Converted WP file 070290-1

Appeal by Defendant from judgment entered 5 October 2006 by Judge Charles H. Henry in Superior Court, Onslow County. Heard in the Court of Appeals 27 August 2007.

Attorney General Roy Cooper, by Assistant Attorney Charles E. Reece, for the State.

Peter Wood, for Defendant-appellant.

WYNN, Judge.

    Defendant Shirley Ann Williams appeals from a conviction of possession of cocaine and being a habitual felon. We find no error.
    The State's evidence tends to show that at approximately 12:30 a.m. on 20 March 2005, Officer John Elder of the Jacksonville Police Department attempted to stop a car he suspected of speeding. After turning on his patrol car's sirens and lights, Officer Elder noticed four individuals in the car moving around and bending over in a manner that made him believe they were trying to hide something. The car did not immediately pull over, and Officer Elder noticed a white object being thrown from the driver's side window before the car eventually stopped.     Officer Elder observed Mary Ellen Roberts, the driver; Defendant Shirley Williams, the front seat passenger; and two rear seat passengers, Latisha Michelle Morrow and Shala Rashawn Johnson, in the vehicle. Officer Elder smelled a “pungent, sour odor” that he believed to be the odor of recently-smoked crack cocaine. Officer Elder requested a K-9 unit to respond to the scene and the dog alerted the officer to the presence of narcotics in the car.
    Inside the car, between the driver's seat and the center console, Officer Elder discovered a plastic Tylenol bottle and a clear plastic bag, both of which contained off-white colored rocks later verified by chemical analysis to be cocaine. All of the car's occupants, including Defendant, denied ownership of the bottle and the plastic bag. At the police station, during a detailed search of Defendant, Officer Trudy Pelletier found a lock- blade knife in Defendant's pocket. On the blade of the knife was a white powdery residue later determined to be cocaine.
    Defendant testified at trial that she had no knowledge of the cocaine found on the knife, and that she had taken the knife from her son at a party. On cross-examination, Defendant admitted that when police found the knife she stated, “Ain't no drugs on the knife” before any officer mentioned that they were suspicious there might be drugs on the knife.
     Following a jury trial, Defendant was convicted of possession of cocaine and carrying a concealed weapon. Defendant, as part of a plea agreement, pled guilty to being a habitual felon, feloniouslarceny, and assault inflicting serious injury.   (See footnote 1) The trial court consolidated these charges and sentenced Defendant to one hundred ten to one hundred forty-one months imprisonment. Defendant appeals contending that the trial court erred by: (I) denying her motion to dismiss the possession of cocaine and (II) accepting her guilty pleas because her pleas were not made voluntarily and knowingly.

     Defendant contends the trial court erred by denying her motion to dismiss the possession of cocaine charge at the close of the State's evidence and at the close of all the evidence. We disagree.
        When on the trial of any criminal action in the superior or district court, the State has introduced its evidence and rested its case, the defendant may move to dismiss the action, or for judgment as in case of nonsuit. . . . If the motion is refused and the defendant does not choose to introduce evidence,...he thereby waives any motion for dismissal or judgment as in case of nonsuit which he may have made prior to the introduction of his evidence and cannot urge such prior motion as ground for appeal. The defendant, however, may make such motion at the conclusion of all the evidence in the case.

N.C. Gen. Stat. § 15-173 (2005) . By introducing evidence after the end of the State's evidence, Defendant has waived her opportunity for review of her motion to dismiss at the close of the State'sevidence. Thus we only review the denial of her motion to dismiss at the close of all the evidence.
    This court reviews a motion to dismiss for insufficient evidence de novo. State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993). In reviewing the evidence, the Court is obligated to both consider the evidence “in the light most favorable to the State[,]” State v. Payne, 73 N.C. App. 154, 156, 325 S.E.2d 654, 655 (citing State v. Finney, 290 N.C. 755, 757, 228 S.E.2d 433, 434 (1976), disc. review denied, 313 N.C. 609, 332 S.E.2d 81 (1985), and to make certain there is “substantial evidence” of all material elements of the offense. State v. Stephens, 244 N.C. 380, 383, 90 S.E.2d 431, 433 (1956)). “Substantial evidence is defined as that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Porter, 303 N.C. 680, 685-86, 281 S.E.2d 377, 381 (1981) (citing State v. Fletcher, 301 N.C. 709, 272 S.E.2d 859 (1981)).
    Here, Defendant challenges whether the evidence is sufficient to support the charge of felonious possession of cocaine. “An accused's possession of narcotics may be actual or constructive.” State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). See also, State v. Bagnard, 24 N.C. App. 54, 59, 210 S.E.2d 93, 96 (1976). “Felonious possession of a controlled substance has two essential elements. The substance must be possessed, and the substance must be knowingly possessed.” State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985) (emphasis added) (citing State v. Rogers, 32 N.C. App. 274, 278, 231 S .E.2d 919, 922 (1971). “Knowledge is a mental state that may be proved by offering circumstantial evidence to prove a contemporaneous state of mind.” State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989). “Constructive possession is that which exists without actual personal . . . dominion over a chattel, but with an intent and capability to maintain control and dominion.” State v. Allen, 279 N.C. 406, 410-11, 183 S.E.2d 680, 683 (1971) (citing Rodella v. United States, 286 F.2d 306 (9^th Cir.) (1960)).
     Here, the evidence tended to show Defendant was a passenger in a car which failed to pull over immediately for Officer Elder; found with a knife containing cocaine residue; observed moving around and bending over inside the car; observed throwing a small white object during the traffic stop; and was a passenger in a car from which emanated the pungent, sour odor which the officer recognized as the smell of people smoking crack cocaine.
    This evidence tended to show that Defendant knew drugs were in fact on the knife in question and that Defendant was in actual possession of cocaine. Further, the officer's testimony of suspicious behavior by the car's occupants and of the car's odor of crack cocaine, offered evidence indicating that Defendant was in constructive possession of the cocaine located near the car's center console. Viewing all evidence in the light most favorable to the State, we conclude there was substantial evidence of each material element of felonious possession of cocaine on the part of Defendant.     Accordingly, the trial court properly denied Defendant's motion to dismiss.

     Defendant also contends that her guilty pleas were not made voluntarily and knowingly. However, this Court does not have authority to hear these assignments of error because Defendant's right of appeal is limited pursuant to N.C.G.S. §15A-1444(e), which provides:
        Except as provided in subsections (a1) and (a2) of this section and G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari

N.C. Gen. Stat. § 15A-1444(e)(2005).
    Defendant did not attempt to withdraw her guilty plea at trial, and her argument does not fall within the categories required for appellate review in N.C.G.S. §15A-1444(a1) or (a2), which address “sentence disposition or duration.” State v. Moore, 156 N.C. App. 693, 694, 577 S.E.2d 354, 355 (2003). Further, our Appellate Rules prevent this Court from issuing a writ of certiorari to review Defendant's assignments of error. N.C. App. R. 21; State v. Jamerson, 161 N.C. App. 527, 528, 588 S.E.2d 545, 546-47 (2003) (An appellate court is without authority to issue a writ of certiorari except as provided in N.C.R. App. P. 21).
    Accordingly, Defendant's final two assignments of error are dismissed.     No error in part, dismissed in part.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1