State v Ingram, 168 NC App 596 (03-1668) 02/15/2005

Appeal by defendant from judgments entered 13 August 2003 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 10 January 2005.

Roy A. Cooper, III, Attorney General, by Richard A. Graham, Assistant Attorney General, for the State.

Allen W. Boyer, for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant was one of three passengers in a car which was stopped for weaving and crossing the center line while turning right. At trial, Detective Ritter (“Ritter”) testified that after following the car for two miles with his blue lights flashing, he stopped the vehicle, conducted a pat down search of the driver, and, due to the number of passengers in the car, called a fellow officer for support. Upon the arrival of his fellow officer, the detectives obtained the driver's consent to search the vehicle, and Ritter requested that defendant step outside of the automobile. Defendant was holding two purses when she stepped out of the car; she handed one to Ritter and tucked the second under her arm. In the first purse, a homemade pipe, “commonly used to smokecontrolled substance[s]” was discovered. Ritter testified that defendant admitted the pipe was hers, that he told defendant he knew it was for smoking crack, and that she acknowledged that was true. Despite appearing nervous and hesitating, defendant then granted Ritter permission to search the second purse. Contained therein was a rolled bundle of currency, totaling $543.02, three plastic bags, each containing a tan rock-like substance, and receipts and other papers with the driver's name on them. Ritter testified that each baggy contained what appeared to be an “eight- ball” of cocaine, street jargon for an eighth of an ounce. Later chemical tests revealed the substance was cocaine with a total weight of 9.2 grams. When defendant was placed under arrest for possession of a controlled substance, she informed Ritter that the pocketbook was not hers but belonged to the driver and he also arrested the driver. At the close of the evidence, defendant's motion to dismiss was denied. The jury returned a verdict of guilty of possession of cocaine with the intent to manufacture, sell or deliver and possession of drug paraphernalia. She thereafter entered a plea of guilty to being an habitual felon. Defendant was sentenced to a minimum term of 70 months and a maximum term of 93 months. Defendant appeals.
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    On appeal, defendant argues that the State failed to provide sufficient evidence that she knew the purse contained cocaine, and therefore her motion to dismiss should have been granted. “A motion to dismiss must be denied if, viewing the evidence and allreasonable inferences to be drawn therefrom in the light most favorable to the State, there is substantial evidence of each element of the offenses charged.” State v. Jarrett, 137 N.C. App. 256, 262, 527 S.E.2d 693, 697, disc. review denied, 352 N.C. 152, 544 S.E.2d 233 (2000).
    To establish possession with intent to manufacture, sell or deliver a controlled substance, the State must show 1) defendant possessed a substance, 2) the substance was a controlled substance, and 3) defendant had the intent to distribute or sell. State v. Casey, 59 N.C. App. 99, 116, 296 S.E.2d 473, 483-84 (1982). Actual possession is defined as having a controlled substance in one's possession, knowing of its presence and “control[ling] its disposition or use.” State v. Reid, 151 N.C. App. 420, 428-29, 566 S.E.2d 186, 192 (2002). Cocaine is defined by N.C. Gen. Stat. § 90-90(1)(d) as a controlled substance. N.C. Gen. Stat. § 90-90 (1)(d) (2003).
    Ritter's testimony establishes the first two elements of possession with intent to manufacture, sell or deliver. Defendant clearly had the purse with the cocaine in her possession and was able to control its use. Drawing reasonable inferences in favor of the State, as we must, defendant's reluctance to turn over the second purse and her nervousness in doing so are circumstances from which the jury could infer defendant's knowledge of the presence of the controlled substances contained therein. Furthermore, laboratory tests determined that the substance was 9.2 grams ofcocaine, a controlled substance under the meaning of N.C. Gen. Stat. § 90-90 (1)(d) (2003).
    The third element, intent to sell or deliver, ordinarily must be inferred from the surrounding circumstances, rather than being proven by direct evidence. State v. Autry, 101 N.C. App. 245, 252, 399 S.E.2d 357, 362 (1991). Relevant surrounding circumstances include the packaging of the controlled substance, the amount found, and the presence of cash or drug paraphernalia. See State v. Carr, 122 N.C. App. 369, 373, 470 S.E.2d 70, 73 (1996) (two pill bottles with nine rocks of cocaine and observations of defendant conversing with known drug users); State v. Morgan, 329 N.C. 654, 658-59, 406 S.E.2d 833, 835-36 (1991) (three quarters of an ounce of cocaine, along with evidence of conspiracy and prior purchases and citing cases); State v. Alston, 91 N.C. App. 707, 711, 373 S.E.2d 306, 310 (1988) (4.27 grams of cocaine in separate envelopes along with large rolls of currency support inference so that “the trial court did not err in denying defendant's motion to dismiss the charge of possession with intent to sell.”); State v. McNeil, ___ N.C. App. ___, ___, 600 S.E.2d 31, 35 (2004) (total weight of 5.5 grams crack cocaine, individually wrapped in twenty-two pieces, placed in the corner of a paper bag); compare, e.g. State v. Turner ___ N.C. App. ___, ___, ___ S.E.2d ___, ____ (Jan. 18, 2005) COA03-1667 (ten rocks in a single vial, weighing 4.8 grams, no evidence of paraphernalia, cash or other circumstances).
    Here, testimony concerning the presence of the homemade crack pipe, the amount of cocaine and the fact that it was packaged inthree separate plastic bags, with a common weight, and the cash, was sufficient evidence from which a reasonable jury could conclude “that defendant intended to sell and deliver the controlled substance.” Carr, 122 N.C. App. at 373, 470 S.E.2d at 73. Accordingly, we conclude that the trial court properly denied defendant's motion to dismiss.
    No error.
    Judges CALABRIA and GEER concur.
    Report per Rule 30(e).

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