An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-348


Filed: 17 January 2006


         v.                        Forsyth County
                                No. 03 CRS 059488

    Appeal by defendant from judgment entered 13 May 2004 by Judge Catherine C. Eagles in Forsyth County Superior Court. Heard in the Court of Appeals 27 December 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Patrick S. Wooten, for the State.

    Marlet M. Edwards, for defendant-appellant.

    JACKSON, Judge.

    The State's evidence tended to show that on the afternoon of 27 August 2003, a clear day, Agent Rick Thomas (“Agent Thomas”) of the Alcohol Beverage Control Board and Sergeant Clarence Harris (“Sergeant Harris”) of the Iredell County Sheriff's Department were engaged in an undercover drug operation in Winston-Salem. Agent Thomas and Sergeant Harris drove an unmarked vehicle to an apartment complex on Ferrell Court. As the officers parked their unmarked vehicle in the parking lot, they observed several individuals standing around apartment building number 730. A male, later identified as Lorenzo Williams (“Williams”), approached Agent Thomas in the unmarked vehicle and asked Agent Thomas what he was“looking for.” Agent Thomas told Williams he wanted “some weed.” After Agent Thomas gave Williams twenty dollars, Williams walked back towards a male sitting under the breezeway of building 730. Agent Thomas and Sergeant Harris observed Williams and the male, later identified as Keevin Deshawn Brim (“Defendant”), engage in a “hand-to-hand” transaction. Agent Thomas saw defendant hand “some plastic” to Williams, who returned to the undercover vehicle and handed Agent Thomas a plastic bag containing marijuana.
    Agent Thomas radioed a description of Williams and defendant to the “takedown” team. When the “takedown” team arrived, Williams immediately tried to run through a breezeway and defendant ran into an apartment. After gaining entry to the apartment, the “takedown” team found defendant “in the bed pretending to be asleep.” Agent Thomas and Sergeant Harris returned to the scene and identified defendant as being involved in the drug transaction. The substance sold to the officers was marijuana, weighing approximately 4.2 grams. Defendant moved to dismiss all charges after the close of the State's evidence. The trial court denied the motion.
    Defendant called Agent Jimmy Butler (“Agent Butler”) of the Alcohol Beverage Control Board. Agent Butler testified that he was the “secondary vehicle” at the Ferrell Court location, that he pulled into the apartment building parking lot after Agent Thomas and Sergeant Harris, and that he parked his unmarked vehicle across the parking lot, “facing the rear of their car.” Agent Butler testified that due to his position he was unable to identify the person with whom Williams conducted the “hand-to-hand” transaction. Defendant renewed his motion to dismiss and the trial court denied the motion. Defendant also made a motion to dismiss not withstanding the verdict, which was denied.
    A jury found defendant guilty as charged. The trial court sentenced defendant to eight to ten months imprisonment, suspended the sentence and placed defendant on thirty-six months probation. Defendant appeals.    
    Defendant contends the trial court erred in denying his motions to dismiss. Defendant argues that the State's evidence was “insufficient as a matter of law for a reasonable mind to accept as adequate to support the conclusion that [he] sold marijuana or possessed marijuana with the intent to sell and deliver.” We disagree.
    In ruling on a criminal defendant's motion to dismiss, the trial court must determine whether the State has presented substantial evidence (1) of each essential element of the offense with which defendant is charged and (2) of the defendant being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002). “'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). When considering whether the State has presented substantial evidence, the court must view all of the evidence presented “in the light most favorable to the State, giving the State the benefit ofevery reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).
    To obtain a conviction of possession with intent to sell and deliver marijuana, the State must prove that (1) defendant possessed the marijuana, and (2) intended to sell or distribute it. N.C. Gen. Stat. § 90-95(a)(1) (2003); State v. Bowens, 140 N.C. App. 217, 222, 535 S.E.2d 870, 873 (2000), disc. review denied, 353 N.C. 383, 547 S.E.2d 417 (2001). “'An accused's possession of [a controlled substance] may be actual or constructive.'” State v. Martinez, 150 N.C. App. 364, 371, 562 S.E.2d 914, 918, disc. rev. denied, 356 N.C. 172, 568 S.E.2d 859 (2002) (citation omitted). “A defendant has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or with others, he has the power and intent to control its disposition or use.” State v. Diaz, 155 N.C. App. 307, 314, 575 S.E.2d 523, 528 (2002) (citation omitted), cert. denied, 357 N.C. 659, 590 S.E.2d 396 (2003). “'Constructive possession occurs when a person lacks actual physical possession, but nonetheless has the intent and power to maintain control over the disposition and use of the substance.'” State v. Acolatse, 158 N.C. App. 485, 488, 581 S.E.2d 807, 810 (2003) (citation omitted).
    The elements of sale or delivery of a controlled substance are (1) transfer of a controlled substance (2) by either sale, delivery or both. State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001). “[T]he term 'sale,' in the context of the NorthCarolina Controlled Substances Act, means the exchange of a controlled substance for money or any other form of consideration.” Id. at 343, 549 S.E.2d at 902.
    Here, the State's evidence tended to show that Agent Thomas, acting undercover, asked Williams for “some weed.” After Agent Thomas gave Williams twenty dollars, Williams walked to defendant and conducted a “hand to hand” transaction. Agent Thomas observed defendant place “some plastic” in Williams' hand. Williams then gave a plastic bag containing marijuana to Agent Thomas. Further, it was a clear day and Agent Thomas gave a description of defendant to the “takedown” team within minutes of the end of the drug transaction. Based on Agent Thomas' description, defendant was located by the “takedown” team in a nearby apartment. Agent Thomas and Sergeant Harris identified defendant as one of the men involved in the drug transaction.
    There is substantial evidence that defendant possessed the marijuana, and gave it to Williams. Agent Thomas gave Williams money for the purpose of buying marijuana and Williams approached defendant to get the marijuana. Agent Thomas saw defendant pass something to Williams. Williams then approached Agent Thomas with the marijuana. This constituted substantial evidence of defendant's possession of cocaine with intent to sell or deliver. The State also offered sufficient evidence to submit the charge of sale of a controlled substance to the jury. The State presented evidence that defendant was part of a “hand to hand” transaction with Williams, who obtained money from Agent Thomas to buymarijuana and defendant gave an object to Williams, who handed this object to Agent Thomas. The object was later determined to be a plastic bag containing 4.2 grams of marijuana.
    In the light most favorable to the State, the State presented sufficient evidence that “a reasonable mind might accept as adequate” to conclude every element is satisfied for both the crime of possession with intent to sell or deliver a controlled substance and the crime of sale or delivery of a controlled substance. Accordingly, the trial court properly denied defendant's motions to dismiss.
    No error.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

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