Appeal by defendant from judgment entered 24 March 1999 by
Judge E. Lynn Johnson in Superior Court, Wake County. Heard in the
Court of Appeals 21 May 2001.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas D. Zweigart, for the State.
John T. Hall, for defendant-appellant.
McGEE, Judge.
Jerve Benjamin Hamilton (defendant) appeals from a judgment
entered following a jury verdict finding him guilty of
intentionally maintaining a dwelling used for the purpose of
unlawfully keeping and selling controlled substances and of
possession with intent to sell or deliver cocaine. Defendant was
given a suspended sentence of a minimum of eight months and a
maximum of ten months and placed on supervised probation for a term
of thirty-six months. In early April 1998, Detective Ken Huff (Huff) of the Raleigh
Police Department began a surveillance of 211 Ashe Avenue,
Apartment 16. During that time, Huff observed defendant coming and
going from the apartment on several occasions during the day and
night. Huff further determined that the apartment was leased to
Tenesha Blanks (Blanks), defendant's girlfriend, and that three
vehicles registered to Blanks were regularly parked in front of the
residence. Two of the vehicles, a motorcycle and one car, were
used regularly by defendant.
Based on information received from an informant, Huff obtained
a warrant to search 211 Ashe Avenue, Apartment 16 for illegal drugs
on 30 April 1998. Huff also gathered information that a murder
suspect might be inside the apartment. Detective B.G. Young
(Young) began surveillance shortly before 1:00 p.m. and within ten
minutes, he observed defendant exiting the apartment. Young called
for uniformed officers, who stopped defendant as he was leaving the
apartment complex and took him to the police station. After
defendant's departure, Young observed Blanks leave the apartment,
a woman approach the apartment and speak to someone at the door and
then depart, and a man enter the apartment.
Approximately thirty minutes after defendant was detained,
Huff arrived at 211 Ashe Avenue, Apartment 16 to execute the search
warrant. Three men were found in the apartment at the time of the
search. During the search, Huff seized 23.3 grams of crack cocaine
hidden behind a pedestal sink in the bathroom; 3.2 grams of
marijuana in two clear zip-lock bags, one bag in plain view on a
coffee table and one bag hidden beneath a chair cushion; digitalscales in plain view on the coffee table; ten small bags with
marijuana residue; a .45 caliber Ruger pistol; .45 caliber bullets;
a black ammunition magazine for a MAC-10 automatic pistol; several
cell phones; a pager; and a book entitled, "Counterfeit ID Made
Easy." After executing the search, Huff returned to the police
station and formally arrested and charged defendant. He seized
$1,771 in cash from defendant's person and a traffic citation with
defendant's name on it listing defendant's address as "211 Ashe
Street." However, at trial, Huff testified that he could not
remember if the citation came from the person of defendant or the
apartment.
At the close of the State's evidence and again before
sentencing, defendant moved to dismiss the charges against him.
The trial court denied the motions. Defendant presented no
evidence at trial.
I.
[1]Defendant argues on appeal that the trial court erred in
denying his motion to dismiss the charge of intentionally
maintaining a dwelling to keep and sell controlled substances
because the State presented insufficient evidence to support the
charge. The State concedes in its brief that under
State v.
Bowens, 140 N.C. App. 217, 535 S.E.2d 870 (2000),
disc. review
denied, 353 N.C. 383, 547 S.E.2d 417 (2001), the facts in the case
before us cannot be distinguished from the facts in
Bowens. Our
Court held in
Bowens that the defendant's motion to dismiss the
charge of maintaining a dwelling to keep or sell controlledsubstances should have been granted because there was
no evidence Defendant was the owner or the
lessee of the dwelling, or that he had any
responsibility for the payment of the
utilities or the general upkeep of the
dwelling. Testimony Defendant was present at
the dwelling on several occasions and
testimony he lived "[a]t 1108 Carolina Street"
cannot alone support a conclusion Defendant
kept or maintained the dwelling
.
Id. at 222, 535 S.E.2d at 873.
We agree the facts in
Bowens cannot
be distinguished from the facts in this case, and we therefore hold
that the trial court erred in failing to dismiss the charge of
maintaining a dwelling to keep or sell controlled substances
against defendant.
II.
[2]Defendant next argues that the trial court erred in
denying his motion to dismiss the charge of possession with intent
to sell or deliver cocaine. We agree.
Our Supreme Court has stated that:
In determining whether to grant a defendant's
motion to dismiss, the trial court must consider
all the evidence admitted in the light most
favorable to the State and decide whether there is
substantial evidence of each element of the offense
charged and that the defendant committed it.
"Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to
support a conclusion. . . . If the evidence 'is
sufficient only to raise a suspicion or conjecture
as to either the commission of the offense or the
identity of the defendant as the perpetrator of it,
the motion for nonsuit should be allowed. . . .
This is true even though the suspicion so aroused
by the evidence is strong.'"
State v. McLaurin, 320 N.C. 143, 146-47, 357 S.E.2d 636, 638 (1987)
(citations omitted).
The State must present substantial evidence of defendant'spossession of a controlled substance and of defendant's i
ntent to
sell or deliver that substance.
See N.C. Gen. Stat. § 90-95(a)(1)
(1999);
State v. Carr, 122 N.C. App. 369, 470 S.E.2d 70 (1996). We
first consider whether the State presented substantial evidence of
defendant's possession of cocaine. Possession of a controlled
substance may be either actual or constructive.
[If the] defendant was not present when law
enforcement officers discovered the [controlled
substance], the State [must] rely on the doctrine
of constructive possession to prove that the
[controlled substance] belonged to [the] defendant.
A person has constructive possession of a
controlled substance when "he has both the power
and intent to control its disposition or use."
However, if . . . the defendant does not have
exclusive control of the premises in which the
controlled substance[] [was] found, "there must be
evidence of other incriminating circumstances to
support constructive possession."
State v. Morgan, 111 N.C. App. 662, 665, 432 S.E.2d 877, 879 (1993)
(citations omitted).
The State cites
State v. Davis, 325 N.C. 693, 386 S.E.2d 187
(1989) and
State v. Brown, 310 N.C. 563, 313 S.E.2d 585 (1984) for
its position that there was substantial evidence defendant
constructively possessed the crack cocaine. In each case, however,
the defendant was present in the dwelling and in close proximity to
a controlled substance during the search. The present case is
distinguishable in that defendant was not at the apartment when the
search occurred.
Our prior case law has required that in order to show
constructive possession by a defendant not present when a
controlled substance was discovered, the State must presentevidence that the defendant had exclusive use of the premises,
maintained the premises as a residence, or had some apparent
proprietary interest in the premises or the controlled substance.
In
State v. Williams, 307 N.C. 452, 456, 298 S.E.2d 372, 375
(1983), although the defendant was absent during the search, he
"was seen in the yard [of] the residence . . . on . . . four
occasions within two weeks of the [search that located the
heroin;] bills addressed to [the] defendant . . . were found [at
the residence;] . . . [and] [t]he mailbox in front of the house
bore [the defendant's] name[.]"
In
State v. Morgan, 111 N.C. App. 662, 432 S.E.2d 877 (1993),
while searching the back bedroom and bathroom of an apartment,
police found a bag of clothing, $2,600 cash including marked bills
from a sale to an undercover officer, a traffic citation and a
warrant for arrest with the defendant's name on them, and cocaine.
In
Morgan, testimony established that the defendant had a key to
the apartment, was the only person to use the back bedroom and
bathroom, and the cocaine belonged to no other occupant of the
apartment.
In
State v. Peek, 89 N.C. App. 123, 126, 365 S.E.2d 320, 323
(1988),
evidence showed that a telephone bill and
other pieces of mail, addressed to [the]
defendant . . . were found in [a] bedroom;
that [the] defendant's minor son appeared at
the house during the . . . search . . . that
[the] defendant was arrested inside the house
ten days later; and that contraband was found
in four different rooms, some of it in plain
view and some of it hidden.
See also State v. Baxter, 285 N.C. 735, 208 S.E.2d 696 (1974)
(marijuana found in a drawer beneath male clothing and in pocket of
a man's coat in an apartment where only the defendant and his wife
lived and wife was only person present at time of search);
State v.
Allen, 279 N.C. 406, 183 S.E.2d 680 (1971) (heroin found in room
near papers with the defendant's name on them and residence's
public utilities listed in the defendant's name);
State v. Graham,
90 N.C. App. 564, 369 S.E.2d 615 (1988) (cocaine found in bedroom
along with letter addressed to the defendant; parents testified the
defendant kept clothes in bedroom and used room on occasion; the
defendant admitted moving bags of cocaine from a closet to a box);
cf. State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638
(1987) (evidence that the defendant resided at a residence where
drug paraphernalia was found in drawers and in plain view was
insufficient to show constructive possession of the paraphernalia
because her control of the premises "was patently nonexclusive" in
that the defendant had not been seen "entering or leaving [the
house] the day of the search" while her husband and another man had
both been seen doing so and "[n]o other incriminating circumstances
were . . . apparent . . . that might [have] suffice[d] to carry the
case to the jury[.]").
When the evidence presented lacks incriminating circumstances
showing defendant's exclusive use of the premises, maintenance of
the premises as a residence, or some apparent proprietary interest
in the premises or the controlled substance, our Supreme Court has
held that the trial court should dismiss the charge of possessionof the controlled substance. In
State v. Minor, 290 N.C. 68, 224
S.E.2d 180 (1976), the defendant was arrested for possession of a
marijuana field. The evidence in the case taken in the light most
favorable to the State showed:
(1) that [the] defendant . . . had been a
visitor at an abandoned house leased or
controlled by [the] co-defendant . . . (2)
that the marijuana field was 100 feet . . .
from the house . . . (3) that the marijuana
field was accessible by three different
routes; (4) that on the date of [the
defendant's] arrest he was on the front seat
of a[n]. . . automobile owned and operated by
[the co-defendant], where some wilted
marijuana leaves were found on the . . . rear
floorboard and . . . in the trunk.
Id. at 74-75, 224 S.E.2d at 185. Our Supreme Court held that
"[t]he most the State [had] shown [was] that [the] defendant had
been in an area where he could have committed the crimes charged."
Id. at 75, 224 S.E.2d at 185.
In the case before us, the evidence taken in the light most
favorable to the State showed that: 211 Ashe Avenue, Apartment 16
was leased to Blanks, defendant's girlfriend; during the month
prior to the search, the police had often observed defendant at the
apartment; approximately thirty minutes before the search,
defendant exited the apartment, was stopped by uniformed officers,
and was taken to the police station; and soon thereafter, Blanks
left the apartment, another woman approached the apartment and was
seen speaking to someone at the door, and a man entered the
apartment. The apartment was then searched, and three adult men
were located in the apartment. The 23.3 grams of crack cocaine was
hidden behind a pedestal sink in the bathroom and was seized by thepolice, along with other items. A subsequent search of defendant's
person at the police station revealed $1,771 in cash. Finally, a
traffic citation with defendant's address listed as "211 Ashe
Street" was seized either from the apartment or the person of
defendant.
Although the evidence may raise a strong suspicion that
defendant constructively possessed the crack cocaine, this evidence
does not lead to the conclusion that defendant had exclusive use of
the apartment, maintained the apartment as a residence, or had any
apparent proprietary interest in the apartment or the crack
cocaine.
See McLaurin, 320 N.C. at 146-47, 357 S.E.2d at 638-39.
Evidence that raises only a strong suspicion without producing any
incriminating circumstances does not reach the level of substantial
evidence necessary for the denial of a motion to dismiss.
Id.
Just as in
Minor, "[t]he most the [S]tate showed was that defendant
had been in an area where he could have committed the crime[]
charged."
Minor, 290 N.C. at 75, 224 S.E.2d at 185. Since
substantial evidence of possession was not presented by the State,
we need not consider whether the State presented substantial
evidence of intent to sell or deliver. We conclude that the trial
court erred in denying defendant's motion to dismiss the charge of
possession with intent to sell or deliver cocaine.
We conclude that the trial court erred in not dismissing both
charges against defendant. We have reviewed defendant's remaining
assignment of error on appeal and find it to be without merit. The
judgments and convictions against defendant are reversed. Reversed.
Chief Judge EAGLES and Judge TYSON concur.
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