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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1330


Filed: 5 June 2007


         v.                        Forsyth County
                                No. 03 CRS 59816
HARLEY DALE SHINAULT                 04 CRS 35997-98

    Appeal by defendant from judgment entered 25 April 2006 by Judge Richard W. Stone in Forsyth County Superior Court. Heard in the Court of Appeals 4 June 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State.

    Lynne Rupp, for defendant.

    LEVINSON, Judge.

     Harley Dale Shinault (defendant) appeals from a judgment entered on jury verdicts finding him guilty of felony possession of cocaine and possession of a firearm by a felon. Following the return of the verdicts, defendant admitted to his habitual felon status.
    The State presented evidence tending to show the following: On 5 September 2003, Detective Adam Denton of the Forsyth County Sheriff's Department conducted a traffic stop of a white Chevrolet S10 truck being operated by defendant. The officer asked defendant and his two passengers, Ashley Colville and Charles Stabel, to exit the vehicle. The officer observed that Colville was standing and walking in an unusual manner, with legs “real close together.” Detective Denton asked her whether she had a physical condition causing her to have trouble walking up steps or climbing ladders. Colville responded that she only had breathing problems. Detective Denton asked her to walk toward him. Again noticing that Colville was “walking funny[,]” the officer asked Colville whether she had anything in her pants. Colville began to cry and told the officer that she had a gun and drugs in her pants. At the officer's request, Colville pulled a gun up to her waistband, where the officer retrieved it. She also retrieved and handed to the officer crack cocaine and a metal pipe used to consume crack cocaine. She told the officer that when the detective's vehicle “got behind” the truck, defendant gave the items to her and told her to put them in her pants.
    Colville testified that defendant purchased the two pieces of crack cocaine earlier that evening for consumption by himself, Colville and Stabel. She further related that when they became aware of Detective Denton's vehicle following the truck, she complied with defendant's command to put the gun, crack cocaine, and paraphernalia in her crotch. She also saw defendant fire the gun earlier that day.
    Subsequent chemical analysis of the substance seized from Colville confirmed that it was cocaine.
    Defendant did not present any evidence.
    By the sole assignment of error argued in his brief, defendant contends the court erred by denying his motion to dismiss both charges for insufficient evidence. Defendant argues the evidenceis insufficient to show he possessed the items retrieved from Colville's pants. He does not challenge the sufficiency of the evidence as to other elements of the offenses.
     Upon a motion to dismiss the court determines whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). In deciding the motion, the court must consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference that may be deduced from the evidence and leaving contradictions or discrepancies in the evidence for the jury to resolve. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
     “Possession of any item may be actual or constructive.” State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). Constructive possession exists when a person not having actual possession of contraband has the intent and capability to maintain control and dominion over it. State v. Williams, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983). Constructive possession may be found when the item is discovered on premises under the exclusive control of the defendant or “within such close juxtaposition” to the defendant as to justify a conclusion that the item was in the defendant's possession. State v. Harvey, 281 N.C. 1, 12, 187S.E.2d 706, 714 (1972) (internal quotation marks omitted). When the contraband is found on premises not under the exclusive control of the defendant, constructive possession may not be inferred in the absence of evidence of other incriminating circumstances. State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989).
    Viewed in the light most favorable to the State, the evidence shows that defendant had the intent and capability to exercise dominion and control over the contraband. Colville's testimony establishes that defendant purchased the cocaine and fired the gun and that he actually exercised dominion and control over these items by directing her to hide the items in her pants after he discovered his vehicle was being followed by a law enforcement officer. This evidence sufficed to take the charges to the jury.
    We hold the court did not err by denying the motion to dismiss the charges.
    No error.
    Judges MCCULLOUGH and STEELMAN concur.
    Report per Rule 30(e).

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