State v Battle, (03-670) 06/01/2004

Appeal by defendant from judgments entered 16 December 2002 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 3 May 2004.

Attorney General Roy Cooper, by Assistant Attorney General Clara D. King, for the State.

Thomas R. Sallenger for defendant-appellant.

ELMORE, Judge.

    Defendant Ervin Amani-Hopkins Battle was charged with possession with intent to sell and deliver heroin and possession with intent to sell and deliver cocaine. The State's evidence tended to show that on 30 March 2002, Detective Paul McLawhorn (Detective McLawhorn) of the Farmville Police Department was patrolling the south side of Farmville in his undercover police vehicle. At approximately 10:49 p.m., Detective McLawhorn observed a two-door automobile in the east-bound lane of Perry Street cross over into the west-bound lane of Perry Street and make a sharp left hand turn onto Walnut Street. Detective McLawhorn sped up to follow the vehicle. The vehicle turned on to Railroad Street and“stopped in the middle of the travel lane.” Detective McLawhorn observed Kevin Britt (Britt) approach the driver's side window of the stopped vehicle. When Britt saw Detective McLawhorn, whom he knew, pull up in his undercover vehicle, Britt “turn[ed] back and walked off.”
    While behind the stopped vehicle, Detective McLawhorn noticed that the vehicle's registration tag had expired. Detective McLawhorn activated his vehicle's blue lights and radioed for back- up. Detective McLawhorn then approached the stopped vehicle. Defendant was in the driver's seat and another male in the front passenger seat. An odor of marijuana emanated from the vehicle. Detective McLawhorn asked defendant to exit the vehicle and come to his police vehicle. Defendant, who had a strong odor of marijuana on his breath, provided the detective with the name “James Lamont Tyson.” Upon searching defendant, Detective McLawhorn found a piece of paper with several names on it and what appeared to be currency numbers beside each name. Defendant did not have any identification papers on him.
    Officer Harrington arrived at the scene and searched the passenger in the vehicle. Officer Harrington then searched the vehicle. Inside the owner's manual, which was in the glove compartment, were six glassine bags containing heroine and nine plastic bags containing crack cocaine. Upon seizing the drugs, police handcuffed defendant and the passenger. Detective McLawhorn asked defendant who owned the vehicle and defendant replied that he had borrowed it from a friend. Police transported defendant andthe passenger to the police department and called a wrecker for the vehicle.
    The passenger provided proper identification to police, had no odor of marijuana about him and was truthful with the police, so police released the passenger and processed defendant. Defendant asked if he could call Grace List, the person from whom he borrowed the vehicle. While defendant was on the phone with Grace List, she indicated that she wished to speak with Detective McLawhorn. When Detective McLawhorn told her that the vehicle would be seized, defendant stated, “don't take the vehicle she didn't know the stuff was in there.” Grace List told the detective that her mother owned the vehicle; that she did not know anything about the drugs; and that she had loaned the car to a man she knew only as “Ervin,” but that his nickname was “Swerve.” Detective McLawhorn once again asked defendant for his real name and defendant told him “Ervin Amani-Hopkins Battle.”
    A jury found defendant guilty of possession with intent to sell or deliver heroin and possession with intent to sell or deliver cocaine. The trial court sentenced defendant to eight to ten months imprisonment for each offense. Defendant appeals.
    Defendant contends the trial court erred by denying his motion to dismiss based on insufficiency of the evidence. The standard for ruling on a motion to dismiss "is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantialevidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
    Defendant contends that the State's evidence was insufficient to prove his possession of cocaine and heroin. Since defendant did not have actual possession of the cocaine and heroin, the State relied upon the doctrine of constructive possession. Constructive possession exists when a person, while not having actual possession of the controlled substance, has the intent and capability to maintain control and dominion over the controlled substance. State v. Williams, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983). Evidence of constructive possession is sufficient to support a conviction if a reasonable mind would conclude from the evidence that defendant had the intent and capability to exercise control and dominion over the controlled substance. State v. Peek, 89 N.C. App. 123, 126, 365 S.E.2d 320, 322 (1988). Proving constructive possession where defendant had nonexclusive possession of the place in which the drugs were found requires a showing by the State ofother incriminating circumstances which would permit an inference of constructive possession. State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 73 (1996). The mere presence of the defendant in an automobile containing drugs does not, without additional incriminating circumstances, constitute sufficient proof of drug possession. State v. Weems, 31 N.C. App. 569, 571, 230 S.E.2d 193, 194 (1976).
    Here, the State presented evidence that defendant stopped the vehicle in the middle of the roadway and a man approached the driver's side of the vehicle, that defendant had a list of names with a corresponding monetary amount on a piece of paper on his person; that defendant did not give the police his real name when questioned; and that defendant asked that police not seize the vehicle because the person from whom he borrowed the vehicle did not know about the drugs. This evidence is sufficient to support an inference that defendant placed the bags of cocaine and heroin in the glove compartment where they were found, and, therefore, had the power and intent to control their disposition or use. We hold that sufficient incriminating circumstances exist to give rise to a reasonable inference that defendant had constructive possession of the cocaine and heroin found in the vehicle. Accordingly, the trial court properly denied defendant's motion to dismiss.
    No error.
    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).

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