An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1247


Filed: 3 August 2004


v .                         Gaston County
                            No. 02 CRS 19671

    Appeal by defendant from judgment entered 28 May 2003 by Judge J. Gentry Caudill in Gaston County Superior Court. Heard in the Court of Appeals 8 June 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General W. Richard Moore, for the State.

    Reita P. Pendry for defendant.

    LEVINSON, Judge.

    Defendant (Phillip Lawrence Byers) appeals from conviction for being an habitual felon and for conviction and judgment for possession with intent to sell or deliver cocaine. We find no error.
    In his first argument on appeal, defendant contends that the trial court erred in denying his motion to dismiss the charge of possession with intent to sell or deliver cocaine because there was insufficient evidence of intent to sell or deliver. We disagree.
    The evidence at defendant's trial, taken in the light most favorable to the State, may be summarized as follows: On 13 April 2002, Gastonia Police Officers James Smith and Scotty Galmon were on duty in defendant's neighborhood. The officers observed afemale prostitute, known to the officers to frequent the area to purchase drugs, walk away from the defendant. The officers subsequently arrested defendant on an unrelated outstanding warrant. Defendant had $533 in cash on his person at the time of his arrest.
    Defendant was handcuffed with his arms behind his back, and he was placed in the back seat of the officers' patrol car. The officers performed a routine search after defendant was taken out of the vehicle and found a plastic bag containing thirty white rocks, which were later tested and determined to be crack cocaine. Officer Smith testified that, at the time the crack cocaine was found, it was in rock form, “the way it's cut for sale.” Officer Smith further testified that “[t]he size of the rocks were about the size of a $20 rock.”
    According to Officers Smith and Galmon, officers routinely conduct a thorough inspection of the back seat of patrol cars upon beginning a new shift and every time somebody is taken out of the backseat at the jail because persons placed in custody sometimes leave drugs or other items in the back seat of the patrol car. In Officer Smith's words, “We found that a lot of times lately that [arrestees] [ha]ve been putting [drugs] in their buttocks and so it's easy to get to when they [are in] handcuffs behind their back.” Officers Smith and Galmon testified that they had not arrested anyone else on 13 April 2002, and that, on that date, the back seat of their patrol car, where arrestees are placed, had been checked. Officer Smith testified that the bag of crack cocaine wasfound “where defendant was sitting in the backseat, it was directly behind him underneath the seat . . . [r]ight behind where his hands were.”
    Defendant moved to dismiss the charge of possession with intent to sell or deliver cocaine at the end of the State's evidence and again at the close of all of the evidence. The trial court denied these motions.
    When ruling on a motion to dismiss, “the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996) (citation omitted). “Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion.” State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56, cert denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002) (citation omitted). “In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence.” Id. (citation omitted). “The trial court must also resolve any contradictions in the evidence in the State's favor.” Id. (citation omitted). “The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.” Id. (citation omitted). “[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both.” State v.Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981) (citation omitted).
    N.C.G.S. § 90-95(a)(1) (2003) makes it unlawful for any person to “possess with intent to . . . sell or deliver” cocaine. “[I]t is the intent of the defendant that is the gravamen of the offense of possession with the intent to sell or deliver.” State v. Bunch, 104 N.C. App. 106, 109, 408 S.E.2d 191, 193 (1991) (citation omitted). The intent to sell or deliver may be inferred from “[t]he method of packaging a controlled substance, as well as the amount of the substance”. State v. Williams, 71 N.C. App. 136, 140, 321 S.E.2d 561, 564 (1984). This Court has recently held that a trial court did not err in denying a defendant's motion to dismiss where (1) the amount of cocaine possessed by a defendant exceeded the amount of cocaine that a typical user would possess for personal use, (2) the cocaine was packaged in such a way as to be available for individual sale, and (3) defendant possessed a large amount of money on his person in close proximity to the drugs. State v. Davis, 160 N.C. App. 693, 696, 586 S.E.2d 804, 806 (2003).
    In the instant case, the State's evidence tended to show that defendant had a significant amount of cash on his person and possessed thirty rocks of crack cocaine. The crack cocaine had been cut into rocks with a value of approximately $20 each in the manner that the substance is cut for sale. This evidence was sufficient to permit the jury to convict defendant of possessionwith the intent to sell or deliver cocaine. This assignment of error is overruled.
    In his second argument on appeal, defendant makes an argument which is identical to the one recently rejected by our Supreme Court in State v. Jones, __ N.C. __, __ S.E.2d __ (filed 25 June 2004). This assignment of error is overruled.
    No error.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

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