State v. McNeil

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 23-977

Filed 4 June 2024

Randolph County, No. 19 CRS 55233

STATE OF NORTH CAROLINA

v.

TERRENCE MERRILL MCNEIL

Appeal by Defendant from judgment entered 23 February 2023 by Judge

James P. Hill, Jr. in Randolph County Criminal Superior Court. Heard in the Court

of Appeals 9 April 2024 in session at Elon University School of Law in the City of

Greensboro pursuant to N.C. Gen. Stat. § 7A-19(a).

Attorney General Joshua H. Stein, by Assistant Attorney General Nicholas

Sorensen, for the State.

Richard J. Costanza, for the Defendant.

WOOD, Judge.

Terrence Merrill McNeil appeals from a conviction finding him guilty of

trafficking methamphetamine by possession, with a mandatory minimum sentence

of 225 to 282 months of imprisonment and a $250,000.00 fine. For the reasons stated

below, we affirm the trial court’s judgment.

I. Factual and Procedural Background

On 9 October 2019, Detective Mendez, employed by the Asheboro Police

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Opinion of the Court

Department and assigned to the vice narcotics unit, was contacted by the Department

of Homeland Security concerning a package. The package had been intercepted in

Tennessee where it tested positive for liquid methamphetamine. It originated from

Mexico with a final delivery to “Guadalupe Zamora”1 at 338 Rich Avenue, Asheboro,

North Carolina. Upon receiving this information, Detective Mendez and other

officers developed a plan to execute a controlled delivery of the package to the named

address.

Detective Conner, an officer from the same unit as Detective Mendez, was

assigned to complete the delivery on 11 October 2019. Other units and agencies were

tasked with additional surveillance of the delivery. On that day, Detective Conner

posed as a Fed-Ex employee and wore a device that was equipped with audio, video,

and GPS capabilities. At approximately 11:00 a.m., Detective Conner delivered the

package to a man he did not recognize, later identified as Cornelius Armstrong.

Detective Conner informed Detective Mendez that after the package was accepted

and taken inside, he left the house.

Shortly thereafter, Detective Mendez and other officers proceeded to the house

to execute the search warrant. Upon entering the house, the officers observed the

package on the floor near the front door and several people throughout the home,

including Bruce Isley, Melissa Cassidy, her bedridden husband, Glenwood Cassidy,

1 No individual named “Guadalupe Zamora” was found during the investigation. Detective

Mendez testified the name was likely fake.

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and two nurses. While Lieutenant Hill spoke with Mrs. Cassidy about the package

and the intended recipient, she received a phone call from “Terrence” (hereinafter

“Defendant”). Suspicious of the call, Lieutenant Hill told Mrs. Cassidy to call

Defendant and question him about the package. During the call Mrs. Cassidy

informed Defendant that his package had arrived. Defendant asked if it was from

Fed-Ex; when she responded that it was, he told Mrs. Cassidy he was coming to the

house to get the package. When asked about the name on the package, Defendant

said it was the name of the person who sent the package. At trial, Mrs. Cassidy

testified that she knew Defendant because he dated her niece and frequently spent

time at her home. Additionally, she testified that while speaking with Defendant on

10 October 2019, he had asked her if he could have a hoodie delivered to the house

for his son.

Defendant arrived at the home, opened the front door, and was immediately

arrested and taken to the police station. The seized package was sent to the State

Crime Lab, which confirmed the positive results from the initial test and identified

approximately 2,814 grams of methamphetamine. Subsequently, on 11 October 2019

and 12 October 2019, two more packages arrived at the same house and were

addressed to “McNeil.” Both packages were sent from California and contained bags

of marijuana.

Before trial, Defendant plead guilty to two counts of conspiracy to sell and

deliver marijuana for the two packages delivered after the 11 October package

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containing methamphetamine. The respective guilty plea transcript was admitted

into evidence. Following the close of the State’s evidence, Defendant moved to dismiss

the charges of trafficking methamphetamine by transportation and trafficking

methamphetamine by possession for insufficient evidence. The trial court granted

the motion to dismiss the charge of trafficking by transportation but denied the

charge of trafficking by possession, thereby allowing it to reach the jury.

At the charge conference, both parties agreed to the proposed jury instructions,

which included instructions on trafficking in methamphetamine by possession and

the doctrines of actual and constructive possession of a controlled substance. The

instructions were submitted to the jury without objection. Ultimately, the jury

returned a verdict finding Defendant guilty of trafficking methamphetamine by

possession. The trial court sentenced Defendant to the mandatory minimum

sentence of 225 to 282 months in prison and imposed a $250,000.00 fine. Defendant,

through counsel, gave oral notice of appeal.

II. Discussion

Defendant presents two issues on appeal. He argues (1) the trial court erred

in denying his motion to dismiss the charge of trafficking in methamphetamine by

possession, and (2) the jury should have received an instruction on the lesser-included

offense of attempted trafficking in methamphetamine by possession. We address

each argument in turn.

A. Motion to Dismiss

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Defendant first argues the trial court erred when it denied Defendant’s motion

to dismiss the charge of trafficking in methamphetamine by possession because the

State failed to present evidence that Defendant possessed or exercised dominion over

the 11 October 2019 package. On appeal, the trial court’s denial of a motion to dismiss

for insufficient evidence is reviewed de novo. State v. Bagley, 183 N.C. App. 514, 523,

644 S.E.2d 615, 621 (2007). “Under a de novo review, the court considers the matter

anew and freely substitutes its own judgment for that of the lower tribunal.” State v.

Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citations omitted). This

Court is tasked with determining whether “there is substantial evidence (1) of each

essential element of the offense charged, or of a lesser offense included therein, and

(2) of defendant’s being the perpetrator of such offense.” State v. Scott, 356 N.C. 591,

595, 573 S.E.2d 866, 868 (2002) (citation omitted). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” State v. Watkins, 247 N.C. App. 391, 394, 785 S.E.2d 175, 177 (2016)

(citation omitted). “Evidence must be viewed in the light most favorable to the State

with every reasonable inference drawn in the State’s favor.” Id.

Defendant was convicted for trafficking in methamphetamine under N.C. Gen.

Stat. § 90-95(h)(3b), which applies to “any person who sells, manufactures, delivers,

transports, or possesses 28 grams or more of methamphetamine.” The State

concedes, and the trial court recognized that Defendant never touched the package.

Thus, the question turns to whether Defendant had constructive, rather than actual

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possession of the package.

Constructive possession occurs when a defendant has “the intent and

capability to maintain control and dominion over [the contraband].” State v. Miller,

363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (citation omitted). “As the terms ‘intent’

and ‘capability’ suggest, constructive possession depends on the totality of the

circumstances in each case. No single factor controls, but ordinarily the question will

be for the jury.” State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986) (citations

omitted). Constructive possession is a fact-specific analysis and often turns on a

“defendant’s proximity to the contraband” and “indicia of the defendant’s control over

the place where the contraband is found.” Miller, 363 N.C. at 99-100, 678 S.E.2d at

594-595. If a defendant lacks exclusive possession over the location where the

contraband is found, the State “must show other incriminating circumstances before

constructive possession may be inferred.” State v. Matias, 354 N.C. 549, 552, 556

S.E.2d 269, 271 (2001) (citations omitted).

Here, the package was flagged in Tennessee and thereafter maintained by law

enforcement officers until delivery to the Cassidys’ home. Following delivery, the

package was placed on the floor inside the home. Defendant was arrested

immediately after he entered the home to retrieve the package but did not physically

touch the package. Defendant does not dispute his intent to control the package;

instead, he argues, “it was a practical impossibility . . . to exercise dominion and

control over the package.”

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Defendant analogizes the facts of this case to State v. Clark, 137 N.C. App. 90,

527 S.E.2d 319 (2000), to support his contention of impossibility. In Clark, the police

intercepted a package containing marijuana, removed a substantial amount of the

marijuana from the package, and conducted a controlled delivery. Id. at 93, 527

S.E.2d at 321. This Court found that because the amount removed by police rendered

the delivered quantity insufficient to support a conviction for trafficking, “the actions

of the police made it impossible for [the defendant] to actually possess the quantity

of marijuana required,” and there was insufficient evidence that the defendant “ever

had the capability to exercise dominion and control over the original package.” Id. at

93, 95, 527 S.E.2d at 321-322. Similarly, Defendant argues that he did not have the

power or capability to control the package or its contents because he was immediately

arrested after walking through the door. The power to control the package is

measured by possession of the contraband, not when it is shipped by a carrier.

The State argues Clark is distinguishable from the present case as the holding

in Clark focused on the quantity element of the trafficking charge. The State

contends there was sufficient incriminating evidence to show that Defendant had the

requisite capability to exercise control over the package. The State acknowledges

Defendant did not have exclusive control over the house but argues that Defendant

exercised control by directing multiple shipments to the house, his ability to quickly

drive over and pick-up the packages, and his proximity to the methamphetamine in

the package.

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Similarly, as in Clark, it is appropriate to assess the individual’s power to

control the contraband, not upon shipment, but upon controlled delivery of the

package. However, unlike Clark, our focus is not upon the quantity of

methamphetamine in the package, as that is not in dispute. As noted above, the

relevant analysis focuses on Defendant’s proximity to the package and evidence of

Defendant’s control over the place where the contraband was found, which was the

Cassidys’ home. Miller, 363 N.C. at 100, 678 S.E.2d at 595. Further, we must consider

the surrounding incriminating circumstances, including evidence which places the

defendant “within such close juxtaposition to the narcotic drugs as to justify the jury

in concluding that the same was in his possession.” State v. Brown, 310 N.C. 563, 569,

313 S.E.2d 585, 589 (1984) (citations omitted).

In the present case, we acknowledge Defendant did not have exclusive

possession of the place where the package was found. Defendant frequently visited

the Cassidys’ home, but it was not his permanent residence. However, since

“possession of the property where the drugs are located, either exclusive or

nonexclusive, is not . . . the sole method of showing constructive possession[,]” we

must examine whether Defendant was within close juxtaposition to the contraband,

along with other incriminating evidence. State v. Bowens, 140 N.C. App. 217, 223,

535 S.E.2d 870, 874 (2000) (citations omitted).

The only evidence of Defendant’s proximity to the package of

methamphetamine was the distance between him and the package after he walked

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through the front door. However, the State offered evidence of several incriminating

circumstances. Defendant called Mrs. Cassidy the day prior to the controlled delivery

asking if he could have a package delivered to her home. On the day of delivery,

during his phone conversation with Mrs. Cassidy, Defendant asked if his package

was from Fed-Ex. When asked about “Guadalupe Zamora,” Defendant stated that it

was the person who sent him the package, which confirmed Defendant was inquiring

about that specific package; Defendant immediately came to the house to retrieve the

package upon delivery confirmation; Defendant had three packages, all containing

contraband, delivered to the Cassidy residence.

Based on these facts, we are unpersuaded by Defendant’s contention that he

did not have the opportunity to exercise control over the package because he was

arrested prior to making physical contact with the package. Defendant was within

close juxtaposition to the seized package; had knowledge about the details of the

delivery, including the carrier service and name on the package; arrived at the house

as soon as he learned it had been delivered; and had subsequent packages containing

contraband sent to the house. These circumstances were sufficient for the jury to

infer that Defendant had the requisite control over the package and therefore, had

constructive possession. Accordingly, we find no error in the trial court’s denial of

Defendant’s motion to dismiss.

B. Jury Instructions

Defendant next contends the trial court erred when it failed to instruct the jury

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on the lesser-included offense of attempted trafficking in methamphetamine by

possession. Defendant concedes he did not request this instruction at the trial court;

therefore, our standard of review is plain error. N.C. R. App. P. 10(a)(4).

The standard under plain error is “applied cautiously and only in the

exceptional case where, after reviewing the entire record, it can be said the claimed

error is a fundamental error.” State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326,

333 (2012) (citations omitted). “To show plain error, [a] defendant must convince this

Court not only that there was error, but that absent the error, the jury probably would

have reached a different result.” State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634

(2009) (citation and quotation marks omitted). “The trial judge must charge on a

lesser included offense if: (1) the evidence is equivocal on an element of the greater

offense so that the jury could reasonably find either the existence or the nonexistence

of this element; and (2) absent this element only a conviction of the lesser included

offense would be justified.” State v. White, 142 N.C. App. 201, 205, 542 S.E.2d 265,

268 (2001) (citation omitted). In other words, the lesser included offense instruction

is appropriate when “the evidence would permit the jury rationally to find defendant

guilty of the lesser offense and to acquit him of the greater.” State v. Millsaps, 356

N.C. 556, 561, 572 S.E.2d 767, 771 (2002) (citations omitted).

Defendant contends “while [he] may have intended to possess the package of

methamphetamine, he never did.” As a result, without the element of possession, a

jury could have found him guilty of an attempt, short of the completed offense.

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However, “an attempt charge is not required if the State’s evidence tends to show

completion of the offense” and “there is no conflicting evidence relating to the

elements of the crime charged.” State v. Broome, 136 N.C. App. 82, 88, 523 S.E.2d

448, 453 (1999) (citations omitted).

Here, the State presented sufficient, uncontradicted evidence to allow the jury

to conclude that Defendant had constructive possession of the package. Based on the

analysis set forth above, we hold that an attempt instruction was not required as the

offense was complete when Defendant arrived at the house and walked through the

door. Since all of the elements under N.C. Gen. Stat. § 90-95(h)(3b)(c) are met, and

the offense of trafficking by possession was complete, the trial court did not commit

plain error by failing to instruct on the lesser included instruction.

III. Conclusion

When viewed in the light most favorable to the State, the evidence presented

at trial was sufficient for the jury to infer that Defendant constructively possessed

methamphetamine. The trial court did not err in its denial of Defendant’s motion to

dismiss. Additionally, the trial court did not err when it failed to instruct the jury on

the lesser-included offense of attempted trafficking by possession. Accordingly, we

hold Defendant received a fair trial free from error.

NO ERROR.

Judges GRIFFIN and FLOOD concur.

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