Opinion
No. 05-133.
Filed January 17, 2006.
Davidson County No. 03CRS060938-39.
Appeal by defendant from judgment entered 9 August 2004 by Judge Mark E. Klass in Davidson County Superior Court. Heard in the Court of Appeals 9 January 2006.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Wendy L. Greene, for the State. David Childers for defendant-appellant.
On 1 December 2003, Eddie Gilbert, Jr. ("defendant") was indicted for felony possession of cocaine and assault on a government official or employee. The case was tried at the 9 August 2004 Criminal Session of Davidson County Superior Court. For the reasons stated herein, we find no error.
The evidence presented at trial tended to show the following: On 5 November 2003, Officers P.O. Hanner ("Officer Hanner") and Brent James Hall ("Officer Hall") of the Thomasville Police Department were on patrol in an area known as a high drug area. At approximately 1:50 a.m., Officers Hanner and Hall decided to conduct a survey of "the cut," an area which runs between Culbrethand Hunter Streets, to look for illegal activity. The cut was "a known area for people to hangout and do drugs or sell drugs." The two officers parked their patrol cars on either side of the cut and approached the cut from opposite sides.
Officer Hanner noticed two subjects standing at the corner of a house. As he approached, one of the two men started walking towards Officer Hall. Officer Hall made contact with the man, had a short conversation with him, but did not stop him. Officer Hall then spotted defendant walking around the side of the house. Both officers testified that they saw defendant bend down towards the foundation of the house. Defendant then walked on towards Officer Hall. Officer Hall asked defendant what he was doing. Defendant told him he had "tripped," that his name was Eddie Gilbert, and he was going to the store to get something to eat. Meanwhile, Officer Hanner reached the foundation of the house where defendant had bent over and found a package of crack cocaine. Officer Hall turned around to speak to defendant, but he had gotten into a vehicle and drove away in the opposite direction than he had indicated.
The officers subsequently obtained a warrant for defendant and arrested him at his residence. Defendant's father gave the officers permission to enter the residence, and defendant was found standing fully clothed in the bathtub with the shower curtain drawn. After informing defendant of his arrest for possession of cocaine and while attempting to place handcuffs on him, defendant spun around and struck Officer Hall in the face with his fist. The officers then subdued defendant with pepper spray and he was handcuffed.
Defendant was convicted on both counts and was sentenced to a term of eight to ten months imprisonment. Defendant appeals.
Defendant's sole argument on appeal is that there was insufficient evidence to sustain the conviction for felony possession of cocaine. Defendant contends that there was no evidence that he either actually or constructively possessed the cocaine.
After careful review of the record, briefs, and contentions of the parties, we find no error. To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). When reviewing the sufficiency of the evidence, "[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994).
"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. Turner, 168 N.C. App. 152, 156, 607 S.E.2d 19, 22 (2005) (citations omitted). "When the defendant does not have exclusive possession of the location where the drugs were found, the State must make a showing of `other inciminating circumstances' in order to establish constructive possession." Id. (citation omitted). Here, Officer Hall and Officer Hanner both testified that they observed defendant bend over or lean and make a motion towards the foundation of the house. Officer Hanner described defendant as leaning down towards the foundation, while Officer Hall testified that he saw defendant bend down and "place his hand toward the vent area of the house[.]" Immediately afterward, Officer Hanner discovered the crack cocaine in the same vent area at the foundation of the house. This Court has held that "close proximity to the controlled substance and conduct indicating an awareness of the drugs, such as efforts at concealment or behavior suggesting a fear of discovery — are sufficient to permit a jury to find constructive possession." Turner, 168 N.C. App. at 156, 607 S.E.2d at 22-23 (emphasis added); see also State v. Harrison, 93 N.C. App. 496, 498, 378 S.E.2d 190, 192 (1989) (quoting State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972)) ("[p]roof of constructive possession sufficient to overcome a motion to dismiss or directed verdict is shown when the State places the defendant `within such close juxtaposition to the narcotic drugs as to justify the jury in concluding that the same was in his possession'"). Based on the officers' testimony, a jury could reasonably conclude that defendant possessed the drugs and attempted to conceal the drugs in the vent. Accordingly, we find no error.
No error. Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).