After the second time, Officer McKenzie went over to the
defendant's side of the car. “I ordered Mr. Boyd to step out ofthe car. As he was stepping out of the car he was reaching with
his left hand up underneath the passenger area of the seat. At
that time I pulled my weapon out and ordered him out of the car.”
Officer McKenzie then radioed for backup.
Officer McKenzie searched the defendant for weapons and found
a switchblade knife concealed in the defendant's right front
pocket. The patrol car's videotape of the stop shows Mr. Cole,
while still in the car, dropping out of the view of the camera and
then rising back up into view. After backup officers arrived, they
again noticed Mr. Cole dropping out of view and ordered him out of
the car. Upon searching the car, the officers found a plastic bag
containing cocaine under the driver's seat and a loaded .45 caliber
handgun under the passenger's seat. They placed both men under
arrest.
Mr. Cole pled guilty to attempted trafficking in cocaine,
possession with intent to sell and deliver cocaine, maintaining a
place for the purpose of keeping, selling or manufacturing cocaine,
and carrying a concealed weapon. In return for his guilty pleas
and his agreeing to testify against the defendant, Mr. Cole
received a suspended sentence.
On 2 November 1998, the grand jury returned indictments
charging the defendant with carrying a concealed weapon,
trafficking in cocaine by transport, possession of a firearm by afelon, possession with intent to sell and deliver cocaine, and
trafficking in cocaine by possession. The defendant pled not
guilty, but on 23 May 2001 a jury convicted defendant on all
charges. The court imposed a consolidated sentence of imprisonment
for a minimum of 96 months and a maximum of 116 months. Defendant
appeals.
The defendant raised eight assignments of error in the Record
on Appeal, but in his brief he brings forward only numbers one and
two. In his argument, defendant first contends that the trial
court erred in not dismissing all charges, on the grounds that the
evidence was insufficient as a matter of law to support a
conviction on any of the offenses charged. However, defendant
offers no argument concerning the conviction for carrying a
concealed weapon - the switchblade knife found in his pocket.
Thus, he has abandoned all of his issues as to that conviction.
See N.C. R. App. Proc. 28(b)(5) (2001) (“Assignments of error not
set out in the appellant's brief, or in support of which no reason
or argument is stated or authority cited, will be taken as
abandoned.”).
“In ruling on a motion to dismiss, the issue before the trial
court is whether substantial evidence of each element of the
offense charged has been presented, and that defendant was the
perpetrator of the offense. If the trial court so finds, themotion is properly denied.” State v. Carr, 122 N.C. App. 369, 371-
72, 470 S.E.2d 70, 72 (1996) (citations omitted). “Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” State v. Patterson,
335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994) (citations and
quotation marks omitted). “[I]f the trial court determines that a
reasonable inference of the defendant's guilt may be drawn from the
evidence, it must deny the defendant's motion and send the case to
the jury even though the evidence may also support reasonable
inferences of the defendant's innocence.” State v. Matias, 354
N.C. 549, 551, 556 S.E.2d 269, 270 (2001) (citation and quotation
marks omitted). Therefore, we analyze the evidence to determine
if, in the light most favorable to the State, the evidence was
substantial enough on all necessary elements for the court to
submit the charges to the jury.
Defendant contends that the evidence presented by the State
was insufficient as a matter of law to prove that he possessed
cocaine, a necessary element of the drug charges against him. See
N.C. Gen. Stat. § 90-95(a)(1) (2001) (possession with intent to
sell or deliver cocaine); N.C. Gen. Stat. § 90-95(h)(3) (2001)
(trafficking in cocaine by transportation or possession).
“Possession of controlled substances may be either actual or
constructive.” Carr, 122 N.C. App. at 372, 470 S.E.2d at 73. Here, the State relied upon the doctrine of constructive possession
because there was no evidence presented that the defendant actually
possessed the drugs in question.
“Evidence of constructive possession is sufficient to support
a conviction if it would allow a reasonable mind to conclude that
defendant had the intent and capability to exercise control and
dominion over the controlled substance.” State v. Matias, 143 N.C.
App. 445, 448, 550 S.E.2d 1, 3 (1988), aff'd, 354 N.C. 549, 556
S.E.2d 269 (2001). “Where contraband is found on premises under
the control of the defendant, that in itself is sufficient to go to
the jury on the question of constructive possession.” State v.
Peek, 89 N.C. App. 123, 126, 365 S.E.2d 320, 322 (1988). “However,
unless the person has exclusive possession of the place where the
narcotics are found, the State must show other incriminating
circumstances before constructive possession may be inferred.”
State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989).
This Court has noted that “the mere presence of the defendant
in an automobile in which illicit drugs are found does not, without
more, constitute sufficient proof of his possession of such drugs.”
State v. Weems, 31 N.C. App. 569, 571, 230 S.E.2d 193,194 (1976)
(citation and quotation marks omitted). In Weems, the defendant
was in the passenger seat of a car stopped by the police. Packets
of heroin were found hidden in the car in three locations, two ofwhich were in close proximity to the defendant. This Court found
“no evidence of any circumstance connecting the defendant to the
drugs in any manner whatsoever other than the showing of his mere
presence for a brief period in the car as a passenger.” Id. at
571, 230 S.E.2d at 195.
In Matias, a package containing marijuana and cocaine was
found in the rear seat of a vehicle with several passengers. See
Matias, 354 N.C. at 551, 556 S.E.2d at 270. The arresting officer
testified that in his opinion, the defendant was the only person in
the vehicle who could have placed the drugs in the location where
they were discovered. See id. at 552, 556 S.E.2d at 271. The
evidence further showed that the defendant was in the vehicle for
approximately twenty minutes and that there was a noticeable odor
of marijuana in the vehicle. See id. Viewed in the light most
favorable to the State, the Court held that there were sufficient
incriminating circumstances to support an inference of defendant's
constructive possession of the drugs. See id. at 553, 556 S.E.2d
at 271.
Here, the State presented evidence through the testimony of
Ledell Cole that the defendant was the only person who could have
placed the drugs where they were found. In Matias, there were four
people in the car where the drugs were found, but here only Mr.
Cole and the defendant were present. The evidence also showed thatwhen Mr. Cole walked back to the car, defendant was standing alone
by the open passenger door. The defendant also behaved
suspiciously upon being stopped by the police, reaching under the
seat of the car, moving about, and making it difficult for the
police to search him. Viewing the evidence in the light most
favorable to the State, we hold that the evidence was sufficient to
support an inference that defendant constructively possessed the
cocaine.
The defendant argues further that in the absence of an
instruction on acting in concert on the charge of trafficking in
cocaine by transportation, the State was required to prove actual
possession. We disagree. Although the trial court did not
specifically explain the application of the law to the evidence
presented in this case, the court was not required to do so. See
N.C. Gen. Stat. § 15A-1232 (2001). Defendant correctly states that
“in the absence of an acting in concert instruction, the State must
prove that the defendant committed each element of the offense.”
State v. Wilson, 345 N.C. 119, 123, 478 S.E.2d 507, 510 (1996).
The element at issue, however, is transportation. “[O]nly a person
in the actual or constructive possession of [contraband], absent
conspiracy or aiding and abetting, could be guilty of the unlawful
transportation thereof.” State v. Wells, 259 N.C. 173, 177, 130
S.E.2d 299, 303 (1963) (emphasis added). We find no merit to theargument that in the absence of an instruction on acting in
concert, the State could not rely upon constructive possession to
prove the element of transportation.
Similarly, defendant argues that the evidence was insufficient
to show that he constructively possessed a firearm, a necessary
element of the charge of possession of a firearm by a felon. See
N.C. Gen. Stat. § 14-415.1 (2001). Possession of a firearm may
also be actual or constructive. See State v. Alston, 131 N.C. App.
514, 519, 508 S.E.2d 315, 318 (1998). “A person has constructive
possession of an item when the item is not in his physical custody,
but he nonetheless has the power and intent to control its
disposition.” Id.
Upon direct examination, Mr. Cole testified:
Q. Mr. Cole, I am showing you State's
Exhibit 7 which is a gun here. Have you
ever seen this gun before?
A. Yes.
Q. Where have you seen this gun before?
A. I saw it down there at his mama's house.
Q. You saw this at whose mother's house?
A. Alan Boyd. I saw it down there at his
mama's house.
Q. You have seen that gun at the Defendant's
mother's house?
A. That's right.
Q. Was that before the two of you were
arrested?
A. Yes, sir.
Q. How long before you two were arrested did
you see that gun down at the Defendant's
house, at his mother's house?
A. I saw it down there Sunday. He might
have put it in my car then. I didn't
know.
. . .
Q. Did you put the gun in your car?
A. No, sir.
Q. Could anybody else have put the gun in
your car?
A. No, sir. Nobody else hadn't been in that
car.
Q. Just you and the Defendant?
A. Me and the Defendant.
Officer Mike McKenzie testified, “I ordered [the defendant] to step
out of the car. As he was stepping out of the car he was reaching
with his left hand up underneath the passenger area of the seat.”
Officer McKenzie then radioed for backup. Officer Shane Caughey
was one of the responding officers who subsequently searched the
vehicle. He testified on direct examination:
Q. I show you what has been marked for
identification purposes as State's
Exhibit Number 7. Do you recognize that?
A. Yes, sir.
Q. And where do you recognize that from?
A. It was the .45 caliber handgun that I
took out from under the passenger side of
the seat of Mr. Cole's car.
. . .
Q. Now you say that you located that gun
underneath the passenger seat. Where
under the passenger seat? How far back
was it and how far left to right was it?
A. It was midway _ up under the seat midway
in the center of the seat. I've got
note[s] about it being midway and
completely out of view.
Q. So it would have been directly under the
center of the passenger seat?
A. Directly under the center of the seat
midway back between the front floorboard
and the rear floorboard.
In Alston, this Court found insufficient evidence to support
an inference of constructive possession of a firearm when the
evidence showed that the gun was found lying on the console between
the driver and the defendant, the driver and the defendant had
equal access to the gun, and the gun was purchased and owned by the
driver. See Alston, 131 N.C. App. at 519, 508 S.E.2d at 319.
Here, the evidence tended to show that the driver and the defendant
did not have equal access to the gun, which was under defendant's
seat, and officers saw defendant reaching under that seat. Theevidence also showed that the driver did not own the gun, and that
the gun was seen earlier at the defendant's mother's house. We
conclude that this evidence was sufficient to support an inference
that defendant constructively possessed the firearm, and that the
court did not err by refusing to dismiss the charge of possession
of a firearm by a felon.
Defendant next contends that the trial court's entry of
judgment on the separate convictions of trafficking in cocaine by
possession and possession of cocaine with intent to sell and
deliver violate his constitutional rights against double jeopardy.
See U.S. Const. Amend. V, U.S. Const. Amend. XIV, §1. In support
of his position, defendant cites this Court's decision in State v.
Sanderson, 60 N.C. App. 604, 300 S.E.2d 9 (1983), disc. review
denied, 308 N.C. 679, 304 S.E.2d 759 (1983). In Sanderson, this
court found that the constitutional guarantee against double
jeopardy protects a defendant from multiple punishments for the
same offense. See id. at 610, 300 S.E.2d at 14. To determine if
a single act constitutes one or two offenses, “[t]he applicable
rule is that where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is
whether each provision requires proof of an additional fact which
the other does not.” Id. (citing Blockburger v. United States, 284U.S. 299, 304, 76 L. Ed. 306, 309 (1932)).
Building upon the Sanderson decision and on subsequent
decisions, this Court decided in State v. Mebane that the principle
of double jeopardy barred convictions for possession with intent to
sell and deliver cocaine under N.C. Gen. Stat. § 90-95(a)(1) and
trafficking in the same cocaine by possession under N.C. Gen. Stat.
§ 90-95(h)(3) - the same convictions here. See State v. Mebane,
101 N.C. App. 119, 124, 398 S.E.2d 672, 675 (1990); see also State
v. McGill, 296 N.C. 564, 568, 251 S.E.2d 616, 619 (1979).
After Sanderson, the North Carolina Supreme Court held that
the Blockburger test is “neither binding on state courts nor
conclusive.” State v. Gardner, 315 N.C. 444, 455, 340 S.E.2d 701,
709 (1986). Further, “when a legislature clearly expresses its
intent to proscribe and punish exactly the same conduct under two
separate statutes, a trial court in a single trial may impose
cumulative punishments under the statutes.” Id. at 453, 340 S.E.2d
at 708 (quoting Missouri v. Hunter, 459 U.S. 359, 74 L. Ed. 2d. 535
(1983)). The Mebane Court was therefore obliged to determine what
the legislature intended when it passed separate statutes against
possession with intent to sell and deliver and trafficking by
possession. The Court noted that both statutes were designed to
deter distribution of cocaine, with the only difference being the
amount distributed. See Mebane, 101 N.C. App. at 124, 398 S.E.2dat 678. Therefore, the Court determined that “the legislature did
not intend that a defendant be punished for both of the statutory
crimes in issue.” Id.
However, our Supreme Court directly overruled Mebane in State
v. Pipkins, 337 N.C. 431, 435, 446 S.E.2d 360, 363 (1994). The
majority of a divided Court found that “[a]n examination of the
subject, language and history of the statutes indicates that the
legislature intended that these offenses be punished separately,
even where the offenses are based upon the same conduct.” Id. at
434, 446 S.E.2d at 362. Thus, in light of Pipkins, we are bound to
uphold the defendant's convictions for possession with intent to
sell and distribute cocaine and trafficking in the same cocaine by
possession.
No error.
Judges WYNN and CAMPBELL concur.
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