Opinion
No. COA09-457.
Filed February 2, 2010.
Brunswick County No. 07CRS7735.
Appeal by Defendant from judgment entered 27 August 2008 by Judge Gary L. Locklear in Brunswick County Superior Court. Heard in the Court of Appeals 1 October 2009.
Attorney General Roy Cooper, by Assistant Attorney General Gary M. Teague, for the State. Irving Joyner for Defendant.
I. Procedural History
On 18 July 2007, Defendant Whitney Michelle Jenkins was arrested and charged with felonious possession of methamphetamine. Defendant was subsequently indicted for trafficking in methamphetamine, conspiracy to traffic in methamphetamine, and possession of methamphetamine. On 25 August 2008, the State dismissed the charge of possession of methamphetamine.
On 27 August 2008, a jury found Defendant guilty of trafficking in methamphetamine by possession and conspiracy to traffic in methamphetamine by delivery, possession, and transportation. The trial court entered judgment upon the verdict, sentencing Defendant to a term of 35 to 42 months in prison. Defendant appeals from the trial court's judgment, arguing that the trial court erred in denying Defendant's motion to dismiss for insufficient evidence. We find no error.
II. Factual Background
The evidence presented by the State at trial tended to show the following: In the early morning hours of 18 July 2007, Oak Island police officers responded to an emergency call reporting a breaking and entering at a residence on Northwest 10th Street in Oak Island, North Carolina. Upon arriving at the scene, the officers observed two individuals, Amber Wood and James Dean Martin, running around the front yard and found two more individuals, Josh Caudel and Defendant, in the back bedroom of the residence. The individuals claimed that people were in the house and on the roof trying to kill them, but a protective sweep of the house revealed no other individuals.
During the protective sweep, the officers found a plate with a white, crystalline substance on it sitting on top of a table in the living room. When talking with the individuals at the scene, the officers observed that the individuals were exhibiting paranoia, had dilated pupils, were shaking and scratching themselves, and had burn marks on their lips consistent with burns from a glass pipe used to smoke methamphetamine. When Defendant was asked by Sergeant Vining, one of the responding officers, "What have y'all been on?", Defendant responded, "Meth."
Officer Loren Lewis spoke with Defendant about the plate found in the living room. Defendant admitted that the plate contained methamphetamine and advised Officer Lewis that "they had all been using Meth for about three or four days and that they were starting to hallucinate. They had been using for so long."
The four individuals all lived in the house. While Wood and Caudel leased the residence, they had a rental agreement with Defendant and Martin whereby Defendant and Martin paid half the rent and utilities. The four individuals had a history of drug use and had purchased and used heroin together in the recent past.
After procuring a search warrant, as well as Wood's and Caudel's consent, officers searched the residence. The search revealed a prescription pill bottle approximately two-thirds full of a white, crystalline substance under the couch in the living room. No fingerprints were found on the pill bottle, which was later determined to contain 29.6 grams of crystal methamphetamine.
The methamphetamine found in the pill bottle was the remainder of 58 grams of methamphetamine which Wood and Caudel had stolen from Wood's father's home during a visit to Winston-Salem on 10 July 2007. Wood and Caudel immediately began using the methamphetamine and continued to use it for several days. During this time, Defendant and Martin had traveled to Florida but had remained in contact with Wood and Caudel. Upon returning to Oak Island, Wood and Caudel received a call from Defendant and Martin requesting to be picked up in Florida "because they couldn't find any heroin down there and they were in need of it." Wood testified that Defendant and Martin were "sick" because they needed to "get a fix" and they "knew we had the meth, so they — that would help them out until they could get back and get heroin." Wood and Caudel immediately left for Florida to pick up Defendant and Martin, arriving around 3:00 a.m. on 17 July 2007. Wood testified that as soon as they picked up Defendant and Martin from Defendant's mother's house, the four individuals started snorting the methamphetamine. They continued to use the methamphetamine during the drive to North Carolina. The methamphetamine was kept in plain view and free for all of them to use during the entire trip.
The methamphetamine had been stolen from Wood's father's home in one Ziplock bag. Wood and Caudel divided the contraband into quarter ounces and then recombined it into one Ziplock bag for the trip to Florida and back to North Carolina. When the four individuals arrived at Oak Island, they put the methamphetamine into the pill bottle. At the residence, the methamphetamine was gradually poured from the bottle onto a plate for any of the four individuals to use as desired.
At the close of the State's evidence, Defendant moved to dismiss the charges for insufficient evidence. This motion was denied. Defendant did not present any evidence and renewed her motion to dismiss. The motion was again denied. Defendant appeals to this Court for review of the trial court's ruling.
III. Discussion A. Standard of Review
In reviewing a trial court's denial of a motion to dismiss for insufficient evidence, this Court considers "whether substantial evidence exists as to each essential element of the offense charged and of the defendant being the perpetrator of that offense." State v. Glover, 156 N.C. App. 139, 142, 575 S.E.2d 835, 837 (2003). "The existence of substantial evidence is a question of law for the trial court, which must determine whether there is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id. (citation and quotation marks omitted). In determining the existence of substantial evidence, "an appellate court must . . . view[] all the evidence in the light most favorable to the State and resolv[e] all contradictions and discrepancies in the State's favor." State v. Everette, 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007) (citations and quotation marks omitted). Thus, "[a] case should be submitted to a jury if there is any evidence tending to prove the fact in issue or reasonably leading to the jury's conclusion as a fairly logical and legitimate deduction." State v. Harris, 361 N.C. 400, 402-03, 646 S.E.2d 526, 528 (2007) (citations and internal quotation marks omitted). This is true "even though the evidence may support reasonable inferences of the defendant's innocence." State v. Grigsby, 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000) (citations and internal quotation marks omitted).
B. Trafficking in Methamphetamine by Possession
Defendant first challenges the trial court's denial of Defendant's motion to dismiss the charge of trafficking by possession of methamphetamine. Specifically, Defendant argues that the State presented insufficient evidence that Defendant possessed a trafficking amount of methamphetamine. We disagree.
N.C. Gen. Stat. § 90-95(h)(3b) provides in pertinent part that "[a]ny person who . . . possesses 28 grams or more of methamphetamine . . . shall be guilty of . . . `trafficking in methamphetamine. . . .'" N.C. Gen. Stat. § 90-95(h)(3b) (2007). "It is well settled in this jurisdiction that in a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials. Proof of constructive possession is sufficient and that possession need not always be exclusive." State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). "A defendant constructively possesses contraband when he or she has `the intent and capability to maintain control and dominion over' it." State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)). "The defendant may have the power to control either alone or jointly with others." Id.
"Where [contraband] materials are found on the premises 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." State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). However, unless a defendant has exclusive possession of the place where the contraband is found, the State must show other incriminating circumstances sufficient for the jury to find that a defendant had constructive possession. State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001) (citations and quotation marks omitted).
The State's evidence in this case which tended to show that Defendant constructively possessed a trafficking amount of methamphetamine includes the following: Officers were called to the residence on Northwest 10th Street in the early morning hours of 18 July 2007. Defendant lived in the residence, paying for a portion of the rent and utilities, and was found inside the residence in a back bedroom.
While conducting a protective sweep of the residence, officers discovered a plate containing methamphetamine in the living room. Officer McFatter noted that the four individuals acted paranoid and frantic, had dilated pupils, and were scratching their sleeves. After procuring Wood's and Caudel's consent to search the residence, as well as a search warrant, officers searched the residence and discovered a prescription bottle approximately two-thirds full of methamphetamine underneath the couch in the living room. It was later determined that the bottle contained approximately 29.6 grams of methamphetamine.
Defendant admitted to Officer Vining that the four individuals had been doing "[m]eth." Wood testified that when the four individuals, including Defendant, were doing methamphetamine, the prescription bottle "was just located wherever" in the house. They would "pull[] enough [methamphetamine] out" of the prescription bottle and put it on the plate. The methamphetamine "was dumped out there and there for anybody to use." Wood also testified that in the early morning of 18 July 2007, "me and [Defendant] said we wanted more [methamphetamine], so we got it from [Caudel] and me and her poured it on the plate. We did as much as we liked."
We conclude that this evidence is sufficient to allow a reasonable inference that Defendant had "the power to control [the methamphetamine] either alone or jointly with others[,]" Miller, 363 N.C. at 99, 678 S.E.2d at 594, and thus, constructively possessed the 29.6 grams of methamphetamine contained in the pill bottle. Accordingly, the trial court did not err in sending the charge of trafficking in methamphetamine to the jury.
Despite this evidence, Defendant argues that the State presented insufficient evidence of constructive possession because "[t]he mere fact that drugs are discovered in some portion of a residence which is not under the exclusive control of that person cannot create an inference of constructive possession." Defendant relies on State v. Acolatse, 158 N.C. App. 485, 581 S.E.2d 807 (2003), to support her argument. Defendant's reliance is misplaced.
In Acolatse, this Court recounted the evidence against the defendant as follows:
Defendant . . . ran around the left side of the residence down the driveway. Four detectives pursued defendant. Defendant was apprehended in the bushes behind the detached garage near a fence after a police officer saw him make a straight throwing motion towards the bushes. Nothing was found in the bushes; however, drugs were found on the roof of the detached garage. One of the detectives testified the twenty-five foot roof line where the drugs were found was in a different direction from the bushes. The bushes were either directly across from the roof or off to a ninety degree angle. None of the detectives saw the defendant throw anything on the roof and no fingerprints were found on the bags of cocaine.
Id. at 490, 581 S.E.2d at 811-12.
The facts in Acolatse are dissimilar from the facts in the case at bar. Unlike in Acolatse where no evidence linked the defendant to the building on which narcotics were found, the evidence in the present case shows that Defendant lived in the residence where the drugs were found, had joint control over the living room in which the bottle of contraband was found, and was present inside the home when the drugs were discovered.
Defendant further contends, however, that the evidence shows nothing more than the fact that Defendant shared the residence in which the methamphetamine was found. We disagree. As discussed above, the evidence presented by the State showed Defendant's control over the residence in which the methamphetamine was found as well as Defendant's actual control over the methamphetamine in the pill bottle just hours before it was discovered. Accordingly, we conclude that the evidence presented at trial, viewed in the light most favorable to the State, "permit[s] a reasonable inference that [D]efendant had the intent and capability to exercise control and dominion over" the methamphetamine. Miller, 363 N.C. at 100, 678 S.E.2d at 595. Thus, the trial court did not err in denying Defendant's motion to dismiss the trafficking by possession charge.
C. Conspiracy to Traffic in Methamphetamine
Defendant next argues that the trial court erred in denying Defendant's motion to dismiss the charge of conspiracy to traffic in methamphetamine by delivery, possession, and transportation. Specifically, Defendant contends that the evidence suggests nothing more than an association between Defendant and the other individuals involved.
"A criminal conspiracy is an agreement, express or implied, between two or more persons, to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means." State v. Brewton, 173 N.C. App. 323, 327, 618 S.E.2d 850, 854, disc. review denied, 360 N.C. 177, ___ S.E.2d ___ (2005) (citation and quotation marks omitted), cert. denied, ___ N.C. ___, 636 S.E.2d 812 (2006). "In order to prove conspiracy, the State need not prove an express agreement; evidence tending to show a mutual, implied understanding will suffice." State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991). Proof of a conspiracy is generally "established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, [] point unerringly to the existence of a conspiracy." State v. Lawrence, 352 N.C. 1, 25, 530 S.E.2d 807, 822 (2000) (citation and internal quotation marks omitted), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001). "Ordinarily the factual issue of the existence or nonexistence of a conspiracy is for the jury." State v. Collins, 81 N.C. App. 346, 350, 344 S.E.2d 310, 314, appeal dismissed, 318 N.C. 418, 349 S.E.2d 601 (1986).
The State's evidence in this case which tended to show that the four individuals, including Defendant, had a mutual, implied understanding to possess a trafficking amount of methamphetamine includes the following: Wood testified that she and Caudel had been in contact with Defendant and Martin while they were in Florida and that Defendant and Martin were "sick" because "they couldn't find any heroin down there and they were in need of it." Wood further testified that Defendant and Martin asked Wood and Caudel to come pick them up in Florida because they "knew we had the meth, so they — that would help them out until they could get back and get heroin." In the car on the way from Florida to North Carolina, the methamphetamine was in "plain view" and "free for the group to use." Later, at the residence, the methamphetamine was poured onto a plate "for anybody to use" and was found by the police in the living room, to which each individual had equal access. Finally, Wood testified that in the early morning of 18 July 2007, "me and [Defendant] said we wanted more [methamphetamine], so we got it from [Caudel] and me and her poured it out on the plate. We did as much as we liked."
We conclude that this evidence is sufficient to allow a reasonable inference that Defendant conspired to possess the 29.6 grams of methamphetamine contained in the pill bottle and, thus, to send the charge of conspiracy to traffic in methamphetamine to the jury.
Defendant argues further, however, that the evidence shows the main supply of methamphetamine was always under the exclusive control of either Wood or Caudel, so any agreement inferred from Defendant's consumption of the methamphetamine was simply an agreement to consume a small amount of the methamphetamine at a given time. We disagree with Defendant's characterization of the evidence. Testimony presented by the State establishes that each of the four individuals, including Defendant, shared equal access to and control of the methamphetamine from the time Wood and Caudel arrived in Florida until the time the police arrived at the Oak Island residence. Accordingly, the aforementioned evidence, viewed in the light most favorable to the State, supports the conclusion that Defendant shared a mutual implied understanding to possess a trafficking amount of methamphetamine. Thus, the trial court properly denied Defendant's motion to dismiss the conspiracy to traffic in methamphetamine charge.
Defendant received a fair trial, free of error.
No error.
Judges HUNTER, JR. and BEASLEY concur.
Report per Rule 30(e).