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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1376


Filed: 17 July 2007


     v .                              Johnston County
                                     Nos. 04CRS56690
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.

    McCULLOUGH, Judge.

    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 was handcuffed.
    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 appeals.
    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 conclusion.”'” Id. (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 omitted).
    “Possession may be either actual or constructive.” State v. Frazier, 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 located.” Id. “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.
    No error.
    Judges BRYANT and STROUD concur.
    Report per Rule 30(e).

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