State v Mitchell, (02-1621) 07/15/2003

Appeal by defendant from judgment entered 26 August 2002 by Judge Timothy L. Patti in Gaston County Superior Court. Heard in the Court of Appeals 7 July 2003.

Roy Cooper, Attorney General by Charles J. Murray, Special Deputy Attorney General, for the State.

Nancy R. Gaines for defendant-appellant.

STEELMAN, Judge.

    Defendant, Ty Mitchell, appeals a conviction of trafficking in cocaine by possession of more than 400 grams. He was sentenced to a minimum term of 175 months and a maximum term of 219 months. For the reasons discussed herein, we find no error.
    The State presented evidence tending to show that on 17 May 2001, a search warrant was obtained to search a suspicious package at the United Parcel Service distribution center in Gaston County. The package was opened pursuant to the warrant, and a quantity of marijuana was found inside the box.
    The package was resealed and delivered to the delivery address on the label, 131 Colt Thornburg Road, Dallas, North Carolina. Defendant accepted delivery of the package. Pursuant to a searchwarrant, the officers searched the premises of 131 Colt Thornburg Road and found marijuana inside the residence. In an outbuilding within two car widths of the residence, the officers found a safe. The officers drilled open the safe and found more than 1600 grams, or approximately 3.5 pounds, of cocaine contained in a Victoria's Secret bag.
    A representative of Victoria's Secret responsible for packaging testified that the type of bag found in the safe did not did not come into production until January 2001. It was not distributed to stores until February 2001.
    Defendant and Donna Torres rented and lived together in the residence at 131 Colt Thornburg Road. Donna Torres told the officers that her former live-in lover, Elliott Smith, purchased the safe and brought it with them when they moved to the residence at 131 Colt Thornburg Road. Smith died on 23 September 1999 as a result of crack cocaine abuse. Torres stated that anything in the safe was there when Smith died, and that she did not have a combination to the safe.
    Defendant did not present any evidence.
    In his sole assignment of error, defendant argues that the trial court erred by denying his motion to dismiss at the close of all the evidence. We disagree.
    In ruling on a motion to dismiss, the court determines whether the State has presented substantial evidence of each element of the offense and of perpetration of the offense by the accused. State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 415 (1991). The courtmust examine the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). If the evidence is sufficient to allow the jury to draw a reasonable inference of the defendant's guilt of the crime charged, then the case should be submitted to the jury. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982).
    Defendant contends that the evidence is insufficient to show that he had possession of the cocaine found in the safe. Possession of a controlled substance may be actual or constructive. State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). “A person is in constructive possession of a thing when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing.” State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). “Where such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.” State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). These premises include the curtilage of a residence. State v. Courtright, 60 N.C. App. 247, 250, 298 S.E.2d 740, 742, disc. rev. denied, 308 N.C. 192, 302 S.E.2d 245 (1983). If possession of the premises is non-exclusive, then there must be evidence of other incriminating circumstances to support a finding of constructive possession. State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287, 289 (1993).    Viewing the evidence in the light most favorable to the State, we conclude that the evidence is sufficient to permit a jury to find that defendant possessed the cocaine found in the safe. The cocaine was found on premises under defendant's control. A quantity of marijuana, plastic bags, and electronic scales were found in the master bedroom of the residence that defendant shared with Donna Torres. Defendant admitted that he used these items in packaging marijuana for sale. Also found in this bedroom were a knife and a plastic bag containing starch. A knife is often used to separate cocaine into amounts for sale and starch is often used to dilute powder cocaine for sale. We hold the court properly denied defendant's motion to dismiss.
    NO ERROR.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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