An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-101


Filed: 18 November 2003


    v.                            Lenoir County
                                Nos.    01 CRS 054982
                                    02 CRS 003002

    Appeal by defendant from judgments dated 2 October 2002 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 29 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Myra L. Griffin, for the State.

    William H. Dowdy for defendant-appellant.

    BRYANT, Judge.

    Harry Glen Allen (defendant) appeals judgments dated 2 October 2002 (1) entered consistent with a jury verdict finding him guilty of possession of cocaine, a controlled substance, and maintaining a motor vehicle for the use of the controlled substance and (2) sentencing him as a habitual felon.
    Defendant was indicted on charges of possession with intent to sell or deliver cocaine, N.C.G.S. § 90-95(a)(1), and keeping and maintaining a motor vehicle for the use of controlled substances, N.C.G.S. § 90-108(a)(7). Defendant was also charged by indictment with having attained the status of habitual felon.
    At trial, the State presented evidence tending to show that, at approximately 1:30 a.m. on 25 October 2001, Deputy SheriffPatrick Raynor and Detective Edward Earl Eubanks of the Lenoir County Sheriff's Department were patrolling together when they saw a vehicle travel down a road at a high speed and swerve across the center line several times. Deputy Raynor activated the patrol vehicle's blue lights, siren, and take-down lights to conduct a traffic stop. As the vehicle came to a stop on the shoulder of the road, both officers witnessed the sole occupant of the vehicle throw something out of the passenger side window. Detective Eubanks followed the movement of the discarded item and watched it land on the ground. Detective Eubanks found the item, described as a clear plastic bag with a ball at one end, on a well-maintained grass lawn. The contents of the plastic bag were later analyzed and determined to be 10.5 grams of crack cocaine. The estimated street value of half an ounce of cocaine was approximately $500.00 to $600.00 if sold in one piece and approximately $800.00 to $900.00 if broken into pieces and sold as individual rocks. Defendant did not present any evidence at trial.


    The sole issue on appeal is whether the trial court erred in denying defendant's motion to dismiss the charges.
    In deciding a motion to dismiss, the trial court must determine whether there is substantial evidence of each essential element of the offense charged and of the defendant's perpetration of the offense. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The trial court must consider all of the evidence in the light most favorable to the State, giving it the benefit ofevery reasonable inference. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
Possession of Cocaine

    Since defendant was acquitted of the greater charge of possession of cocaine with intent to sell or deliver, we consider the sufficiency of the evidence to establish defendant's commission of the offense of felonious possession of cocaine. A defendant has possession of a controlled substance “when he has both the power and intent to control its disposition or use.” State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). Possession of a controlled substance may be either actual, as when the person has physical possession, or constructive, as when the person may not have physical possession but the person has both the intent and capability to maintain dominion and control over it. State v. Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991), aff'd, 331 N.C. 113, 413 S.E.2d 798 (1992). When the substance is not in the person's actual custody at the time of its seizure, “manifestations of actual possession must be inferred from the circumstances.” State v. Thorpe, 326 N.C. 451, 454, 390 S.E.2d 311, 313 (1990).
    In this case, the evidence, viewed in the light most favorable to the State, shows that both police officers observed defendant, the sole occupant of the vehicle, throw an object out of the passenger side window. Detective Eubanks tracked the object as it fell to the ground and walked to the spot where he saw the object land. In that spot, Detective Eubanks found a plastic bagcontaining cocaine. The grassy area surrounding the bag was well- maintained. Based upon these facts, a jury could reasonably infer that the bag found on the ground was thrown out of the vehicle by defendant and had previously been in defendant's possession. Accordingly, the trial court properly denied the motion to dismiss this charge.
Maintaining a Vehicle

    With regard to the charge of intentionally keeping and maintaining a motor vehicle for the use of controlled substances, the State candidly concedes that the evidence was insufficient to withstand the motion to dismiss this charge and that defendant's conviction of this offense must be vacated. The State acknowledges that the facts of this case are not distinguishable from the decisions in State v. Dickerson, 152 N.C. App. 714, 568 S.E.2d 281 (2002) and State v. Mitchell, 336 N.C. 22, 442 S.E.2d 24 (1994). These cases hold that evidence of mere possession of a controlled substance in a motor vehicle, without more, is insufficient to establish that the defendant kept or maintained the vehicle for the purpose of using a controlled substance. We agree with defendant and the State that the evidence in this case is insufficient to establish this offense and that defendant's conviction of maintaining a vehicle must be vacated.
    No error in part and vacated in part.
    Chief Judge EAGLES and Judge LEVINSON concur.
    Report per Rule 30(e).

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