STATE OF NORTH CAROLINA
v
.
Haywood County
Nos. 05 CRS 51978, 51979
JIMMY LEE CHRISTOPHER
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.
Id.
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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