STATE OF NORTH CAROLINA
v. New Hanover County
Nos. 03 CRS 64674, 64687
FRANKIE JEROME JOHNSON
Attorney General Roy Cooper, by Assistant Attorney General
Scott K. Beaver, for the State.
Jeffrey Evan Noecker for defendant-appellant.
STEELMAN, Judge.
Defendant appeals his convictions for trafficking in heroin by
transportation and possession of heroin. For the reasons discussed
herein, we find no error and affirm the judgment of the trial
court.
The State's evidence tended to show that on the morning of 21
November 2003 Detective Joseph LeBlanc and two fellow officers of
the New Hanover County Sheriff's Office observed defendant driving
a silver Nissan Altima in the Taylor Homes neighborhood of
Wilmington, North Carolina. Defendant was alone in the vehicle.
Intending to serve defendant with some outstanding warrants for his
arrest, LeBlanc turned his vehicle around to intercept him.
Defendant parked the Altima on Sixth Street, exited the car, andhad just made it to the sidewalk when LeBlanc arrived. After
verifying the Altima was unoccupied, LeBlanc and his fellow
officers placed defendant in handcuffs and contacted K-9 Deputy
Scott Croom, who responded to the scene within a couple of minutes.
During a search of the car's exterior, Croom's dog alerted on the
handle of the driver's side door. The officers hand-searched the
car's interior. Inside the trunk, LeBlanc found a pair of men's
jeans, the front pocket of which held a plastic sandwich bag
containing heroin powder with a total weight of 4.8 grams.
Sandra Kirksey testified that between June and July of 2002 or
2003 she leased the silver Altima for use by her and her daughter.
She and her daughter alternated between driving the Altima and
Kirksey's 1998 Ford Taurus, exchanging the cars once or twice a
month. On one occasion, Kirksey's daughter asked her to allow
defendant to drive the Altima in order to look for a job. At the
time of the request, the car had been in her daughter's custody for
approximately two weeks. Kirksey authorized defendant's use of the
car for this one purpose.
Kirksey further testified she had given her daughter a 30-
gallon plastic garbage bag full of used clothing to give to
charity. In the bag, Kirksey had placed a pair of blue jeans
belonging to her brother, who was 6'2" tall and weighed
approximately 205 pounds, as well as some baby clothes, bras, and
dress pants. However, when she was shown the pair of jeans LeBlanc
found in the Altima on 21 November 2003, she testified she had
never seen them before and had not put them in the trunk of hercar.
New Hanover County Sheriff's Detective Aaron Morrisette, who
was with LeBlanc when he arrested defendant on 21 November 2003,
testified he had observed defendant driving the silver Altima on at
least two occasions prior to 21 November 2003, most recently at the
end of July of 2003. After LeBlanc announced he had found heroin
in the trunk of the car, Morrisette looked in the trunk and
“observed various loose lying items, a baseball bat, some car care
supplies, and . . . just papers and whatnot and then the pair of
jeans[.]” Within days of defendant's arrest, Morrisette
interviewed Kirksey, who stated that the Thursday evening prior to
the defendant's arrest on Friday, he had asked for permission to
use the vehicle to go to a job interview and she gave him
permission to drive the vehicle and personally gave him the keys.
Other than her daughter, Kirksey said defendant was the only person
she had given permission to drive her vehicle.
The trial court denied defendant's motion to dismiss the
possession and trafficking charges at the conclusion of the State's
evidence. The court dismissed a third charge of maintaining a
vehicle for the purpose of keeping a controlled substance.
Defendant offered no evidence.
In his sole argument on appeal, defendant claims the trial
court erred in denying his motion to dismiss the charges of
possession of heroin and trafficking in heroin by transportation at
the conclusion of the State's evidence. Specifically, defendant
avers that the State's evidence failed to establish he knowinglypossessed the heroin found in the Altima, an essential element of
both offenses. We disagree.
In reviewing the denial of a motion to dismiss, our task is to
determine whether the evidence, when viewed in the light most
favorable to the State, would permit a reasonable juror to find
defendant guilty of the essential elements of an offense beyond a
reasonable doubt. State v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d
396, 399 (1986). For purposes of our analysis, “[a]ll evidence
admitted, competent or incompetent, favorable to the state must be
considered. . . . The State is entitled to all reasonable
inferences that may be drawn from the evidence. Contradictions in
the evidence are resolved favorably to the state.” Id. at 107, 347
S.E.2d at 399. Further, the evidence must create more than a mere
suspicion of defendant's guilt, but need not exclude every
reasonable hypothesis of his innocence. State v. Barfield, 127
N.C. App. 399, 401, 489 S.E.2d 905, 907 (1997).
As defendant correctly notes, in order to sustain the charges
of trafficking in heroin by transportation and possession of
heroin, the State was required to prove his knowing possession of
the heroin in question. State v. Weldon, 314 N.C. 401, 403, 333
S.E.2d 701, 702 (1985) (“'Felonious possession of a controlled
substance has two essential elements. The substance must be
possessed and the substance must be knowingly possessed'”); State
v. Lopez, ___ N.C. App. ___, ___, 626 S.E.2d 736, 739 (2006)
(stating trafficking “'has two elements: (1) knowing possession
(either actual or constructive) of (2) a specified amount ofheroin'”) (citations omitted). “Possession of an item may be
either actual or constructive.” State v. Alston, 131 N.C. App.
514, 519, 508 S.E.2d 315, 318 (1998). “A person has constructive
possession of an item when the item is not in his physical custody,
but he nonetheless has the power and intent to control its
disposition.” Id. A defendant's “'[k]nowledge may be shown even
where [his] possession of the illegal substance is merely
constructive rather than actual.'” Lopez, ___ N.C. App. at ___,
626 S.E.2d at 739 (citations omitted).
In this case, defendant was observed driving and was in
exclusive possession of the Altima at the time the heroin was
found, having borrowed the car from Kirksey and her daughter at
some indeterminate point in time prior to his arrest on 21 November
2003. The case law governing this set of circumstances provides as
follows:
[T]his Court has consistently held that 'the
driver of a borrowed car, like the owner of
the car, has the power to control the contents
of the car.” Thus, where contraband material
is found in a vehicle under the control of an
accused, even though the accused is the
borrower of the vehicle, “this fact is
sufficient to give rise to an inference of
knowledge and possession which may be
sufficient to carry the case to the jury.”
This inference is rebuttable and if the
accused offers evidence rebutting the
inference, the State must show other
incriminating circumstances before
constructive possession may be inferred.
State v. Tisdale, 153 N.C. App. 294, 298, 569 S.E.2d 680, 682
(2002) (internal citations omitted).
We hold the trial court properly denied defendant's motion todismiss. Defendant's status as the driver and custodian of the
borrowed Altima supported an inference he was aware and in
constructive possession of the heroin contained in the trunk of the
car. In addition, Kirksey testified she had never seen the jeans
in which the heroin was found, had not placed them in the trunk,
and did not know where they came from. Defendant's assertion to
this Court that the heroin was found in the bag of clothing that
Kirksey had intended to donate to charity, in the pocket of the
blue jeans that had been given to her by her brother, finds no
support in the record and is contradicted by the testimonies of
Kirksey, Morrisette, and LeBlanc. Moreover, defendant offered no
evidence of the duration of his custody of the Altima, his lack of
knowledge of its contents, how the heroin came to be in the car, or
any other fact that would rebut the permissible inference of
constructive possession created by the State's evidence. Absent
such evidence, defendant's power to control the automobile where
the heroin was found is sufficient, in and of itself, to give rise
to the inference of knowledge and possession sufficient to go to
the jury. Accord State v. Dow, 70 N.C. App. 82, 85, 318 S.E.2d
883, 886 (1984).
The record includes additional assignments of error not
addressed by defendant in his brief to this Court. Pursuant to
N.C. R. App. P. 28(b)(6), they are deemed abandoned.
NO ERROR.
Judges MCCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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