During the evening of 10 April 2002, Officer Jerry Husketh of
the Durham Police Department went to defendant's house in response
to a complaint about ongoing activities at the residence. Upon
arriving at the residence, Officer Husketh saw defendant standingin front of her house talking to someone inside of a Volvo. The
conversation lasted approximately three minutes. Because this
interaction fit one of the established profiles for a drug
transaction, Officer Husketh decided to surveil defendant's
residence. He stood about 150 feet from defendant's house and had
a clear view of the street in front of the house, the front lawn,
and the porch of the house, all of which were well lit. Officer
Husketh also used binoculars.
Four minutes after beginning his surveillance, Officer Husketh
observed a black Honda arrive at the intersection near defendant's
house. A man emerged from the car and walked to defendant's front
door. Defendant answered the door, stepped out onto the porch, and
talked to the man for a few minutes before she went back inside.
Less than thirty seconds later, defendant came back outside,
received what appeared to be money from the man, and then placed a
small item in the man's hand. The man returned to the Honda and
got into the passenger side of the car. The entire transaction
took less than three minutes.
Officer Husketh radioed Officers Jonathan Craig and Charles
Barkley, who were stationed nearby, and gave them a description of
the Honda and its occupants. There were no other black Hondas in
the area at that time. Officers Craig and Barkley saw the Honda
less than a minute later and stopped it. A search of the Honda
revealed two rocks of crack cocaine on the floor in front of the
passenger seat. One of the crack cocaine rocks was in packaging
made from a plastic baggie corner, while the other rock wasunwrapped. The passenger, Gregory Holloway, admitted possession of
the crack cocaine. In addition, a search of Mr. Holloway uncovered
a torn baggie corner and a crack pipe in his pocket.
While the other officers were conducting the stop of the
Honda, Officer Husketh continued his surveillance of defendant's
house for another 30 minutes. During that time, he saw eight cars
and three pedestrians approach defendant's house.
The following day, Officer Husketh obtained and executed two
search warrants for defendant's home. The officers found sandwich
baggies with missing corners, separated baggie corners, a knot from
a drug baggie, a razor blade, and $3,750.00 in cash. Officer
Husketh testified that such items are routinely found at locations
where drug activity is ongoing because these materials are
associated with the packaging and sale of drugs. Additionally, the
officers found a brown cigar with "green vegetable matter," later
identified as marijuana, and a spoon containing cocaine.
Defendant was subsequently arrested and taken to the
magistrate's office. While at the magistrate's office, defendant
stated: "I told you that I ain't sold no drugs today. I'm going
to call my lawyer . . . and I'll be out doing my thing again. You
ain't caught me with shit or nothing. You ain't catch me with no
drugs."
Defendant was indicted on 3 March 2003 for (1) possession of
cocaine with intent to sell and deliver, (2) sale of cocaine, and
(3) delivery of cocaine. The jury found defendant guilty of all
three charges. The trial judge imposed a sentence of 14 to 17months on the charge of sale of cocaine and supervised probation
for 36 months with a suspended sentence of eight to ten months for
possession with intent to sell and deliver cocaine. The judge
arrested judgment on the charge of delivery of cocaine.
On appeal, defendant assigns error only to the trial court's
denial of her motion to dismiss made at the conclusion of the
State's evidence. When considering a motion to dismiss, a court
must determine if the State has presented substantial evidence of
each essential element of the offense and that defendant is the
perpetrator of the offense.
State v. Robinson, 355 N.C. 320, 336,
561 S.E.2d 245, 255,
cert. denied, 537 U.S. 1006, 154 L. Ed. 2d
404, 123 S. Ct. 488 (2002). "'Evidence is substantial if it is
relevant and adequate to convince a reasonable mind to accept a
conclusion.'"
Id. (quoting
State v. Parker, 354 N.C. 268, 278, 553
S.E.2d 885, 894 (2001)). When considering whether the State has
presented substantial evidence, the court must view all of the
evidence presented "in the light most favorable to the State,
giving the State the benefit of every reasonable inference and
resolving any contradictions in its favor."
State v. Rose, 339
N.C. 172, 192, 451 S.E.2d 211, 223 (1994),
cert. denied, 515 U.S.
1135, 132 L. Ed. 2d 818, 115 S. Ct. 2565 (1995).
In North Carolina, it is unlawful for any person to
"manufacture, sell or deliver, or possess with intent to
manufacture, sell or deliver, a controlled substance." N.C. Gen.
Stat. § 90-95(a)(1) (2003). "[T]he language of N.C.G.S. § 90-95(a)(1) creates three offenses: (1)
manufacture of a controlled
substance, (2)
transfer of a controlled substance by sale or
delivery, and (3)
possession with intent to manufacture, sell or
deliver a controlled substance."
State v. Moore, 327 N.C. 378,
381, 395 S.E.2d 124, 126 (1990)
. In order to prove a charge of
possession with intent to sell or deliver, the State must prove (1)
that the defendant possessed a narcotic and (2) that he intended to
sell or deliver it.
State v. Creason, 313 N.C. 122, 129, 326
S.E.2d 24, 28 (1985). The charges of sale and delivery are
considered separate offenses, although both involve the transfer of
narcotics.
Id. A sale of narcotics is a transfer of drugs for a
specific price, while delivery of narcotics is an attempted or
actual transfer of drugs from one to another.
Moore, 327 N.C. at
382, 395 S.E.2d at 127. For both crimes, the defendant logically
must have possessed the narcotics initially in order to be able to
transfer or sell them.
In her brief, defendant does not address the charges
individually, but instead argues that there is no direct evidence
that defendant ever possessed any cocaine or that Mr. Holloway
obtained his cocaine from defendant. Defendant relies upon
State
v. Chavis, 270 N.C. 306, 154 S.E.2d 340 (1967) to support her
argument that the State's evidence was insufficient to overcome a
motion to dismiss. In
Chavis, the Court held that possession of
marijuana was not proven when the State's evidence showed only that
the defendant was observed wearing a gray felt hat, he later was
seen without the hat, defendant claimed the hat was borrowed and hereturned it, and the hat _ containing marijuana _ was found
approximately 30 minutes later in knee-deep grass.
Id. at 310, 154
S.E.2d at 344. The Court explained:
There is no evidence that either officer
observed defendant make any disposition of the
hat he had been wearing or of any article or
articles he may have had in his possession. .
. .
The identity of the person who had
possession of the marijuana prior to the
discovery thereof by [the officer] is not
disclosed. Did defendant put the marijuana in
the hat found by the officers? Was it put
there by defendant's unidentified companion?
Was it put there before or after defendant and
his companion left the area where the hat was
found, walked back towards Hillsboro Street
and were accosted by the officers? There was
no evidence the marijuana was in a hat while
defendant was wearing it. Nor was there
evidence the marijuana was put in the hat
found by the officers at defendant's
direction.
Id. at 310-11, 154 S.E.2d at 344. The Court held the evidence
raised only a "strong suspicion" of guilt.
Id. at 311, 154 S.E.2d
at 344.
By contrast, the State's evidence in this case constituted a
continuous chain of circumstances without the gaps present in
Chavis. The evidence before the trial court offered an explanation
for where the drugs came from and supports the conclusion that the
defendant actually possessed cocaine, where the evidence in
Chavis
did not.
See id. ("Here, the evidence, in our opinion, falls short
of being sufficient to support a finding that the marijuana found
by the officers in and on a hat in the high grass was in thepossession of defendant when he was first observed and followed by
the officers.").
Viewing the evidence in the light most favorable to the State
and drawing all inferences in its favor, the evidence shows that
Officer Husketh saw a transaction occur on the front steps of
defendant's house in which defendant gave Mr. Holloway a small item
for money. Less than one minute after Mr. Holloway left the house
in a black Honda, officers stopped the Honda and discovered that
Mr. Holloway had possession of two rocks of crack cocaine. One of
the rocks appeared newly unwrapped from its baggie corner.
Additionally, Officer Husketh observed defendant engaging in
activity consistent with drug dealing, and a search of defendant's
house uncovered a significant amount of drug packaging materials
(of the same type used with Mr. Holloway's crack cocaine), drug
paraphernalia, and a large amount of cash.
See State v. Davis, 97
N.C. App. 259, 264, 388 S.E.2d 201, 204
(distinguishing
Chavis and
noting that other circumstantial evidence supported the charge of
possession of cocaine),
aff'd per curiam, 327 N.C. 467, 396 S.E.2d
324 (1990).
This evidence is sufficient to permit a jury to conclude that
Mr. Holloway obtained his crack cocaine from defendant and that
defendant possessed the cocaine with the intent to sell or deliver
it.
See id. (finding sufficient circumstantial evidence of
possession for the trial court to deny a motion to dismiss where
cocaine was located in a crack in the wall and the defendant had
been seen kneeling near where the cocaine was found);
State v.Hall, 73 N.C. App. 101, 105, 325 S.E.2d 639, 641 (1985) (ruling
that possession charges should not have been dismissed by the trial
court when officers saw the defendant throw a bottle over a fence
and later found a bottle on the other side of the fence containing
heroin);
State v. Howard, 35 N.C. App. 762, 764, 242 S.E.2d 507,
508 (1978) ("The reasonable inference to be drawn from [evidence
showing that the defendant dropped pieces of paper and an officer
immediately walked over and found narcotics inside of envelopes],
considering it in the light most favorable to the State" was that
the defendant possessed narcotics, but disposed of them when he saw
the officers).
Accordingly, the trial court did not err in denying
defendant's motion to dismiss.
No error.
Judges LEVINSON and THORNBURG concur.
Report per Rule 30(e).
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