An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-657


Filed: 20 April 2004


         v.                        Beaufort County
                                Nos. 01 CRS 3976
                                    01 CRS 3977

    Appeal by defendant from judgment entered 16 October 2002 by Judge Thomas D. Haigwood in Superior Court, Beaufort County. Heard in the Court of Appeals 22 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General V. Lori Fuller, for the State.

    Adrian M. Lapas, for defendant-appellant.

    WYNN, Judge.

    Defendant's sole contention is that the court erred by denying his motion to dismiss the charges of possession of crack cocaine with the intent to manufacture, sell or deliver and possession of marijuana with the intent to manufacture, sell or deliver for insufficient evidence. We find no error in the proceedings below and affirm Defendant's convictions for the lesser included offenses of possession of crack cocaine and marijuana.
    The State's evidence tends to show that at approximately 2:14 p.m. on 23 October 2001 George Hayden, chief of the Belhaven Police Department, and T. R. Salter, patrol officer with the Belhaven Police Department, received a dispatch to investigate a “shots fired” call on Haslin Street in Belhaven. As the officersapproached the location where the shots were reported, they encountered a man, whom they identified as Defendant, running from this location. Defendant ignored the officers' commands to stop. Defendant ran through the yard of a mobile home residence. Officer Salter chased after him and lost sight of Defendant as Defendant disappeared around the other side of the mobile home. Officer Salter next saw movement of a hand and foot under a shed mounted on blocks behind the mobile home. Officer Salter almost ran into Defendant as he ran around to the opposite side of the mobile home. Officer Salter drew his weapon and ordered Defendant to lie on the ground. Defendant complied. Chief Hayden came over and handcuffed Defendant. Chief Hayden also looked under the shed and found a bag containing seventeen packets of marijuana and six individually- wrapped pieces of crack cocaine on the ground. The bag was warmer than the surrounding ground.
    Defendant was found guilty of possession of crack cocaine and possession of marijuana. The convictions were consolidated and Defendant was sentenced to an active term of 8-10 months.
    Upon a motion to dismiss, the court determines whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). "The trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged." State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991). In deciding the motion to dismiss, the court mustconsider all of the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
    A defendant charged with possession of contraband may be found guilty of the charge if his possession is actual, as when he has actual physical possession of the item, or his possession is constructive, as when he does not have actual physical custody but he has the power and intent to control the disposition or use of the item. State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). Proof of constructive possession is ordinarily by circumstantial evidence. State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986).
        Where there is no direct evidence as to the essential fact involved in the issue to be passed upon by the jury, such fact may nevertheless be inferred by the jury from facts and circumstances which they may find from the evidence. Where such inference may be reasonably drawn by the jury, and is altogether consistent with the facts and circumstances which the jury may find from the evidence, the evidence should be submitted to them; where the inference cannot be thus reasonably drawn, it should be withdrawn from the jury.

State v. Weston, 197 N.C. 25, 28-29, 147 S.E. 618, 620 (1929). Whether the evidence is direct, circumstantial or both, if there is substantial evidence to support a finding that the defendant committed the charged offense, then the case is for the jury and the motion to dismiss should be denied. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).    Relying upon this Court's decision in State v. Acolatse, 158 N.C. App. 485, 581 S.E.2d 807 (2003), Defendant contends there was insufficient evidence that he constructively possessed the crack cocaine and marijuana. We disagree. In Acolatse, this Court determined there was insufficient evidence of the defendant's constructive possession of controlled substances. In that case, the officers lost sight of the defendant for a few seconds and upon seeing him again, an officer saw the defendant make a throwing motion towards some bushes. The officers did not find any contraband in those bushes during a subsequent search; however, the officers did locate drugs on the top of a detached garage that was in a different location from where the defendant made the throwing motion.
    In this case, we conclude that a jury could reasonably infer from the circumstances that Defendant had possession of the two bags found under the shed. At the time the officers initially encountered Defendant, he ignored their commands to stop running. After Defendant disappeared around the mobile home, Officer Salters saw the movement of feet and hands beneath the shed on the opposite side of the mobile home. Moments after seeing the hands and feet, Officer Salter encountered Defendant coming from the area in which he had seen them. Instead of continuing his flight, Defendant consented to stop and to get on the ground. Defendant was arrested approximately five feet away from where the contraband was found under the shed. The plastic bag containing the contraband was warmer than the surrounding ground, suggesting that it had beenrecently deposited there. Unlike Acolatse, in this case, the drugs were found in the same area where the officer saw the movement of the hands and feet and moments after seeing the movement the officer encountered Defendant running from that location.
    Accordingly, we hold the court properly denied the motion to dismiss.
    No error.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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