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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 17 July 2007
STATE OF NORTH CAROLINA
MARK ANTONIO DUBOSE 05CRS13408-09
Appeal by defendant from judgment entered 19 April 2006 by
Judge Alma L. Hinton in Johnston County Superior Court. Heard in
the Court of Appeals 10 May 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Donald W. Laton, for the State.
D. Tucker Charns for defendant appellant.
Defendant appeals judgment entered after a jury verdict of
guilty of assault on a government official/employee, guilty of
possession of cocaine, and guilty of being an habitual felon. We
determine there was no error.
Mark Antonio Dubose (defendant) was indicted for possession
of marijuana with intent to sell or deliver, possession of drug
paraphernalia, assault on a government official/employee,
possession of a firearm by a felon and trafficking in cocaine by
possession. At trial, the State proceeded on the charges of
trafficking in cocaine, assault on a government official/employee,
and possession of a firearm by a felon. The State presentedevidence which tended to show the following: On 23 July 2004, a
team of law enforcement personnel executed a search warrant for a
house on Rand Street in Smithfield. One of the law enforcement
officers knocked loudly on the front door and announced that the
sheriff's office had a search warrant. The officers heard running
inside the house, so they entered the front door with a breaching
tool. Two or three people inside the house ran out the back door.
Some officers pursued them, while others went from room to room
searching the house. Agent J. Guseman entered a bedroom, and saw
defendant squatting down in a closet. Defendant appeared to have
backed into the closet between the clothes hanging in it. When
defendant did not respond to the agent's command to get out and get
on the floor, the agent grabbed defendant. Then, defendant used
the resulting momentum to push the agent's head into a window which
broke upon impact. Other officers came to assist, and defendant
During the search of the house, officers located the following
items: a set of digital scales, plastic bags, a Pyrex dish with a
crack cookie in the bottom, a straightened coat hanger with white
residue on the end which had been used as a stirring spoon, and
some metal pots. Two large bags of cocaine, a box of ammunition,
and a rifle were found in the closet where defendant was hiding.
In addition, a bag of cocaine was found on the floor in the bedroom
where defendant had hidden. This bag was no further than eight
feet from defendant. Defendant presented no evidence. The jury found defendant
guilty of assault on a government official/employee and guilty of
possession of cocaine. The jury found defendant not guilty of the
charge of possession of a firearm by a felon.
Defendant contends the trial court erred by denying his motion
to dismiss the charge of possession of cocaine on the grounds that
the evidence was insufficient to prove that defendant possessed
cocaine. We disagree.
Upon a motion to dismiss criminal charges for insufficiency
of the evidence, the trial court must determine whether there is
substantial evidence of defendant's guilt of each essential element
of the crime. State v. Shine
, 173 N.C. App. 699, 706, 619 S.E.2d
895, 899 (2005). 'Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
(citations omitted). The evidence is
considered in the light most favorable to the State, and the State
is entitled to every reasonable inference arising from it. Id.
The trial court does not weigh the evidence or determine
witnesses' credibility. Id.
at 706, 619 S.E.2d at 899-900. 'It is
concerned only with the sufficiency of the evidence to carry the
case to the jury.' Id.
at 706, 619 S.E.2d at 900 (citations
Possession may be either actual or constructive. State v.
, 142 N.C. App. 361, 367, 542 S.E.2d 682, 687 (2001). 'Constructive possession exists when a person,' although not
having actual possession of the controlled substance, 'has the
intent and capability to maintain control and dominion over [the]
controlled substance.' Id.
(citation omitted). Constructive
possession of drugs is often shown by evidence the defendant has
exclusive possession of the property in which the drugs are
It can also be shown with evidence the defendant
has nonexclusive possession of the property where the drugs are
located[,] provided there is other incriminating evidence
connecting the defendant with the drugs. Id.
Considering the evidence in the light most favorable to the
State, there is substantial evidence that defendant possessed
cocaine. Although it appears that defendant had nonexclusive
possession of the property, there was other incriminating evidence
connecting defendant with the drugs. For example, defendant was
found hiding in a closet where cocaine was stored and a rifle was
found. In addition, a bag of cocaine was discovered on the floor
in the room where defendant was found. Defendant would not respond
to an officer's command and resisted the officer's effort to remove
defendant from the closet. Accordingly, we disagree with defendant
and determine the trial court did not err by denying defendant's
motion to dismiss.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).
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