Appeal by defendant from a judgment entered 15 December 2005
by Judge J. Gentry Caudill in Mecklenburg County Superior Court.
Heard in the Court of Appeals 15 November 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Kathleen M. Waylett, for the State.
Whitesides & Walker, LLP, by H.M. Whitesides, Jr., for
Christopher Robert Hepner (defendant) appeals from a 15
December 2005 judgment entered consistent with a jury verdict
finding him guilty of misdemeanor possession of drug paraphernalia.
Defendant was sentenced to forty-five days in jail (suspended),
twenty-four months supervised probation, and ninety hours of
community service to be completed in 120 days.
On 14 October 2003, Detective Catherine Bowles and officers
with the Vice and Narcotics Unit of the Mecklenburg County Police
Department conducted an investigation at an apartment located at
910 Garden District Drive in Charlotte, North Carolina. When the
officers knocked on the door, defendant came out on the balcony. Officer Mike Grimsley identified himself and showed defendant his
credentials. Defendant opened the front door to the apartment and
allowed the officers to enter. The officers could hear another
person walking upstairs and asked defendant if they could go
upstairs and he agreed. As Detective Bowles went up the stairs to
secure the person they had heard, she observed a bong on the
kitchen counter and alerted Officer Grimsley. Officer Grimsley
asked defendant if he would allow them to search the apartment; if
not, they would obtain a search warrant. When defendant said he
did not want them looking around his apartment, the officers left
the home to obtain a warrant. One of the officers stayed at the
apartment to secure the scene.
When the officers returned with a search warrant, they found
$720 in defendant's pocket. Officer Grimsley advised defendant of
his Miranda rights. When he asked defendant if there were drugs in
the apartment, defendant responded that there might be a little
ice and some weed. The officers found two baggies of
methamphetamine in a CD case. The officers also found
methamphetamine residue on a nightstand on the third floor. In
addition to the bong in the kitchen, the officers found a bong in
the living room, glass pipes in a drawer in the kitchen and
rolling papers. When Officer Grimsley questioned defendant about
information needed to complete an arrest form, defendant gave his
address as 910 Garden District. In a desk on the third floor of
the apartment, Officer Grimsley found a bill from Banana Republicthat was addressed to Chris R. Hepner at 910 Garden District
Defendant was charged with one count of possession of a
controlled substance and one count of misdemeanor possession of
drug paraphernalia. At trial, defendant moved to dismiss the
possession of drug paraphernalia charge based on defendant's
contention the State had failed to show the items collected were
used for illegal purposes. Defendant presented no evidence.
Defendant renewed his motion to dismiss at the close of the
evidence, contending the State had failed to show incriminating
circumstances to infer defendant's constructive possession of the
paraphernalia found in the apartment. The trial court denied
defendant's motion. In its charge to the jury, the trial court
included the instruction that had been requested by defendant on
actual and constructive possession. The jury found defendant
guilty of possession of drug paraphernalia, but not guilty of
possession of a controlled substance. Defendant appealed.
Defendant raises two issues on appeal whether the trial court
erred in: (I) denying defendant's motion to dismiss the charge of
possession of drug paraphernalia; and (II) sentencing defendant for
constructive possession of drug paraphernalia.
Defendant first argues the trial court erred in denying
defendant's motion to dismiss the charge of possession of drug
paraphernalia because there was insufficient evidence to provedefendant had constructive possession of the paraphernalia seized
from the home. We disagree.
On a motion to dismiss, the trial court must decide if there
is substantial evidence to support each element of the offense
charged and that the defendant was the perpetrator of the offense.
State v. Shook
, 155 N.C. App. 183, 185, 573 S.E.2d 249, 251 (2002)
(citing State v. Crawford
, 344 N.C. 65, 472 S.E.2d 920 (1996)).
The evidence must be considered in the light most favorable to the
State, giving the State the benefit of every reasonable inference
that might be drawn from the evidence admitted. Id.
, 155 N.C. App.
at 186, 573 S.E.2d at 252; State v. Davis
, 130 N.C. App. 675, 679,
505 S.E.2d 138, 141 (1998).
To convict a defendant of possession of drug paraphernalia
under N.C. Gen. Stat. § 90-113.22(a), the State must show that
defendant was in actual or constructive possession of the seized
paraphernalia. N.C.G.S. § 90-113.22(a) (2005). A defendant is in
possession of paraphernalia when he has both the power and the
intent to control its disposition or use. State v. McLaurin
N.C. 143, 146, 357 S.E.2d 636, 638 (1987).
Where such materials
are found on the premises under the control of an accused, this
fact, in and of itself, gives rise to an inference of knowledge and
possession which may be sufficient to carry the case to the jury .
. . . Id.
(quotation omitted). Where defendant does not have
exclusive control over the place where the paraphernalia was found,
constructive possession may not be inferred without other
incriminating circumstances linking defendant to the seizedparaphernalia. State v. Davis
, 325 N.C. 693, 697, 386 S.E.2d 187,
Whether the State has established that defendant was in
constructive possession of the paraphernalia will depend on the
totality of the circumstances in each case. No single factor
controls, but ordinarily the questions will be for the jury.
State v. Butler
, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001)
(citation omitted), aff'd
, 356 N.C. 141, 567 S.E.2d 137 (2002).
In 'borderline' or close cases, our courts have consistently
expressed a preference for submitting issues to the jury[.] State
, 103 N.C. App. 239, 244, 405 S.E.2d 354, 357 (1991),
, 331 N.C. 113, 413 S.E.2d 798 (1992) (citation omitted).
The evidence in the instant case tended to show 910 Garden
District Drive was under defendant's control at the time of the
officers' search. Defendant answered the officers' knock on the
door and allowed the officers into the apartment but denied them
permission to search the premises without a warrant. A Banana
Republic bill, addressed to Chris R. Hepner at 910 Garden
District Drive was found in the upstairs office at the residence.
After obtaining a search warrant, drug paraphernalia was found on
the premises. Defendant stated 910 Garden District Drive was his
address after being advised of his Miranda
rights. While there was
another person upstairs, no evidence was presented as to whether
the person had any possessory interest in the apartment.
Even assuming arguendo
defendant did not have exclusive
control of the premises, there were other incriminatingcircumstances linking defendant to the seized items: defendant was
at home when the officers first entered the house and saw the bong
sitting on the kitchen counter; when the officers returned to the
apartment with a search warrant, they found $720 in defendant's
pocket; after advising defendant of his Miranda
Grimsley asked defendant if there were drugs in the home and
defendant responded that there might be a little ice and some
weed; and finally, drug paraphernalia was discovered in the
kitchen, living room, and upstairs bedroom.
Based on the totality of the circumstances, and viewing the
evidence in the light most favorable to the State, there was
sufficient evidence of incriminating circumstances from which the
jury could infer defendant knew of the presence of the drug
paraphernalia and had the power and intent to control its
disposition or use. The trial court properly denied defendant's
motion to dismiss the possession of drug paraphernalia charge.
This assignment of error is overruled.
Defendant next argues the trial court erred in sentencing
defendant. For the reasons stated in Issue I
, this assignment of
error is overruled.
Judges MCGEE and STEELMAN concur.
Report per Rule 30(e).
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