STATE OF NORTH CAROLINA
v. Craven County
No. 02 CRS 53102
AGARTHA SIMMONS, Jr.
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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