An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
STATE OF NORTH CAROLINA
v. Haywood County
No. 03 CRS 1767
KATHY PARKS RATHBONE
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.
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.
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
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
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
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. §
. 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-
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.
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)
Defendant received a fair trial free from prejudicial error.
Judges MCCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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