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).
*** Converted from WordPerfect ***