A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-618


Filed: 2 April 2002


         v.                        Wayne County
                                Nos. 00CRS644
STEVEN SWINSON,                        00CRS2076

    Appeal by defendant from judgment entered 13 September 2000 by Judge Thomas D. Haigwood in Wayne County Superior Court. Heard in the Court of Appeals 11 March 2002.

    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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