State v Smith & Smith, (03-428) 05/04/2004

Appeal by defendants from judgments entered 29 August 2002 by Judge William C. Gore, Jr., in Brunswick County Superior Court. Heard in the Court of Appeals 28 January 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Judith Robb Bullock, and Assistant Attorney General Nancy E. Scott, for the State.

    Sue Genrich Berry for Nathan Rudolph Smith defendant appellant.

            Appellate Defender Staples Hughes for Ashley O. Smith defendant appellant.

    McCULLOUGH, Judge.

    Defendants Nathan Rudolph Smith and Ashley Smith were tried before a jury at the 26 August 2002 Criminal Session of the Brunswick County Superior Court after being charged with drug- related offenses. The State's evidence showed the following: Corporal Bryan Renn was patrolling the streets of Southport on the evening of 2 November 2001. At approximately 9:00 p.m., he received a call from the Brunswick County Sheriff's Office to provide assistance at the Paradise Acres Mobile Home Park. Corporal Renn arrived at the location and met two other officers. Since the subjects for whom they were looking had left the area, Corporal Renn departed and was followed by the other officers.
    Corporal Renn noticed a vehicle traveling north on Jabber Town Road and used his radar unit to determine that the vehicle was going 47 miles per hour. The posted speed limit was 35 miles per hour. Corporal Renn made a U-turn and began to follow the vehicle. The vehicle then pulled over to the side of the road and came to a stop. At a distance of 20 yards behind the vehicle, Corporal Renn observed several clear bags being thrown from the passenger's window. The vehicle then pulled back on the road and headed north. Corporal Renn activated his blue lights, and the vehicle immediately pulled to the side of the road and stopped.
    At that point, Corporal Renn waited for his fellow officers to pull up behind him. He told Sergeant J.D. Gray the location where the items were thrown out the window, and Sergeant Gray went to search the area. Corporal Renn and Deputy John Bolduc approached the vehicle and asked the driver and passenger to step out of the car. In court, Corporal Renn identified defendant Nathan Smith as the driver and defendant Ashley Smith as the passenger. Corporal Renn also testified that Jabber Town Road is known to law enforcement as a drug area.
    Both defendants were detained because Corporal Renn observed items being thrown from the vehicle. Corporal Renn left defendants with two deputies and went to assist Sergeant Gray in the search for contraband. During the search, Corporal Renn found three plastic bags that were located about seven yards from where defendants' car had stopped. One bag contained a white powder; the second bag was filled with a brownish-white, rocky substance; the final bag contained a green, leafy substance. Corporal Renn picked up the evidence, brought it back to the car, and showed it to everyone.
    Both defendants were advised of their Miranda rights. At Corporal Renn's request, Deputy Bolduc took his canine and walked around the vehicle. The dog reacted when it reached the driver's side door. Corporal Renn looked inside the vehicle and found a small bag that contained a green, leafy substance. Corporal Renn placed both defendants under arrest and proceeded to search the vehicle. However, nothing else was found.
    Officers sent the seized evidence to the State Bureau of Investigation for testing. The substances in the bags were determined to be cocaine base, cocaine hydrochloride, and marijuana. The cocaine base weighed 2.3 grams, the cocaine hydrochloride weighed 2.4 grams, and the marijuana weighed 2.1 grams.
    Sergeant J.D. Gray of the Southport Police Department testified that he observed defendants while Corporal Renn was in pursuit. According to Sergeant Gray, Corporal Renn had his blue lights on. After learning that the suspects threw items out the window, Sergeant Gray pulled off the road and stayed there to secure the area.
    Deputy Bolduc testified that his canine searched the vehicle. When the dog scratched at the door on the driver's side, DeputyBolduc peered inside the window. He saw a small ziplock bag lying in the center of the driver's seat. Deputy Bolduc testified that the driver, Nathan Smith, was taken out before the passenger, Ashley Smith, was removed from the vehicle. Deputy Bolduc also indicated that the bag found on the driver's seat did not match the types of bags that were found outside.
    Defendant Ashley Smith did not offer any evidence. Defendant Nathan Smith offered the testimony of Sharon Parks. Parks testified that she lives in Brunswick County and is familiar with Jabber Town Road. Parks also identified photographs of Jabber Town Road which had been described in the State's evidence.
    The jury found defendant Nathan Smith guilty of possession with intent to sell or deliver cocaine, not guilty of possession of drug paraphernalia, and guilty of simple possession of marijuana. In a consolidated judgment, he was sentenced to 10-12 months in prison for possession with intent to sell or deliver cocaine and simple possession of marijuana. Defendant Nathan Smith appealed.     The jury found defendant Ashley Smith guilty of possession with intent to sell or deliver cocaine, not guilty of possession of drug paraphernalia, and guilty of simple possession of marijuana. He was sentenced to 6-8 months in prison. The sentence was suspended, and defendant Ashley Smith was placed on supervised probation for a period of 36 months. Defendant Ashley Smith appealed.
    On appeal, both defendants contend that the trial court erred by (1) allowing the State's motion for joinder and (2) denyingtheir motions to dismiss. We disagree and conclude that both defendants received a fair trial free from reversible error.

Both defendants argue that the trial court erred in granting the State's motion for joinder. N.C. Gen. Stat. § 15A-926(b) (2003) allows joinder of defendants where the State seeks to hold each defendant accountable for the same crimes. However, the court must grant severance whenever it is necessary to promote or achieve a fair determination of guilt or innocence. N.C. Gen. Stat. § 15A-927(c)(2) (2003). Whether defendants should be tried jointly or separately is a matter for the sound discretion of the trial court. State v. Slade, 291 N.C. 275, 281-82, 229 S.E.2d 921, 926 (1976). The trial judge's ruling will not be disturbed on appeal unless there is a showing that defendant has been deprived of a fair trial. Id. at 282, 229 S.E.2d at 926. Consolidation is “the rule rather than the exception.” State v. Nelson, 298 N.C. 573, 586, 260 S.E.2d 629, 639 (1979), cert. denied, Jolly v. North Carolina, 446 U.S. 929, 64 L. Ed. 2d 282 (1980).
In this case, the trial court did not err in allowing joinder because the State was seeking to hold each defendant accountable for the same, drug-related offenses. More importantly, neither defendant has shown that he has been deprived of a fair trial. This is not a case in which the State has relied on defendants' antagonistic defenses to secure a conviction; the State presented ample evidence of each defendant's guilt. Finally, since consolidation is the rule rather than the exception, we concludethat the trial court acted within its discretion in allowing joinder.

    Defendants also argue that the trial court erred by failing to grant their motions to dismiss. In ruling on a motion to dismiss, the trial judge must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The court must find that there is substantial evidence of each element of the crime charged and of defendant's perpetration of such crime. Id. “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id.
    Defendant Nathan Smith argues that there was not sufficient evidence to show that he had constructive possession of the cocaine. “Constructive possession exists when a person, while not having actual possession, has the intent and capability to maintain control and dominion over a controlled substance.” State v. Williams, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983). We believe that as the driver of the vehicle, defendant Nathan Smith, had the intent and capability to maintain control and dominion over the cocaine. In fact, defendant exercised this control by steering the vehicle to the side of the road so that the drugs could be thrown out the window. Thus, the trial court was correct in denying the motion to dismiss.     Defendant Ashley Smith contends that the evidence was insufficient to identify him as a perpetrator of the crime of simple possession of marijuana. However, testimony at trial indicated that after the police stopped the suspects, defendant Nathan Smith was removed from the vehicle before defendant Ashley Smith exited. The plastic bag of marijuana was found on the driver's seat near the center and toward the back of the seat. The bag was not crushed in between the seat. From this evidence, the jury could infer that defendant Ashley Smith placed the bag of marijuana on the driver's seat before exiting the car. When viewed in the light most favorable to the State, this is sufficient to identify Ashley Smith as a perpetrator.
    Defendant Ashley Smith also claims that there was not sufficient evidence to show that he knowingly possessed cocaine with the intent to sell or deliver. Once again, we disagree. Evidence in the record revealed that the drugs were thrown out of the passenger's window, and Ashley Smith occupied the passenger's seat. Additionally, when officers showed the suspects the drugs that were retrieved from the side of the road, both defendants stated, “We don't know anything about that.” It is reasonable for a jury to conclude that both defendants knew about the drugs and were protecting each other. Finally, the large amount of cocaine that was retrieved and the fact that defendants were traveling in an area known for drug activity support the trial court's decision to send this charge to the jury. Accordingly, this assignment of error is overruled.    After a careful review of the record, the transcript, and the arguments presented, we conclude that both defendants received a fair trial free from reversible error.
    No error.
    Judges HUNTER and LEVINSON concur.
    Report per Rule 30(e).

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