STATE OF NORTH CAROLINA v. WAYNE ANTONE CLARK
No. COA99-156
Appeal by defendant from judgments entered 13 August 1998 by
Judge Julius A. Rousseau, Jr., in Guilford County Superior Court.
Heard in the Court of Appeals 4 January 2000.
Michael F. Easley, Attorney General, by Anna K. Baird,
Assistant Attorney General, for the State.
Nils E. Gerber for defendant-appellant.
EDMUNDS, Judge.
Defendant Wayne Antone Clark appeals his convictions of
trafficking in marijuana and conspiracy to traffic in marijuana.
We reverse the trafficking conviction and find no error in the
conspiracy conviction.
The investigation began when representatives of United Parcel
Service (UPS) contacted Officer Sanders of the Greensboro Police
Department, Narcotics Division, to investigate a package. A number
of factors aroused Officer Sanders' suspicions that the package
might contain controlled substances. The parcel had been sent from
southern California, an area known to be a source of drugs; the
label was handwritten and lacked a return address; and the package
had been shipped to a “Tisha Wilson” at an address that consisted
of uninhabited apartments still under construction. After
obtaining a search warrant, Officer Sanders opened the package and
found twelve and one-half pounds of marijuana hidden inside a
television set. He removed all but .13 kilograms of marijuana from
its hiding place then resealed the package to conduct a controlled
delivery.
Officer Sanders donned a UPS driver's uniform and drove a UPS
truck to the vicinity of the address written on the package. As he
pulled into the area, he noticed two men in a burgundy car watching
him. Officer Sanders approached several residents of an apartment
complex located near the delivery address. Defendant stared atOfficer Sanders from the breezeway of the building but did not
approach. The officer returned to the UPS truck and drove out of
the complex. The burgundy automobile was five or six car lengths
ahead of Officer Sanders, heading in the same direction. Defendant
was driving the burgundy car and the second man, later identified
as Mr. Junne, was in the passenger seat. When Officer Sanders
pulled into the parking lot of a NAPA dealership, defendant turned
his car around and parked in an adjacent lot. Officer Sanders
entered the store to feign delivery of a package. When he emerged,
an individual asked for directions. During the ensuing
conversation, Mr. Junne approached and paced in the vicinity of
Officer Sanders and the stranger. However, Officer Sanders'
directions became rather lengthy, and Mr. Junne returned to the
burgundy automobile.
When Officer Sanders drove out of the NAPA dealership lot,
defendant's car again preceded him, and when the officer turned
into the parking lot of an Ace Hardware dealership, defendant made
a U-turn and parked in a nearby restaurant parking lot. Mr. Junne
approached Officer Sanders, asked for the package addressed to
“Tisha Wilson,” and showed him the tracking number for the package.
Mr. Junne signed for the package, took possession of it, and
returned to the burgundy car. Before he could put the package in
the trunk, the police arrested both defendant and Mr. Junne.
At trial, a jury found defendant guilty of felonious
trafficking in marijuana and conspiracy to traffic in marijuana.
He was sentenced to concurrent terms of not less than twenty-five
months and not more than thirty months.
I.
[1]Defendant first contends the trial court erred in denying
his motion to dismiss the charge of trafficking in marijuana at the
conclusion of the State's case in chief. The indictment charged
trafficking in marijuana by possession, in that “the defendant,
Wayne Antone Clarke [sic] unlawfully, willfully and feloniously did
possess more than ten (10) pounds of marijuana, a substance
included in Schedule VI of the North Carolina Controlled Substances
Act,” in violation of N.C. Gen. Stat. § 90-95(h) (1999). Defendant
argues that he never possessed ten pounds of marijuana; therefore,
he cannot be guilty of the offense charged.
The uncontested evidence is that the police intercepted the
package, opened it pursuant to a warrant, prudently removed most ofthe marijuana lest it be lost if the operation did not unfold as
planned, then undertook a controlled delivery of .13 kilograms of
marijuana, an amount substantially less than ten pounds.
Therefore, no matter how nefarious defendant's intent, the actions
of the police made it impossible for him actually to possess the
quantity of marijuana required for a trafficking conviction.
The State contends that defendant is guilty of constructive
possession of over ten pounds of marijuana.
It is well established in North Carolina
that possession of a controlled substance may
be either actual or constructive. A person is
said to have constructive possession when he,
without actual physical possession of a
controlled substance, has both the intent and
the capability to maintain dominion and
control over it.
State v. Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357
(1991) (internal citations omitted),
aff'd, 331 N.C. 113, 413
S.E.2d 798 (1992).
Numerous cases have considered this doctrine.
No single factor controls. Constructive
possession has been found when the narcotics
were (1) on property in which the defendant
had some exclusive possessory interest and
there is evidence of his or her presence on
the property; (2) on property of which
defendant, although not an owner, had sole or
joint physical custody; or (3) in an area
which the defendant frequented, usually near
his or her property.
State v. Baize, 71 N.C. App. 521, 529, 323 S.E.2d 36, 41 (1984)
(internal citations omitted).
Because the cases reviewed in
Baize dealt with controlled
substances that were already “on the street” when first detected,
they provide only general guidance. We have found few NorthCarolina cases with facts closely analogous to the facts in the
case at bar and no cases that directly address the specific issue
raised by defendant. In
State v. Rosario, 93 N.C. App. 627, 379
S.E.2d 434 (1989), the defendant and others discussed obtaining a
kilogram of cocaine. One of the co-conspirators traveled to
Florida, purchased the cocaine, and was apprehended returning to
North Carolina. He agreed to cooperate. Police investigators
substituted 900 grams of powder, of which two percent was cocaine,
for the original kilogram, and the co-conspirator delivered the
package to the defendant. During a subsequent search of the
defendant's premises, officers recovered the package from a garbage
can where the defendant had placed it when he heard police were in
the area. Police also found other cocaine and drug-related
paraphernalia during the search.
The defendant was charged with trafficking in cocaine by
possession of at least 400 grams, based upon the package delivered
by the cooperating co-defendant, and with trafficking in cocaine by
possession of at least twenty-eight but less than 200 grams, based
upon the other cocaine found at the scene. The defendant claimed
that the trafficking charge for the larger amount should have been
dismissed because the cocaine was provided to him by law
enforcement officers. We held that, unlike stolen merchandise,
which loses its “stolen” character upon being recovered by police,
a controlled substance retains its identity as a controlled
substance even when lawfully possessed. Therefore, although the
officers lawfully possessed the cocaine pursuant to N.C. Gen. Stat.§ 90-101(c)(5) (1999), the defendant's subsequent possession w
as
unlawful.
See Rosario, 93 N.C. App. at 634, 379 S.E.2d at 438.
The defendant then argued that there was insufficient evidence of
constructive possession of the delivered package of cocaine and of
the smaller bags of cocaine on which the lesser trafficking charge
was based. We noted that the defendant received the delivered
package from a co-conspirator, placed it in a freezer, then moved
it to a garbage can when warned that police were in the vicinity.
The smaller bags were found between the mattresses of a bed used by
an inhabitant of the house, and a witness testified that she had
seen the defendant sell cocaine in the house on numerous occasions
and use the drug paraphernalia found there. All the evidence
established that the defendant had control of the premises. We
held this evidence sufficient to show that the defendant had both
the power and the intent to control the disposition and use of the
cocaine, thus warranting an inference of constructive possession.
See id. at 638, 379 S.E.2d at 440.
However, the defendant in
Rosario never raised the defense of
impossibility, which is now squarely before us. Our review of the
record convinces us that the doctrine of constructive possession
does not apply to the case at bar. There is no evidence as to the
actual source of the drugs. Although defendant may well have had
the requisite intent, there is no evidence he ever had the
capability to exercise dominion and control over the original
package. Therefore, he never had constructive possession of the
trafficking amount of marijuana. An appropriate charge under suchcircumstances would be an attempt, pursuant to N.C. Gen. Stat.
§ 90-98 (1999).
See, e.g.,
U.S. v. Jackson, 55 F.3d 1219 (6th Cir.
1995);
People v. Echols, 668 N.E.2d 35 (Ill. App. Ct. 1996).
II.
[2]Defendant next contends the trial court erred in failing
to dismiss the charge of conspiracy to traffic in marijuana at the
close of the State's evidence and at the close of all the evidence.
“A criminal conspiracy is an agreement, express or implied, between
two or more persons to do an unlawful act or to do a lawful act by
unlawful means.”
State v. Burmeister, 131 N.C. App. 190, 199, 506
S.E.2d 278, 283 (1998) (citation omitted). “Direct proof of
conspiracy is rarely available, so the crime must generally be
proved by circumstantial evidence.”
State v. Aleem, 49 N.C. App.
359, 363, 271 S.E.2d 575, 578 (1980) (citation omitted). A
conspiracy “may be, and generally is, established by a number of
indefinite acts, each of which, standing alone, might have little
weight, but, taken collectively, they point unerringly to the
existence of a conspiracy.”
State v. Whiteside, 204 N.C. 710, 712,
169 S.E. 711, 712 (1933) (citation omitted).
The evidence established that defendant and Mr. Junne waited
together in the area of the false address to take possession of a
package bearing no return address. Defendant left his car and
watched Officer Sanders' first attempt to make a delivery, although
he did not ask for the package. At each of the next two stops,
defendant maintained proximity to the UPS truck, turning his car
around so he could park nearby. At both of these stops, Mr. Junneemerged from the car to approach Officer Sanders. Defendant and
Mr. Junne exhibited approach-avoidance behavior consistent with a
desire to obtain the package coupled with knowledge that taking
possession could be dangerous. This evidence is sufficient to
establish that defendant and Mr. Junne conspired to traffic in
excess of ten pounds of marijuana. As we said in
Rosario, “We note
that, even if the package contained no drugs, its delivery would
still constitute evidence to support the charges of conspiracy
. . . .”
Rosario, 93 N.C. App. at 633, 379 S.E.2d at 437-48;
see
also State v. Kelly, 120 N.C. App. 821, 463 S.E.2d 812 (1995)
(holding that where police intercepted Federal Express package
containing cocaine, substituted dummy package, and delivered
package to the two defendants, indictment for conspiracy to traffic
cocaine by possession appropriate; new trial granted because of
improper jury instruction).
Defendant argues there is no proof that a conspiracy existed
to possess ten pounds of marijuana. Although there is no direct
evidence of an agreement between defendant and Mr. Junne,
reasonable inferences from the circumstantial evidence support the
conviction. Someone shipped defendant and Mr. Junne a television
in which twelve and one-half pounds of marijuana had been carefully
concealed. Defendant's actions showed an understanding of the
nature of the contents of the package. Viewed in the light most
favorable to the State, there was sufficient evidence to convict
defendant of conspiracy to traffic marijuana.
See State v.Worthington, 84 N.C. App. 150, 352 S.E.2d 695 (1987). This
assignment of error is overruled.
[3]Defendant's conviction of trafficking in marijuana by
possession is reversed. “Upon the trial of any indictment the
prisoner may be convicted of the crime charged therein or of a less
degree of the same crime, or of an attempt to commit the crime so
charged, or of an attempt to commit a less degree of the same
crime.” N.C. Gen. Stat. § 15-170 (1999). Although the wording of
this statute indicates that an attempt is not automatically a
lesser-included offense of the crime charged, our courts frequently
have recognized through holding or dicta that an attempt may be a
lesser-included offense.
See, e.g.,
State v. Kirkpatrick, 343 N.C.
285, 470 S.E.2d 54 (1996) (interpreting
State v. Hare, 243 N.C.
262, 90 S.E.2d 550 (1955) and stating that attempted robbery is a
lesser-included offense of robbery);
State v. Collins, 334 N.C. 54,
431 S.E.2d 188 (1993) (holding that trial court erred in failing to
instruct on attempted murder, a lesser-included offense of first-
degree murder);
State v. Shaw, 305 N.C. 327, 289 S.E.2d 325 (1982)
(stating that attempted arson is a lesser-included offense of
arson);
State v. Watts, 76 N.C. App. 656, 334 S.E.2d 68 (1985)
(affirming trial court's failure to submit the lesser-included
offense of attempted burglary in a burglary trial). Although as a
general rule, a conviction of attempt carries a lesser penalty than
a conviction of the underlying crime,
see N.C. Gen. Stat. § 14-2.5
(1999), the penalty for conviction of an attempted controlled
substance offense is the same as the penalty for a conviction ofthe underlying crime,
see N.C. Gen. Stat. § 90-98 (1999).
Nevertheless, our Supreme Court has held that a lesser-included
offense need not have a lesser penalty than the greater offense.
See State v. Young, 305 N.C. 391, 289 S.E.2d 374 (1982).
Accordingly, we conclude that attempt to traffic in marijuana by
possession is a lesser-included offense of trafficking in marijuana
by possession.
By finding defendant guilty of trafficking in marijuana by
possession, the jury necessarily found defendant guilty of
attempted trafficking.
See N.C. Gen. Stat. § 15-170;
State v.
Suggs, 117 N.C. App. 654, 453 S.E.2d 211 (1995). It is not
required that defendant be indicted for attempt or that the attempt
charge be submitted to the jury.
See State v. Jolly, 297 N.C. 121,
254 S.E.2d 1 (1979). Therefore, upon remand the trial court shall
enter judgment upon a conviction of attempt to traffic in marijuana
by possession.
See State v. Barnes, 121 N.C. App. 503, 466 S.E.2d
294,
aff'd, 345 N.C. 146, 478 S.E.2d 188 (1996).
98 CrS 54752 -- Reversed and remanded with instructions.
98 CrS 54743 -- No error.
Judges GREENE and LEWIS concur.
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