NO. COA03-1245
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.
_________________________
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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