State v Hicks, (02-753) 04/01/2003

Appeal by defendant from judgment entered 7 February 2002 by Judge James E. Ragan, III, in Lenoir County Superior Court. Heard in the Court of Appeals 17 March 2003.

Attorney General Roy Cooper, by Assistant Attorney General Dolores O. Smith, for the State.

Ligon and Hinton, by Lemuel W. Hinton, for defendant appellant.

TIMMONS-GOODSON, Judge.

    Donell Hicks (“defendant”) appeals from his conviction and resulting sentence entered upon a jury verdict finding him guilty of possession of a controlled substance with the intent to sell and deliver. For the reasons stated herein, we find no error by the trial court.
    The State presented evidence at trial tending to show the following: On 27 July 2001, Kinston Police Officers Lee Byrd and Russell Flint were dispatched to an apartment complex in Kinston, North Carolina, in response to a complaint of loud noise. Officers Byrd and Flint arrived just after midnight and found defendant withfive other men, standing beside a car and listening to a loud “boom box.” Officer Byrd testified that he was acquainted with defendant and knew that defendant did not live in the apartment complex. When Officer Byrd asked defendant about his presence at the apartment complex, defendant replied that he was visiting friends. Neither defendant, nor any of the other men, however, could name any person living at the apartment complex, nor could they identify any apartment numbers.
    During his conversation with defendant, Officer Byrd observed a bulge in the waistband of defendant's pants under his shirt. Officer Byrd asked defendant if he had any weapons and inquired after the bulge under his shirt. Officer Byrd then asked defendant to put his hands on the vehicle and patted him down. As he patted down defendant's legs, Officer Byrd felt a rock-like substance in the pocket of defendant's pants. Defendant then began cursing and yelling, and a struggle ensued. Defendant attempted to flee, and Officer Flint wrestled him to the ground. During the struggle, Officer Byrd observed “a lot of plastic sticking out of [defendant's] hand,” which he attempted to place in his mouth. Unable to subdue defendant, the officers requested assistance, and other officers arrived at the scene. Eventually, they were able to handcuff defendant. After defendant was subdued, the officers found a bag on the ground within arm's reach of defendant. In the bag was a 5.5 gram rock of crack cocaine.
    At the close of the evidence, the jury found defendant guilty of possession with intent to sell or deliver cocaine, whereupon thetrial court sentenced him to a term of ten to twelve months of imprisonment. Defendant appeals.
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    Defendant's sole assignment of error on appeal is his contention that the trial court erred in denying his motion to dismiss the charge against him. Defendant argues that there was insufficient evidence to support his conviction. Specifically, defendant contends that the State failed to present substantial evidence that he intended to sell or deliver the cocaine that he possessed, in that there was no evidence of items usually associated with drug dealing from which an inference could be drawn. Defendant further asserts that the amount of drugs was not sufficient by itself to support an inference that he intended to sell or deliver the drugs. Defendant contends that the amount of cocaine found in his possession was not substantial, and he possessed the drugs solely for his personal consumption. After careful review of the record, briefs and contentions of the parties, we find no error by the trial court.
    “In ruling upon a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which may be drawn from the evidence.” State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 30 (2000). “When a defendant moves for dismissal, the trial court is to determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.”State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” State v. Cross, 345 N.C. 713, 717, 483 S.E.2d 432, 434 (1997) (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). If there is substantial evidence of each element of the charged offense and of the defendant being the perpetrator of the offense, the case is for the jury and the motion to dismiss should therefore be denied. See State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
    In the instant case, defendant was charged with possession of a controlled substance with the intent to sell or deliver. “The offense of possession with intent to sell or deliver has the following three elements: (1) possession of a substance; (2) the substance must be a controlled substance; (3) there must be intent to sell or distribute the controlled substance.” State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001).
    Defendant concedes that he was in possession of a controlled substance, namely cocaine, but argues that there was insufficient evidence that he intended to sell or deliver the cocaine. Defendant was found with a rock of crack cocaine weighing 5.5 grams. Officer Barry Kent Price, who was trained in the transport and sale of controlled substances and worked primarily in narcotics, testified that most crack cocaine is sold in small quantities. Officer Price testified that one gram of crack cocaine generally produces six to eight rocks, each of which can be sold“on the street” for approximately twenty dollars. Officer Price stated that drug dealers generally cut a small piece of crack cocaine off of a larger “rock” when selling to a buyer. Thus, the rock of crack cocaine found in defendant's possession might produce, according to the evidence presented by the State, thirty- three to forty-four individual twenty dollar rocks of cocaine at a street value of approximately $660.00 to $880.00. Our Supreme Court has stated that “[t]he mere quantity of the controlled substance alone may suffice to support the inference of an intent to transfer, sell or deliver.” State v. Morgan, 329 N.C. 654, 659, 406 S.E.2d 833, 835 (1991).
    We conclude that the amount of cocaine was a substantial amount and “'was more than an individual would possess for his personal consumption.'” Id. at 660, 406 S.E.2d at 836 (quoting State v. Williams, 307 N.C. 452, 457, 298 S.E.2d 372, 376 (1983)). Accordingly, in the light most favorable to the State, a reasonable mind could conclude from this evidence that defendant possessed the drugs with the intent to sell or deliver. We therefore overrule defendant's assignment of error and find no error in the judgment of the trial court.
    No error.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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