An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-1198


Filed: 05 July 2006


         v.                        New Hanover County
                                Nos. 03 CRS 64674, 64687

    Appeal by defendant from judgment entered 18 May 2005 by Judge Russell J. Lanier, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 19 June 2006.

    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.
    Judges MCCULLOUGH and HUDSON concur.
    Report per Rule 30(e).

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