An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1245

NORTH CAROLINA COURT OF APPEALS

Filed: 1 June 2004

STATE OF NORTH CAROLINA

    v.                        Forsyth County
                            Nos. 02 CRS 14588 and 55079,
KENNETH JERMAINE ELLIS
    

    Appeal by defendant from judgment dated 12 March 2003 by Judge Anderson Cromer in Forsyth County Superior Court. Heard in the Court of Appeals 12 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General James M. Stanley, Jr., for the State.

    Gilda C. Rodriguez for defendant-appellant.

    BRYANT, Judge.

    Kenneth Jermaine Ellis (defendant) appeals a judgment dated 12 March 2003 entered consistent with his conviction for possession with intent to sell and deliver marijuana, and his “no contest” plea to having attained the status of habitual felon.
    The State's evidence tended to show: On the night of 25 April 2002, after receiving an “anonymous tip” that defendant was selling drugs, Detectives Mike Cardwell and Chris Haynes of the Winston- Salem Police Department traveled to 814 Graham Avenue to further investigate. The residence at 814 Graham Avenue was a rooming house, and as the detectives approached, they could smell the odor of marijuana emanating from the house. They also observed a male (not defendant) sitting on the living room couch playing a videogame. The detectives, though dressed in civilian clothes, were wearing their badges on a chain around their necks. When the male in the living room saw the detectives approaching, he dropped the video game controller and ran toward the back of the residence. Detective Haynes immediately ran to the back of the residence but did not pursue the male, whom he knew was not defendant. Detective Cardwell had also seen the male in the living room but never saw him deposit anything under the sofa cushions before running to the rear of the residence.
    Detective Cardwell proceeded to the front of the residence where defendant answered the door. After Detective Cardwell identified himself as a police officer, defendant stepped out of the residence to converse with the detective. While Detective Cardwell and defendant were talking in the front of the house, Detective Haynes entered the house through the back door. Detective Haynes encountered five males in the house and immediately called for assistance. Before entering the residence to assist Detective Haynes, Detective Cardwell patted defendant down for weapons before allowing his reentry.
    The detectives brought all six males (including defendant) into the living room of the residence. Before allowing the men to be seated, Detective Cardwell checked the chairs for weapons. Detective Cardwell personally removed the cushions from the couch to make sure that there were no weapons in, under, or behind the cushions. Thereafter, the six males of the house were seated in the chairs of the living room. In particular, defendant was seatedin the center section of the couch, with another male seated to defendant's right. Nobody was seated to defendant's left. Neither detective recalled having seen anyone seated on the cushion to defendant's left.
    Willie Crump, another detective with the Winston-Salem Police Department, was radioed to the scene to assist Detectives Cardwell and Haynes. While Detectives Cardwell and Haynes searched the rest of the residence, Detective Crump watched the seated males in the living room area. During a search of the premises, Detective Cardwell found in the kitchen area, a metal, hand-held scale, which is commonly used to weigh narcotics, on top of a kitchen cabinet, and a small plastic bag, which is commonly used to package small quantities of marijuana for sale; and, in a spare bedroom, several partially smoked marijuana cigarettes in an ashtray. After his search of the kitchen and spare bedroom, Detective Cardwell escorted defendant to the bathroom. While Detective Cardwell waited outside the bathroom door for defendant, Detective Crump found a plastic bag containing approximately one ounce of marijuana to the right of the sofa cushion where defendant had been seated. Detective Crump also found a scale and two or three “dime” bags of marijuana on the floor underneath the right side of the couch.
    After obtaining defendant's consent to search, Detective Cardwell subsequently searched defendant's bedroom. There, he found the following items: an electronic scale, which is commonly used to weigh narcotics; plastic bags (1”X 1”), which are commonly used to package narcotics; and a shoebox with residual amounts ofmarijuana.
    Defendant was thereafter charged with possession with the intent to sell and deliver marijuana, possession of marijuana, enhanced felonious possession of marijuana, and having attained the status of habitual felon. A jury found defendant guilty of possession with intent to sell and deliver marijuana. Defendant thereafter pled no contest to having attained the status of habitual felon, reserving the right to appeal the substantive offense. The trial court found two mitigating factors and no aggravating factors, and determined that the mitigating factors outweighed the aggravating factors. The trial court then sentenced defendant to a mitigated sentence of 70-93 months imprisonment.

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    On appeal, defendant argues that the trial court erred in denying his motion to dismiss. Particularly, defendant questions the sufficiency of the evidence to show he was in constructive possession of the marijuana found in the living room couch.
    A motion to dismiss is properly denied if “there is substantial evidence (1) of each essential element of the offense charged and (2) that [the] 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 that relevant evidence “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, the court must consider the evidence in the light most favorable to the State, giving the Statethe benefit of every favorable inference to be drawn therefrom. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “The test for sufficiency of the evidence is the same regardless of whether the evidence is circumstantial or direct.” State v. Harding, 110 N.C. App. 155, 162, 429 S.E.2d 416, 421 (1993). Further, “[c]ontradictions and discrepancies are for the jury to resolve and do not warrant [dismissal].” State v. Pallas, 144 N.C. App. 277, 286, 548 S.E.2d 773, 780 (2001).
    To obtain a conviction of possession with intent to sell and deliver marijuana, the State must prove that (1) defendant possessed the marijuana, and (2) intended to sell or distribute it. N.C.G.S. § 90-95(a)(1) (2003); State v. Bowens, 140 N.C. App. 217, 222, 535 S.E.2d 870, 873 (2000). Possession may be of two types - actual or constructive. “'Constructive possession occurs when a person lacks actual physical possession, but nonetheless has the intent and power to maintain control over the disposition and use of the substance.'” State v. Acolatse, 158 N.C. App. 485, 488, 581 S.E.2d 807, 810 (2003) (citation omitted). In instances where a defendant does not have exclusive control of the premises where a controlled substance is found, the critical issue is whether the evidence shows other incriminating circumstances sufficient for the jury to find defendant had constructive possession of the contraband. Id.; see State v. Butler, 356 N.C. 141, 146, 567 S.E.2d 137, 140 (2002).
    In Butler, our North Carolina Supreme Court concluded the evidence presented sufficient incriminating circumstances to showthat the defendant had constructive possession of contraband. The defendant in Butler, had traveled by bus from one “source” city to another “source” city, exited a bus carrying only a small duffel bag, and began to act suspiciously. The defendant walked “very briskly” through the bus terminal, twice looking back at police officers. Officers subsequently prevented the taxicab, in which the defendant attempted to get away, from leaving the premises. When police officers asked defendant to exit the taxi, defendant slowly did so. Officers noticed that he was “very nervous” and “fidgety,” and had reached toward the driver's seat before exiting the taxi. The taxi driver stated he felt pushing on the back of the driver's seat before the defendant exited the vehicle. A search of defendant and the duffel bag in his possession yielded no contraband. However, during the search, the taxicab picked up another fare and left the bus station premises. When the driver returned to the bus station, officer obtained permission to search the taxi and found a package containing cocaine beneath the driver's seat. The driver stated that he had cleaned his cab before starting his shift and that defendant had been his first fare.
    Our Supreme Court made a similar determination in State v. Matias, 354 N.C. 549, 556 S.E.2d 269 (2001). In Matias, police officers, who were working as off-duty security guards, stopped the car, in which the defendant was a passenger, after detecting the odor of marijuana emanating from the vehicle. After discovering that the driver of the vehicle did not have anoperator's license, they removed the driver and arrested him. The officers also asked all of the passengers to exit the car. The defendant, the last person to leave the vehicle, exited the car from the right rear seat. The officer subsequently found a plastic bag containing marijuana and cocaine between the seat pad and the back pad of the rear right seat where the defendant had been sitting. Our Supreme Court stated, “a juror could reasonably determine defendant knew drugs were in the car. A juror could also reasonably conclude the drugs came from the package hidden in the car seat under defendant.” Id. at 552-53, 556 S.E.2d at 271.
    In the case sub judice, in the light most favorable to the State, the evidence tended to show that officers of the Winston- Salem Police Department: received an anonymous tip defendant was selling drugs; the officers went to investigate defendant's residence, which was a rooming house; the officers smelled marijuana smoke as they approached the rooming house; there was a strong odor of marijuana emanating from defendant; there were several partially smoked marijuana cigarettes in an ashtray in the spare bedroom; and there were scales like those commonly used to weigh narcotics, a shoe box with marijuana residue, and a loaded firearm hidden in defendant's bedroom. Although cooperative with the officers, defendant appeared nervous and was breathing hard during the incident, and he was noted as fidgety while seated on the couch. Prior to defendant being seated on the couch, Detective Cardwell had removed all of the seat cushions in search of weapons and had found nothing beneath them. However, after defendant leftthe couch to use the bathroom, Detective Crump conducted a subsequent search and found a plastic freezer bag of marijuana under the cushion to the right of where defendant had been seated. Nobody else had been seated on that side of the couch.
    In conclusion, we hold that the trial court properly denied defendant's motion to dismiss the charges, and defendant's assignment of error is overruled.
    No error.
    Chief Judge MARTIN and Judge McGEE concur.
    Report per Rule 30(e).

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