STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 02 CRS 61720
ISIAH DAVIS
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Donald W. Laton, for the State.
J. Clark Fischer, for defendant-appellant.
JACKSON, Judge.
On 16 October 2002, the Winston-Salem Police Department
executed a search warrant at 1100 Baltimore Street in Winston-
Salem, North Carolina. Upon entering the apartment, the police
found Isiah Davis (“defendant”) in the kitchen hallway directly
beside the refrigerator. Defendant immediately laid down on the
floor beside the refrigerator and complied with the officers'
commands.
Upon searching the apartment, the officers found and seized
the following items: $47.00 in a deep fryer on the kitchen floor;
$225.00 in a measuring cup in the kitchen cabinet; a large quantity
of small plastic bags in a pot on a deep freezer in the kitchen; a
paper bag which contained five plastic bags of marijuana, locatedinside of the deep freezer; a pie box which contained five plastic
bags containing ten smaller bags of marijuana, located inside of
the deep freezer; paper bags with the names of two individuals and
“Paid” written on them and which contained plastic bags of
marijuana; and three plastic bags containing crack cocaine located
underneath the refrigerator. Defendant was placed under arrest,
and subsequently indicted for possession with the intent to sell
and deliver marijuana, trafficking by possession of a controlled
substance, to wit cocaine, and maintaining a dwelling house that
was used for the keeping and selling of cocaine.
The evidence presented at defendant's trial showed that the
apartment located at 1100 Baltimore Street was being leased by
defendant's girlfriend of nineteen years. While being questioned
by officers, defendant stated he did not reside at the Baltimore
Street address, and that he lived at an address on Viking Street.
Defendant's driver's license showed the Viking Street address as
his residence. During the search of the Baltimore Street
apartment, several prescription medicine bottles in defendant's
name were found, along with a phone message for defendant from a
month earlier. Defendant admitted to the officers that he “stayed”
at the apartment, but denied living there. He also denied having
any knowledge of the narcotics found during the search. The
officers who executed the search warrant testified that they did
not see defendant touch or handle any of the seized items, and that
defendant's fingerprints were not found on any of the items. On 23 February 2006, a jury found defendant guilty of
possession with the intent to sell and deliver marijuana, and
trafficking by possession of a controlled substance, to wit
cocaine. Defendant then was sentenced for the trafficking
conviction to a term of thirty-five to forty-two months
imprisonment with the North Carolina Department of Correction. For
the possession of marijuana conviction, defendant received a
suspended sentence of thirty-six months of supervised probation
which was ordered to begin at the conclusion of his prison term for
the trafficking conviction. Defendant appeals from his
convictions.
On appeal, defendant contends the trial court erred in denying
his motion to dismiss the charges of possession with the intent to
sell and deliver marijuana, and trafficking by possession of a
controlled substance, to wit cocaine, in that the State failed to
present evidence sufficient to support his convictions for either
offense. Specifically, defendant contends the State failed to
present substantial evidence that he was in possession of the
controlled substances at issue.
“In ruling on a 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 and (2) of the
defendant's being the perpetrator.” State v. Boyd, __ N.C. App.
__, __, 628 S.E.2d 796, 804 (2006) (citing 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 relevantevidence as a reasonable mind might accept as adequate to support
a conclusion.'” Id. (quoting State v. Matias, 354 N.C. 549, 552,
556 S.E.2d 269, 270 (2001)). “When considering a motion to
dismiss, the trial court must view all of the evidence presented
'in the light most favorable to the State, giving the State the
benefit of every reasonable inference and resolving any
contradictions in its favor.'” Id. (quoting 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)). “[H]owever, if the evidence 'is
sufficient only to raise a suspicion or conjecture as to either the
commission of the offense or the identity of the defendant as the
perpetrator, the motion to dismiss must be allowed[.]'” State v.
Grooms, 353 N.C. 50, 79, 540 S.E.2d 713, 731 (2000) (citation
omitted), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001).
In the instant case, defendant was charged with possession
with the intent to sell and deliver marijuana, and trafficking
cocaine by means of possession. Both offenses require the State to
prove beyond a reasonable doubt that defendant was in possession of
the controlled substances. See N.C. Gen. Stat. § 90-95(a)(1)
(2001) (possession with the intent to sell and deliver a controlled
substance, namely marijuana); N.C. Gen. Stat. § 90-95(h)(3)(a)
(2001) (trafficking by possessing more than 28 grams, but less than
200 grams, of cocaine).
Possession of a controlled substance may be
actual or constructive. “A person has actual
possession of a substance if it is on his
person, he is aware of its presence, and
either by himself or together with others he
has the power and intent to control itsdisposition or use.” Constructive possession,
on the other hand, exists when the defendant,
“'while not having actual possession, . . .
has the intent and capability to maintain
control and dominion over' the narcotics.”
When the defendant does not have exclusive
possession of the location where the drugs
were found, the State must make a showing of
“other incriminating circumstances” in order
to establish constructive possession.
Boyd, __ N.C. App. at __, 628 S.E.2d at 805 (internal citations
omitted).
In the instant case, the State presented evidence that
defendant was found in the kitchen of the apartment, just inches
from the refrigerator. The testimony presented showed that
defendant denied knowledge of the narcotics, but stated that “drug
boys” had been at the apartment earlier that day. Defendant was
not listed on the lease for the apartment, nor was he listed as the
account holder for any of the utilities for the apartment.
Defendant admitted to the arresting officer that he had maintained
a nineteen year relationship with the woman listed as the
leaseholder of the apartment, but stated that his primary residence
was on Viking Drive. Defendant told the officer that he “stayed”
at the apartment, but denied living there.
At the time of the execution of the search warrant, the
officers found not only defendant in the apartment, but also two
other adults and a child asleep in an upstairs room. As defendant
did not have exclusive control over the premises in which the
controlled substances were found, the State therefore was required
to present evidence of other incriminating circumstances from which
constructive possession could be shown. Id. at __, 628 S.E.2d at805. While defendant's fingerprints were not found on any of the
seized items , items belonging to defendant were found in the
apartment. Prescription medicine bottles found in the kitchen had
defendant's name on them; however, the address listed for defendant
on the medication bottles listed an address on Viking Drive.
Defendant's driver's license also listed an address on Viking Drive
as his residence, not Baltimore Street. A phone message for
defendant dated one month earlier also was found in the apartment.
However, there was no evidence indicating that defendant stayed at
the apartment on a regular basis or that he had used the apartment
as his residence at any time. Nor was there any evidence otherwise
tying defendant to the money, drugs, or packaging materials found.
Without more, we hold the State's evidence failed to do more
than create suspicion or conjecture that defendant committed the
charged offenses. No evidence was presented indicating that
defendant had any knowledge of the presence of the narcotics or
that he had any control over the premises. Also, there was no
evidence presented showing that defendant ever had touched any of
the seized items, moved towards the seized items, or that he had
been seen attempting to throw the bags of cocaine under the
refrigerator. The officers only saw defendant standing in the
kitchen prior to his lying down once the officers entered with
their guns drawn. Therefore, we hold the State failed to present
sufficient evidence that defendant actually or constructively
possessed either the marijuana or cocaine. As such, defendant's
motion to dismiss the charges of possession with the intent to selland deliver marijuana, and trafficking by possession of a
controlled substance, to wit cocaine, should have been granted, as
the State failed to present substantial evidence of each element of
the offenses. Therefore defendant's convictions are reversed and
dismissed.
As we have reversed defendant's convictions, we need not
address defendant's additional assignments of error and issues on
appeal.
Reversed.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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