STATE OF NORTH CAROLINA
v. Wayne County
Nos. 00CRS644
STEVEN SWINSON, 00CRS2076
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Anne Goco Kirby, for the State.
Benjamin M. Turnage for defendant-appellant.
BRYANT, Judge.
Defendant Steven Swinson was charged with possession with
intent to sell and deliver a counterfeit controlled substance and
having attained the status of habitual felon. The evidence tends
to show the following: Defendant was wanted for the unauthorized
use of a vehicle, when he was spotted and detained by two Wayne
County Sheriff's Deputies. The deputies quickly patted defendant
down for weapons and searched the vehicle with defendant's consent.
Since the warrant for defendant's arrest was held by the Mount
Olive Police Department, the deputies contacted that police
department to report defendant's arrest. Mount Olive Patrol
Officer James Stephens responded to the scene of the arrest withthe warrant, and conducted a search of defendant incident to his
lawful arrest. At this time, Officer Stephens located what he
suspected to be rock cocaine in defendant's left front pants
pocket. Sixteen rocks of a substance were contained in a plastic
bottle cap wrapped in a small plastic bag. Defendant immediately
stated, “That's not real.” Officer Stephens then located a bagful
of little black rubber bands. Defendant told the officer that the
rubber bands were for his hair. Defendant was transported to the
Mount Olive Police Department, where he was read his Miranda rights
and questioned. Defendant told the questioning officer, Detective
Sergeant Tommy Brown, of the Mount Olive Police Department, that
the rock-like substances found on his person were “dummies.”
Defendant explained that on the day before, while at the residence
of Marcus Coman, he had observed Coman making the “dummies” by
melting wax and breaking it up so that it appeared to be rock
cocaine. Defendant noted that Coman gave him the “dummies” to hold
for him, and that he put the “dummies” in his coat pocket and
forgot to remove them. State Bureau of Investigation laboratory
tests revealed that the rocks seized from defendant's person did
not contain a controlled substance.
At trial, Sergeant Brown testified that “dummies” is a term
commonly used on the street to describe rock-like substances being
sold as crack cocaine, but which do not, in fact, contain cocaine.
Lieutenant Brian Rhodes, of the Mount Olive Police Department,
testified that “dummies” are “used to rip the consumer off and sold
to the consumer as crack cocaine.” Based upon seventeen years ofexperience in law enforcement, Lieutenant Rhodes opined that
“dummies” have “no purpose at all except to rip the people that are
smoking cocaine off.” The lieutenant further opined that three of
the rocks found in defendant's possession on 20 January 2000 would
probably be sold as fifty dollar rocks, two others would be sold as
ten dollar rocks, and the remaining eleven would be sold as twenty
dollar rocks.
Defendant did not present any evidence. The jury found
defendant guilty as charged, and the trial court sentenced him as
a Class C felon to a presumptive term of 80-105 months
imprisonment. Defendant appeals.
By his sole assignment of error on appeal, defendant argues
that the trial court erred in denying his motion to dismiss the
possession with intent to sell and or deliver a counterfeit
controlled substance charge. A motion to dismiss is properly
denied if "there is substantial evidence (1) of each essential
element of the offense charged and (2) that [the] 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, the court
must consider the evidence in the light most favorable to the
State, giving the State the benefit of every favorable inference to
be drawn therefrom. State v. Davis, 130 N.C. App. 675, 679, 505
S.E.2d 138, 141 (1998). “The test for sufficiency of the evidenceis the same regardless of whether the evidence is circumstantial or
direct." State v. Harding, 110 N.C. App. 155, 162, 429 S.E.2d 416,
421 (1993) (citations omitted).
To obtain a conviction of possession with intent to sell and
deliver a counterfeit controlled substance, in violation of
N.C.G.S. § 90-95(a)(2), the State must prove (1) that defendant
possessed a counterfeit controlled substance, and (2) that
defendant intended to “sell or deliver” the counterfeit controlled
substance. N.C.G.S. § 90-95(a)(2) (1999); see State v. Creason,
313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985) (setting out the
elements of possession with intent to sell or deliver a controlled
substance under N.C.G.S. § 90-95(a)(1)). Defendant does not
contest the sufficiency of the evidence as to whether he possessed
a counterfeit controlled substance. Instead, he contends that the
State failed to produce sufficient evidence to show that he
intended to sell or deliver the counterfeit controlled substance.
We will, therefore, confine further definition and analysis to the
second prong of subject charge.
In Creason, our Supreme Court defined the terms “sale” and
“deliver” as contemplated by the North Carolina Controlled
Substances Act. The Court defined “sale” as “a transfer of
property for a specified price payable in money.” 313 N.C. at 129,
326 S.E.2d at 28. “Deliver” or “delivery” was defined as “the
actual, constructive, or attempted transfer from one person to
another of a controlled substance,” whether or not there is an
agency relationship. Id. (citing N.C.G.S. § 90-87(7)). The juryis not required to find that the defendant's possession was with
the intent to both sell and deliver the counterfeit controlled
substance; as long as the jury finds that the possession was with
the intent to sell or deliver, the crime is proved. Id. Finally,
as to the element of intent, we note that intent is rarely shown by
direct evidence, but most often must be shown by circumstantial
evidence from which it may be inferred. State v. Jackson, ___ N.C.
App. ___, ___, 550 S.E.2d 225, 229 (2001). In State v. Carr, this
Court noted, “The amount of the controlled substance, the manner of
its packaging, labeling, and storage, along with the activities of
a defendant may be considered in establishing intent to sell and
deliver by circumstantial evidence.” 122 N.C. App. 369, 373, 470
S.E.2d 70, 73 (1996).
Here, there is plenary evidence from which the fact-finder
could infer that defendant possessed the intent to sell or deliver
the counterfeit controlled substance found in his possession on 20
January 2000. The evidence taken in the light most favorable to
the State tended to show that law enforcement found the subject
counterfeit controlled substance inside a plastic bag in
defendant's left front pocket. The substance was in the form of
sixteen rocks that appeared to be crack cocaine. Several of the
police officers involved in this case testified that based upon
their prior experience, the “dummy” rocks were sized and packaged
consistent with the manner in which crack cocaine is sold--in a
baggy sealed with a small black rubber band. Significantly,
defendant was in possession of additional small black rubber bands. Furthermore, it is uncontroverted that defendant knew that he
possessed a counterfeit controlled substance. Although defendant
stated during questioning that he was merely holding the substance
for someone, the reasonable fact-finder could certainly infer from
the above-mentioned evidence that defendant possessed the instant
counterfeit controlled substance for the purpose of “rip[ping] off
the consumer,” i.e., for the sale or delivery to the unsuspecting
consumer. Accordingly, we conclude that the trial court properly
denied defendant's motion to dismiss.
Having so concluded, we hold that defendant received a fair
trial, free from prejudicial error.
No error.
Judges WYNN and THOMAS concur.
Report per Rule 30(e).
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