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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1480


Filed: 17 July 2007


     v .                          Haywood County
                                 Nos. 05 CRS 51978, 51979

    Appeal by defendant from judgment entered 14 March 2006 by Judge J. Marlene Hyatt in Haywood County Superior Court. Heard in the Court of Appeals 24 May 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Pitman, for the State.

    William B. Gibson for defendant appellant.

    McCULLOUGH, Judge.

    Jimmy Lee Christopher (“defendant”) appeals judgment entered consistent with the jury's verdict finding defendant guilty of possession of cocaine and possession of drug paraphernalia charges sentencing defendant to 7 to 9 months' imprisonment.
    Defendant was indicted 7 November 2005 on one charge of possession of cocaine and one charge of possession of drug paraphernalia. Defendant's case came on for hearing 13 March 2006 in which the State presented evidence tending to show the following.     
    During the evening hours of 3 June 2005, during a routine patrol, Captain David Mitchell and Lieutenant Mann spotted a Nissan parked in the Bon-A-Venture cemetery with its lights off. As theofficers approached the vehicle, they activated the “takedown lights” on their patrol car which enabled Lieutenant Mann to observe defendant, who was seated in the passenger seat of the vehicle, take something from his hand and place it in his mouth. The officers observed two men and a woman seated in the backseat of the vehicle and defendant and the vehicle's driver, Laura Hubbs (“codefendant”), seated in the front seat. Everyone was then asked to exit the vehicle, and the officers conducted a pat-down search of the occupants of the vehicle. The driver of the vehicle, the codefendant, then gave the officers permission to search the vehicle. During the search of the vehicle, the officers found a Marlboro cigarette package containing crack cocaine between the front passenger seat and the front center console and a glass pipe under the passenger's seat.
    At the close of the State's evidence, defendant made a motion to dismiss the charges for insufficiency of the evidence which was denied by the trial judge. After defendant presented evidence on his own behalf, and at the close of all the evidence, defendant renewed his motion to dismiss, which was denied by the trial judge. The jury found defendant guilty on one count of possession of cocaine and one count of possession of drug paraphernalia. The trial judge entered judgment consistent with the jury verdicts sentencing defendant to 7 to 9 months' imprisonment. Defendant appeals therefrom.
    Defendant contends on appeal that the trial court erred in denying defendant's motion to suppress evidence seized erroneously.However, in defendant's brief on appeal, defendant concedes that he lacks standing to challenge the search of the vehicle which was owned by his codefendant and the subsequent seizure of the cocaine and crack pipe found in the vehicle. Defendant further states that the aforementioned assignment of error is abandoned by him on appeal.
    Defendant further contends on appeal that the trial court erred in denying defendant's motion to dismiss at the close of the State's evidence and at the close of all the evidence where there was insufficient evidence to present the charges to the jury.
    “When a defendant moves to dismiss a charge against him on the ground of insufficiency of the evidence, the trial court must determine 'whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.'” State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation omitted), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005). “'Substantial evidence' is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion.” Id. (citations omitted). An inquiry into whether there is substantial evidence “examines the sufficiency of the evidence presented but not its weight[]” and the evidence must be viewed in the light most favorable to the State with the State being entitled to every reasonable inference in its favor. Id. at 412-413, 597 S.E.2d at 746.     The law is clear that where “'there is substantial evidence--whether direct, circumstantial, or both--to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.'” State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 140 (2002) (citation omitted). Additionally, any contradictions or discrepancies in the evidence presented “'are for the jury to resolve and do not warrant dismissal.'” Garcia, 358 N.C. at 413, 597 S.E.2d at 746 (citations omitted).
    In order to establish that defendant possessed cocaine the State was required to prove two essential elements. State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985). “The substance must be possessed, and the substance must be 'knowingly' possessed.” State v. Rogers, 32 N.C. App. 274, 278, 231 S.E.2d 919, 922 (1977). Similarly, the State must prove a defendant knowingly possessed drug paraphernalia with an intent to use such in order to establish that defendant possessed drug paraphernalia. See N.C. Gen. Stat. § 90-113.22 (2005). N.C. Gen. Stat. § 90-113.22 provides, in pertinent part,
            (a) It is unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia to . . . manufacture, compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain, or conceal a controlled substance which it would be unlawful to possess.

    On appeal, defendant asserts that the State failed to prove that defendant constructively possessed the crack cocaine and drugparaphernalia found in the vehicle where the State failed to present evidence of sufficient incriminating circumstances. We conclude, however, that ample evidence was presented to establish that defendant constructively possessed the drugs and paraphernalia in question.
    “[I]n a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials.” State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). Proof of nonexclusive, constructive possession is sufficient. Id. Constructive possession exists when the defendant, “while not having actual possession, . . . has the intent and capability to maintain control and dominion over” the narcotics. State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). Where contraband is found in an area “'under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.'” Butler, 356 N.C. at 146, 567 S.E.2d at 140 (citation omitted). “However, unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.” State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989).
    Constructive possession has been established where evidence was found in close proximity to where the defendant was apprehended. See State v. Boyd, 177 N.C. App. 165, 176, 628 S.E.2d 796, 805 (2006). Further in State v. Lane, 163 N.C. App. 495, 594S.E.2d 107 (2004), this Court found there to be sufficient evidence of other incriminating circumstances where the defendant drove evasively, attempted to flee the scene, and after being discovered by the police, defendant appeared to be putting something in his mouth. Id. at 501-02, 594 S.E.2d at 111-12.
    In the instant case, the vehicle in which defendant was found was observed by police officers parked in a cemetery at night with its lights off. Police activated their takedown lights and defendant was observed placing something in his mouth. Crack cocaine was found between defendant's seat and the front console, and the drug paraphernalia was found under the seat in which defendant was sitting. Evidence of such circumstances is evidence which would permit the jury to draw a reasonable inference that defendant was in possession of the drugs and paraphernalia. See State v. Weems, 31 N.C. App. 569, 571, 230 S.E.2d 193, 194 (1976) (“[E]vidence 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.”).
    Accordingly, the trial court properly denied defendant's motion to dismiss.
    No error.
    Judges BRYANT and STROUD concur.
    Report per Rule 30(e).

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