STATE OF NORTH CAROLINA
v. Buncombe County
No. 03 CRS 16441
ROBERT JOSEPH SAVARIA
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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