Appeal by defendant from judgment entered 31 October 2001 by
Judge Loto Greenlee Caviness in Buncombe County Superior Court.
Heard in the Court of Appeals 12 May 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Gaines M. Weaver, for the State.
HALL & HALL ATTORNEYS AT LAW, P.C., by Douglas L. Hall, for
defendant appellant.
TIMMONS-GOODSON, Judge.
Nathan Eugene Davis (“defendant”) appeals from his conviction
of possession with the intent to sell a controlled substance and
possession of drug paraphernalia. For the reasons that follow, we
conclude that defendant is entitled to a new trial.
The State presented evidence at trial tending to show the
following: On 13 February 2001, the Asheville Police Department
(“the APD”) received a complaint from a resident (“the caller”) at
the Hillcrest Apartment complex (“Hillcrest”). The caller informed
police that four individuals were on her porch, stopping
automobiles, and selling illegal drugs. Upon receiving this
information, the APD dispatched Officer Mike Yelton (“Officer
Yelton”) to Hillcrest in order to investigate the complaint. Officer Yelton interviewed the caller, who described one of
the men as wearing a brown jacket and stated that he was standing
behind a “decorative” concrete barrier. After interviewing the
caller, Officer Yelton drove his vehicle around Hillcrest in search
of individuals matching the caller's description. As he patrolled
the apartment complex, Officer Yelton observed defendant “moving
slowly” behind a “concrete barrier.” Officer Yelton testified that
defendant was “moving” in the opposite direction of his patrol
vehicle. Upon observing defendant's behavior, Officer Yelton
stopped him for questioning.
Defendant informed Officer Yelton that he was at Hillcrest
visiting relatives, but was going to a pay telephone in order to
place a telephone call. Defendant revealed the unit number that
his relatives resided in, however, Officer Yelton informed him that
the direction he was walking from did not corrospond with the unit
he stated that he was visiting. Officer Yelton testified that the
unit number defendant claimed to be visiting was next door to the
police substation in Hillcrest. Officer Yelton testified that he
was located at the substation before searching for defendant and
did not observe defendant next door to the substation. According
to Officer Yelton, he observed defendant acting in a nervous
manner, and since he could not obtain any form of identification
from defendant, he conducted a protective pat-down.
While searching defendant, Officer Yelton discover a cellular
telephone and questioned defendant regarding the necessity to use
a pay telephone if he was in possession of a cellular telephone. Defendant informed Officer Yelton that the telephone was not
working. Officer Yelton then placed a call to the APD from
defendant's cellular telephone and determined that the cellular
telephone was in proper working condition.
As Officer Yelton talked with defendant, Officer Ricardo
Martinez (“Officer Martinez”) searched behind the “concrete
barrier” and found a “clear plastic baggie containing four white
rocks.” At that time defendant was placed under arrest. It was
later determined that the “four white rocks” were crack cocaine.
Upon conclusion of the evidence, the jury found defendant
guilty of possession of a controlled substance and possession of
drug paraphernalia. Defendant was sentenced to a minimum term of
five months and a maximum term of six months. Defendant's sentence
was suspended and he was placed on supervised probation for sixty
months. Defendant appeals.
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Defendant presents three assignments of error on appeal,
arguing that the trial court erred by (1) allowing defective
indictments; (2) denying defendant's motion to dismiss; and (3) re-
instructing the jury on a charge different than the charge alleged
in the indictment. We conclude that by re-instructing the jury,
the trial court allowed the jury to convict defendant on a theory
not charged in the indictment.
In his first assignment of error, defendant argues that the
indictments are defective because none of the witnesses who
testified before the grand jury was competent to testify. Wedisagree.
The court may, upon motion of the defendant, dismiss an
indictment if it determines that all of the witnesses before the
grand jury were incompetent. N.C. Gen. Stat. § 15A-955(3) (2001).
However, the motion must be made at or before the time of
arraignment. N.C. Gen. Stat. § 15A-952(b)(3); N.C. Gen. Stat. §
15A-952(c) (2001). Failure to make the motion at the time of
arraignment acts as a waiver, where the indictment appears to be
valid on its face.
State v. Kirkland, 119 N.C. App. 185, 188-89,
457 S.E.2d 766, 769,
disc. review denied, 341 N.C. 654,
462 S.E.2d
521-22 (1995),
affirmed per curiam, 342 N.C. 891, 467 S.E.2d 242,
cert. denied, 519 U.S. 875, 136 L. Ed. 2d 132 (1996).
In the case at bar, defendant concedes that he failed to make
a motion to dismiss. Therefore, by failing to make a motion to
dismiss at arraignment or at trial, defendant has waived this
assignment of error.
By his second assignment of error, defendant argues that the
trial court erred by denying his motion to dismiss the charges due
to the insufficiency of the evidence. Defendant contends that the
evidence is insufficient because he did not match the description
given in the complaint, he was not found in actual possession of a
controlled substance, and he was not carrying a large sum of money
indicative of drug activity. We disagree.
In ruling upon a motion to dismiss, the court must determine
whether the State has presented substantial evidence of each
element of the offense and to identify the defendant as aperpetrator.
State v. Small,
328 N.C. 175, 180, 400 S.E.2d 413,
415 (1991). Whether the evidence is direct, circumstantial or
both, the court must consider the evidence as a whole in the light
most favorable to the State.
State v. Powell, 299 N.C. 95, 99, 261
S.E.2d 114, 117 (1980). The court must disregard contradictions or
discrepancies in the evidence, leaving them for the jury to
resolve.
State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653
(1982).
Possession of an item may be actual, as when a party has
actual physical custody of the item, or constructive, as when a
party does not have actual physical custody but retains the power
and intent to control the disposition or use of the item.
State v.
Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). Proof
of constructive possession is ordinarily by circumstantial
evidence.
State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480
(1986). Whether a defendant has constructive possession is
dependent upon the totality of the circumstances, and no single
factor controls.
State v. Jackson, 103 N.C. App. 239, 243, 405
S.E.2d 354, 357 (1991),
affirmed per curiam,
331 N.C. 113, 413
S.E.2d 798 (1992). Ordinarily the question is for the jury.
Id.
Here, viewing the evidence in the light most favorable to the
State, we hold that there was substantial evidence from which a
jury could convict defendant. The evidence at trial tended to show
that defendant was wearing clothing of the same color, as described
by the caller, defendant was a non-resident of Hillcrest, defendant
was located in an area known for drug activity, defendant was seenstanding by a concrete barrier, and illegal drugs were found in
close proximity to the concrete barrier. Evidence which places an
accused in close juxtaposition to a narcotic drug is a circumstance
which permits an inference that the drug is in the accused's
possession.
State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706,
714 (1972). Furthermore, when Officer Yelton observed defendant,
he was walking away from the concrete barrier and accelerated his
pace in order to walk away from Officer Yelton. Evidence from
which it may be inferred that a person is fleeing from a location
where illegal drugs are found is another incriminating circumstance
supporting a finding of constructive possession.
State v. Neal,
109 N.C. App. 684, 687, 428 S.E.2d 287, 290 (1993). Defendant
informed Officer Yelton that his cellular telephone was not
operational when it actually was.
Moreover, defendant informed Officer Yelton that he had just
come from visiting relatives in unit 10-B, but defendant failed to
answer satisfactorily Officer Yelton's inquiry as to why he was
coming from the area of building thirty-seven if he had just been
to building ten. The making of false, deceptive or inconsistent
statements is indicative of guilty knowledge and an incriminating
circumstance.
See State v. Vaughn, 130 N.C. App. 456, 458, 503
S.E.2d 110, 111 (1998),
affirmed per curiam, 350 N.C. 88, 511
S.E.2d 638 (1999). Finally, defendant was visibly nervous and
furtive.
See State v. Butler, 356 N.C. 141, 147, 567 S.E.2d 137,
141 (2002) (nervous behavior is an incriminating circumstance
tending to show constructive possession). We hold the foregoingevidence is sufficient to withstand the motion to dismiss the
charges.
In his final assignment of error, defendant contends that the
trial court erred by re-instructing the jury regarding the offense
of possession of drug paraphernalia. We agree.
Under North Carolina General Statutes § 90-113.22(a), it is a
crime for
any person to knowingly use, or to possess
with intent to use, drug paraphernalia to
plant . . . package, repackage, store,
contain, or conceal a controlled substance
which it would be unlawful to possess, or to
inject, ingest, inhale or otherwise introduce
into the body a controlled substance which it
would be unlawful to possess.
N.C. Gen. Stat. § 90-113.22(a) (2001). The intent with which the
paraphernalia is possessed is a crucial element of the offense.
State v. Hedgecoe, 106 N.C. App. 157, 164, 415 S.E.2d 777, 781
(1992). It is generally prejudicial error for a court to instruct
on a theory not supported by the bill of indictment.
State v.
McClain, 86 N.C. App. 219, 221, 356 S.E.2d 826, 827 (1987).
In the present case, the indictment charged that defendant
“did knowingly possess with intent to use drug paraphernalia, to
wit: A plastic bag, to introduce into the body a controlled
substance which it would be unlawful to possess.” After the court
instructed the jury in accordance with the indictment, the
prosecutor requested the court to re-instruct the jury by replacing
the words “to introduce into the body” with the words “to package,
store, etc.” Over defendant's objection, the court granted the
prosecutor's request and instructed the jury accordingly. By re-instructing the jury the court effectively amended the indictment
and substantially altered the charge. The court's re-instruction
allowed the jury to convict defendant on a theory not charged in
the indictment. Therefore, the judgment entered on the conviction
of possession of drug paraphernalia is vacated and the matter
remanded for a new trial on the charge of possession of drug
paraphernalia.
New trial.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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