The State's evidence tended to show the following.
November 2001, police went to the residence of Neal Terry to serve
an arrest warrant on Terry for violating his probation. They found
Terry standing in his kitchen with another individual, Charles
Byrd. Seated on a loveseat in the adjoining living room were
defendant and Ishmar Smith, who were visitors. Police also found
an unnamed female in one of the bedrooms. After Terry was taken
into custody, he consented to a search of his house.
In the course of the search, Deputy R.T. Smith
found a tube
containing approximately ten rocks of a white substance, later
determined to be crack cocaine. The tube was concealed under a
blanket that was draped over the loveseat between defendant and
. Deputy Smith testified as follows:
Q. And did you notice anything out of the
ordinary when you approached where the two
defendants [defendant and Ishmar Smith] were
on the loveseat?
A. When we stepped _ or when I stepped
into the living room, I noticed the two
defendants sitting. They were real jittery,
and that they kind of had their hands on the
outside of their legs, which would _ toward
each other. It's kind of if they're on the
loveseat like so, you had one here and one
here, and there was their legs coming out like
so. And then they had hands here that was
jumbling back and forth real nervously.
Q. Did you see anything else in that area
where those hands were?
A. There was a blanket that was _ that
had been draped over the loveseat for one
reason or another, and they kind of had the
blanket wadded up a little bit, and you could
see the tip of a white tube.
Q. Where was that in relation to the
hands of the two defendants?
A. It was being pushed back and forth
When asked to identify the tube at trial, Deputy Smith reiterated,
"That appears to be the tube that they were passing back and forth,
kind of, on the loveseat there."
According to Deputy Smith, the size and number of crack
cocaine rocks in the tube were greater than a drug user would
normally carry for personal purposes. Deputy Smith testified that
the average drug user in possession of drugs for personal use
would, at any one time, typically carry only one or two
approximately $20.00 to $30.00, while
the ten rocks in the tube
weighed a total of 4.8 grams and were valued at approximately
$150.00 to $200.00.
After the tube was discovered, everyone present denied
knowledge of it. A search of defendant and
Smith yielded no large
sums of money or drug paraphernalia, nor was any paraphernalia
found elsewhere in Terry's residence.
Ishmar Smith, Terry, and Byrd were arrested and
charged with possession with intent to manufacture, sell, and
deliver cocaine. The charges against Byrd and Terry were later
dismissed, although Terry pled guilty to a charge of maintaining a
dwelling for keeping or selling controlled substances.
was indicted on 1 July 2002 and tried jointly with Smith on 24 and
25 July 2003 in Gaston County Superior Court, the Honorable RobertC. Ervin presiding. At the close of the State's evidence,
defendant made a motion to dismiss, in whole or in part, for
insufficiency of the evidence.
Although defendant did not offer
any evidence of his own, he did renew his motion to dismiss.
that time, the trial court expressed doubts about the sufficiency
of the evidence, but it deferred ruling on defendant's motion until
after the jury rendered a verdict.
The jury found both defendant and Smith guilty on 25 July
2003. The trial court did not expressly rule on the deferred
motion to dismiss, but proceeded to sentence defendant to a term of
six to eight months. This sentence was suspended for 24 months,
with defendant on intensive probation for the first six months.
Following sentencing, defendant filed a motion for appropriate
relief, based solely on the sufficiency of the evidence, which the
trial court denied. Defendant appeals the denial of his motion to
dismiss as well as his motion for appropriate relief.
(See footnote 1)
In ruling on a criminal defendant's motion to dismiss, the
trial court must determine whether the State has presented
substantial evidence (1) of each essential element of the offense
with which defendant is charged and (2) of the defendant being the
perpetrator. 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
"'Substantial evidence is such relevant evidence as areasonable mind might accept as adequate to support a conclusion.'"
State v. Matias
, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001)
(quoting State v. Brown
, 310 N.C. 563, 566, 313 S.E.2d 585, 587
"'Whether evidence presented constitutes substantial
evidence is a question of law for the court.'" State v. Frogge
351 N.C. 576, 584_85, 528 S.E.2d 893, 899 (quoting State v. Stager
329 N.C. 278, 322, 406 S.E.2d 876, 901 (1991)), cert. denied
U.S. 994, 148 L. Ed. 2d 459, 121 S. Ct. 487 (2000).
When considering a defendant's motion to dismiss, the trial
court must view all of the evidence "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.
, 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).
Specifically, if a reasonable juror could draw an inference of
defendant's guilt from the evidence before him, the evidence is
sufficient to allow the jury to consider the issue even if the same
evidence may also support an equally reasonable inference of the
defendant's innocence. Matias
354 N.C. at 551, 556 S.E.2d at 270.
Defendant was convicted of violating N.C. Gen. Stat. § 90-
95(a)(1) (2003), which prohibits possession with intent to sell or
deliver a controlled substance. This offense involves two separate
elements: (1) illegal possession of a controlled substance (here,
crack cocaine) and (2) intent to sell or deliver that substance.
State v. Creason
, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985). We
consider each element in turn.
A. Constructive Possession of Cocaine
 For the purposes of N.C. Gen. Stat. § 90-95(a)(1),
unlawful possession of the controlled substance may be actual or
constructive. State v. McLaurin
, 320 N.C. 143, 146, 357 S.E.2d
636, 638 (1987). "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). Here, since the cocaine was
found under a blanket next to defendant, rather than on his person,
the State based its case on a theory of constructive possession.
Constructive possession exists when the defendant, "'while not
having actual possession, . . . has the intent and capability to
maintain control and dominion over' the narcotics." Matias
N.C. at 552, 556 S.E.2d at 270 (quoting State v. Beaver
, 317 N.C.
643, 648, 346 S.E.2d 476, 480 (1986)). When the defendant does not
have exclusive possession of the location where the drugs were
found, the State must make a showing of "other incriminating
circumstances" in order to establish constructive possession. Id.
at 552, 556 S.E.2d at 271.
In the present case, it is undisputed that defendant was not
in exclusive control of the premises. The State's evidence tended
to show the following circumstances: Defendant was sitting next to
a wadded-up blanket beneath which the drugs were concealed. He
appeared agitated, and his hands were "jumbling" around
"nervously." He and his co-defendant appeared to be passing the
tube back and forth underneath the blanket.
Our appellate courts
have previously held that similar circumstances _ involving closeproximity to the controlled substance and conduct indicating an
awareness of the drugs, such as efforts at concealment or behavior
suggesting a fear of discovery _ are sufficient to permit a jury to
find constructive possession.
n State v. Butler
, 356 N.C. 141, 147_48, 567 S.E.2d 137, 141
(2002), the Supreme Court found sufficient incriminating
circumstances to survive a defendant's motion to dismiss when a
taxicab driver felt defendant "struggling" in the backseat behind
him and pushing against the front seat, and the police found drugs
under the seat 12 minutes later. Similarly, i
n State v. Harrison
14 N.C. App. 450, 450-51, 188 S.E.2d 541, 542, cert. denied
N.C. 625, 190 S.E.2d 468 (1972),
police stopped a car for a routine
driver's license inspection, but asked all three of the car's
occupants to step out of the car after an officer noticed the
defendant moving around on the back seat and partially concealing
a brown envelope with his hand
. The envelope later proved to
contain narcotics. The Court held that there was sufficient
evidence to submit the charge of possession to the jury.
453, 188 S.E.2d at 543-44.
More recently, in State v. Neal
, 109 N.C. App. 684, 687_88,
428 S.E.2d 287, 290 (1993), this Court found sufficient
incriminating circumstances to survive a motion to dismiss when
defendant had been in a bathroom where another person was flushing
drugs down the toilet, but
fled from the bathroom as the police
State v. Frazier
, 142 N.C. App. 361, 367, 542
S.E.2d 682, 687 (2001) (finding sufficient incriminating
circumstances to survive a motion to dismiss when defendant wasobserved lunging into a bathroom and placing his hands in the
ceiling where drugs were later located)
; State v. Carr
, 122 N.C.
App. 369, 373, 470 S.E.2d 70, 73 (1996) (finding sufficient
incriminating circumstances to survive a motion to dismiss when
search of a car yielded drugs located in an area that had been
occupied solely by defendant)
Defendant argues that his case is more analogous to State v.
, 17 N.C. App. 655, 195 S.E.2d 125 (1973)
. In Balsom
however, defendants were merely visiting the house where drugs were
found in a dresser drawer and clothes closet. In contrast to the
behavior of defendant in this case, the record in Balsom
no evidence suggesting that defendants had any knowledge of the
existence of the drugs. We find this case more analogous to
, and Neal
than to Balsom
, we hold
that the State offered sufficient evidence of constructive
possession of cocaine.
B. Possession of Cocaine with Intent to Sell and Deliver
 We next examine whether sufficient evidence existed to
submit to the jury the issue of defendant's intent to sell and
deliver cocaine. "The amount of the controlled substance, the
manner of its packaging, labeling, and storage, along with the
activities of a defendant may be considered in establishing intent
to sell and deliver by circumstantial evidence." Carr
, 122 N.C.
App. at 373, 470 S.E.2d at 73.
In arguing that defendant had the intent to sell and deliver,
the State relies solely upon the testimony of Deputy Smith: Q. When you say substantial amounts of
crack cocaine, could you describe what you
A. [The cocaine rocks in the tube were]
in an area that are larger than what you would
normally see or someone would normally carry.
If you were going to smoke it yourself, you
may have one tiny rock or one small rock, or
maybe even a couple that would last you a long
period of time or an extended period of time.
. . .
. . . .
Q. Do you have an opinion as to the
value of those drugs, the street value?
A. All of them or just _
A. Total? Probably close to [$]150 to
Q. Do you have an opinion satisfactory
to yourself as to quantities generally carried
for personal use?
. . . .
A. Yes, sir. Generally most people that
would carry rock cocaine for their personal
use may carry one or two rocks that would _
maybe [$]20 to $30.
(See footnote 2)
The State points to no other evidence or circumstances that in any
way suggest that defendant had an intent to sell or deliver the
crack cocaine contained in the tube lying on the loveseat between
defendant and Ishmar Smith.
The State, for example, presented no evidence of statements by
defendant relating to his intent, of any sums of money found on
defendant, of any drug transactions at that location or elsewhere,of any paraphernalia or equipment used in drug sales, of any drug
packaging indicative of an intent to sell the cocaine, or of any
other behavior or circumstances associated with drug transactions.
The State's entire case rests only on a deputy's opinion testimony
about what people "normally" and "generally" do. The State has
cited no authority and we have found none in which such testimony
_ without any other circumstantial evidence of a defendant's intent
_ was found sufficient to submit the issue of intent to sell and
deliver to the jury. Compare Carr
, 122 N.C. App. at 373, 470
S.E.2d at 73 (substantial evidence of intent to sell or deliver
existed when officers found two pill bottles with one containing a
single large rock and the other containing eight smaller rocks of
the size sold on the street for between $20.00 and $40.00;
defendant was seen having discussions through a car window with
known drug users, one of whom had a crack cocaine pipe in his
possession; and defendant attempted to disguise his identity when
questioned by the police).
At best, this testimony regarding the normal or general
conduct of people, without more, raises only a suspicion _ although
perhaps a strong one _ that defendant had the necessary intent to
sell and deliver. "[W]hen the evidence is . . . sufficient only to
raise a suspicion or conjecture as to either the commission of the
offense or the identity of the defendant as the perpetrator, the
motion to dismiss must be allowed." State v. Malloy
, 309 N.C. 176,
179, 305 S.E.2d 718, 720 (1983). Because the State failed to
present substantial evidence of an "intent to sell and deliver,"the trial court erred in denying defendant's motion to dismiss the
charge of possession with intent to sell and deliver.
Three possible verdicts were submitted to the jury in this
case: guilty of possession with intent to manufacture, sell, or
deliver cocaine; guilty of possession of cocaine; and not guilty.
As we indicated above, possession of cocaine is an element, and
therefore a lesser included offense, of possession with intent to
manufacture, sell, or deliver cocaine. "When a jury finds the
facts necessary to constitute one offense, it also inescapably
finds the facts necessary to constitute all lesser-included
offenses of that offense." State v. Squires
, 357 N.C. 529, 536,
591 S.E.2d 837, 842 (2003), cert. denied
, __ U.S. __, 159 L. Ed. 2d
252, 124 S. Ct. 2818 (2004). When the jury found defendant guilty
of possession with intent to sell and deliver, it necessarily found
defendant guilty of simple possession of cocaine, a verdict that,
as we have held, was supported by substantial evidence.
Accordingly, the judgment on the charge of possession with intent
to sell and deliver is vacated, and the case is remanded for entry
of judgment on possession of cocaine and resentencing. See State
, 307 N.C. 253, 258, 297 S.E.2d 599, 602 (1982) (vacating
the judgment imposed upon the verdict of guilty of possession of
more than one ounce of marijuana and remanding for resentencing "as
upon a verdict of guilty of simple possession of marijuana," a
lesser included offense).
Vacated in part, reversed in part, and remanded for
Judges LEVINSON and THORNBURG concur. Judge THORNBURG concurred prior to 31 December 2004.