STATE OF NORTH CAROLINA
v. Pitt County
Nos. 02 CRS 56387-88
MICHAEL MAURICE SMITH
Attorney General Roy Cooper, by Special Deputy Attorney
General John R. Corne, for the State.
Mark A. Key for defendant-appellant.
STEELMAN, Judge.
On 9 September 2002, defendant was indicted on charges of
trafficking in cocaine by possession, possession of drug
paraphernalia, and wanton injury to personal property. The case
was tried at the 19 February 2003 Criminal Session of Pitt County
Superior Court.
The evidence presented at trial tended to show the following:
On 17 May 2002, Investigators Vidale Barfield, Rose Edmonds, Tim
McInerney, and Officer Keith Knox, all of the Greenville Police
Department, went to 105 Toby Circle to execute a search warrant.
Investigator Edmonds had received information from a confidential
source that Donnie Powell was selling controlled substances from
apartment A7. The officers arrived at the address in a van. As soon as the
door to the van opened, Investigator Barfield saw defendant and
Carl Jerome standing near the right corner of the building. When
Investigator Barfield exited the van, defendant ran toward the rear
of the building and Investigator Barfield gave chase. Defendant
attempted to climb over a fence, but his head became lodged in some
shrubbery. Investigator Barfield grabbed defendant by one of his
legs and tried to pull him back. Defendant struggled with
Investigator Barfield and kicked off his glasses. Investigator
Barfield then heard Investigator McInerney running up and yelling
that “[He's] throwing it, he's throwing it.” Investigator Barfield
then saw a “white hard like round substance” fly from defendant's
person. Investigator McInerney pointed in the direction of where
defendant threw the object, and Officer Knox went to the area where
Investigator McInerney was pointing and found a “cookie” of crack
cocaine. The cocaine was found in an open area about five feet
from the fence defendant was trying to climb. The "cookie" tested
positive for cocaine and weighed 57.5 grams.
Prior to trial, defendant pled guilty to possession of drug
paraphernalia and wanton injury to personal property. Defendant
was subsequently convicted by a jury of trafficking in cocaine by
possession and sentenced to the statutorily mandated term of
thirty-five to forty-two months imprisonment. Defendant appeals.
Defendant first argues that the trial court erred by denying
his motion to dismiss because there was insufficient evidence that
he possessed the cocaine. Defendant contends that he had neitheractual nor constructive possession of the cocaine. Additionally,
defendant notes that the cocaine was found in the exact spot where
the search warrant indicated Powell stored drugs.
After careful review of the record, briefs, and contentions of
the parties, we find no error. To survive a motion to dismiss, the
State must present substantial evidence of each essential element
of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483
S.E.2d 432, 434 (1997). “'Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support
a conclusion.'” Id. 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 person has actual possession of a substance if it is on his
person, he is aware of its presence, and either by himself or
together with others he has the power and intent to control its
disposition or use.” State v. Reid, 151 N.C. App. 420, 428-29, 566
S.E.2d 186, 192 (2002)(citations omitted). Here, Investigator
McInerney testified that he came upon Investigator Barfield
“tussling” with defendant and saw defendant throw an object.
Investigator McInerney yelled to Investigator Barfield that
defendant was throwing something, and Investigator Barfield
testified that he then saw “a white hard like round substance in
like a shiny plastic container fly out from . . . [defendant's]
person.” Investigator McInerney pointed out to Officer Knox where
defendant threw the object, and Officer Knox ran to where
Investigator McInerney pointed and located a “cookie” of crack
cocaine in a plastic bag. Based on this evidence, in the lightmost favorable to the State, a jury could have found that defendant
knowingly possessed the cocaine found by Officer Knox.
Defendant next argues that the trial court committed plain
error by admitting testimony of previous encounters between
defendant and the police. Defendant contends that this testimony
should have been excluded under Rule 404(b) as prejudicial
character evidence. However, we decline to review this assignment
of error. Defendant did not object at trial or move to strike the
challenged testimony. Further, defendant failed to contend plain
error with respect to this issue in his assignment of errors.
Therefore, he has waived review of this issue. State v. Flippen,
349 N.C. 264, 274-275, 506 S.E.2d 702, 710 (1998); N.C. R. App. P.
10(c)(4). Defendant's other assignment of error is not argued in
his brief and is deemed abandoned. N.C. R. App. P. 28(a),
28(b)(6).
NO ERROR.
Judges HUDSON and THORNBURG concur.
Report per Rule 30(e).
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