STATE OF NORTH CAROLINA
v. Durham County
Nos. 01 CRS 11523, 42599,
RODNEY CONRAD JONES 42600-01
Attorney General Roy Cooper, by Assistant Attorney General
LaShawn L. Strange, for the State.
Kelly Scott Lee for defendant appellant.
McCULLOUGH, Judge.
On 18 February 2001, Officer D. J. Osman of the Durham Police
Department went to the Carolina Duke Motor Inn to investigate a
large drug transaction which was supposed to be taking place.
Officer Osman did not find any drugs, and left the motel. Officer
Osman drove away from the motel for a short distance, and then
turned around and headed back towards the motel. As he pulled into
the entrance of the motel, he noticed a blue van exiting as he was
entering. Officer Osman noticed that the license plate light was
malfunctioning and stopped the van. Officer Osman discovered that
defendant's driver's license had been revoked, and defendant was
arrested. Officer Osman then asked defendant for permission to
search the van, and defendant replied that he could because thevehicle was not his. The search of the vehicle yielded
approximately 200 grams of crack cocaine and $6,000 in cash. Most
of the cocaine was hidden above the headrests in a compartment in
the ceiling of the van. A further search revealed a bill of sale
for the van in defendant's name. A later search of defendant's
room at the Carolina Duke Motor Inn revealed drug paraphernalia.
Defendant was convicted of possession with intent to sell or
deliver cocaine, trafficking in cocaine by possession, trafficking
in cocaine by transportation, and being an habitual felon.
Defendant was sentenced to 107 to 138 months' imprisonment.
Defendant appeals.
We first consider whether the trial court erred by denying
defendant's requested instruction on constructive possession.
Defendant contends that the instruction should have included
specific language that “'unless the person has exclusive possession
of the place where the narcotics are found, the State must show
other incriminating circumstances before constructive possession
may be inferred.'” State v. Matias, 354 N.C. 549, 552, 556 S.E.2d
269, 271 (2001)(quoting State v. Davis, 325 N.C. 693, 697, 386
S.E.2d 187, 190 (1989)). The trial court denied defendant's
request and instead charged the jury with N.C.P.I., Crim. 104.41.
After careful review of the record, briefs and contentions of
the parties, we find no error. This Court has stated:
"Proving constructive possession where
defendant had nonexclusive possession of the
place in which the drugs were found requires a
showing by the State of other incriminating
circumstances which would permit an inferenceof constructive possession." "Evidence of
constructive possession is sufficient to
support a conviction if it would allow a
reasonable mind to conclude that defendant had
the intent and capability to exercise control
and dominion over the controlled substance."
State v. Martinez, 150 N.C. App. 364, 371, 562 S.E.2d 914, 918
(2002)(citations omitted). In the case sub judice, the Court
instructed the jury that:
[P]ossession of cocaine may be either actual
or constructive. . . . A person has
constructive possession of cocaine if he does
not have it on his person, but is aware of its
presence, and has, either by himself or
together with others, both the power and
intent to control its disposition or use.
A person's awareness of the presence of
cocaine and his power and intent to control
its disposition or use may be shown by direct
evidence or may be inferred from the
circumstances.
If you find beyond a reasonable doubt
that cocaine was found in close physical
proximity to the defendant, that would be a
circumstance from which, together with other
circumstances, you may infer that the
defendant was aware of the presence of the
cocaine, and had the power and intent to
control its disposition or use. However, the
defendant's physical proximity, if any, to the
cocaine, does not by itself permit an
inference that the defendant was aware of the
presence or had the power or intent to control
its disposition or use. Such an inference may
be drawn only from this and other
circumstances which you find from the evidence
beyond a reasonable doubt.
Also, . . . if you find beyond a
reasonable doubt that cocaine was found in a
certain motor vehicle, and that the defendant
exercised control over that motor vehicle,
whether or not he owned it, this would be a
circumstance from which you may infer that the
defendant was aware of the presence of thecocaine and had the power and intent to
control its disposition or use.
(Emphasis added.) The trial court's instruction was similar in
substance to the instruction requested by defendant, and was in
compliance with North Carolina law. See Martinez, 150 N.C. App.
at 372-73, 562 S.E.2d at 919. Accordingly, the assignment of error
is overruled.
Defendant next argues that the trial court erred in denying
his motion to suppress evidence of prior convictions that were
obtained in violation of his rights to due process. However,
defendant concedes that he is precluded from collaterally attacking
his prior convictions. See State v. Creason, 123 N.C. App. 495,
473 S.E.2d 771 (1996), aff'd, 346 N.C. 165, 484 S.E.2d 525 (1997).
Accordingly, we find no error.
No error.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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