State v. Harmon

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA26-145
Filed 21 October 2026
Avery County, Nos. 22CR000171-050, 22CR050054-050
STATE OF NORTH CAROLINA
v.
BEVERLY GWYN HARMON, Defendant.
Appeal by defendant from judgment entered 22 August 2023 by Judge R.
Gregory Horne in Avery County Superior Court. Heard in the Court of Appeals 15
September 2026.
Attorney General Jeff Jackson, by Assistant Attorney General Hillary F.
Patterson, for the State.
Stephen D. Fuller for defendant-appellant.
GORE, Judge.
Defendant Beverly Gwyn Harmon appeals the judgment entered against her.
Defendant was granted certiorari to review this case. Upon review of the record and
the briefs, we discern no plain error in part and remand in part to correct a clerical
error.
I. Factual Background
Detectives in Avery County received information from informants that
defendant was trafficking methamphetamine out of the home where she was staying
with her sister, Donna Carpenter, on Bertie Street. Detective Lee was aware of

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defendant and believed she had been staying at the home on Bertie Street for several
months. The detectives obtained a search warrant for the Bertie Street home and
upon arrival they found defendant on a couch in the living room; Carpenter in her
room; Nick Ward, a friend of Carpenter’s, in the kitchen, and approximately eight
others in the living room with defendant. Detectives searched a cabinet located right
beside defendant and discovered the following: defendant’s wallet, a case with
defendant’s name on it, defendant’s speaker, scales with methamphetamine residue,
a cell phone, pipes for smoking marijuana and methamphetamine, plastic baggies,
three clear plastic bags of methamphetamine, totaling 28.52 grams, and mail
addressed to defendant with the Bertie Street address. In the kitchen they found
Ward, who appeared to be packaging methamphetamine for sale. Defendant,
Carpenter, and Ward were arrested.
Defendant was charged and indicted with trafficking in methamphetamine,
possession with intent to manufacture, sell, or distribute methamphetamine, and
habitual offender status. During trial, Ward testified on cross-examination that he
knew defendant after she came out of prison. Detective Lee testified he knew of
defendant because she had previously been targeted in an undercover police
investigation. Defendant did not object to these statements. The trial court
instructed the jury on the control element of possession and defendant did not object
to this charge. The jury returned guilty verdicts for trafficking in methamphetamine
and possession with intent to sell or deliver methamphetamine. Defendant pled

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guilty to having obtained habitual felon status. Defendant was sentenced to 65 to 90
months’ imprisonment with a concurrent sentence of 70 to 96 months’ imprisonment.
Defendant through no fault of her own failed to timely appeal the judgments,
but on 15 May 2025, this Court granted defendant’s petition for writ of certiorari to
review the judgments entered 22 August 2023.
II. Issues Presented
Defendant seeks review of evidence admitted during trial that she alleges was
a violation of Rule 404(b) of the North Carolina Rules of Evidence. Defendant also
seeks review of a portion of the jury instructions regarding her control of the premises
and constructive possession. Defendant states that we review both issues under a de
novo standard but also argues that the trial court plainly erred for both issues.
Although the State argues defendant failed to preserve plain error review for the
evidentiary issue, we determine defendant’s articulation of the plain error rule along
with her application of plain error was sufficient to “specifically and distinctly
contend the trial court’s action amounted to plain error.” N.C.R. App. P. 10(a)(4)
(cleaned up).
For a defendant to succeed under plain error they must prove the following
three factors:
First, the defendant must show that a fundamental error
occurred at trial. Second, the defendant must show that the
error had a probable impact on the outcome, meaning that
absent the error, the jury probably would have returned a
different verdict. Finally, the defendant must show that

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the error is an exceptional case that warrants plain error
review, typically by showing that the error seriously affects
the fairness, integrity or public reputation of judicial
proceedings.
State v. Gillard, 386 N.C. 797, 820 (2024).
A. Rule 404(b) Evidence
Defendant argues the trial court plainly erred by allowing certain testimony
evidence in violation of Rule 404(b). The testimony evidence included a detective’s
statement that he previously assisted the police department “with an undercover
operation in which Ms. Harmon was the target, and she was in the residence.” The
additional challenged evidence was a statement by Nick Ward, that he “only knew
[defendant] when she got out of prison and started living at Donna’s.” Defendant
argues these statements amounted to a fundamental error because they were not
relevant for a proper purpose under Rule 404(b).
Under Rule 404(b),
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident.
N.C. R. Evid. 404(b). “Evidence of other offenses is admissible so long as it is relevant
to any fact or issue other than the character of the accused.” State v. Coffey, 326 N.C.
268, 278 (1990) (cleaned up).

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In the present case, the evidence was relevant for a proper purpose under Rule
404(b). A central part of the case was the State’s ability to prove defendant had
constructive possession of the methamphetamine because it was found near her and
not on her in a house with approximately eight other people present. The State
needed to prove defendant had ability to exert dominion and control over the drugs.
The two challenged statements were relevant apart from showing a criminal history.
They tended to show defendant was living with her sister and was known to reside
at the home on Bertie Street. Further, the statement by Ward was admitted during
cross-examination when defense sought to impeach the witness.
Although defendant argues the statements had a probable impact on the jury
verdict, we determine there was plenary evidence beyond these statements to
establish defendant’s housing status. Police were first alerted to defendant by
informants that gave information about defendant’s involvement with trafficking
methamphetamine at the Bertie Street home. A detective testified he knew
defendant had been living at this home on Bertie Street for several months. When
law enforcement arrived with a search warrant, defendant was found sitting on a
couch beside a cabinet in which they found: a speaker with defendant’s name on it, a
set of scales with methamphetamine residue, plastic baggies, a cell phone, a case that
belonged to defendant, mail addressed to defendant with the Bertie Street mailing
address, three bags of methamphetamine weighing approximately 28 grams in total,
and defendant’s wallet.

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There was additional evidence that defendant used methamphetamine and
gave methamphetamine to others. There was evidence defendant was seen giving
methamphetamine to others multiple times, and that one witness could get drugs
from defendant if he had money with him. There was testimony evidence that
defendant was at the home most of the time when one witness visited. This evidence,
as a whole, is sufficient to demonstrate that the absence of the challenged statements
would not have impacted the jury verdict. On that basis, we further conclude this
issue does not rise to the level that affects the integrity, fairness, or public reputation
of the judicial proceedings. Therefore, the trial court did not plainly err by admitting
the witnesses’ statements.
B. Jury Instructions
Next, defendant seeks plain error review of the jury instructions on
constructive possession. Defendant argues the trial court plainly erred by instructing
the jury on the following when there was no evidence to support it:
If you find beyond a reasonable doubt that a substance was
found in or at a certain premises, and that the defendant
exercised control over those premises, whether or not the
defendant owned it, this would be a circumstance from
which you may infer that the defendant was aware of the
presence of the substance and had the power and intent to
control its disposition or use.
Defendant argues the only evidence of control over the premises was Donna’s name
on the lease and that defendant was merely a guest who lived there part-time. We
disagree.

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The trial court is tasked with the duty to instruct the jury with “a clear
instruction that applies the law to the evidence in such a manner as to assist the jury
in understanding the case and in reaching a correct verdict.” State v. Montgomery,
299 N.C. App. 124, 129 (2025) (cleaned up). The trial court “should not give
instructions to the jury which are not supported by the evidence produced at the
trial.” State v. Cameron, 284 N.C. 165, 171 (1973).
The State must provide evidence of constructive possession when the
controlled substance is not found on the defendant. “Constructive possession exists
when a person, although not having actual possession of the controlled substance,
has the intent and capability to maintain control and dominion over the controlled
substance.” State v. Shine, 173 N.C. App. 699, 705 (2005) (cleaned up). When the
defendant does not have exclusive possession of the property, “constructive
possession of the contraband materials may not be inferred without other
incriminating circumstances.” Id. Other incriminating circumstances include:
(1) the defendant’s ownership and occupation of the
property; (2) the defendant’s proximity to the contraband;
(3) indicia of the defendant’s control over the place where
the contraband is found; (4) the defendant’s suspicious
behavior at or near the time of the contraband’s discovery;
and (5) other evidence found in the defendant’s possession
that links the defendant to the contraband.
State v. Chekanow, 370 N.C. 488, 496 (2018) (cleaned up).
The evidence presented at trial was sufficient to support the trial court’s jury
instruction. The evidence included defendant’s mail with the Bertie Street address,

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located in the same cabinet as the methamphetamine, the scales with
methamphetamine residue, the plastic baggies, and defendant’s wallet. Additionally,
there was a speaker and a case labeled with defendant’s name in the cabinet. There
was testimony evidence that defendant was seen giving methamphetamine to others
and using methamphetamine at the house, and there was testimony that defendant
was often at the house when the witness visited. Accordingly, the trial court did not
plainly err by instructing the jury on the “control of the premises instruction.”
C. Clerical Error
Finally, defendant argues the record contains a clerical error because the
judgement states defendant was convicted of “deliver methamphetamine” rather than
possession with intent to sell and deliver methamphetamine. “When, on appeal, a
clerical error is discovered in the trial court’s judgment or order, it is appropriate to
remand the case to the trial court for correction because of the importance that the
record speak the truth.” State v. Smith, 188 N.C. App. 842, 845 (2008) (quotation
marks and citations omitted).
The State concedes the trial court clerically erred by listing defendant as
convicted of “deliver methamphetamine” rather than possession with intent to sell or
deliver methamphetamine. Accordingly, it is proper to remand solely to allow the
trial court to correct the clerical error in the judgment.
III. Conclusion

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The trial court did not plainly err by allowing the testimony statements by
Detective Lee and Nick Ward. Additionally, the trial court did not plainly err by
instructing the jury on control of the premises. However, the trial court’s judgment
includes a clerical error that requires us to remand solely for its revision.
NO PLAIN ERROR IN PART, REMAND IN PART.
Judges STROUD and CARPENTER concur.