NO. COA01-837
Appeal by defendant from judgment dated 24 April 2001 by Judge
Ronald E. Spivey in Forsyth County Superior Court. Heard in the
Court of Appeals 26 March 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Claud R. Whitener, III, for the State.
Danny T. Ferguson for defendant-appellant.
GREENE, Judge.
Larry Stycarlo Johnson (Defendant) appeals a judgment dated 24
April 2001 entered consistent with a jury verdict finding him
guilty of felony possession of cocaine, possession of marijuana up
to one-half ounce, and having obtained the status of habitual
felon.
At trial, the State's evidence showed that Officer A.J. Santos
(Santos), of the Winston-Salem Police Department, and another
officer were working security for the Dixie Classic Fair (the Fair)
on 5 and 6 October 2000, when Santos was twice approached by an
employee of the company organizing the Fair. The employee told
Santos that Defendant, an employee of the Fair, was selling cocaineto patrons at the Fair. When Santos and the other officer
approached Defendant and asked to speak with him, Defendant fled on
foot, whereupon Santos gave chase. During the fifteen-foot chase
of Defendant, Santos observed Defendant, from approximately two
feet away, pulling napkins out of his right pocket and throwing
them on the ground. Santos testified that the napkins fell less
than six feet from him, and that after catching Defendant, he
retraced Defendant's steps and found the napkins Defendant had
pulled from his pockets. The napkins contained cocaine and
marijuana (verified by SBI lab tests). Santos specifically noted
that there were no other napkins or tissue lying in the area of
those napkins discarded by Defendant. During a search conducted
after Defendant's arrest, Santos found $395.00 on Defendant's
person.
At the close of the State's case, Defendant moved to dismiss
the charges against him. The trial court denied Defendant's
motion. After the jury found Defendant guilty of the substantive
possession charges, the State presented its evidence as to the
habitual felon charge. The jury subsequently found Defendant had
attained the status of an habitual felon. The trial court
consolidated the charges for sentencing.
_____________________________
The dispositive issue is whether the State presented
substantial evidence Defendant had possession, either actual or
constructive, of the controlled substances.
A motion to dismiss based upon insufficient evidence isproperly denied if there is “substantial evidence of [the]
defendant's guilt on every essential element of the crime charged.”
State v. Wilder, 124 N.C. App. 136, 139, 476 S.E.2d 394, 397
(1996). “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).
In ruling on a motion to dismiss, the trial court must consider the
evidence, direct, circumstantial, or both, in the light most
favorable to the State, giving the State the benefit of every
reasonable inference arising therefrom.
Wilder, 124 N.C. App. at
139, 476 S.E.2d at 397. “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. Smith, 40 N.C.
App. 72, 79, 252 S.E.2d 535, 540 (1979).
As Defendant takes issue only with the possession element of
the crimes charged, our analysis is limited to whether the State
produced substantial evidence Defendant knowingly possessed cocaine
and marijuana within the meaning of N.C. Gen. Stat. § 90-95.
Possession within the meaning of section 90-95 may be either actual
or constructive.
Wilder, 124 N.C. App. at 139, 476 S.E.2d at 397.
In the absence of actual possession, a person has constructive
possession of a controlled substance when he “has the intent and
power to maintain control over the disposition and use of the
substance.”
Id. at 139-40, 476 S.E.2d at 397. In this case
, viewing the evidence in the light most favorable
to Defendant, Santos testified he observed Defendant pull and
discard napkins from his right pocket. After those napkins were
retrieved a few minutes later, they were found to contain marijuana
and cocaine. There were no other napkins in the vicinity of those
napkins discarded by Defendant. This evidence is sufficient
evidence to enable a reasonable fact-finder to conclude Defendant
did indeed possess the cocaine and marijuana as charged.
See id.
at 140, 476 S.E.2d at 397 (a reasonable mind could rationally
conclude that a defendant possessed cocaine, where: the arresting
officer observed the defendant throw an object in the bushes when
the car in which he was a passenger was stopped by the police; the
bag was subsequently discovered in the bushes approximately ten
feet from where the car was stopped; and it was later determined by
the SBI lab that the bag contained 990.3 grams of cocaine).
Accordingly, the trial court did not err in denying Defendant's
motion to dismiss the substantive possession charges.
No error.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***