State v. Glover, 833 S.E.2d 203

Background

Defendant Bruce Wayne Glover lived in a multi-occupant house and identified a bedroom and an adjacent alcove as his “personal space.” Officers searched after he consented; they found controlled substances in a metal tin in the alcove/dresser and a similar pill plus paraphernalia in his bedroom. Defendant admitted recent use of methamphetamine and prescription pills.
A jury convicted Glover of possession of methamphetamine, heroin, and cocaine and found he had attained habitual felon status. The trial court sentenced him as a Prior Record Level (PRL) VI.
The jury was instructed on two alternative theories of possession: constructive possession and acting in concert with another (Ms. Stepp). Ms. Stepp testified she placed the metal tin in the dresser, claimed ownership of the drugs, and said she and Glover had used drugs together in the past.
On appeal Glover argued (1) the acting-in-concert jury instruction was unsupported by the evidence and (2) the PRL calculation was incorrect; he also filed a Motion for Appropriate Relief (MAR) asserting ineffective assistance of counsel regarding the PRL stipulations.
The Court of Appeals held there was sufficient evidence to support an acting-in-concert instruction but found the PRL was miscalculated: the correct total points were 17 (PRL V), not 21 (PRL VI), and remanded for resentencing. The MAR for ineffective assistance was denied as not prejudicial given the reduced PRL.

Issues

Issue	State's Argument	Glover's Argument	Held
Whether jury instruction on "acting in concert" was supported by evidence	Evidence showed Glover was present, admitted recent drug use matching drugs in tin, and facilitated storage in his personal space; coupled with Ms. Stepp’s testimony, supports concert theory	Instruction unsupported because no evidence Glover and Stepp acted pursuant to a common plan or that Glover aided her possession	Court: Sufficient evidence supported acting-in-concert instruction; no error in giving it
Whether PRL was correctly calculated as VI (21 points)	Parties had stipulated via worksheet; trial court accepted 21 points	Worksheet overcounted points; several convictions excluded by statute or rules (habitual-felon supporting convictions, same-week/session consolidation, non-qualifying misdemeanors, certain out-of-state defaults)	Court: Trial court erred; proper count = 17 points → PRL V; remanded for resentencing limited to PRL V range
Proper treatment of out-of-state convictions for PRL	Party stipulations on worksheet listed classifications	Out-of-state misdemeanors should default to Class 3 (not usable) and out-of-state felonies to Class I unless proven substantially similar; parties cannot stipulate substantial similarity	Court: Without proof, defaults applied; several out-of-state misdemeanors excluded, felonies counted as Class I for PRL calculation
Whether trial counsel’s stipulations rendered assistance ineffective re: PRL	Counsel’s stipulations did not prejudice Defendant because corrected PRL on appeal reduces or eliminates any adverse effect	Counsel’s stipulation to higher classifications caused elevated PRL and prejudiced sentencing	Court: MAR denied; assuming worst, corrected PRL still within PRL V so no prejudice shown

Key Cases Cited

State v. Joyner, 297 N.C. 349 (1979) (defines "acting in concert" standard for criminal liability)
State v. Erlewine, 328 N.C. 626 (1991) (reinforces concert liability principles and constructive/actual presence concepts)
State v. Jefferies, 333 N.C. 501 (1993) (holding a defendant may be guilty under concert theory even when another did all acts necessary to commit the crime)
State v. Galaviz-Torres, 368 N.C. 44 (2015) (elements of possession of a controlled substance)
State v. Diaz, 155 N.C. App. 307 (2002) (discusses applicability and caution in using acting-in-concert theory for possession offenses)
State v. Davis, 325 N.C. 693 (1989) (defines constructive possession: power and intent to control disposition)
State v. Alexander, 359 N.C. 824 (2005) (statutory scheme and burden for proving prior convictions for PRL calculations)
State v. Mack, 188 N.C. App. 365 (2008) (review of stipulated prior record level determinations)
State v. Burgess, 216 N.C. App. 54 (2011) (out-of-state conviction similarity is a question of law for the court)
State v. Malachi, 371 N.C. 719 (2018) (instructional error standard and harmless-error scrutiny for unsupported jury instructions)