STATE OF NORTH CAROLINA
v
.
IVORY JOE TISDALE
Attorney General Roy Cooper, by Special Deputy Attorney
General Elizabeth Leonard McKay, for the State.
Donald E. Gillespie, Jr. for defendant-appellant.
THOMAS, Judge.
Defendant, Ivory Joe Tisdale, was convicted of possession of
cocaine and being an habitual felon. He was sentenced to a term of
132 to 168 months imprisonment and now appeals.
Defendant argues the trial court erred in denying his motion
to dismiss the possession of cocaine charge for insufficiency of
the evidence. For the reasons discussed herein, we find no error.
The State's evidence tended to show that on or about 11 March
2000, Officer M.P. O'Hal of the Greensboro Police Department
stopped his patrol car at a stop light just behind a white
Mitsubishi Eclipse operated by defendant. When the light turnedgreen, defendant quickly accelerated through the intersection.
O'Hal paced the vehicle and determined it was traveling 60 miles
per hour in a 35 mile per hour speed zone. He pulled defendant
over for speeding. Defendant was alone and the vehicle he was
driving was a rental car registered to Harold Leak.
Defendant was asked by O'Hal to produce a driver's license and
vehicle registration, to which defendant responded, "No, I do not
have one." While O'Hal and defendant were discussing the license
and registration, O'Hal looked inside the vehicle and noticed in
plain view a small baggie containing two "off-white rocklike
substance[s]." The baggie was located in the cutout near the
handle on the driver's side door.
O'Hal then asked defendant to get out of the vehicle and
placed him under arrest for not having a driver's license. O'Hal
testified that defendant was "sweating profusely," which the
officer attributed to nervousness engendered by the stop. After
placing defendant in the patrol car, Officer O'Hal searched
defendant's vehicle. He found another small baggie under the
driver's seat which contained "the same type of off-white rocklike
substance." Field tests on the substances in the two baggies
produced a positive reaction for cocaine. Later analysis by the
State Bureau of Investigation confirmed that the baggies contained
a total of .39 grams of cocaine. O'Hal testified that he observed defendant for the better part
of two hours. Based on his observations, O'Hal stated defendant
"was impaired under some substance." However, on cross
examination, O'Hal stated he did not believe defendant was
"appreciably impaired [or] unfit to drive." Accordingly, he did
not charge defendant with driving while impaired. O'Hal further
testified that he smelled a mild odor of alcohol on defendant.
Defendant presented the testimony of Harold Leak, who stated
that he leased the vehicle in February 2000 to use on the weekends,
and for April King, a female friend, to use during the week. Prior
to defendant gaining possession of the car, Leak had taken it to
the carwash, where he allowed Jeff Cosby, an admitted homeless
crack cocaine addict, to wash it. Leak did not notice any cocaine
in the driver's side door when he left the carwash, but he
testified that Cosby told him a couple of days later that Cosby had
dropped some "dope" in the car. After getting the car washed, Leak
returned it to April King, who subsequently loaned it to defendant.
Cosby testified that he washed the car for Leak in March 2000,
and in the course of vacuuming the inside of the car, he dropped
some cocaine and "put some on the door handle."
In his assignment of error, defendant argues the trial court
erred in denying his motion to dismiss at the close of all the
evidence. He contends the State presented insufficient evidence ofactual or constructive possession. We disagree.
A motion to dismiss is properly denied if “there is
substantial evidence (1) of each essential element of the offense
charged and (2) that defendant is the perpetrator of the offense.”
State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State v.
Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). “When
ruling on a motion to dismiss, all of the evidence should be
considered in the light most favorable to the State, and the State
is entitled to all reasonable inferences which may be drawn from
the evidence.” State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d
138, 141 (1998). If substantial evidence exists, whether direct,
circumstantial, or both, supporting a finding that the offense
charged was committed by the defendant, the case must be left for
the jury. State v. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187,
189 (1989). If 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. Grigsby, 351 N.C. 454, 456-57,
526 S.E.2d 460, 462 (2000).
"A defendant has possession of a controlled substance when hehas both the power and intent to control its disposition or use."
State v. Hunter, 107 N.C. App. 402, 408, 420 S.E.2d 700, 705
(1992), overruled on other grounds, State v. Pipkins, 337 N.C. 431,
446 S.E.2d 360 (1994). With regard to the possession of controlled
substances, the Supreme Court recently set forth the applicable law
as follows:
"[I]n a prosecution for possession of
contraband materials, the prosecution is not
required to prove actual physical possession
of the materials." State v. Perry, 316 N.C.
87, 96, 340 S.E.2d 450, 456 (1986). Proof of
nonexclusive, constructive possession is
sufficient. Id. Constructive possession
exists when the defendant, "while not having
actual possession, . . . has the intent and
capability to maintain control and dominion
over" the narcotics. State v. Beaver, 317
N.C. 643, 648, 346 S.E.2d 476, 480 (1986).
"Where such materials are found on the
premises under the control of an accused, this
fact, in and of itself, gives rise to an
inference of knowledge and possession which
may be sufficient to carry the case to the
jury on a charge of unlawful possession."
State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d
706, 714 (1972). "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."
Davis, 325 N.C. at 697, 386 S.E.2d at 190; see
also Brown, 310 N.C. at 569, 313 S.E.2d at
588-89.
State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 (2001). "An inference of constructive possession can . . . arise from
evidence which tends to show that a defendant was the custodian of
the vehicle where the controlled substance was found." State v.
Dow, 70 N.C. App. 82, 85, 318 S.E.2d 883, 886 (1984). In fact,
this Court has consistently held that "[t]he driver of a borrowed
car, like the owner of the car, has the power to control the
contents of the car." State v. Glaze, 24 N.C. App. 60, 64, 210
S.E.2d 124, 127 (1974); see also Dow, 70 N.C. App. at 85, 883
S.E.2d at 886; State v. Wolfe, 26 N.C. App. 464, 467, 216 S.E.2d
470, 473 (1975). Thus, where contraband material is found in a
vehicle under the control of an accused, even though the accused is
the borrower of the vehicle, "this fact is sufficient to give rise
to an inference of knowledge and possession which may be sufficient
to carry the case to the jury." Glaze, 24 N.C. App. at 64, 310
S.E.2d at 127 (emphasis added). This inference is rebuttable and
if the accused offers evidence rebutting the inference, the State
must show other incriminating circumstances before constructive
possession may be inferred. See Matias, 354 N.C. at 552, 556
S.E.2d at 270-71.
Here, although the evidence shows defendant had control of the
vehicle when stopped by O'Hal, defendant's control was not
exclusive. The vehicle was a rental car registered in another
person's name. The car had recently been used by at least twoindividuals on a regular basis and an admitted crack cocaine addict
testified he had recently dropped cocaine in the car while washing
it. Therefore, the critical issue is whether the evidence
discloses other incriminating circumstances sufficient for the jury
to find defendant had constructive possession of the cocaine. When
the evidence is examined in the light most favorable to the State,
we find such additional incriminating circumstances do exist and
conclude the trial court properly denied defendant's motion to
dismiss.
Just before defendant was pulled over, he had accelerated from
0 to 60 miles per hour in a 35 mile per hour speed zone with a
police officer directly behind him. The officer noticed the
cocaine in plain view in the car door handle on the driver's side
of the vehicle, well within reach of defendant. While talking with
the officer, defendant was "sweating profusely" and was nervous.
In the officer's opinion, defendant "was under the influence of
something[,]" although the officer did not consider defendant to be
so impaired that he could not drive. A subsequent search of the
vehicle uncovered more cocaine located under the driver's seat.
This second baggie of cocaine was also well within defendant's
reach. Although Cosby, an admitted cocaine addict, testified he
placed or dropped cocaine in the car while cleaning it, Leak
testified he did not notice any cocaine in the vehicle followingthe cleaning. Taken in the light most favorable to the State, this
evidence supports a reasonable inference that defendant was aware
of the presence of cocaine in the vehicle and had the power and
intent to control its disposition.
Defendant was free to argue to the jury that Cosby had placed
the cocaine in the vehicle and that the cocaine did not belong to
defendant. However, that argument does not make the State's
evidence of other incriminating circumstances any less sufficient
to survive a motion to dismiss. Accordingly, we hold that the
trial court did not commit error.
No error.
Judges MARTIN and TYSON concur.
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