An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1356


Filed: 20 July 2004


         v.                        Pitt County
                                Nos. 02 CRS 56387-88

    Appeal by defendant from judgment entered 20 February 2003 by Judge Jerry R. Tillett in Pitt County Superior Court. Heard in the Court of Appeals 5 July 2004.

    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).
    Judges HUDSON and THORNBURG concur.
    Report per Rule 30(e).

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