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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 4 September 2007
STATE OF NORTH CAROLINA
v. Onslow County
Nos. 05 CRS 52577, 58736,
SHIRLEY ANN WILLIAMS 55647-8
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.
Defendant Shirley Ann Williams appeals from a conviction of
possession of cocaine and being a habitual felon. We find no
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.
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
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
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)
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
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.
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 (9th 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
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
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).
Appellate Rules prevent this Court from issuing a writ of
certiorari to review Defendant's assignments of error. N.C. App.
State v. Jamerson
, 161 N.C. App. 527, 528, 588 S.E.2d 545,
(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
No error in part, dismissed in part.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
The felony larceny and assault inflicting serious injury
charges are unrelated to the incident occurring on 20 March 2005.
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