An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1027


Filed: 20 July 2004


         v.                        Craven County
                                No. 02 CRS 53102

    Appeal by defendant from judgment entered 11 December 2002 by Judge James E. Ragan, III, in Craven County Superior Court. Heard in the Court of Appeals 22 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Brandon L. Truman, for the State.

    William H. Dowdy for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant was indicted on charges of possession of cocaine and possession of drug paraphernalia. He entered pleas of not guilty. He appeals from a judgment entered upon a jury verdict finding him guilty of possession of cocaine.
    The evidence presented at trial tended to show that on 18 May 2002, at approximately 3:12 a.m., Sergeant Edward Preston and Detective Christine Kelly of the New Bern Police Department responded to a dispatch for an unknown disturbance at 1007 Pavey Avenue. When they arrived at the address in their unmarked police vehicle, they observed defendant sitting on the edge of the porch and a woman, Lori Hall, standing next to him. The porch wasilluminated by an unprotected overhead lightbulb, a street light, and the high beam headlights of the police vehicle. Sergeant Preston noticed that Hall appeared to be “picking” through some items in defendant's hand. As Sergeant Preston and Detective Kelly approached Hall and defendant, Sergeant Preston described the items in defendant's hand to be "small white rock looking objects." Based upon his training and experience, Sergeant Preston believed these objects to be crack cocaine.
    When Hall and defendant noticed they were being approached by the police, Hall put her hand to her mouth and turned away. Detective Kelly testified that she had experience with people who had put contraband or controlled substances in their mouths and swallowed them so they could not be retrieved. While Detective Kelly attended to Hall, Sergeant Preston approached defendant and observed him turn his hands down. He saw items fall from defendant's hands to the ground. Defendant then attempted to come down from the porch and step on the items he had dropped. Sergeant Preston pushed defendant back onto the porch, handcuffed him and collected the white rock-like items off the ground. Sergeant Preston also collected a razor blade with a small amount of white residue on it, which was on the ground when defendant attempted to come off the porch. Sergeant Preston testified that a razor blade could be used to cut a rock of cocaine so it could be consumed.
    The State Bureau of Investigation examined the white rock-like items collected by Sergeant Preston and identified the material as cocaine base, with a weight of .1 grams. No analysis was performedon the razor blade.
    At the conclusion of the State's evidence, defendant's motion to dismiss for insufficiency of the evidence was denied. Defendant testified, in his own defense, that he was sitting on the porch, which was dimly lighted, among fifteen other people. He testified that he did not have anything in his hand at the time Sergeant Preston approached him nor had he seen a razor blade. At the conclusion of all the evidence, defendant renewed the motion to dismiss, which was again denied.
    Defendant argues the trial court erred by denying his motions to dismiss. Specifically, defendant argues the evidence was insufficient to establish two essential elements of the crime of possession of a controlled substance: that “(i)appellant ever had physical possession of the contraband” or that “(ii) appellant had knowledge that the [] items he may have had was contraband.” We find no error.
    Initially, we note that defendant waived his right to appeal the trial court's denial of his first motion to dismiss by introducing his own evidence thereafter. See N.C. Gen. Stat. § 15- 173 (2003) (stating that “[i]f the defendant introduces evidence, he thereby waives any motion for dismissal or judgment as in case of nonsuit which he may have made prior to the introduction of his evidence and cannot urge such prior motion as ground for appeal.”) Additionally, we conclude the trial court properly denied the latter motion to dismiss.     In considering a motion to dismiss based on insufficiency of the evidence, the trial court “is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight.” State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)(citing State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971)). To establish sufficient evidence and, thus, survive a motion to dismiss, the State must present substantial evidence of all material elements of the offense and identify the defendant as the perpetrator. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997); State v. Carr, 145 N.C. App. 335, 549 S.E.2d 897 (2001). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Cross, 345 N.C. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). A trial court should submit the case to the jury if a "reasonable inference of the defendant's guilt may be drawn...even though the evidence may also support reasonable inferences of the defendant's innocence." State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994) (quoting State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979)). In evaluating the sufficiency of the evidence, "[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994) (citing State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991)).
    In the present case, the State presented substantial evidencethat defendant knowingly possessed the cocaine. Sergeant Preston testified that he saw white rock-like objects, first in defendant's hand and, later, when he recovered them from the ground below where defendant stood on the porch. This material collected by Sergeant Preston was positively identified by the State Bureau of Investigation as cocaine. In addition to showing that defendant dropped the items from his hand, the evidence also showed that defendant attempted to step on the dropped items. Finally, Sergeant Preston and Detective Kelly observed defendant's companion, Hall, put her hand to her mouth, an action Detective Kelly recognized as consistent with the attempted concealment of controlled substances. Together, this evidence suggests that defendant not only possessed the controlled substance, but also that he was aware of such possession, as evidenced by his and Hall's efforts to conceal the substance. Though defendant's testimony was in some respects inconsistent with the State's evidence, any discrepancy goes to the weight of the evidence, not its sufficiency. We hold the evidence, viewed in the light most favorable to the State, amply supports a reasonable inference of defendant's guilt.
    No error.
    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).

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