STATE OF NORTH CAROLINA
v. Buncombe County
Nos. 02 CRS 60760
TRACY MAURICE McAFEE 02 CRS 60761
Attorney General Roy Cooper, by Assistant Attorney General
Diane Martin Pomper, for the State.
Reita P. Pendry for defendant-appellant.
THORNBURG, Judge.
Defendant was indicted and tried on one count of felony
possession with intent to manufacture, sell, or deliver cocaine and
two counts of misdemeanor drug offense. The State's evidence tends
to show that on the night of 21 August 2001, Officer Steve Coon, of
the Asheville Police Department, was on routine patrol when he
observed a 1980's Oldsmobile parked in front of the Oak Knoll
Apartments in Asheville, North Carolina. After running a check on
the vehicle's license tag, the officer discovered that the
vehicle's tag was assigned to a Ford Probe. Officer Coon stopped
the vehicle after it exited the apartment parking lot and pulled
onto an adjacent street. Officer Coon approached the vehicle and asked the driver,
Kimberly Clayton, and the passenger, defendant, for their driver's
licenses. As the officer sat in his patrol car, checking the
validity of the licenses, he noticed defendant rummaging in the
center of the front seat of the stopped vehicle. Fearing for his
safety, Officer Coon returned to the stopped vehicle and had
defendant exit the vehicle. With the driver's permission, the
officer searched the front seat of the vehicle. Upon searching the
area of the vehicle's front seat where defendant had been moving,
Officer Coon found a compact disc (CD) case containing a bag with
19 small rocks of cocaine. The driver told Officer Coon that the
CD case belonged to defendant. A search of defendant's person
yielded a small bag of marijuana, a razor blade and rolling papers.
Another Asheville Police Officer subsequently found a small bag of
marijuana in the glove compartment of the vehicle.
A State Bureau of Investigation chemist testified that the
rocks seized from defendant weighed a total of 1.87 grams with a
street value of about $400.00, if sold individually. The chemist
also testified that a razor blade is usually used to divide cocaine
into doses.
Clayton testified that defendant called her for a ride to his
cousin's house on the night in question. However, after she picked
him up, he asked her to stop at two places; first, behind the movie
theater where he got out for a few minutes and at the Oak Knoll
Apartments where he went into an apartment. Defendant did not present any evidence. The jury found
defendant guilty and the trial court consolidated the charges for
judgment, sentencing defendant to a presumptive term of 8-10 months
imprisonment. Defendant appeals.
Defendant's sole argument on appeal is that the trial court
erred in denying his motion to dismiss the charge of possession
with intent to manufacture, sell or deliver cocaine. Specifically,
defendant contends there was not sufficient evidence to show that
he intended to sell or deliver the cocaine found in his possession
on the night of 21 August 2001. We disagree.
In reviewing the denial of a defendant's motion to dismiss,
this Court determines 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. Owen,
159 N.C. App. 204, 206, 582 S.E.2d 689, 690 (2003) (quoting State
v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)).
Substantial evidence has been defined as that amount of evidence
which a reasonable juror would accept as adequate to support the
conclusion that each essential element of the crime exists. State
v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). The State
must be given the benefit of every favorable inference to be drawn
from the evidence. Id. Contradictions and discrepancies must be
resolved in favor of the State. Id.
To obtain a conviction for possession with intent to
manufacture, sell or deliver cocaine, the State must “present
substantial evidence that defendant (i) had either actual orconstructive possession of the cocaine and (ii) possessed the
cocaine with the intent to sell.” State v. Davis, 160 N.C. App.
693, 696, 586 S.E.2d 804, 806 (2003) (quoting State v. Alston, 91
N.C. App. 707, 709-10, 373 S.E.2d 306, 309 (1988)). Intent is
rarely shown by direct proof, but rather must most often be
inferred from the attenuating facts and circumstances. State v.
Morris, 156 N.C. App. 335, 340, 576 S.E.2d 391, 395, cert. denied,
357 N.C. 510, 588 S.E.2d 379 (2003). The North Carolina Supreme
Court has held, “[t]he mere quantity of the controlled substance
alone may suffice to support the inference of an intent to
transfer, sell or deliver.” State v. Morgan, 329 N.C. 654, 659,
406 S.E.2d 833, 835 (1991).
In State v. Carr, the defendant had two pill bottles, one with
a large rock of cocaine and the other with eight small rocks of
cocaine of a size selling for about $20.00 to $40.00 each. State
v. Carr, 122 N.C. App. 369, 470 S.E.2d 70 (1996). In addition, the
defendant had been seen talking to a known drug user. Id. The
Court concluded that this was sufficient evidence for the jury to
infer that the defendant had the intent to sell and/or distribute
the rock cocaine in his possession. Id.
We note that defendant does not take issue with the
sufficiency of the evidence as to the possession element of the
offense charged. He contends only that there was not sufficient
evidence that he intended to sell or deliver the cocaine found in
his possession on the night of 21 August 2001. To that end, the
evidence in the light most favorable to the State shows thatdefendant had in his possession 19 rocks of cocaine, with a street
value of $400.00. Defendant also had a razor blade, which is
commonly used to cut rock cocaine into individual doses, in his
possession. On the evening in question, defendant asked Clayton,
who was driving him to his cousin's house (at defendant's request),
to make two stops on the way, at a movie theater and at an
apartment complex.
While defendant argues that the amount of cocaine was not
shown to exceed that which a crack user might obtain for personal
consumption and that defendant's possession of drug paraphernalia
was only indicative of his being a drug user, we disagree. A
reasonable fact-finder could indeed determine the amount of cocaine
in this case to be more than an individual would possess for his
personal consumption. See Morgan, 329 N.C. at 660, 406 S.E.2d at
836. Further, though defendant argues that the cocaine was not
packaged for individual resale, and he was not in possession of
cash at the time of his arrest, we do not believe this to be
dispositive. It is well settled that the State's evidence need not
exclude every hypothesis of innocence. State v. Mann, 355 N.C.
294, 301, 560 S.E.2d 776, 781, cert. denied, 537 U.S. 1005, 154 L.
Ed. 2d 403 (2002).
“'If there is more than a scintilla of competent evidence to
support allegations in the warrant or indictment, it is the court's
duty to submit the case to the jury.'” State v. Everhardt, 96 N.C.
App. 1, 11, 384 S.E.2d 562, 568 (1989) (quoting State v. Horner,
248 N.C. 342, 344-45, 103 S.E.2d 694, 696 (1958)). In close orborderline cases, “courts have consistently expressed a preference
for submitting issues to the jury[.]” State v. Jackson, 103 N.C.
App. 239, 244, 405 S.E.2d 354, 357 (1991) (quoting State v.
Hamilton, 77 N.C. App. 506, 512, 335 S.E.2d 506, 510 (1985), disc.
review denied, 315 N.C. 593, 341 S.E.2d 33 (1986)).
Though close, we believe that the facts and attenuating
circumstances here constitute sufficient evidence from which the
fact-finder could infer that defendant had cocaine in his
possession, which he intended to sell and/or distribute to others.
Therefore, the trial court did not err in denying defendant's
motion to dismiss his possession with intent to manufacture, sell
or deliver charge.
No error.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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