructive possession of the cocaine in the

kitchen.

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State presented substantial evidence of constructive possession

based, in part, on evidence that "contraband was found in four

different rooms, some of it in plain view and some of it

hidden").

On 21 July 2011, defendant admitted possessing a container

holding over a gram of crack cocaine. Moreover, on both 24

February and 21 July, officers found hydrocodone hidden in

defendant's bedroom. The presence of another controlled

substance in defendant's bedroom on both occasions also

constituted an incriminating circumstance in this case. See

State v. James, 81 N.C. App. 91, 92, 95, 344 S.E.2d 77, 79, 81

(1986) (holding State presented substantial evidence of

defendant's constructive possession of heroin underneath front

porch floorboard of his sister's house where he occasionally

stayed based, in part, on evidence of defendant's possession of

cocaine found in kitchen of same house).

Defendant nonetheless cites State v. McLaurin, 320 N.C.

143, 357 S.E.2d 636 (1987), as supporting his contention that

the trial court erred in instructing on constructive possession.

However, in McLaurin there was no evidence of incriminating

circumstances personally linking the defendant, as opposed to

other occupants of the premises searched, to the contraband.

Id. at 144, 357 S.E.2d at 637 (holding State failed to present

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substantial evidence of constructive possession when evidence

showed defendant, her apparent husband, and children all lived

in house; paraphernalia was found throughout house, including in

pocket of man's overcoat and in "drawer full of children's

clothing in a bedroom apparently occupied by children"; and

officers saw defendant's apparent husband and another man

entering and leaving on day of search but did not see defendant

doing so).

Defendant also points to this Court's determination in

James that evidence was insufficient that a co-defendant

constructively possessed the cocaine at issue. With respect to

the co-defendant in James, however, the evidence showed that he

did not live in the house; no evidence showed he had been at the

house more than two times; no circumstances linked him to the

cocaine at issue other than evidence that he was "'sneaking

around'" the room where cocaine was located with a gun in his

hand; and "[a]ll the evidence suggest[ed] that [he] was looking

for a place to hide the gun." 81 N.C. App. at 96, 344 S.E.2d at

81.

Since, here, defendant lived in the house, and the State's

evidence linked him personally to possession of the cocaine

found in the kitchen, McLaurin and James are distinguishable.

We hold that the evidence in this case permitted, at the very

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least, a reasonable inference that on 24 February, defendant

constructively possessed the cocaine residue on the razor blade

on his kitchen counter. See State v. Alston, 193 N.C. App. 712,

716-17, 668 S.E.2d 383, 387 (2008) (holding State presented

substantial evidence of constructive possession when even though

defendant did not reside in house being searched, defendant

"regularly visited and sold drugs from" house; defendant was

present in room containing drugs prior to officers entering

house for search; defendant sold cocaine to another person in

house earlier in evening; other drug dealer, who lived in house,

kept only small amount of cocaine on his person and kept his

cocaine buried in yard; and defendant's gun was found in room

containing drugs), aff'd per curiam, 363 N.C. 367, 677 S.E.2d

455 (2009). The trial court, therefore, properly instructed the

jury on constructive possession with respect to the charge of

possession of cocaine on 24 February.

III

Defendant's third argument is that the trial court erred in

reinstructing the jury on the two charges for felony maintaining

a dwelling to keep or sell controlled substances. Defendant

contends the reinstruction led to fatally ambiguous verdicts for

those charges and, therefore, violated his right to a unanimous

jury verdict under Article I, Section 24 of the North Carolina

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Constitution and N.C. Gen. Stat. § 15A-1237(b) (2013). This

issue is properly before the Court despite defendant's failure

to object below. See State v. Johnson, 183 N.C. App. 576, 582,

646 S.E.2d 123, 127 (2007) (explaining, in context of

disjunctive instruction argument, that when alleged "'error

violates [a] defendant's right to a trial by a jury of twelve,

[a] defendant's failure to object is not fatal to his right to

raise the question on appeal'" (quoting State v. Ashe, 314 N.C.

28, 39, 331 S.E.2d 652, 659 (1985))).

Defendant was charged with two counts of maintaining a

dwelling to keep or sell a controlled substance in violation of

N.C. Gen. Stat. § 90-108(a)(7) (2013). The trial court

initially charged the jury as to each of the two counts of

maintaining a dwelling separately. With respect to the 24

February offense, the court instructed in relevant part: "The

defendant has been charged with intentionally maintaining a

building which was used for the purpose of unlawfully keeping or

selling controlled substances on February 24th, 2011. For you

to find the defendant guilty of this offense, the state must

prove two things beyond a reasonable doubt. First, that the

defendant kept a building which was used for the purpose of

unlawfully keeping or selling cocaine or hydrocodone."

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With respect to the 21 July offense, the court instructed:

"The defendant has been charged with intentionally maintaining a

building used for the purpose of unlawfully keeping or selling

controlled substances on July 21, 2011. For you to find the

defendant guilty of this offense, the state must prove two

things beyond a reasonable doubt. First, that the defendant

kept a building which was used for the purpose of unlawfully

keeping or selling cocaine, a controlled -- cocaine, period."

The two instructions were, therefore, identical in relevant part

except that the 24 February instruction referenced both cocaine

and hydrocodone, while the 21 July instruction referenced only

cocaine. Defendant does not challenge the initial instructions

for the maintaining a dwelling charges.

The trial court also initially charged the jury with the

lesser-included offense of misdemeanor maintaining a dwelling,

which differs from the felony offense in that the felony

requires that the defendant "intentionally" maintained the

dwelling used for the unlawful purpose, and the misdemeanor

requires only proof that the defendant "knowingly" maintained

the dwelling used for the unlawful purpose. See N.C. Gen. Stat.

§ 90-108(a)(7), (b). During deliberations, the jury asked a

question about intent versus knowledge with respect to the

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felony maintaining a dwelling charges and the lesser-included

offenses.

In its response to the jury, the trial court gave a single,

reinstruction that applied to both offense dates. The court

explained to the jury:

The defendant has been charged with

intentionally keeping a building used for

the purpose of unlawfully keeping or selling

controlled substances on February 24th,

2011, and also on July 21st, 2011. Two

separate charges. For you to find the

defendant guilty of this offense, the state

must prove two things beyond a reasonable

doubt. First, that the defendant kept a

building which was used for the purpose of

unlawfully keeping or selling hydrocodone or

cocaine. Hydrocodone and cocaine are both

controlled substances, the keeping or

selling of which is unlawful.

. . . .

If you find from the evidence beyond a

reasonable doubt that on or [sic] February

24th, 2011, and/or July 21st, 2011, that the

defendant intentionally kept a building used

for the unlawful keeping or selling of

controlled substances, then it would be your

duty to return a verdict of guilty of this

offense.

(Emphasis added.)

Defendant argues that, based on the disjunctive

reinstruction, the verdicts for the two maintaining a dwelling

charges are fatally ambiguous since "jurors could have used

different acts of keeping or selling cocaine, hydrocodone or

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both on both, one or neither date of the charged offenses . . .

." Our Supreme Court has held that "a disjunctive instruction,

which allows the jury to find a defendant guilty if he commits

either of two underlying acts, either of which is in itself a

separate offense, is fatally ambiguous because it is impossible

to determine whether the jury unanimously found that the

defendant committed one particular offense." State v. Lyons,

330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991). However, "if

the trial court merely instructs the jury disjunctively as to

various alternative acts which will establish an element of the

offense, the requirement of unanimity is satisfied." Id. at

303, 412 S.E.2d at 312.

"[T]he submission of instructions in the disjunctive will

not always render a resulting verdict fatally ambiguous. In

some cases, '[a]n examination of the verdict, the charge, the

initial instructions by the trial judge to the jury . . ., and

the evidence may remove any ambiguity created by the charge.'"

Id. at 307, 412 S.E.2d at 315 (first alteration added) (quoting

State v. Diaz, 317 N.C. 545, 554, 346 S.E.2d 488, 494 (1986)

abrogated in part on other grounds by State v. Hartness, 326

N.C. 561, 391 S.E.2d 177 (1990)).

In this case, the trial court's reinstruction, when read in

isolation, arguably indicates that the jury could find defendant

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guilty of a single count of maintaining a dwelling based on

either of the two separate offense dates. However, the court

initially separately instructed the jury for each of the two

offenses and, in the reinstruction, the court reiterated that

the two offense dates were for "[t]wo separate charges." In

addition, there were two separate verdict sheets, one for each

of the two maintaining a dwelling charges. On those sheets, the

jury found defendant guilty of (1) "Felonious Maintain Building

To Keep Illegal Controlled Substances on February 24th, 2011[,]"

and (2) "Felonious Maintain Building To Keep Illegal Controlled

Substances on July 21st 2011." Under these circumstances, there

was no ambiguity in the jury's verdicts -- the jury unanimously

found defendant guilty of one count of maintaining a dwelling

for each of the two separate offense dates.

Although defendant also argues that the court erred in

disjunctively reinstructing the jury that in order to find

defendant guilty of the offenses, it must find that he kept a

building that was used for the purpose of either "keeping" or

"selling" controlled substances, defendant does not challenge on

appeal the trial court's initial instructions on these charges

that employed the same "keeping or selling" language. Given

defendant's failure to challenge the initial instructions, the

jury would have heard the "keeping or selling" phrasing in the

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unchallenged initial instructions even if the court had not

given the challenged reinstruction. Defendant cannot,

therefore, show prejudice in the reinstruction on this point.

Cf. State v. Watkins, 77 N.C. App. 325, 331, 335 S.E.2d 232, 236

(1985) (holding admission of challenged testimony did not

prejudice defendant since same testimony had already been

admitted without objection).

Defendant similarly challenges that the trial court's

reinstruction for both offenses that, in order to convict

defendant, the jury was required to find that he kept the

building for the purpose of unlawfully keeping or selling either

"hydrocodone or cocaine." While, with respect to the 24

February charge, the initial instruction was identical to the

reinstruction and, therefore, cannot have been prejudicial, the

reinstruction as to the 21 July charge differed from the initial

instruction. The initial instruction, in accordance with the

indictment for that charge, referred only to cocaine, while the

reinstruction referred to both hydrocodone and cocaine.2

Thus, under Lyons, defendant's argument presents the issue

whether maintaining a dwelling used for the purpose of

2

We note that defendant does not argue that there is a

variance between the indictment for the 21 July charge and the

reinstruction, and he does not argue that the reinstruction is

unsupported by the evidence. He solely argues that it is

impossible to tell whether the jury unanimously reached its

verdicts for the two maintaining a dwelling charges.

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unlawfully keeping or selling "cocaine" and maintaining a

dwelling used for the purpose of unlawfully keeping or selling

"hydrocodone" are two acts giving rise to separate offenses, or

are merely two "various alternative acts which will establish an

element of the offense" of maintaining a dwelling in violation

of N.C. Gen. Stat. § 90-108(a)(7). Lyons, 330 N.C. at 303, 412

S.E.2d at 312.

N.C. Gen. Stat. § 90-108(a)(7) provides: "It shall be

unlawful for any person . . . [t]o knowingly keep or maintain

any . . . dwelling . . . which is resorted to by persons using

controlled substances in violation of this Article for the

purpose of using such substances, or which is used for the

keeping or selling of the same in violation of this Article[.]"

Based on this statutory language, our Supreme Court has held

that "[t]here are thus two theories under which the State may

prosecute a defendant under N.C.G.S. § 90-108(a)(7). Under the

first statutory alternative the State must prove that the

defendant did (1) knowingly (2) keep or maintain (3) a

[dwelling] (4) which is resorted to (5) by persons unlawfully

using controlled substances (6) for the purpose of using

controlled substances. Under the second statutory alternative,

the State must prove that the defendant did (1) knowingly (2)

keep or maintain (3) a [dwelling] (4) which is used for the

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keeping or selling (5) of controlled substances." State v.

Mitchell, 336 N.C. 22, 31, 442 S.E.2d 24, 29 (1994) (emphasis

added). The State proceeded under the second statutory

alternative in this case.

Thus, the statutory language of N.C. Gen. Stat. § 90-

108(a)(7) does not require proof of any one particular

controlled substance versus another, and our Supreme Court in

Mitchell, 336 N.C. at 31, 442 S.E.2d at 29, referred generally

to "controlled substances" in describing the elements of a

violation of N.C. Gen. Stat. § 90-108(a)(7). The level of

punishment for the offense is not determined by the identity of

the controlled substance, and we see no indication that the

identity of the controlled substance otherwise impacts the

nature of the offense.

In State v. Brady, 147 N.C. App. 755, 759, 557 S.E.2d 148,

151 (2001) (quoting N.C. Gen. Stat. § 90-108(a)(10) (1999)),

this Court considered a statute that provided "it shall be

unlawful for any person '[t]o acquire or obtain possession of a

controlled substance by misrepresentation, fraud, forgery,

deception, or subterfuge[.]'" In holding that the trial court

did not err in allowing the State to amend the indictment to

change the name of the controlled substance from "'Xanax,'" a

Schedule IV controlled substance, to "'Percocet,'" a Schedule II

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controlled substance, id. at 759, 557 S.E.2d at 151, this Court

first noted that a "'non-essential variance is not fatal to the

charged offense,' and any 'averment unnecessary to charge the

offense . . . may be disregarded as inconsequential

surplusage.'" Id. at 758, 557 S.E.2d at 151 (quoting State v.

Grady, 136 N.C. App. 394, 396-97, 524 S.E.2d 75, 77 (2000)).

The Court then held that the amendment did not substantially

alter the indictment since (1) "[t]he name of the controlled

substance was not necessary to charge Defendant with a crime

under section 90-108(a)(10), as the charge remained the same

whether the controlled substance was a Schedule II or a Schedule

IV drug[,]" and (2) the defendant "was neither misled nor

surprised by the subsequent change in the Indictment as the

State was required to prove the same elements." Id. at 759, 557

S.E.2d at 151.

We believe the reasoning in Brady applies with equal force

in this context. Because the identity of the controlled

substance was not essential to the charged offense, we hold that

the trial court's disjunctive reinstruction that the jury could

find defendant guilty, with respect to the 21 July charge, if it

found he kept a building that was used for the purpose of

unlawfully keeping or selling either "hydrocodone or cocaine"

did not violate defendant's right to a unanimous jury verdict.

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Rather, the evidence of two possible controlled substances that

might fulfill the element that the building was used to keep or

sell "controlled substances" presented the jury with "various

alternative acts which will establish an element of the

offense." Lyons, 330 N.C. at 303, 412 S.E.2d at 312. Cf.

Mitchell, 336 N.C. at 34, 442 S.E.2d at 30 (analyzing

sufficiency of the evidence argument for charge of maintaining

vehicle to keep or sell marijuana and explaining that "focus of

the inquiry is on the use, not the contents, of the vehicle").

Consequently, we conclude defendant has failed to show

prejudicial error with respect to the disjunctive reinstruction.

No error.

Judges BRYANT and CALABRIA concur.

Report per Rule 30(e).