State v Fields, (03-929) 05/04/2004

Appeal by defendant from judgment dated 3 October 2002 by Judge Paul L. Jones in Superior Court, Lenoir County. Heard in the Court of Appeals 19 April 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Staci Tolliver Meyer, for the State.

Kurtz & Blum, P.L.L.C., by Howard A. Kurtz, for defendant- appellant.

McGEE, Judge.

    Defendant Kimani Otto Fields was charged with Class I Possession of a Controlled Substance. The State's evidence at trial tended to show that on 15 November 2001, Officer Carrie Barnes and Detective Rodney Russell of the Kinston Police Department were looking for a man wearing a blue shirt and blue jeans and accompanied by a small child. The officers saw defendant, who matched this description, coming out of the C-mart convenience store at the corner of J.P. Harrison and Washington Avenue. The officers pulled their unmarked vehicle behind a bread truck parked in front of the store. When defendant saw the officers, he pulled the small child along and walked faster "to getin front of the bread truck out of [the officers'] sight."
    Officer Barnes jumped out of the police vehicle and, while running along the passenger side of the bread truck, looked under the truck "to see if [defendant] would throw anything[.]" As Officer Barnes approached the front of the bread truck, he saw that defendant was bent over his feet and an item was being tossed under the truck. When Officer Barnes reached the front of the truck, defendant was approximately six feet from the truck and appeared to be tying his shoe. Once the officers detained defendant, Officer Barnes noticed a small plastic bag containing a leafy matter a few inches from defendant's foot. The bread truck was unoccupied and no other person was in its vicinity, except for the small child. Officer Barnes retrieved a plastic bag containing an ivory colored substance from under the bread truck less than a minute after the officers detained defendant. The State Bureau of Investigation determined that the ivory colored substance was one gram of crack cocaine and the leafy matter was 1.8 grams of marijuana.
     A jury found defendant guilty of felony possession of cocaine. The trial court sentenced defendant to five to six months imprisonment, suspended the sentence and placed defendant on twenty-four months supervised probation. Defendant appeals.
    In his first assignment of error, defendant contends the trial court erred by denying his request to excuse a juror for cause when all of his peremptory challenges had been exhausted. Defendant has the burden of providing a record which allows the appellate courts to properly review the assignment of error. State v. Shelman, 159N.C. App. 300, 310-11, 584 S.E.2d 88, 95-96, disc. review denied, 357 N.C. 581, 589 S.E.2d 363 (2003). Jury selection was not made part of the record and, therefore, this Court does not have sufficient information from which to assess defendant's claimed error. Accordingly, this assignment of error is overruled.
    Defendant also 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). Substantial evidence 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). If substantial evidence exists, whether direct, circumstantial, or both, supporting a finding that the offense charged was committed by the defendant, the case must be left for the jury. State v. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989). If the trial court determines that the evidence supports a reasonable inference of the defendant's guilt, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences ofthe defendant's innocence. State v. Grigsby, 351 N.C. 454, 456-57, 526 S.E.2d 460, 462 (2000).
    Defendant argues that the State failed to present evidence that he possessed the cocaine. The State did not present evidence that defendant was in actual possession of the drugs, or that he ever had actual possession of the drugs. Rather, the State relied on the doctrine of constructive possession. "Constructive possession occurs when a person lacks actual physical possession, but nonetheless has the intent and power to maintain control over the disposition and use of the substance." State v. Wilder, 124 N.C. App. 136, 139-40, 476 S.E.2d 394, 397 (1996).
        Where a controlled substance is found on premises under the defendant's control, this fact alone may be sufficient to overcome a motion to dismiss and to take the case to the jury. If a defendant does not maintain control of the premises, however, other incriminating circumstances must be established for constructive possession to be inferred.

State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287, 289 (1993) (citations omitted).
    In the present case, the cocaine evidence was under the bread truck, which was not under defendant's control. The evidence, however, suggests incriminating circumstances sufficient to permit the jury to infer constructive possession. When defendant saw the officers, he began walking faster "to get . . . out of [the officers'] sight." Officer Barnes approached the front of the bread truck, saw defendant bent over, and observed an item, later determined to be cocaine, being thrown under the truck. Defendantwas six feet away from the bread truck and no one else was in the vicinity of the bread truck except the small child. Accordingly, the trial court properly denied defendant's motion to dismiss.
    No error.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

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