State v. Glover, 376 N.C. 420

Police searched a shared home after complaints and, with defendant's consent, searched his bedroom and an adjacent alcove; inside a dresser drawer officers found a small yellow tin containing heroin, methamphetamine, and cocaine.
Stepp testified she placed the tin (her "hard time stash") in the dresser shortly before leaving and that the drugs were hers; she said she had not told Glover about the tin.
Defendant admitted recent use of methamphetamine and prescription pills and consented to the search; small amounts of drugs and paraphernalia were also found in defendant’s bedroom.
Grand jury indicted Glover on multiple drug charges; the trial court dismissed all but simple possession counts; jury convicted Glover of simple possession of heroin, methamphetamine, and cocaine and found him an habitual felon.
At trial the court instructed the jury on both constructive possession and possession by acting in concert over defendant’s objection; the Court of Appeals split on whether the acting-in-concert instruction was supported by evidence and whether any error was harmless.
The North Carolina Supreme Court held the acting-in-concert instruction was unsupported by the evidence, deemed the error not harmless, vacated the convictions, and remanded for a new trial.

Issue	State's Argument	Glover's Argument	Held
Whether evidence warranted an acting-in-concert instruction for possession	Evidence showed Glover knew drugs were present (admitted recent use), a matching pill was found in his bedroom, he tolerated storage in his personal area, and he used drugs with Stepp — supporting a common plan	No evidence of a common plan or that Glover aided Stepp; Stepp placed the tin without telling him and admitted exclusive ownership; mere presence is insufficient	No. Evidence did not show a common plan or concerted action; acting-in-concert instruction was unsupported and therefore erroneous
If instruction was erroneous, was the error harmless?	Jury could reasonably infer guilt from the total evidence; any error was harmless because constructive-possession evidence was sufficient	The constructive-possession evidence was disputed and credibility-based; there is a reasonable possibility the jury convicted on the unsupported theory	Error was not harmless. Given disputed and not "exceedingly strong" constructive-possession evidence and the risk of jury confusion, reversal and new trial required

State v. Joyner, 297 N.C. 349 (establishes acting-in-concert requires evidence of common plan or purpose beyond mere presence)
State v. Malachi, 371 N.C. 719 (instructs close scrutiny of instructional errors and harmless-error standard)
State v. Brown, 310 N.C. 563 (defines constructive possession and need for other incriminating circumstances when possession of premises is nonexclusive)
State v. Hargett, 255 N.C. 412 (error to instruct on aiding/abetting absent evidence the defendant aided the perpetrator)
State v. Wilkerson, 363 N.C. 382 (presence at scene insufficient to prove concerted action)
State v. Galaviz-Torres, 368 N.C. 44 (possession requires proof the defendant knowingly possessed a controlled substance)