An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-1353

NORTH CAROLINA COURT OF APPEALS

Filed: 5 July 2005

STATE OF NORTH CAROLINA

         v.                        Buncombe County
                                No. 03 CRS 16441
ROBERT JOSEPH SAVARIA
    

    Appeal by defendant from judgment entered 31 March 2004 by Judge Dennis J. Winner in Superior Court, Buncombe County. Heard in the Court of Appeals 20 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Allison S. Corum, for the State.

    Hall & Hall, PC, by Douglas L. Hall, for defendant-appellant.

    McGEE, Judge.

    Defendant was found guilty by a jury of possession of drug paraphernalia. The trial court suspended a sentence of 120 days in jail and placed defendant on supervised probation for twelve months. Defendant appeals.
    Officer Sean Aardema of the Asheville Police Department testified that while conducting a license check at the intersection of Depot Street and Lyman Street in Asheville, North Carolina on 13 October 2003, he observed defendant in the rear passenger seat of a 1988 Ford Thunderbird. The car had a male driver and a female passenger in the front seat. The driver was charged with operating an automobile without a license and with possession of marijuana. After the three occupants exited the vehicle, Officer Aardema found a "black metal smoking pipe" located "right under beneath where [defendant] was seated." The pipe was "on the flat part of the seat" underneath a wrinkle in the car seat's fabric, which was old and stretched. The pipe was "partially" covered by the wrinkle in the seat fabric but was visible to Officer Aardema "[f]rom an angle." The pipe had a residue of a "resin substance consistent with . . . marijuana and crack cocaine." When Aardema smelled the pipe, he discerned "a hint of marijuana." The pipe was not hot from recent use. Based on the residue and odor, Aardema believed that the pipe "had been used in the past" but he "didn't know how recently." He noted that once drug resin collected on a pipe, "[i]t will stay there forever until you try to get it out." Officer Aardema asked defendant if the pipe was his, and defendant said, "No." Officer Aardema indicated that he did not see anyone make any movements inside the car before the pipe was found. He also noted that there was a lot of debris in the vehicle.
    Defendant argues that the trial court erred in denying his motion to dismiss the charge for lack of sufficient evidence. In reviewing this claim, we must determine whether the evidence, when viewed in the light most favorable to the State, would permit a reasonable juror to find the defendant guilty of the essential elements of the offense 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 maybe 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). However, "[e]vidence that raises only a strong suspicion without producing any incriminating circumstances does not reach the level of substantial evidence necessary for the denial of a motion to dismiss. " State v. Hamilton, 145 N.C. App. 152, 158, 549 S.E. 2d 233, 237 (2001).
    Under N.C. Gen. Stat. § 90-113.22(a) (2003), it is a Class 1 misdemeanor "for any person to knowingly use, or to possess with intent to use, drug paraphernalia . . . to inject, ingest, inhale, or otherwise introduce into the body a controlled substance which it would be unlawful to possess." To sustain a conviction under this statute, the State must prove both (1) possession of drug paraphernalia and (2) "the intent to use [the paraphernalia] in connection with controlled substances." State v. Hedgecoe, 106 N.C. App. 157, 164, 415 S.E.2d 777, 781 (1992).
    Possession of contraband can be actual or constructive. See State v. McLaurin, 320 N.C. 143, 145-46, 357 S.E.2d 636, 638 (1987) (noting that "constructive possession is sufficient for purposes of" N.C. Gen. Stat. § 90-113.22). A person has constructive possession of an object if he does not have it on his person but is aware of its presence and has both the power and intent to control its disposition. See State v. Williams, 136 N.C. App. 218, 222, 523 S.E.2d 428, 431-32 (1999). "Evidence of constructive possession is sufficient if it would allow a reasonable mind to conclude thatthe defendant had the intent and capability to maintain control and dominion over the contraband." State v. Earhart, 134 N.C. App. 130, 136, 516 S.E.2d 883, 888 (citing State v. Beaver, 317 N.C. 643, 346 S.E.2d 476 (1986)), appeal dismissed, 351 N.C. 112, 540 S.E.2d 372 (1999). Although the driver of an automobile is presumed to "ha[ve] the power to control the contents of the car[,]" State v. Glaze, 24 N.C. App. 60, 64, 210 S.E.2d 124, 127 (1974), this Court has held that a passenger's mere proximity to contraband found in an automobile is insufficient to establish his constructive possession thereof, absent additional incriminating circumstances linking him to the object. See State v. Weems, 31 N.C. App. 569, 571, 230 S.E.2d 193, 194-95 (1976).
    In Weems, the defendant was in the front passenger seat of a car when it was stopped by police. Police found packets of heroin in three areas within the car, two of which were in close proximity to the defendant in the front seat area. Reversing the defendant's conviction for possession of heroin, this Court found the evidence of the defendant's proximity to the heroin insufficient to withstand his motion for nonsuit, as follows:
        There was no evidence defendant owned or controlled the car. There was no evidence he had been in the car at any time other than during the short period which elapsed between the time the officers saw the three men get in the car and the time they stopped and searched it. There was no evidence of any circumstances indicating that defendant knew of the presence of the drugs hidden in the car.

            Viewing the evidence in the light most favorable to the State, and giving the State the benefit of every legitimate inference which may be reasonably drawn from theevidence, we find no evidence of any circumstance connecting the defendant to the drugs in any manner whatsoever other than the showing of his mere presence for a brief period in the car as a passenger.
Weems, 31 N.C. App. at 571, 230 S.E.2d at 194-95.
    The State asserts that the case before us is governed by State v. Matias, 354 N.C. 549, 556 S.E.2d 269 (2001), which upheld a conviction for cocaine possession where the defendant was a passenger in the back seat of a car when police found a plastic bag containing marijuana and cocaine "between the seat pad and back pad in the back right seat where [the] defendant had been sitting." Id. at 551, 556 S.E.2d at 270. In Matias, the Supreme Court found the following "incriminating circumstances" sufficient to show the defendant's constructive possession of the cocaine: (1) the defendant had been in the car for about twenty minutes; (2) the odor of marijuana and the presence of marijuana seeds and rolling papers in the car indicated that the "defendant knew drugs were in the car[,]" and supported a reasonable inference that "the drugs came from the package hidden in the car seat under [the] defendant[;]" and (3) a police officer testified the defendant was the only person in the car who could have placed the cocaine in the back seat where defendant was sitting. Id. at 552, 556 S.E.2d at 271.
    Similarly, in Butler, the defendant was observed arriving at a Raleigh, North Carolina bus terminal from a "source city" carrying only a small duffel bag. Butler, 356 N.C. at 143, 567 S.E.2d at 138. Upon seeing police, the defendant began moving ina suspicious manner, looking back repeatedly at the officers before hurrying outside. Id. After sitting down in the rear of a taxicab directly behind the driver, the defendant "slammed the door[] and yelled, 'let's go, let's go, let's go.'" Id. When asked by police to step outside the taxicab, the defendant acted "very nervous" and was "very slow" to get out of the cab. Id. at 143, 567 S.E.2d at 138-39. The defendant "bent down and reached toward the driver's seat" so that his hands were hidden from view. The driver felt the defendant "'struggling' behind him and 'pushing the back of [the driver's] seat' before opening the door." Id. at 143-44, 567 S.E.2d at 139. The defendant then walked away from the taxicab back to the terminal, "drawing the officers away from the vehicle." Id. at 144, 567 S.E.2d at 139. When the taxicab returned from a fare ten minutes later, police searched the taxicab and found a package of cocaine under the driver's seat. The driver stated that he had cleaned and vacuumed the taxicab's interior just before his shift, and that the defendant had been his first customer. Id. at 144, 567 S.E.2d at 139. Based on these facts, our Supreme Court again found sufficient "additional incriminating circumstances[,]" beyond the defendant's proximity to the cocaine found in the taxicab, to support a finding of constructive possession. Butler, 356 N.C. at 147-48, 567 S.E.2d at 141.
    While we agree that Matias is instructive, we believe the case before us is distinguished from Matias by the lack of "other incriminating circumstances" establishing defendant's awareness of or control over the pipe found in the car. As in Matias, thecontraband was found in the car's rear seat directly beneath where defendant was seated. The bag of narcotics in Matias was tucked between the seat pad and back pad; in this case, the pipe was on the seat beneath a wrinkle in the seat's fabric but was partially visible from Aardema's angle of view. However, Aardema observed no furtive movements or other suspicious behavior by defendant. See Butler, 356 N.C. at 143-44, 567 S.E.2d at 138-39 (the defendant's behavior was "very nervous" and "fidgety"); State v. Boyd, 154 N.C. App. 302, 309, 572 S.E.2d 192, 197 (2002) (officers saw the defendant reaching under seat where contraband was located); State v. Tisdale, 153 N.C. App. 294, 298, 569 S.E.2d 680, 683 (2002) (the defendant was "sweating profusely" and was nervous). There was no indication that the pipe had been used recently. Moreover, unlike Matias, there was no evidence of drug use in the car or of defendant's awareness of the presence of drugs in the car. Defendant was not driving the car, and there was no showing that he owned or had any possessory interest in the vehicle. See State v. Clark, 159 N.C. App. 520, 525, 583 S.E.2d 680, 684 (2003) (the defendant jointly owned car where contraband was found and had been sole driver of the car on the day of the offense). Finally, there was no evidence of when or how defendant came to be a passenger in the car. In the absence of any evidence other than proximity tending to show defendant's constructive possession of the pipe, we conclude that the trial court erred in denying the motion to dismiss. See Weems, 31 N.C. App. at 571, 230 S.E.2d at 195. Defendant's conviction is reversed.     Reversed.
    Judges HUDSON and LEVINSON concur.
    Report per Rule 30(e).

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