An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-693

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2003

STATE OF NORTH CAROLINA

         v.                        Buncombe County
                                Nos. 01 CRS 3022, 51922
NATHAN EUGENE DAVIS

    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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