An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1247


Filed: 6 May 2003


         v.                        Mecklenburg County
                                Nos. 01 CRS 789
                                    01 CRS 790
ODELL MCKINNEY,                        01 CRS 791


    Appeal by defendant from judgment entered 13 September 2001 by Judge L. Oliver Noble in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 April 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General John R. Corne, for the State.

    Allen W. Boyer for defendant-appellant.

    ELMORE, Judge.

    Defendant was charged with trafficking in cocaine, possession of marijuana, and possession of drug paraphernalia. Prior to trial, defendant pled guilty to the charge of possession of marijuana. A jury found defendant guilty of the remaining two charges. The court consolidated the convictions for judgment and sentenced defendant to an active term of a minimum of thirty-five months and a maximum of forty-two months.
    The State presented evidence tending to show that on 5 January 2001, officers of the Charlotte-Mecklenburg Police Department executed a warrant to search a residence. Upon forcing open thefront door of the residence, the officers saw defendant standing behind the door attempting to hold the door shut. Defendant turned and ran into the back of the house where the kitchen was located. The officers apprehended defendant and handcuffed him. The officers also located two other individuals inside the house. The first person, identified as Rodney Mobley (Mobley), was found inside a bathroom. The second person, identified as Randy Jenkins (Jenkins), was in the basement of the house smoking crack cocaine.     During the search of the house, the officers found on the kitchen counter a set of electronic scales and a rock-like substance subsequently identified as 2.9 grams of cocaine. On the top step leading to the basement from the kitchen the officers found two plastic bags containing 41.99 grams and 25.31 grams of cocaine. The officers also found cocaine powder residue on the scales and two hundred eighty-eight dollars ($288.00) in cash on defendant's person.
    Mobley, who resided in the house, testified for the State that he allowed defendant to sell crack cocaine out of his house in exchange for providing Mobley with cocaine for his personal consumption.     
    Defendant presented evidence tending to show that a man identified as “Pokey” had been in the basement of the house earlier that day prior to the execution of the search warrant and that Pokey had obtained crack cocaine for Mobley in the past.
    Defendant's sole contention is that the evidence is insufficient to support his conviction of trafficking in cocaine. He argues the evidence is insufficient to establish that he possessed 28 grams or more of crack cocaine.
    Defendant did not make a motion to dismiss at the close of all the evidence. Appellate Rule 10(b)(3) provides that a criminal defendant may not challenge on appeal the sufficiency of the evidence to support a charge if the defendant did not make a motion to dismiss at the close of all the evidence. Failure to make the motion to dismiss at the close of all the evidence is sufficient grounds alone for rejection of the defendant's argument. N.C.R. App. P. 10(b)(3) (2003); State v. Spaugh, 321 N.C. 550, 552-53, 364 S.E.2d 368, 370 (1988).
    Defendant has not called our attention to his failure to make a motion at the close of all the evidence and he has not requested us to suspend the requirements of the Rules pursuant to Appellate Rule 2. Even if defendant had made such request, we do not find manifest injustice will result by not considering the issue. There was sufficient evidence presented to place defendant in possession of the cocaine. Defendant resisted the opening of the door by the officers and he fled into the kitchen area where the contraband was located. Defendant had a large amount of cash on his person. Mobley testified that defendant was selling cocaine out of Mobley's house. See e.g. State v. Davis, 325 N.C. 693, 386 S.E.2d 187 (1989) (Sufficient evidence existed when defendant was in the same room where the contraband was found, and was found destroying evidence when apprehended). We therefore dismiss this assignment of error.
    No error.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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