State v Philson, (02-921) 04/01/2003

Appeal by defendant from judgment entered 30 January 2002 by Judge James E. Ragan, III in Lenoir County Superior Court. Heard in the Court of Appeals 24 March 2003.

Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State.

Leslie G. Fritscher for defendant-appellant.

ELMORE, Judge.

    Defendant appeals her conviction for possession of cocaine. We find no error and affirm the judgment of the trial court.
    The State's evidence tended to show that on the evening of 24 January 2001, Lenoir County Sheriff's Deputy Henry Clayton Keel, Jr. saw a car stopped on Scarborough Road near the Taylor-Heath Road intersection. Keel turned his patrol car around and returned to investigate. As he approached the parked car, its headlights came on and it started moving down the highway. Keel activated his blue lights and stopped the car, which was driven by defendant.
    Defendant rolled down her window to talk to Keel, who detected a “very strong odor” of marijuana and asked defendant to step outof the vehicle. Defendant was cooperative but appeared to be “confused, disoriented, [and] nervous.” She denied she had been drinking and gave Keel permission to search the car. Above the driver's sun visor, Keel found a small bag of “green vegetable matter.” A second “small clump” of green vegetable matter was in the ashtray. Keel placed defendant under arrest for possession of marijuana and continued his search. Between the driver's and front passenger's armrests, he found an open twenty-ounce can of beer. Keel then found an aluminum soda can on the front passenger seat. One side of the can had been pressed flat, and three small holes had been punched into this flat surface. Coating the metal in the area of the holes was a “black, sticky residue” surrounded by “some white residue.” The can felt warm to the touch. Based on Keel's experience, he believed the can had been made into a “homemade crack pipe.” Subsequent chemical analysis revealed the presence of cocaine base on the can's surface.
    In her lone assignment of error, defendant argues that the trial court erred in denying her motion to dismiss the charge, absent evidence that she possessed the can on which the cocaine was found. In reviewing this ruling, we must determine whether the evidence taken in the light most favorable to the State is sufficient to support a finding of defendant's guilt on each essential element of the offense beyond a reasonable doubt. See State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287, 289 (1993) (citing State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971). The State is entitled to all reasonable inferencessupported by the evidence, see State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996), contradictions and discrepancies in the evidence are for the jury to resolve. See State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996). Defendant's evidence is considered “only if it is favorable to the [S]tate.” State v. Fowler, 353 N.C. 599, 621, 548 S.E.2d 684, 700 (2001), cert. denied, 535 U.S. 939, 152 L. Ed. 2d 230 (2002) (citing State v. Israel, 353 N.C. 211, 216, 539 S.E.2d 633, 637 (2000)).
    Defendant challenges only the sufficiency of the evidence which tended to show that she was in possession of the contraband found in her car. “An accused's possession of an illegal substance can be actual or constructive.” State v. Williams, 136 N.C. App. 218, 220, 523 S.E.2d 428, 431 (1999) (quoting State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)). A person has constructive possession of an object if she does not have it on her person, but is aware of its presence and has both the power and intent to control its disposition. See State v. Williams, 136 N.C. App. at 222, 523 S.E.2d at 431-32 (1999). The driver of a car is presumed to “ha[ve] the power to control the contents of the car.” State v. Glaze, 24 N.C. App. 60, 64, 210 S.E.2d 124, 127 (1974). Thus, where contraband material is found in a car driven by a defendant, this fact is sufficient to give rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury. Id. “However, unless the person has exclusive possession of the place where the narcotics are found, the State must show otherincriminating circumstances before constructive possession may be inferred.” State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989). The State may satisfy its burden with evidence placing the defendant “within such close juxtaposition to the narcotic drugs as to justify the jury in concluding that the same was in his possession.” State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972) (quoting State v. Allen, 279 N.C. 406, 411-412, 183 S.E.2d 680, 684 (1971)).
    Viewed in the light most favorable to the State, the evidence showed that defendant was driving and had exclusive control of the car when she was stopped by Keel. Defendant appeared to be disoriented; the car smelled strongly of marijuana; and a substance appearing to be marijuana was in the car's ashtray and above defendant's sun visor. See State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001) (finding the presence and odor of marijuana to be circumstantial evidence of defendant's knowledge that cocaine was in the car). The modified soda can containing the cocaine residue was on the front passenger's seat in close proximity to defendant. Finally, the can was warm, suggesting it had recently been used as a smoking device. These facts support a reasonable inference that defendant was in constructive possession of the can and the cocaine residue thereon.
    No error.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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