STATE OF NORTH CAROLINA
v. Pitt County
Nos. 00 CRS 4854, 67006
RANDY LEE ARTIS
Attorney General Roy Cooper, by Assistant Attorney General
David G. Heeter, for the State.
Jonathan E. Jones for defendant-appellant.
WALKER, Judge.
A jury found defendant guilty of possession of cocaine. After
admitting to being an habitual felon, defendant was sentenced to
121 to 155 months in prison. Defendant gave notice of appeal in
open court.
The State's evidence tended to show that, while conducting
surveillance from a nearby field on the night of 7 November 1999,
Greenville Police Officer W.A. Holloman observed defendant standing
in a breezeway at the Heritage Inn Hotel. Holloman had previously
conducted “well over 200 hours of surveillance” due to the high
volume of narcotics activity at the hotel. Believing that
defendant was selling drugs, Holloman sought to determine wheredefendant was hiding his stash of drugs. He explained that dealers
commonly hid their stash and money in a nearby location, so they
would not be carrying contraband if they were stopped by police.
Over the course of two hours, Holloman watched defendant approach
at least five vehicles which drove through the hotel parking area.
On some occasions defendant made initial contact with a vehicle,
went back to the breezeway, and returned to the vehicle. In other
instances, defendant had only one contact with the vehicle.
Holloman saw defendant reach his head or hands into each vehicle
but did not see any items exchanged. Defendant's interaction with
a vehicle lasted “[n]o more than one and [a] half to two
minutes[.]”
Realizing he would not be able to learn any additional
information from his position, Holloman drove with Sergeant Phipps
into the hotel parking lot. As they approached defendant, Sergeant
Phipps yelled for him to stop. Defendant turned to look at the
officers and walked quickly around a corner out of their field of
vision. Phipps ran into the courtyard to intercept defendant but
could not find him. Holloman saw defendant on a terrace on the
hotel's second floor. Holloman directed defendant to come down to
ground level, meeting him in a corridor beside the stairwell.
Holloman observed Officer Fisher conduct a consent search of
defendant. In defendant's left jacket pocket were several small
plastic baggies that were “[l]ight pink-peach” in color. Holloman
began to retrace defendant's steps up to the second floor terrace,
looking for contraband. When he arrived at the entrance of thestairwell, Holloman found a brown piece of paper which held seven
pieces of crack cocaine packaged in plastic baggies of the same
size and color as those found in defendant's pocket.
In his lone assignment of error on appeal, defendant
challenges the trial court's denial of his motion to dismiss. He
asserts that the State failed to present substantial evidence that
he possessed the cocaine found in the hotel stairwell. He notes
that he was never seen in the stairwell and did not exercise
control over the area. Similarly, he contends that other people
had free access to the stairwell before the drugs were found.
Defendant avers there was no showing that he ever sold or purchased
cocaine. Finally, he points out that he had no money on his person
and that the plastic bags found in his possession were empty.
In reviewing the denial of defendant's motion to dismiss, this
Court must determine whether the evidence, when viewed in the light
most favorable to the State, is sufficient to allow a reasonable
juror to find defendant guilty of the essential elements of the
offense beyond a reasonable doubt. See State v. Jones, 147 N.C.
App. 527, 545, 556 S.E.2d 644, 655 (2001), disc. rev. denied, 355
N.C. 351, 562 S.E.2d 427 (2002). The State is entitled to all
favorable inferences reasonably drawn from the evidence. State v.
Tucker, 347 N.C. 235, 243, 490 S.E.2d 559, 563 (1997), cert.
denied, 523 U.S. 1061, 140 L. Ed. 2d 649 (1998). Although the
evidence supporting a finding of the defendant's guilt must be
substantial, it need not exclude every reasonable hypothesis of innocence to survive a motion to dismiss. See State v. Riddick,
315 N.C. 749, 759, 340 S.E.2d 55, 61 (1986).
Possession of a controlled substance may be actual or
constructive. State v. Hamilton, 145 N.C. App. 152, 155, 549
S.E.2d 233, 235 (2001). A person has constructive possession of an
object if he lacks actual physical possession thereof but retains
the power and intent to control its disposition and use. See State
v. Givens, 95 N.C. App. 72, 78, 381 S.E.2d 869, 872 (1989).
Evidence which places a defendant in the same location as a
controlled substance is insufficient to permit an inference of
constructive possession, absent an additional showing that he was
aware of its presence. See State v. Weems, 31 N.C. App. 569, 570-
71, 230 S.E.2d 193, 194 (1976). Thus, where a defendant is found
in close proximity to drugs in an area not within his exclusive
control, the State must show “'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, affirmed,
354 N.C. 549, 556 S.E.2d 269 (2001)(quoting State v. Carr, 122 N.C.
App. 369, 372, 470 S.E.2d 70, 73 (1996)).
The trial court properly denied the motion to dismiss. The
State's evidence showed that defendant was observed engaging in
suspicious behavior over a two-hour period at a hotel known for a
high degree of drug-related activity. When approached by police
and ordered to stop, he instead moved out of their field of vision
and up a stairwell onto the second floor of the hotel. Defendant
then returned to ground level to speak with police who, in turn,found several rocks of crack cocaine at the bottom of the
stairwell. While these facts standing alone might be insufficient
to prove defendant's constructive possession of the cocaine, see
State v. Ledford, 23 N.C. App. 314, 316, 208 S.E.2d 870, 872
(1974), the State further showed that the cocaine in the stairwell
was wrapped in small, plastic baggies identical in size and color
to those found on defendant's person. In light of this evidence
linking the cocaine's distinctive packaging to defendant, we
conclude the State presented sufficient incriminating circumstances
to permit an inference of constructive possession.
No error.
Judges THOMAS and BIGGS concur.
Report per Rule 30(e).
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