NO. COA01-967
Appeal by defendant from judgments entered 23 February 2000 by
Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in
the Court of Appeals 13 May 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for the State.
George E. Kelly, III for defendant-appellant.
TYSON, Judge.
I. Facts
William Charles Parks (“defendant”) was charged with
maintaining a dwelling used for keeping cocaine and with
trafficking in cocaine by possession. The State's evidence tends
to show that police officers executed an arrest warrant for Alonzo
Gardner (“Gardner”) at 311 Freeman Street, Raleigh, North Carolina
at about 9:30 a.m. on 21 October 1998. Police subsequently
obtained a search warrant for the premises. During execution of
the search warrant, officers found a small amount of crack cocaine
in a shoe box, which also contained defendant's North Carolina
photo identification and release papers. Officers also found asixty-one gram rock of crack cocaine in a closet near a bookbag,
which contained some more of defendant's release papers and a
letter addressed to defendant from his girlfriend. The search of
the premises also yielded a paper bag containing $920.00 in cash,
two sets of scales like those commonly used to measure drugs,
copper mesh which is often used as filters for smoking crack
cocaine, a “bong,” plastic baggies of the type used to package
individual rocks of crack cocaine for sale, seven handguns,
numerous rounds of ammunition, a shotgun, and cellular telephones.
Police officers also found photographs of defendant making an
obscene gesture and holding a large sum of money. Thirty minutes
prior to executing the arrest warrant on Gardner, police officers
observed defendant leaving the residence. Detective D.R. Johnson,
of the Raleigh Police Department, testified that while patrolling
the area around 311 Freeman Street he had observed defendant
present at the house and knew that he lived there.
Defendant's mother testified at trial that the house at 311
Freeman Street was rented in her name. She noted that she did not
live there and had rented the residence solely for the use of her
son, who had a key to the house. She stated that defendant gave
her money to assist her with the rent and utility bills.
A jury found defendant guilty. The trial court sentenced
defendant to an active term of thirty-five to forty-two months
imprisonment for the trafficking conviction and a suspended term of
six to eight months for the maintaining a dwelling used for keeping
cocaine conviction, to run consecutively. Defendant appeals.
II. Issues
A. Motion to Dismiss
Defendant contends that the trial court erred in denying his
motion to dismiss the charges against him. Defendant argues that
there was insufficient evidence that defendant committed the crimes
charged. We disagree.
This Court reiterated the standard for review to be used in
reviewing a trial court's decision on a motion to dismiss based
upon insufficient evidence:
In considering a motion to dismiss, the
trial court must consider the evidence in the
light most favorable to the State. The court
must determine if the evidence, in the light
most favorable to the State, shows substantial
evidence of each offense charged and, further,
shows that defendant committed the offense.
Substantial evidence is that amount of
relevant evidence which a reasonable mind
would find sufficient to support a conclusion.
If there is any evidence presented at trial
which tends to show that the defendant
committed the offense at issue, the motion is
properly denied and instead, the defendant's
guilt or innocence must be left to the jury.
State v. Smith, 121 N.C. App. 41, 44, 464 S.E.2d 471, 473 (1995)
(citations omitted). In
State v. Everhardt, this Court stated,
“'If there is more than a scintilla of competent evidence to
support allegations in the warrant or indictment, it is the court's
duty to submit the case to the jury.'” 96 N.C. App. 1, 11, 384
S.E.2d 562, 568 (1989) (quoting
State v. Horner, 248 N.C. 342, 344-
45, 103 S.E.2d 694, 696 (1958)),
aff'd, 326 N.C. 777, 392 S.E.2d
391 (1990). “In close or borderline cases, 'courts have
consistently expressed a preference for submitting issues to thejury[.]'”
State v. Kelly, 120 N.C. App. 821, 826, 463 S.E.2d 812,
815 (1995) (quoting
State v. Jackson, 103 N.C. App. 239, 244, 405
S.E.2d 354, 357 (1991)(other citations and quotations omitted)).
Defendant was charged with knowingly and intentionally
maintaining a dwelling used for keeping or selling controlled
substances under G.S. 90-108(a)(7). This statute provides that it
is unlawful “to knowingly keep or maintain any store, shop,
warehouse, dwelling house, building, vehicle, boat, aircraft, or
any place whatever, . . . which is used for the keeping or selling
of [a controlled substance].” N.C. Gen. Stat. §
90-108(a)(7)(2001). The issue of whether “a person 'keep[s] or
maintain[s]' a dwelling, within the meaning of N.C. Gen. Stat. §
90-108(a)(7), requires the consideration of several factors, none
of which are dispositive.”
State v. Bowens, 140 N.C. App. 217,
221, 535 S.E.2d 870, 873 (2000)(citation omitted). “Those factors
include: ownership of the property; occupancy of the property;
repairs to the property; payment of taxes; payment of utility
expenses; payment of repair expenses; and payment of rent.”
Id.
(citations omitted)
Here
, the evidence, in the light most favorable to the State,
tends to show that defendant was living at 311 Freeman Street in
1998. Defendant's mother testified that she leased the property in
her name “for the sole purpose of renting the house to [her] son to
have a place to live.” Defendant's mother also placed the
utilities in her name because defendant was unemployed. Defendant
and his mother had keys to the property. Defendant's mother statedthat she generally paid the rent and utility bills for defendant's
benefit, but defendant did give her money to assist with the costs.
When the police searched the house, they found men's clothing,
defendant's North Carolina photo ID, a photograph of defendant
making an obscene gesture and holding a large sum of money,
numerous booking and release papers dated 18 May 1998 that listed
defendant's address as 311 Freeman Street, and a personal letter
from defendant's girlfriend. The police also found a sixty-one
gram rock of crack cocaine in the house. This quantity is usually
associated with dealing in cocaine, since the rock can be cut up
and packaged for individual sale. The police seized another small
rock of cocaine, a paper bag containing $920.00 in cash, and
various other items associated with the drug trade.
This evidence viewed in the light most favorable to the State
is sufficient for a reasonable person to infer that defendant kept
or maintained the residence for drug activities. As this Court
stated in
Kelly, “To withstand a motion to dismiss, overwhelming
evidence is not needed. In close or borderline cases, 'courts have
consistently expressed a preference for submitting issues to the
jury.'”
Kelly, at 826, 463 S.E.2d at 815 (quoting
Jackson, 103
N.C. App. at 244, 405 S.E.2d at 357 (other citations and quotations
omitted)). The cases relied upon by defendant are readily
distinguishable. This portion of defendant's assignment of error
is overruled.
B. Constructive Possession
Defendant was also charged with trafficking in cocaine bypossession under G.S. 90-95(h)(3). To obtain a conviction for this
offense, the State must prove the defendant "possesse[d]" cocaine.
N.C.G.S. §90-95(h)(3) (2000). This Court recently explained,
An accused has possession of a controlled
substance within the meaning of the law when
he has both the power and intent to control
its disposition or use. Necessarily, power
and intent to control the controlled substance
can exist only when one is aware of its
presence. “Possession of controlled substances
may be either actual or constructive." . . .
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. “Proving constructive
possession where defendant had nonexclusive
possession of the place in which the drugs
were found requires a showing by the State of
other incriminating circumstances which would
permit an inference of constructive
possession."
State v. Matias, 143 N.C. App. 445, 448, 550 S.E.2d 1, 3 (citations
omitted),
aff'd, 354 N.C. 549, 556 S.E.2d 269 (2001). Whether an
accused had constructive possession of a controlled substance is
dependent upon “'the totality of the circumstances.'”
State v.
Butler, ___ N.C. App. ___, ___, 556 S.E.2d 304, 311 (2001)(quoting
Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991)
(citations omitted)). “'No single factor controls, but ordinarily
the questions will be for the jury.'”
Id.
Viewing the evidence in the light most favorable to the State,
the evidence tends to show that defendant, along with his co-
defendant, had possession and control of the residence where the
cocaine was found. When police officers searched the residencelocated at 311 Freeman Street, they found defendant's state-issued
photo identification card, and numerous booking and release papers.
Some of those release papers were found in a shoe box that
contained a small rock of crack cocaine. Other release papers and
a personal letter written to defendant were found in a black
backpack located in the closet and in close proximity to the large
rock of crack cocaine. Various other items associated with the
drug trade were also seized during the search of the defendant's
residence. This evidence was sufficient incriminating evidence
from which the rational fact-finder could infer defendant's guilty
knowledge and intent to possess and sell the cocaine seized by the
police.
We conclude that the trial court did not err in denying
defendant's motion to dismiss. This assignment of error is
overruled.
III. Admission of Lab Report
Defendant argues that the trial court erred in admitting, over
his objection, the State Bureau of Investigation (SBI) laboratory
report regarding the identity and weight of the substances seized
from defendant's residence. We disagree.
G.S. 90-95(g) provides that the State may introduce into
evidence, without further authentication, a lab report prepared by
the SBI, after analysis, showing the identity, nature, and quantity
of a suspected controlled substance if:
(1) The State notifies the defendant at least
15 days before trial of its intention to
introduce the report into evidence under this
subsection and provides a copy of the reportto the defendant, and
(2) The defendant fails to notify the State
at least five days before trial that the
defendant objects to the introduction of the
report into evidence.
N.C. Gen. Stat. § 90-95(g)(1),(2)(1999).
The record shows that the State sent a copy of the lab report
to defendant some eight months prior to trial. The lab report was
attached to the State's response to one of defendant's discovery
requests, and was listed as a discoverable report. The State's
response also stated, “Unless otherwise indicated herein, the State
intends to offer into evidence all statements, documents, tangible
objects, reports, etc. disclosed in this response.”
We conclude that the State's actions were in full compliance
with G.S. 90-95(g) and constituted timely notice of the State's
intent to introduce the SBI lab report into evidence. This
assignment of error is overruled.
Having considered all of defendant's arguments, we find no
error.
No error.
Judges GREENE and HUDSON concur.
Report per Rule 30(e).
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