Respondent contends that the trial court erred in denying his
motion to dismiss the charge of possession with intent to sell or
deliver cocaine because there was insufficient evidence of
Respondent's intent to sell or deliver the cocaine found in his
possession. We agree.
The standard of review on a motion to dismiss for insufficient
evidence is whether the State has offered substantial evidence (1)
of each required element of the offense charged, and (2) of the
juvenile being the perpetrator of the offense. In re Heil
N.C. App. 24, 550 S.E.2d 815 (2001). The evidence must be
sufficient to convince a rational trier of fact beyond a
reasonable doubt of defendant's guilt. In re T.C.S.
, 148 N.C.
App. 297, 301, 558 S.E.2d 251, 253 (2002) (internal quotations and
citations omitted). We view the evidence in the light most
favorable to the State, giving the State the benefit of every
reasonable inference which may be drawn therefrom. In re Lucas
N.C. App. 442, 380 S.E.2d 563 (1989).
The elements of possession with intent to sell or deliver
cocaine are (1) possession, (2) of cocaine, (3) with intent to sell
or deliver. See
N.C. Gen. Stat. § 90-95(a)(1) (2005);
, 170 N.C. App. 100, 612 S.E.2d 172, disc. review denied
359 N.C. 640, 617 S.E.2d 286 (2005). Intent may be inferred from
(1) the packaging, labeling, and storage of the substance; (2) the
defendant's activities; (3) the quantity of the substance found;and (4) the presence of cash or drug paraphernalia. Nettles
N.C. App. 100, 612 S.E.2d 172.
Viewing the evidence in the light most favorable to the State
and giving the State the benefit of every reasonable inference, the
State did not present substantial evidence of Respondent's intent
to sell or deliver the cocaine found in his possession. At the
adjudicatory hearing, the police officer testified that, upon
seeing the officer and for no apparent reason, Respondent
immediately took off running[.]
During the ensuing chase, the
officer activated his blue lights and siren, hit the air horn a
couple of times[,] and yelled at Respondent to stop
. The officer
finally apprehended Respondent after discovering him hiding in the
crawl space of a vacant house
. In the resulting search incident to
arrest, the officer found one plastic bag containing seven rock-
like substances which the officer suspected to be cocaine
bag was discovered inside a cast on Respondent's arm. An SBI crime
lab chemist verified that the substances were, in fact, cocaine and
testified that they weighed, in sum, one gram
Neither the packaging, labeling, and storage of the cocaine
nor Respondent's activities support an inference of Respondent's
intent to sell or deliver. Likewise, the amount of cocaine found
in Respondent's possession does not give rise to an inference of
Respondent's intent. See Nettles
, 170 N.C. App. at 106, 612 S.E.2d
at 176 (holding that the possession of four to five crack cocaine
rocks which weighed 1.2 grams, or .04% of the requisite amount for
trafficking[,] by itself, was not sufficient to support a findingof intent). Finally, since the officer offered no testimony
regarding any other items found in Respondent's possession, intent
may not be inferred from the presence of cash or drug
Nevertheless, the State contends that
behavior after first seeing the police officer, coupled with the
fact that no evidence was presented showing any apparatus was found
on the juvenile's person for smoking or otherwise using the
, evinces  Respondent's intent to sell or distribute the
The State further contends
that the limited quantity
of the drugs found in [Respondent's] possession does not alone
 Respondent having the intent to sell or distribute.
We are unpersuaded. While the introduction of
certain kinds of evidence may give rise to an inference of intent,
170 N.C. App. 100, 612 S.E.2d 172, it does not follow
that the lack of such evidence gives rise to the same inference.
The State did not offer substantial evidence of Respondent's intent
to sell or deliver cocaine.
However, the State did present substantial evidence of
Respondent's possession of cocaine, see State v. Reid
, 151 N.C.
App. 420, 428-29, 566 S.E.2d 186, 192 (2002) (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 its disposition or use)
, a lesser
included offense of possession with inte
nt to sell or deliver
N.C. Gen. Stat. § 90-95(a)(3) (2005)
. The judgmenton the charge of possession with intent to sell or deliver is
therefore vacated, and the case is remanded for entry of judgment
on possession of cocaine, with resentencing accordingly. See State
, 168 N.C. App. 152, 607 S.E.2d 19 (2005) (vacating
judgment on charge of possession with intent to sell and deliver,
remanding for entry of judgment on charge of possession and
Because we remand for resentencing, we need not address
Respondent's contention that the trial court erred in committing
Respondent to the Department of Juvenile Justice and Delinquency
Prevention until his eighteenth birthday since such commitment
period exceeds the maximum period allowable under N.C. Gen. Stat.
§ 7B-2513(a). Pursuant to this statute,
[n]o juvenile shall be committed to a youth
development center beyond the minimum
six-month commitment for a period of time in
excess of the maximum term of imprisonment for
which an adult in prior record level VI for
felonies or in prior conviction level III for
misdemeanors could be sentenced for the same
N.C. Gen. Stat. § 7B-2513(a) (2005). We would merely agree with
Respondent that he is entitled to a sentencing credit for the
number of days he spent in detention prior to the adjudicatory
hearing. See In re Allison
, 143 N.C. App. 586, 547 S.E.2d 169
(2001) (recognizing that provisions of N.C. Gen. Stat. § 15-196.1,
whereby the maximum term of a sentence shall be credited with and
diminished by the total amount of time a defendant has spent . . .
in any State or local correctional, mental or other institution asa result of the charge that culminated in the sentence[,] apply to
The judgment of the trial court is vacated as to the charge of
possession with intent to sell or deliver cocaine, and the case is
remanded for entry of judgment on the charge of possession of
cocaine and resentencing.
VACATED IN PART; REMANDED FOR RESENTENCING.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
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