STATE OF NORTH CAROLINA
v. Wake County
No. 98 CRS 90134
DAMIAN G. BEY
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
John T. Hall for defendant-appellant.
THORNBURG, Judge.
Defendant was found guilty of trafficking in cocaine and was
sentenced to a minimum term of 35 months and a maximum term of 42
months in the custody of the North Carolina Department of
Corrections.
The evidence of the State tends to show that on 25 August
1998, Detective V.R. Johnson was dispatched to a residence at 315
Dacian Road in Raleigh. He found five men, including defendant,
standing in the street in front of the residence. He asked the men
whether they had illegal drugs on their persons. The men responded
negatively. The officer searched the men and found a large amount
of cash in twenty dollar bills and smaller bills in defendant's
pocket. Defendant subsequently entered a blue automobile and leftthe scene. Detective Johnson obtained consent from an occupant of
the residence to search the same. In the carport Detective Johnson
found two trash bags. He picked up the bags and found two large
chunks of crack cocaine. Detective Johnson placed the chunks in
his pocket and decided to keep the residence under surveillance for
anyone coming to the carport. Detective Johnson then moved his
vehicle. As he walked back toward the residence, he saw defendant
standing at the spot where Detective Johnson had retrieved the
contraband. Defendant was holding what appeared to be a trash bag.
Defendant saw Detective Johnson and then vanished. Detective
Johnson went inside the house looking for defendant but did not
find him.
Further evidence showed that the residence at 315 Dacian Road
belonged to defendant's grandmother, that defendant gave that
address as his residence to his probation officer, that defendant
had been confined on electronic house arrest to this residence, and
that defendant was at this address when the probation officer
visited. Defendant's cousin, who gave consent to Detective Johnson
to search the residence at 315 Dacian Road, testified that
defendant did not reside there.
Defendant presents two assignments of error for review.
First, he contends that he is entitled to a new trial because
the court reporter has been unable to provide him with a complete
transcript of proceedings. Specifically, although the transcript
of the evidence received at trial is complete, the transcript lacksthe return of the jury's verdict, the evidence presented at
sentencing, and the entry of judgment in open court.
The absence of a complete transcript is not prejudicial error
mandating a new trial “where alternatives are available that would
fulfill the same functions as a transcript and provide the
defendant with a meaningful appeal.” State v. Lawrence, 352 N.C.
1, 16, 530 S.E.2d 807, 817 (2000), cert. denied, 531 U.S. 1083, 148
L. Ed. 2d 684 (2001). Here, the record contains the verdict form
signed by the jury foreperson and the judgment signed by the trial
judge. Neither defendant's trial counsel nor the prosecutor,
although they did not retain their notes of the sentencing
proceeding, could “recall anything unique or unusual” about the
sentencing hearing. Thus, we conclude that the lack of a
transcript of the sentencing hearing did not deprive defendant of
a meaningful appeal. Accordingly, this assignment of error is
overruled.
Second, defendant contends that the trial court erred by
denying his motion to dismiss for insufficient evidence. Upon a
motion to dismiss, the trial court determines whether there is
substantial evidence to establish each element of the offense
charged and to identify the defendant as the perpetrator. State v.
Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). "The
trial court's function is to determine whether the evidence will
permit a reasonable inference that the defendant is guilty of the
crimes charged." State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57,
61 (1991). The court must consider the evidence in the light mostfavorable to the State, giving it the benefit of every reasonable
inference that may be drawn from the evidence. State v. Brown, 310
N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Contradictions and
discrepancies in the evidence are left for resolution by a jury.
State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
The indictment in the case at bar charged defendant with
trafficking in cocaine by possession of 28 grams or more but less
than 200 grams of cocaine.
An accused's possession of narcotics may
be actual or constructive. He has possession
of the contraband material within the meaning
of the law when he has both the power and
intent to control its disposition or use.
Where such materials are found on the premises
under the control of an accused, this fact, in
and of itself, gives rise to an inference of
knowledge and possession which may be
sufficient to carry the case to the jury on a
charge of unlawful possession. Also, the
State may overcome a motion to dismiss or
motion for judgment as of nonsuit by
presenting evidence which places the accused
“within such close juxtaposition to the
narcotic drugs as to justify the jury in
concluding that the same was in his
possession.”
State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714
(1972)(citations omitted). When narcotics are found on premises
over which the defendant does not have exclusive control, the State
must present evidence of other incriminating circumstances before
constructive possession may be inferred. State v. Butler, 356 N.C.
141, 146, 567 S.E.2d 137, 140 (2002)(citations omitted).
Viewed in the light most favorable to the State, the evidence
shows that defendant resided in the residence where the contraband
was found. After Detective Johnson seized the cocaine and left theresidence, defendant returned to the carport and the spot where
Detective Johnson had seized the contraband. When defendant saw
that Detective Johnson saw him standing in the carport near that
spot, defendant fled. Based upon this evidence, a jury could
reasonably infer that defendant constructively possessed the 48.8
grams of cocaine Detective Johnson found in the carport.
Accordingly, this assignment of error is overruled.
No error.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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