The premises on which cocaine was found were not under defendant's control and the State
failed to present incriminating circumstances from which constructive possession could be
inferred. Defendant was on or near the sidewalk in front of a house used for car detailing when
officers approached; he fled and was chased from a sidewalk into bushes behind a detached
garage; defendant did not own or live in the house; an officer saw defendant make a throwing
motion toward the bushes but not the garage; and nothing was found in the bushes but five bags
of cocaine were found on the roof of the garage.
Attorney General Roy Cooper, by Assistant Attorney General
Edwin Lee Gavin, II, for the State.
Robert T. Newman, Sr. for the defendant-appellant.
WYNN, Judge.
Following his conviction on drug-related charges, defendant
contends on appeal that the trial court erroneously failed to
dismiss the charges against him. For the reasons given by our
Supreme Court in State v. Chavis, 270 N.C. 306, 154 S.E.2d 340
(1967), we are compelled to hold that the record in this case shows
that the evidence raised only a suspicion of possession;
accordingly, we reverse defendant's convictions.
The underlying facts of this case tend to show that while
waiting on 29 August 2000 for a tax warrant to seize an unoccupied
black Mercedes, Winston Salem Police Detectives K. L. Jones, Matt
Morgan, Priscilla Thomas, Curtis Richardson, and Mike Cardwell sawdefendant, Rudolph Cephus Acolatse, drive up and park his vehicle
behind the Mercedes. Although defendant did not own the Mercedes
under surveillance, the detectives determined that he was driving
with a revoked license. However, when the detectives attempted to
approach defendant who was now outside of his car talking on a cell
phone, defendant ran along the left side of the house nearest to
the parked Mercedes. Detective Richardson responded by pursuing
him along the left side of the house; and, he could see the
defendant at all times until the detective encountered a pit bull
dog near a detached garage. He lost sight of defendant for
approximately ten seconds.
In the meantime, Detective Thomas, upon seeing Detective
Richardson run around the left side of the house, ran around the
right side of the house to trap defendant. Once Detective Thomas
rounded the house, she did not see defendant. She went to the
corner of a shed in the backyard and immediately saw defendant
standing near a fence in some bushes.
Detective Cardwell also ran around the right side of the
house. Upon rounding the house, the detective saw defendant
approaching the rear of the storage building and was in between an
old vehicle parked there and the wall of the storage building.
Detective Cardwell went towards the fence because he felt defendant
was going to jump over the fence. Detective Cardwell stated
Detective Thomas was closer to the storage shed. Detective
Cardwell did not see defendant make a throwing motion.
Detective Jones remained in front of the house near the
vehicles during the chase and Detective Morgan ran to anotherstreet to intercept defendant if he ran out onto that street.
After defendant ran around the corner of the house, neither
Detective Jones nor Morgan saw defendant again until he was in
custody.
After defendant's arrest, Detective Thomas told the other
detectives she saw defendant make a throwing motion towards the
bushes. Detective Jones, a K-9 officer, searched the area with her
dog. Nothing was found in the bushes. However, the dog alerted to
the odor of narcotics near a detached garage. The detectives then
found five bags of cocaine, 39.6 grams, on the roof of the detached
garage in an area that was not located near the bushes. There were
no fingerprints on the bags. Defendant did not own or reside at
the house next to the detached garage, and the detectives testified
they did not know who owned the house. The detectives also
searched defendant's car, but no drugs were found. The detectives
found a cell phone in defendant's car and found the cell phone on
which defendant had been talking in the front yard. A third phone
was also recovered. Defendant had $830.00 in cash on his person.
After a trial, defendant was convicted of possession with
intent to sell and deliver cocaine and trafficking in cocaine by
possession, sentenced to a term of 35 months to 42 months and fined
$50,000. He appealed.
--------------------------------------------
On appeal, the defendant contends the trial court erroneously
denied his motion to dismiss the charges based upon insufficient
evidence. “The standard for ruling on a motion to dismiss is
whether there is substantial evidence (1) of each essential elementof the offense charged and (2) that defendant is the perpetrator of
the offense. Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
In determining the sufficiency of the evidence the trial court must
consider such evidence in the light most favorable to the State,
giving the State the benefit of every reasonable inference to be
drawn therefrom.” State v. Harris, 145 N.C. App. 570, 578, 551
S.E.2d 499, 504 (2001).
“Under the charge of possession with the intent to sell or
deliver cocaine, the State has the burden of proving: (1) the
defendant possessed the controlled substance; and (2) with the
intent to sell or distribute it.” State v. Diaz, 155 N.C. App.
307-319, 575 S.E.2d 523, 531 (2002). “To prove the offense of
trafficking in cocaine by possession, the State must show 1)
knowing possession of cocaine and 2) that the amount possessed was
28 grams or more.” State v. White, 104 N.C. App. 165, 168, 408
S.E.2d 871, 873-74 (1991); see also N.C. Gen. Stat. § 90-
95(h)(3)(a). Since the State had no evidence to show that
defendant actually possessed the cocaine, the State sought to prove
the possession element of trafficking in cocaine by possession or
possession with the intent to sell and deliver cocaine by
constructive possession. See State v. Wilder, 124 N.C. App. 136,
139-40, 476 S.E.2d 394, 397 (1996); State v. Diaz, 155 N.C. App.
307, 313-14, 575 S.E.2d 523, 528-29 (2002).
“Constructive possession occurs when a person lacks actual
physical possession, but nonetheless has the intent and power to
maintain control over the disposition and use of the substance.”State v. Wilder, 124 N.C. App. 136, 139-40, 476 S.E.2d 394, 397
(1996). “Where a controlled substance is found on premises under
the defendant's control, this fact alone may be sufficient to
overcome a motion to dismiss and to take the case to the jury. If
a defendant does not maintain control of the premises, however,
other incriminating circumstances must be established for
constructive possession to be inferred.” State v. Neal, 109 N.C.
App. 684, 686, 428 S.E.2d 287, 289 (1993).
In this case, the cocaine evidence was found on the roof of a
detached garage in the backyard of a residence. The defendant did
not own the residence and the detectives testified they did not
know who owned the premises. Prior to being chased by the
detectives, the defendant was in the front area of the residence
near the sidewalk at all times. Under these facts, the premises
were not under the defendant's control. Accordingly, the State
must demonstrate other incriminating circumstances to raise an
inference of constructive possession.
The State contends the evidence placing the defendant in close
juxtaposition to the cocaine, the money ($830.00) found on
defendant's person in denominations consistent with the sale of
controlled substances and the defendant's throwing motion are
sufficient incriminating circumstances from which one can infer
constructive possession. We disagree.
In State v. Chavis, our Supreme Court reversed the defendant's
conviction for felonious possession of marijuana even though the
evidence invoked a strong suspicion that the defendant had
constructive possession of the marijuana. In Chavis, the policehad been following the defendant for several blocks and had been
close enough to touch the defendant if they so desired. They
observed the defendant wearing gray trousers, a three-quarter
length coat and a gray felt hat. They watched the defendant as he
and another man talked and walked across a vacant lot and down a
street. The “defendant and his companion were observed by the
officers continuously except for two or three seconds when the
headlights of . . . a car . . . caused the officers to step back
out of the glare of the headlights to avoid disclosure of their
presence.” The officers then crossed the street and continued to
watch the men for approximately one minute until the defendant
began walking back towards the officers. The officers stopped the
defendant and searched him. At the time of the search, the
defendant was bareheaded. The officers searched the area and
thirty minutes later, they found a hat identical to the one the
defendant had been wearing approximately four or five feet from
where the police had observed the defendant and his companion
talking. The police found marijuana in the crown of the hat.
Chavis, 270 N.C. 306, 306-09, 154 S.E.2d 340, 341-43 (1967). In
reversing the defendant's conviction in Chavis, our Supreme Court
acknowledged the evidence against the defendant was strong enough
to raise a suspicion that the defendant possessed the marijuana;
however, the evidence was not substantial enough to present the
case to the jury. Chavis, 270 N.C. at 311, 154 S.E.2d at 344.
Following Chavis, we are compelled to hold that substantial
evidence of possession was not presented in this case.
In this case, the evidence viewed in the light most favorableto the State shows the detectives were in front of a residence
conducting surveillance upon a convicted drug dealer's automobile
when defendant drove up and parked in front of the residence
frequented by people for car detailing services. The automobile
under surveillance did not belong to defendant. Defendant was in
the front area of another person's residence near the sidewalk
talking on a cell phone and approaching his car when the detectives
approached him to question him about driving with a revoked
license. Defendant looked up, saw the officers and ran around the
left side of the residence down the driveway. Four detectives
pursued defendant. Defendant was apprehended in the bushes behind
the detached garage near a fence after a police officer saw him
make a straight throwing motion towards the bushes. Nothing was
found in the bushes; however, drugs were found on the roof of the
detached garage. One of the detectives testified the twenty-five
foot roof line where the drugs were found was in a different
direction from the bushes. The bushes were either directly across
from the roof or off to a ninety degree angle. None of the
detectives saw the defendant throw anything on the roof and no
fingerprints were found on the bags of cocaine. Although the odor
of cocaine was detected in the defendant's vehicle, no drugs were
found in the vehicle.
At trial, the State contended the cocaine odor in the
defendant's vehicle combined with the belief that during the few
seconds the defendant was out of the detectives' view, the
defendant had enough time to throw the drugs onto the roof was
enough to establish possession. However, Chavis dictates that thisevidence only raises a suspicion of possession. “If the evidence
is sufficient merely to raise a suspicion or conjecture as to any
element of the offense, even if the suspicion is strong, the motion
to dismiss should be allowed.” State v. Thomas, 329 N.C. 423, 433,
407 S.E.2d 141, 148 (1991). “This is true even though the
suspicion aroused by the evidence is strong.” State v. Ledford, 23
N.C. App. 314, 316, 208 S.E.2d 870 (1974)(where constructive
possession of LSD was not established even though the police
observed the defendant go near the location where the drugs were
found several times); see also State v. Chavis, 270 N.C. 306, 154
S.E.2d 340 (1967).
In sum, we must hold under our Supreme Court's decision in
Chavis that the State has failed to present any incriminating
circumstances from which one can infer constructive possession.
See State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318
(1998)(stating there must be more than mere association or presence
linking the person to the item in order to establish constructive
possession); State v. Neal, 109 N.C. App. 684, 687-88, 428 S.E.2d
287, 289-90 (1993)(describing evidence of a defendant's presence in
a closed room which contained the controlled substance coupled with
the fact the defendant had a large amount of cash on his person and
another case in which there was evidence of the defendant fleeing
from, not to, the area where illegal drugs were found as two cases
in which there were sufficient incriminating circumstances); State
v. Wilder, 124 N.C. App. 136, 476 S.E.2d 394 (1996)(constructive
possession established where defendant threw a white substance into
the bushes, cocaine was later found in the bushes into which thedefendant had thrown, and after the police left, the defendant's
friends searched the bushes for the cocaine); State v. King, 99
N.C. App. 283, 288, 393 S.E.2d 152, 155 (1990)(where this Court
identified three typical situations [in which constructive
possession has been established] regarding the premises where drugs
were found: (1) some exclusive possessory interest in the defendant
and evidence of defendant's presence there, (2) sole or joint
physical custody of the premises of which defendant is not an
owner; and (3) in an area frequented by defendant, usually near
defendant's property.).
Reversed.
Judges McCULLOUGH and ELMORE concur.
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