NO. COA03-991
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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