STATE OF NORTH CAROLINA
v. Davidson County
No. 03CRS060938-39
EDDIE GILBERT, JR.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Wendy L. Greene, for the State.
David Childers for defendant-appellant.
HUNTER, Judge.
On 1 December 2003, Eddie Gilbert, Jr. (“defendant”) was
indicted for felony possession of cocaine and assault on a
government official or employee. The case was tried at the 9
August 2004 Criminal Session of Davidson County Superior Court.
For the reasons stated herein, we find no error.
The evidence presented at trial tended to show the following:
On 5 November 2003, Officers P. O. Hanner (“Officer Hanner”) and
Brent James Hall (“Officer Hall”) of the Thomasville Police
Department were on patrol in an area known as a high drug area. At
approximately 1:50 a.m., Officers Hanner and Hall decided to
conduct a survey of “the cut,” an area which runs between Culbrethand Hunter Streets, to look for illegal activity. The cut was “a
known area for people to hangout and do drugs or sell drugs.” The
two officers parked their patrol cars on either side of the cut and
approached the cut from opposite sides.
Officer Hanner noticed two subjects standing at the corner of
a house. As he approached, one of the two men started walking
towards Officer Hall. Officer Hall made contact with the man, had
a short conversation with him, but did not stop him. Officer Hall
then spotted defendant walking around the side of the house. Both
officers testified that they saw defendant bend down towards the
foundation of the house. Defendant then walked on towards Officer
Hall. Officer Hall asked defendant what he was doing. Defendant
told him he had “tripped,” that his name was Eddie Gilbert, and he
was going to the store to get something to eat. Meanwhile, Officer
Hanner reached the foundation of the house where defendant had bent
over and found a package of crack cocaine. Officer Hall turned
around to speak to defendant, but he had gotten into a vehicle and
drove away in the opposite direction than he had indicated.
The officers subsequently obtained a warrant for defendant and
arrested him at his residence. Defendant's father gave the
officers permission to enter the residence, and defendant was found
standing fully clothed in the bathtub with the shower curtain
drawn. After informing defendant of his arrest for possession of
cocaine and while attempting to place handcuffs on him, defendant
spun around and struck Officer Hall in the face with his fist. Theofficers then subdued defendant with pepper spray and he was
handcuffed.
Defendant was convicted on both counts and was sentenced to a
term of eight to ten months imprisonment. Defendant appeals.
Defendant's sole argument on appeal is that there was
insufficient evidence to sustain the conviction for felony
possession of cocaine. Defendant contends that there was no
evidence that he either actually or constructively possessed the
cocaine.
After careful review of the record, briefs, and contentions of
the parties, we find no error. To survive a motion to dismiss, the
State must present substantial evidence of each essential element
of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483
S.E.2d 432, 434 (1997). “Substantial evidence is relevant evidence
that a reasonable mind might accept as adequate to support a
conclusion.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592,
595 (1992). When reviewing the sufficiency of the evidence, “[t]he
trial court must consider such evidence in the light most favorable
to the State, giving the State the benefit of every reasonable
inference to be drawn therefrom.” State v. Patterson, 335 N.C.
437, 450, 439 S.E.2d 578, 585 (1994).
“Constructive possession exists when the defendant, '“while
not having actual possession, . . . has the intent and capability
to maintain control and dominion over” the narcotics.'” State v.
Turner, 168 N.C. App. 152, 156, 607 S.E.2d 19, 22 (2005) (citations
omitted). “When the defendant does not have exclusive possessionof the location where the drugs were found, the State must make a
showing of 'other inciminating circumstances' in order to establish
constructive possession.” Id. (citation omitted). Here, Officer
Hall and Officer Hanner both testified that they observed defendant
bend over or lean and make a motion towards the foundation of the
house. Officer Hanner described defendant as leaning down towards
the foundation, while Officer Hall testified that he saw defendant
bend down and “place his hand toward the vent area of the house[.]”
Immediately afterward, Officer Hanner discovered the crack cocaine
in the same vent area at the foundation of the house. This Court
has held that “close proximity to the controlled substance and
conduct indicating an awareness of the drugs, such as efforts at
concealment or behavior suggesting a fear of discovery -- are
sufficient to permit a jury to find constructive possession.”
Turner, 168 N.C. App. at 156, 607 S.E.2d at 22-23 (emphasis added);
see also State v. Harrison, 93 N.C. App. 496, 498, 378 S.E.2d 190,
192 (1989) (quoting State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d
706, 714 (1972)) (“[p]roof of constructive possession sufficient to
overcome a motion to dismiss or directed verdict is shown when the
State places the defendant 'within such close juxtaposition to the
narcotic drugs as to justify the jury in concluding that the same
was in his possession'”). Based on the officers' testimony, a jury
could reasonably conclude that defendant possessed the drugs and
attempted to conceal the drugs in the vent. Accordingly, we find
no error.
No error. Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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