An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-1303


Filed: 19 July 2005


    v.                        Haywood County
                            No. 03 CRS 1767

    Appeal by defendant from judgment entered 13 July 2004 by Judge Dennis J. Winner in Haywood County Superior Court. Heard in the Court of Appeals 15 June 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General T. Lane Mallonee, for the State.

    Don Willey, for defendant-appellant.

    Tyson, Judge.

    Kathy Parks Rathbone (“defendant”) appeals her conviction for possession of a Schedule II controlled substance with intent to sell or deliver. See N.C. Gen. Stat. § 90-95(a)(1) (2003). We find no error.

I. Background
    The State's evidence tended to show Haywood County Sheriff's Investigator Russ Connor (“Detective Connor”) and Waynesville Police Officer Ron Singleton (“Officer Singleton”) went to the residence of Donald James Clark (“Clark”) on Hawtop Road between8:00 and 9:00 p.m. on 25 March 2003. As both officers walked up to the front steps of the residence, Detective Connor observed Clark, his wife, and defendant seated on a couch inside the living room. Detective Connor knocked on the front door and announced he “needed to speak to Mr. Clark[.]” After “a couple of minutes[,]” defendant opened the front door. Detective Connor obtained Clark's consent to search the residence. He found a “little box” inside the drawer of a table beside the couch containing the following items: “[a] partially smoked leafy green substance rolled in rolling papers, a leafy green substance in a plastic baggy, . . . stamp scales, . . . some pipes[,] and a plastic bag with five pink or orangish looking tablets.”
    Based on his training and experience as a narcotics investigator, Detective Connor believed the leafy substance found in the box was marijuana. He seized this material and the pills. Defendant advised Detective Connor: (1) she lived “down the road” from Clark's residence; (2) the pills in the box belonged to her; and (3) she had a prescription for them. Detective Connor cited defendant for possession of marijuana and paraphernalia. Detective Connor believed defendant had been smoking marijuana and declined her offer to drive home to retrieve her prescription.
    Detective Connor obtained a warrant for defendant's arrest after determining the pills were scheduled narcotices on 27 March2003 . Subsequent laboratory testing revealed each of the pills seized by Detective Connor contained ten milligrams of the generic form of the amphetamine DextroStat, a Schedule II controlled substance under the North Carolina Controlled Substances Act. See N.C. Gen. Stat. § 90-90(3)(a) (2004).
    Defendant's physician, Dr. Linda Jackson (“Dr. Jackson”), testified she prescribed DextroStat for defendant on 11 February 2003 for treatment of attention deficit disorder. Dr. Jackson instructed defendant to take one pill in the morning and a second pill in the afternoon each day. On cross-examination, Dr. Jackson testified that at 9:00 p.m., defendant would have no cause to take her medication “again until the next morning[,]” and that five of the pills constituted a two and one-half day supply as prescribed.
    At the conclusion of the evidence, the court denied defendant's motion to dismiss. The court also denied defendant's motion to set aside the jury's verdict of guilty. Defendant appeals.
II. Issue
    Defendant argues on appeal the trial court erred in denying her motion to dismiss absent evidence she intended to sell or deliver the amphetamines found at Clark's residence.
III. Motion to Dismiss
    In reviewing the trial court's denial of a motion to dismiss,we must determine whether when viewed in the light most favorable to the State the evidence at trial would permit a rational juror to find the defendant guilty beyond a reasonable doubt. See State v. Warren, 348 N.C. 80, 102, 499 S.E.2d 431, 443, cert. denied, 525 U.S. 915, 142 L. Ed. 2d 216 (1998). “[I]f the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion even though the evidence may also support reasonable inferences of the defendant's innocence.” State v. Ford, 136 N.C. App. 634, 641, 525 S.E.2d 218, 223 (2000) (citing State v. Wright, 127 N.C. App. 592, 597, 492 S.E.2d 365, 368, disc. rev. allowed, 347 N.C. 584, 502 S.E.2d 616 (1998)). However, where the evidence raises only “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) (citing State v. Poole, 285 N.C. 108, 203 S.E.2d 786 (1974)). “'In “borderline” or close cases, our 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), cert. denied, 315 N.C. 593, 341 S.E.2d 33 (1986)).
IV. Intent to Sell or Deliver
    Defendant argues the trial court erred in denying her motion to dismiss absent evidence she intended to sell or deliver the amphetamines found at Clark's residence.
    The State was obliged to prove both defendant's possession of a Schedule II controlled substance and her intent to sell or deliver it to obtain a conviction under N.C. Gen. Stat. § 90-95(a)(1) . State v. Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985). Defendant does not challenge the evidence she possessed the amphetamine pills found by Detective Connor nor does she challenge their status as a Schedule II controlled substance.
    The issue before us is whether the State adduced sufficient proof of her intent to sell or deliver the pills. The evidence must show defendant intended to engage in a “transfer of controlled substances from one person to another.” Id.; see also N.C. Gen. Stat. § 90-87(7) (2003). It need not show that defendant was to be remunerated for the intended transfer. State v. Thrift, 78 N.C. App. 199, 201, 336 S.E.2d 861, 862 (1985) (quoting State v. Pevia, 56 N.C. App. 384, 387, 289 S.E.2d 135, 137, cert. denied, 306 N.C. 391, 294 S.E.2d 218 (1982)), disc. rev. denied, 316 N.C. 557, 344 S.E.2d 15 (1986).
    A defendant's intent to sell or deliver a controlled substance must usually be established by inference based on circumstantial evidence rather than by direct observation. State v. Sexton, 357N.C. 235, 238, 581 S.E.2d 57, 58 (2003) (citing State v. Richardson, 328 N.C. 505, 513, 402 S.E.2d 401, 406 (1991); State v. Childress, 321 N.C. 226, 229-30, 362 S.E.2d 263, 265-66 (1987)). Such circumstantial evidence may include “[t]he amount of the controlled substance, the manner of its packaging, labeling, and storage, along with the activities of a defendant . . . .” State v. Carr, 122 N.C. App. 369, 373, 470 S.E.2d 70, 73 (1996) (citing State v. Williams, 71 N.C. App. 136, 321 S.E.2d 561 (1984); State v. Childers, 41 N.C. App. 729, 255 S.E.2d 654, disc. rev. denied, 298 N.C. 302, 259 S.E.2d 916 (1979)). This Court recently held that a defendant's possession of thirty diazepam pills in a cellophane package inside the defendant's own home was insufficient to establish an intent to sell or deliver. State v. Sanders, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (June 21, 2005) (COA04- 943).
    Here, defendant concedes the amphetamines were hers. The evidence showed defendant while visiting neighbors who lived just “down the road” from her own home, brought with her a two and one- half day supply of amphetamines. She was not scheduled to take this medication again until the following morning. The pills were in a plastic bag rather than the prescription bottle and were not found on defendant's person or among her personal effects but were concealed in a small box in the drawer of a table in her neighbor'sliving room. Cf. State v. King, 42 N.C. App. 210, 213, 256 S.E.2d 247, 249 (1979) (finding insufficient evidence of intent to sell where police found seventy phenobarbital pills in the defendant's cabinet); see also Sanders, ___ N.C. App. at ___, ___ S.E.2d at ___ . In addition to the pills, the box contained partially smoked marijuana cigarettes, a bag of marijuana, smoking pipes, and scales. Detective Connor testified he believed defendant had been smoking marijuana. Viewed in the light most favorable to the State, evidence exists from which the guilt of defendant is reasonably inferred. Warren, 348 N.C. at 102, 499 S.E.2d at 443.
V. Conclusion
    We find the location of the pills and their storage in a box with marijuana and related paraphernalia away from defendant's home and person and out of the prescription bottle to be inconsistent with defendant's innocent possession. An inference of intent by their possessor or possessors to treat the pills as contraband for illicit use is raised rather than defendant's possession of legitimate prescription medicine. Although a close question, we hold the totality of the circumstances is sufficient to take the case against defendant beyond the realm of “mere suspicion or conjecture” and to support a reasonable inference of her intent to sale and deliver the amphetamines in whole or in part to another party to support submission to the jury.    The record on appeal contains additional assignments of error not addressed by defendant in her brief to this Court. Assignments not argued are deemed abandoned. See N.C.R. App. P. 28(b)(6) (2004).
    Defendant received a fair trial free from prejudicial error.
    No error.
    Judges MCCULLOUGH and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***