State v Tisdale, 163 NC App 613 (03-1167) 04/06/2004

Appeal by defendant from judgment entered 12 February 2003 by Judge William Z. Wood, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 15 March 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State.

Lynne Rupp for defendant appellant.

McCULLOUGH, Judge.

    Defendant was found guilty of possession of cocaine with intent to sell or deliver. Upon his admission to habitual felon status, the trial court sentenced him to a term of 120 to 153 months' imprisonment. On appeal, defendant claims the trial court erred in denying his motion to dismiss at the conclusion of the evidence. We disagree.
    Viewed in the light most favorable to the State, the evidence tended to show that on the afternoon of 29 June 2002, Greensboro Police Officers J.D. Warren and Dan Knott conducted surveillance of a convenience store parking lot located at 1915 Martin Luther King, Jr. Drive, in response to complaints of illegal drug activity. Defendant, Rayshawn Shipman, and Covonti Moses were loiteringbeside a kerosene pump in the store's parking lot. Warren saw defendant walk eastward fifteen to twenty feet down the parking lot to the southeast corner of the store, where he bent down and picked up an item from the ground. As defendant was walking back to the group, Moses stood behind the kerosene pump, counting money and looking around nervously. When defendant returned to the kerosene pump, he was approached by a male in a brown t-shirt. Defendant and this individual walked back to the southeast corner of the store. After again picking up an item from the ground, defendant engaged in a hand-to-hand exchange with the male in the brown shirt. During the exchange, defendant handed the male an off-white object approximately the size of a marble. Upon his return to the group, defendant handed Moses some currency, which Moses added to the money already in his possession and recounted. The man in the brown shirt left the parking lot. Several minutes later, a second male approached the group at the kerosene pump and handed defendant some money. Defendant returned for a third time to the southeast corner of the lot and picked up an object. He sat down on the curb and made motions as though he were “cutting up some type of substance[.]” When he returned to the kerosene pump, defendant handed the male the item he had been cutting. After taking the object from defendant, the male went into the convenience store briefly before walking toward Benbow Road. Defendant walked behind the kerosene pump and handed the currency to Moses, who again counted the money while looking around as though “extremely nervous.” Throughout the officers' surveillance, no other personspassed through the portion of the parking lot where defendant was seen picking up the object.
    Warren radioed his assistant officers and instructed them to arrest defendant and his associates for violating the city's anti-loitering ordinance. Before the officers responded, Shipman approached a male on a red scooter and engaged in a hand-to-hand exchange. As the officers arrived and detained defendant and Moses, Shipman walked by a garbage can and threw an object into it. Warren directed Officer B.E. Davis to the area in the parking lot where defendant had repeatedly picked up the unidentified item. At this location, Davis found "a plastic baggy with an off-white rocky substance" later determined to be 2.3 grams of crack cocaine. Police also found a small bag of marijuana in defendant's pants pocket. Defendant had $79.50 in cash on his person, and Moses had $105.00.
    During the course of the officers' surveillance, no other persons passed through the portion of the parking lot where defendant was seen picking up the object.
    Defendant now claims the trial court erred in denying his motion to dismiss, absent sufficient evidence that he possessed the cocaine found in the parking lot. Noting that the parking lot was a public area not within his control, he avers the State's evidence gave rise only to a strong suspicion of wrongdoing based on his proximity to the cocaine.

    In reviewing a denial of a defendant's motion to dismiss forlack of evidence, this Court must determine whether, when viewed in the light most favorable to the State, the evidence at trial would permit a rational juror to find the defendant guilty beyond a reasonable doubt. See State v. Warren, 348 N.C. 80, 102, 499 S.E.2d 431, 443, cert. denied, 525 U.S. 915, 142 L. Ed. 2d 216 (1998). "[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).
    In order to withstand defendant's motion to dismiss, the State was obliged to prove that defendant knowingly possessed cocaine with the intention to sell or deliver it. See N.C. Gen. Stat. § 90-95(a)(1) (2003).     Inasmuch as defendant did not physically possess the cocaine found by police, the State was obliged to prove his constructive possession thereof. "Evidence of constructive possession is sufficient if it would allow a reasonable mind to conclude that the defendant had the intent and capability to maintain control and dominion over the contraband." State v. Earhart, 134 N.C. App. 130, 136, 516 S.E.2d 883, 888, appeal dismissed, 351 N.C. 112, 540 S.E.2d 372 (1999). Standing alone, a defendant's presence in a location where a controlled substance is found will not support a finding of constructive possession. See State v. Weems, 31 N.C. App. 569, 570-71, 230 S.E.2d 193, 194 (1976). Where a defendant is found in close proximity to drugs in an area not within his exclusive control, the State must show"'other incriminating circumstances which would permit an inference of constructive possession.'" State v. Matias, 143 N.C. App. 445, 448, 550 S.E.2d 1, 3 (quoting State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 73 (1996)), aff'd, 354 N.C. 549, 556 S.E.2d 269 (2001).
    While defendant was not in exclusive control of the area in question, we find substantial circumstantial evidence tying him to the cocaine. During their uninterrupted observation of the parking lot, police observed no persons other than defendant enter the precise location where the cocaine was found. Three times during the course of their surveillance, defendant returned to this area and picked up an object from the ground. On two of these occasions, defendant was first approached by another person. He then walked to the suspect location, picked up an object, and engaged in hand-to-hand transaction. On both occasions, defendant received currency from the other party. In the first of these exchanges, police saw defendant deliver an off-white, marble-sized object of the same color as the crack cocaine subsequently found in the parking lot. Prior to the second exchange, defendant picked up the suspect object, sat down, and made cutting motions in a manner suggesting he was cutting a piece from a larger whole. Finally, police seized currency from both defendant and Moses consistent with the observed transactions. While State's proffer did not exclude the possibility that the cocaine was placed in the parking lot by another party, and that defendant was unaware of its presence, the evidence was sufficient to support a reasonableinference that defendant exercised dominion and control over the cocaine and that he did so with the intent to sell or deliver it.
    No error.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***