State v Torres, (02-1589) 08/19/2003

Appeal by defendant from judgments entered 4 June 2002 by Judge Wiley F. Bowen in Superior Court, Harnett County. Heard in the Court of Appeals 4 August 2003.

Attorney General Roy Cooper, by Assistant Attorney General William R. Miller, for the State.

Russell J. Hollers III for defendant-appellant.

McGEE, Judge.

    Defendant was convicted of conspiracy to traffick in cocaine by sale, trafficking in cocaine by possession, and trafficking in cocaine by transportation on 4 June 2002. After arresting judgment on the conspiracy conviction, the trial court consolidated the two trafficking convictions for judgment and sentenced defendant to a term of 175 to 219 months imprisonment. Defendant appeals.
    The State presented evidence at trial tending to show that Sergeant Dwayne Council of the narcotics division of the Harnett County Sheriff's Department arranged to purchase a kilogram of cocaine. He was to meet two Hispanic males in a black vehicle in a Food Lion parking lot on 16 September 2001. Sergeant Councilfirst arranged for a confidential informant to meet the men at the location to insure that the cocaine was in the vehicle. Officers then converged on the vehicle and removed defendant from the driver's seat and defendant's brother from the passenger seat of the vehicle. Deputy Greg Taylor placed defendant on the ground after removing him from the car and handcuffed him. He asked defendant if he had a weapon, and he removed a handgun in defendant's waistband after defendant admitted having a weapon. The handgun was loaded and a bullet was in the chamber.
    Sergeant Council removed a plastic Ziploc bag from the floorboard of the vehicle's passenger side. He stated nothing was over the bag on the floorboard. The bag contained a white powder which the State Bureau of Investigation laboratory later determined was 1003.6 grams of cocaine hydrochloride. Defendant moved to dismiss the charges at the close of the State's evidence, which the trial court denied.
    Defendant's brother, Gavincio Torres, testified that he left Wilson and arrived in Raleigh around 5:00 p.m. on 16 September 2001. He asked defendant to drive him to Angier. Gavincio Torres admitted that he had drugs with him on the date in question, but he said defendant did not know about the drugs. He indicated the drugs were hidden under the vehicle's floor mat. Gavincio Torres said he did not know that defendant had a handgun, and he stated he had not asked defendant to bring the handgun.
    Defendant testified he did not know there were drugs in the vehicle and denied discussing a drug deal with his brother. Whiledefendant admitted having the handgun, he said he normally had it in his possession. He denied hearing any of his brother's conversation with the confidential informant in the parking lot. Defendant recognized the confidential informant as a co-worker whom he had known for about a year. At the close of the evidence, defendant renewed his earlier motion to dismiss the charges for insufficiency of the evidence, which the trial court denied.
    Defendant argues the trial court erred by denying his motion to dismiss because there was insufficient evidence of the element of possession in the two offenses of trafficking in cocaine. He argues the State failed to prove that he knowingly possessed the cocaine.
     When ruling on a defendant's motion to dismiss, the trial court must consider the evidence in the light most favorable to the State. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975). The State is also entitled to every reasonable inference which can be drawn from the evidence presented. State v. Davis, 325 N.C. 693, 696, 386 S.E.2d 187, 189 (1989). "If there is substantial evidence - whether direct, circumstantial, or both - to support a finding that the offense charged has been committed and that defendant committed it, a case for the jury is made and nonsuit should be denied." McKinney, 288 N.C. at 117, 215 S.E.2d at 582.
    Possession of cocaine is an element of trafficking in cocaine, see N.C. Gen. Stat. § 90-95(h)(3) (2002), and that possession may be either actual or constructive. State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). A defendant has possession of an illegal substance "within the meaning of the law when he has both the power and intent to control its disposition or use." Id. When a defendant has nonexclusive control over a place where drugs are found, constructive possession may only be inferred when other incriminating circumstances exist to show that the defendant had the power and intent to control the substance. See State v. Martinez, 150 N.C. App. 364, 371, 562 S.E.2d 914, 918, appeal dismissed and disc. review denied, 356 N.C. 172, 568 S.E.2d 859 (2002).
    In this case, the evidence shows that defendant drove his brother from Raleigh to Angier and then parked in a Food Lion parking lot sometime after 7:00 p.m. on the date in question. Defendant's brother, who was seated in the front passenger seat next to defendant, had 1,003.6 grams of cocaine in a Ziploc bag on the vehicle's floorboard. Defendant had a loaded handgun in the waistband of his pants when officers removed him from the vehicle. Based on these other incriminating circumstances, a reasonable juror could infer defendant had the power and intent to control the cocaine found in the vehicle, and he therefore constructively possessed the cocaine. The trial court did not err in denying defendant's motion to dismiss for insufficiency of the evidence.
    No error.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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