STATE OF NORTH CAROLINA
v. Gaston County
No. 01 CRS 56698
DONNA TORRES
Roy Cooper, Attorney General, by Mabel Y. Bullock, Special
Deputy Attorney General, for the State.
Larry G. Hoyle for defendant-appellant.
STEELMAN, Judge.
Defendant, Donna Torres, appeals a conviction of trafficking
in cocaine by possession. She 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 address on the
label, 131 Colt Thornburg Road, Dallas, North Carolina.
Defendant's roommate, Ty Mitchell, accepted delivery of thepackage. Pursuant to a search warrant, 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 1,600 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 Mitchell rented and lived together in the
residence at 131 Colt Thornburg Road. Defendant 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. Defendant stated that anything in the safe
was there when Smith died.
Defendant did not present any evidence.
In defendant's sole assignment of error, she argues that the
trial court erred by denying her 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 court
must 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 she 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. review 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 which defendant shared
with Mitchell. Mitchell 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 cocaine for sale.
Defendant admitted that Mitchell was using their home to
package marijuana for sale at a price of $900 to $950 per pound and
that she was mailing the proceeds of the sales to their supplier.
She further admitted that: (1) she sold marijuana in twenty dollar
bags to co-workers at a hospital; (2) she was living with Smith at
the time he purchased the safe; and (3) Smith moved the safe to 131
Colt Thornburg Road before he died. Her assertion that anything in
the safe was there when Smith died is contradicted by the testimony
of the Victoria's Secret representative that that particular bag
was not in existence at the time of Smith's death. 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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