NO. COA06-889
Appeal by defendant from judgments entered 16 February 2006 by
Judge W. Robert Bell in Burke County Superior Court. Heard in the
Court of Appeals 21 February 2007.
Attorney General Roy Cooper, Special Deputy Attorney General
T. Lane Mallonee, for the State.
Mercedes O. Chut for defendant.
BRYANT, Judge.
Foy Ellis Deal, Jr. (defendant) appeals from 16 February 2006
judgments entered consistent with jury verdicts convicting him of
possession of Oxycodone and Dihydrocodeinone. Defendant pled
guilty to having attained the status of an habitual felon. The
trial court sentenced him within the presumptive range to an active
prison term of 151 to 191 months.
The State's evidence tended to show: In the early evening
hours of 24 June 2004, Sergeant David Cobb of the Burke County
Sheriff's Department was passing through a traffic light when he
noticed an older model white Oldsmobile in front of him. Sgt. Cobb
recognized the license tag number on the vehicle as one he had been
given earlier by Detectives Eric Smith and Dean Lloyd, members ofthe Narcotics Task Force. The Task Force was looking for defendant
who was believed to be in a 1979 Ford station wagon belonging to
Isaac Carr and bearing a license tag of that same number. Sgt.
Cobb ran a computer check on the tag number and confirmed that it
was supposed to be displayed on a Ford station wagon as expected,
and not on the white Oldsmobile. (He later ran a check on the
vehicle identification number of the Oldsmobile and determined that
it was registered to a Thomas Sisk.) Because the tag did not match
the vehicle, Sgt. Cobb initiated a stop of the vehicle. The driver
was Isaac Carr, whom he knew to be wanted on an outstanding
worthless check warrant from Wake County. The only other occupant
of the Oldsmobile was defendant who was seated in the right front
passenger seat. Sgt. Cobb got Carr out of the vehicle and searched
Carr and the area around the driver's seat. Sgt. Cobb did not
search defendant and left him in the vehicle initially while he was
dealing with Carr, but then got him out to join them at the rear of
the vehicle. Carr was then placed under arrest on the worthless
check warrant and issued a citation for the fictitious tag. Sgt.
Cobb called Detective Smith of the Narcotics Task Force for
assistance.
When Detective Smith arrived at the scene, Carr was already
under arrest and in the patrol car. Defendant was standing beside
the front passenger door of the Oldsmobile. Sgt. Cobb turned
defendant and the investigation over to Smith and asked Smith to
conduct a search of the vehicle incident to the arrest of Carr.
Detective Dean Lloyd arrived at the scene to assist Detective Smithwith the investigation and to take photographs while the vehicle
was being searched. Detective Smith conducted the search of the
Oldsmobile. He examined the contents of several bags found in the
trunk. In the rear seat of the vehicle he found two white
garbage-type bags, some clothing, an Igloo-style cooler, a manila
envelope, and two empty pill bottles. In the front passenger seat,
where defendant had been sitting during the time Sgt. Cobb was
dealing with Carr, two additional pill bottles were found tucked in
the crease of the passenger seat. Detective Smith seized these
bottles and their contents. Defendant was placed under arrest. A
search of defendant revealed $1,836 in cash.
Detective Smith did not question defendant, but while he was
transporting defendant to the Burke County Sheriff's Office for
booking, defendant told Smith “that he was set up and he wanted an
attorney, and several other dealers of Oxycontin.[sic]” Joseph
Reavis, Chemist and Special Agent in Charge of the S.B.I. Western
Regional Laboratory, testified at trial as an expert in Forensic
Drug Analysis. Agent Reavis tested the seized pills and identified
them as follows: 30 dosage units of Oxycodone, a Schedule II
controlled substance, weighing 4.7 grams; 13.5 dosage units of
dihydrocodeinone with acetaminophen, a Schedule III preparation
weighing 12.7 grams; and, 49 dosage units of dihydrocodeinone with
acetaminophen, a Schedule III preparation weighing 31.8 grams.
Defendant appeals.
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The dispositive issue on appeal is whether the trial court
erred by denying defendant's motion to dismiss the charges of
possession of controlled substances. Specifically, defendant
challenges there was insufficient evidence to establish that he
constructively possessed Oxycodone and Dihydrocodeinone. We
disagree.
Our Supreme Court has stated:
Upon defendant's motion for dismissal, the
question for the Court is whether there is
substantial evidence (1) of each essential
element of the offense charged, or of a lesser
offense included therein, and (2) of
defendant's being the perpetrator of such
offense. If so, the motion is properly denied.
. . . In reviewing challenges to the
sufficiency of the evidence, we must view the
evidence in the light most favorable to the
State, giving the State the benefit of all
reasonable inferences. Contradictions and
discrepancies do not warrant dismissal of the
case, but are for the jury to resolve. The
test for sufficiency of the evidence is the
same whether the evidence is direct,
circumstantial, or both. Circumstantial
evidence may withstand a motion to dismiss and
support a conviction even when the evidence
does not rule out every hypothesis of
innocence. If the evidence presented is
circumstantial, the court must consider
whether a reasonable inference of the
defendant's guilt may be drawn from the
circumstances.
State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455,
cert.
denied, 531 U.S. 890, 148 L. Ed.2d 150 (2000) (citations and
quotations omitted).
Felonious possession of a controlled substance has two
essential elements. The substance must be possessed, and thesubstance must be knowingly possessed.
State v. Weldon, 314 N.C.
401, 333 S.E.2d 701 (1985).
[I]n a prosecution for possession of
contraband materials, the prosecution is not
required to prove actual physical possession
of the materials. Instead, possession of a
controlled substance may be either actual or
constructive. As long as the defendant has
the intent and capability to maintain control
and dominion over the controlled substance, he
can be found to have constructive possession
of the substance. Incriminating circumstances,
such as evidence placing the accused within
close proximity to the controlled substance,
may support a conclusion that the substance
was in the constructive possession of the
accused. Thus, where sufficient incriminating
circumstances exist, constructive possession
of a controlled substance may be inferred even
where possession of a premises is
nonexclusive.
State v. McNeil, 165 N.C. App. 777, 781, 600 S.E.2d 31, 34 (2004),
aff'd, 359 N.C. 800, 617 S.E.2d 271 (2005) (internal citations and
quotation marks omitted).
In this case, defendant did not have exclusive possession of
the car in which the pills were found. Therefore, the State is
required to provide evidence of other incriminating circumstances.
State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986).
Defendant relies on
State v. Weems, 31 N.C. App. 569, 571, 230
S.E.2d 193, 194 (1976)
, in urging that the facts in the instant
case are insufficient to constitute constructive possession.
Defendant's reliance on
Weems is misplaced. In
Weems, the
proximity of the defendant to the heroin found tucked in the folds
of the seat behind him was held to be insufficient to constitute
constructive possession. However, unlike the instant case, in
Weems there were no other incriminating circumstances to suggest
the defendant had knowledge of the presence of the drugs.
Id. at
571, 230 S.E.2d at 195. Nevertheless, the Court in
Weems did
acknowledge that “evidence which places an accused within close
juxtaposition to a narcotic drug under circumstances giving rise to
a reasonable inference that he knew of its presence may be
sufficient to justify the jury in concluding that it was in his
possession.”
Id.
Evidence of other incriminating circumstances have been found
where the drugs were found nearest to the area of the car occupied
by the defendant immediately before he was apprehended.
State v.
Matias, 143 N.C. App. 445, 449, 550 S.E.2d 1, 3-4,
aff'd, 354 N.C.
549, 556 S.E.2d 269 (2001);
State v. Carr, 122 N.C. App. 369, 373,
470 S.E.2d 70, 73 (1996). In the instant case, when defendant was
arrested, he had a large amount of cash on his person ($1,836).
See State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984)
(over $1,700 in cash in defendant's pocket considered
incriminating);
State v. Martinez, 150 N.C. App. 364, 371, 562
S.E.2d 914, 918,
appeal dismissed, disc. rev. denied, 356 N.C. 172,
568 S.E.2d 869 (2002) ($1,780 in cash on the person of defendant
was considered incriminating)
. Moreover, a finding of constructive
possession depends on the totality of circumstances in each case.
James, 81 N.C. App. at 93, 344 S.E.2d at 79. No single factor is
controlling and ordinarily the question will be for the jury to
decide.
Id. “In 'borderline' or close cases, our courts have
consistently expressed a preference for submitting issues to thejury[.]”
State v. Jackson, 103 N.C. App. 239, 244, 405 S.E.2d 354,
357 (1991),
aff'd, 331 N.C. 113, 413 S.E.2d 798 (1992) (citation
omitted).
Here, the drugs were found in the right front passenger seat
where defendant had been sitting when officers asked him to exit
the vehicle. After the stop, but prior to being asked to exit, he
was left alone in the passenger seat of the vehicle while the
driver was being interrogated outside the vehicle by the arresting
officer, and was left standing by the right front passenger door as
the driver was being placed in the patrol car. This afforded
defendant the opportunity to stash the pill bottles in his
possession into the crease of the seat where only he had been
sitting in an effort to hide them from police. The large amount of
cash on his person can be considered an incriminating circumstance.
In addition, defendant made a spontaneous statement to the
arresting officer, “that he was set up and he wanted an attorney,
and several other dealers of Oxycontin.[sic]” This statement
supports the reasonable inference that defendant had knowledge of
the drugs found in the car and was offering to provide the police
with names of other drug dealers he believed set him up, or to
possibly obtain more lenient treatment from the police. Viewed in
the light most favorable to the State, the evidence was such that
the jury could reasonably infer from the totality of circumstances
that the defendant had the capability and intent to control the
narcotics found in the car. For the foregoing reasons, this
assignment of error is overruled. No error.
Judges MCCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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