State v. Wilder, 124 NC App 136 (95-1227) 10/15/1996 Link to original WordPerfect file

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State v. Wilder

No. COA95-1227

(Filed 15 October 1996)

1.    Narcotics, Controlled Substances, and Paraphernalia § 141 (NCI4th)-- trafficking in cocaine -- constructive possession -- substantial movement

    The trial court did not err by denying defendant's motion to dismiss charges of trafficking in cocaine for insufficient evidence where the evidence showed that an officer observed defendant throw an object into bushes when the car in which he was a passenger was stopped by the police; defendant entered his house and remained for approximately 30 seconds while the officer was waiting for backup; several non-law enforcement individuals were seen searching the bushes where defendant had thrown the package after the police left the area; defendant's neighbor discovered a bag which matched the description given by an officer approximately ten feet from where defendant had stopped and gotten out of the car; and the bag was later determined by the SBI lab to contain 990.3 grams of cocaine. A reasonable mind could rationally conclude that defendant possessed the cocaine, that he gave instructions to the occupants of his house to retrieve it after the police left; and that there was a substantial movement of the cocaine when defendant threw it into the bushes, thus avoiding being caught with the cocaine and making it possible to later retrieve it.

     Am Jur 2d, Drugs and Controlled Substances § 188.

2.    Narcotics, Controlled Substances, and Paraphernalia § 196 (NCI4th)-- trafficking in cocaine by possession --amount not in dispute -- no charge on lesser offense of possession

    The trial court did not err in a prosecution for trafficking in cocaine by not instructing the jury on the lesser included offense of possession of cocaine. Trafficking in cocaine by possession requires the possession of at least 28 grams; the uncontradicted evidence here indicated that the bag recovered from the bushes contained 990.3 grams. The only question for the jury was whether defendant had possessed the bag.

     Am Jur 2d, Drugs and Controlled Substances § 188.