An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-991


Filed: 1 June 2004


     v.                            Randolph County
                                No. 02 CRS 051090

    Appeal by defendant from judgment dated 5 March 2003 by Judge Russell G. Walker, Jr. in Randolph County Superior Court. Heard in the Court of Appeals 12 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State.

    Allen W. Boyer for defendant-appellant.

    BRYANT, Judge.

    David Hernandez Hernandez (defendant) appeals a judgment dated 5 March 2003 entered consistent with a jury verdict finding him guilty of two counts of trafficking in cocaine (one by unlawful possession, the other by unlawful transportation).
    The evidence presented by the State at trial showed that, on 19 February 2002, at the behest of Deputy David Joyce with the Randolph County Sheriff's Department, an informant arranged to purchase a controlled substance in the parking lot of a Food Lion grocery store on Swannanoah Street in Liberty, North Carolina. The seller was to signal his arrival by standing beside a public telephone next to the Food Lion. Deputy Joyce, the informant, andanother officer arrived at the Food Lion in an unmarked Ford Expedition at approximately 10:00 p.m.
    At approximately 10:10 p.m., a white Jeep Cherokee driven by defendant pulled into the Food Lion parking lot. Beside defendant in the front passenger seat was Jose Louis Carmello (Carmello). Defendant exited the vehicle and went inside the Food Lion while Carmello walked over to the pay phone. The men then returned to the Cherokee and sat down in their former positions. The informant went over to the Cherokee and sat in the back passenger seat behind Carmello for a few minutes before returning to the Expedition.
    When Deputy Joyce gave the take-down signal, members of the Sheriff Department's Vice and Narcotics Unit converged on the Cherokee. Officers Jennifer Brady and Larry Hicks activated the blue strobe lights and police siren of their Ford F-150 truck and pulled it directly in front of the Cherokee to block its path. Officers Tim James and Chuck West pulled up behind the Cherokee in a white Mercury Mountaineer. Officers Brady and Hicks exited the F-150 and approached the Cherokee on foot. Officer Hicks was in uniform; Officer Brady was wearing a sweatshirt with a star and “Sheriff” emblazoned across the front. Officer Brady drew her gun and announced several times, “Sheriff's office, stop, exit the vehicle.” As Officer Brady reached the driver's side door, defendant put the Cherokee in reverse and backed into the Mountaineer with such force that the Mountaineer's tires left skid marks on the parking lot. Defendant then revved the engine “real high” while “messing with the console” as though attempting to putthe vehicle back into drive. Officers Hicks and James removed defendant from the Cherokee and placed him in custody. In the console between the driver and front passenger seats of the Cherokee, and in plain view, was an open plastic bag containing seven smaller baggies of cocaine with a total weight of 208 grams. The lid to the console was discovered lying on the floor of the back seat.
    Following his arrest, defendant gave a statement claiming that Carmello had picked him up at his residence in a red car. They had driven to a friend's house and borrowed his Cherokee to go meet one of Carmello's friends, who turned out to be the informant. Defendant did not know Carmello had brought cocaine until the informant got into the Cherokee and Carmello pulled the cocaine out of his jacket. After the informant left to retrieve his money, Carmello placed the cocaine on the console. Defendant explained he backed into the Mountaineer because he was afraid the F-150 was going to run into him. Defendant denied that the F-150 had displayed blue lights and stated that the deputies exited the truck only after the collision with the Mountaineer.


    The sole issue on appeal is whether there was sufficient evidence that defendant had constructive possession of the cocaine found in the Cherokee to overcome defendant's motion to dismiss.
    A motion to dismiss is properly denied if “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 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). “When ruling on a motion to dismiss, all of the evidence should be considered 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). In ruling upon such a motion, “'[t]he trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.'” State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 256 (citation omitted), cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002). “[I]f the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion even though the evidence may also support reasonable inferences of the defendant's innocence.” State v. Ford, 136 N.C. App. 634, 641, 525 S.E.2d 218, 223 (2000).
    While defendant does not dispute that 208 grams of cocaine were transported to the Food Lion parking lot in the Cherokee, he avers the State failed to show that he possessed the controlled substance. Possession of an object may be actual or constructive, exclusive or joint. “A person has constructive possession of an item when the item is not in his physical custody, but he nonetheless has the power and intent to control its disposition.” State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318(1998). Moreover, “'[a]n inference of constructive possession can . . . arise from evidence which tends to show that a defendant was the custodian of the vehicle where the controlled substance was found.'” State v. Tisdale, 153 N.C. App. 294, 297-98, 569 S.E.2d 680, 682 (2002) (quoting State v. Dow, 70 N.C. App. 82, 85, 318 S.E.2d 883, 886 (1984)). “[T]his Court has consistently held that '[t]he driver of a borrowed car, like the owner of the car, has the power to control the contents of the car.'” Id. (quoting State v. Glaze, 24 N.C. App. 60, 64, 210 S.E.2d 124, 127 (1974)). Accordingly, where contraband material is found in a vehicle under the control of the defendant, even though the defendant is the borrower of the vehicle, “this fact is sufficient to give rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury.” Glaze, 24 N.C. App. at 64, 210 S.E.2d at 127. The inference, however, is rebuttable, and if the defendant offers evidence rebutting the inference, “the State must show other incriminating circumstances before constructive possession may be inferred.” Tisdale, 153 N.C. App. at 298, 569 S.E.2d at 682.
    In this case, defendant was the driver of the Cherokee, thus giving rise to the inference of knowledge and possession of the cocaine. Although defendant offered testimony to rebut this presumption, his close proximity to cocaine lying exposed in the open console beside him and his attempt to take evasive action to escape the police were sufficient additional incriminating circumstances to support a finding of constructive possession. SeeState v. Bowens, 140 N.C. App. 217, 223, 535 S.E.2d 870, 874 (2000) (citing State v. Neal, 109 N.C. App. 684, 687, 428 S.E.2d 287, 290 (1993) (incriminating circumstance includes fleeing from the area where the illegal drugs are found)); State v. Bagnard, 24 N.C. App. 54, 59, 210 S.E.2d 93, 97 (1974) (constructive possession where the defendant was the driver of the vehicle and one of the two bags of marijuana found in the vehicle was located just inside the vehicle's door on the driver's side, unobstructed by the seat). Therefore, the trial court did not err in denying defendant's motion to dismiss.
    No error.
    Chief Judge MARTIN and Judge McGEE concur.
    Report per Rule 30(e).

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