Opinion
No. COA12–1184.
2013-03-5
STATE of North Carolina v. Keisha JOHNSON.
Attorney General Roy Cooper, by Assistant Attorney General Robert D. Croom, for the State. Don Willey for Defendant.
Appeal by Defendant from judgment entered 13 April 2012 by Judge F. Lane Williamson in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 February 2013. Attorney General Roy Cooper, by Assistant Attorney General Robert D. Croom, for the State. Don Willey for Defendant.
DILLON, Judge.
Keisha Johnson (Defendant) appeals from a judgment entered 13 April 2012 upon her conviction of possession of drug paraphernalia in violation of N.C. Gen.Stat. § 90–113.22(a) (2011). Defendant challenges the trial court's denial of her motion to dismiss the charge due to insufficiency of substantial evidence to support the possession element of the crime. We find no error.
I: Factual and Procedural Background
The evidence of record tends to show the following: On 30 December 2010, police officers from the Charlotte–Mecklenburg Police Department searched Defendant's home in Charlotte, North Carolina, pursuant to a search warrant. Prior to the issuance of the search warrant, a confidential informant had purchased crack cocaine at Defendant's residence from McKinley Tucker (Tucker). When the officers entered the residence to execute the warrant, both Defendant and Tucker were present. During the search of the house, the officers discovered a scale in a bedroom of the house and a razor blade in the living room. Also, one of the officers testified that he found a pipe, which he described as a “marijuana pipe,” in the kitchen. This officer described this pipe as having a brass bowl, a wooden handle, and a brass mouthpiece, and the pipe also smelled like marijuana. Defendant, however, testified that the police found a “tobacco pipe” stored in a box in her bedroom, that it belonged to her ex-husband, and that she did not use it. Defendant also admitted at trial to a prior conviction of possession of drug paraphernalia in 2001.
On 31 October 2011, Defendant was indicted on a charge of possession of drug paraphernalia. Defendant's case was tried on 13 April 2012. Defendant made a motion to dismiss the charge at the end of the State's evidence, which was denied by the trial court. After Defendant presented evidence, she renewed her motion to dismiss, which was again denied by the trial court. On the same day, the jury found Defendant guilty of possession of drug paraphernalia. The trial court entered a judgment consistent with the jury's verdict, sentencing Defendant to twelve months supervised probation. From this judgment, Defendant appeals.
Officers also found a bag containing cocaine at the residence and Defendant was indicted on a charge of possession of cocaine. However, the jury found Defendant not guilty of cocaine possession.
I: Motion to Dismiss
In Defendant's sole argument on appeal, she contends the trial court erred in denying her motion to dismiss the charge of possession of drug paraphernalia because there was not substantial evidence of the possession element of the offense. We disagree.
Defendant moved to dismiss at the conclusion of the State's evidence and again after all of the evidence had been presented. By presenting evidence, Defendant waived appellate review of her motion to dismiss at the close of the State's evidence. N.C.R.App. P. 10(a)(3) (2013). However, by renewing her motion at the close of all the evidence, Defendant properly preserved the issue of the sufficiency of the evidence for purposes of appellate review. State v. Morganherring, 350 N.C. 701, 732, 517 S.E.2d 622, 640 (1999), cert. denied,529 U.S. 1024 (2000) (citing N.C. Gen.Stat. § 15A–1227).
“This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “ ‘Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (1999), cert. denied, 531 U.S. 890 (2000) (quotation omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980).
Upon our review of the record for substantial evidence, “the defendant's evidence should be disregarded unless it is favorable to the State or does not conflict with the State's evidence.” State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (citation omitted). “The defendant's evidence that does not conflict may be used to explain or clarify the evidence offered by the State.” Id. (quotation omitted).
In this case, Defendant was charged with possession of drug paraphernalia. Pursuant to N.C. Gen.Stat. § 90–113.22(a), “[i]t is unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia to ... store, contain, or conceal a controlled substance[.]” In order to prevail on a motion to dismiss a possession of drug paraphernalia charge, the State must provide substantial evidence that: (1) defendant possessed drug paraphernalia, and (2) defendant had “the intent to use the [drug paraphernalia] in connection with controlled substances.” State v.. Hedgecoe, 106 N.C.App. 157, 164, 415 S.E.2d 777, 781 (1992). Drug paraphernalia is defined, in pertinent part, as “all equipment, products and materials of any kind that are used to facilitate ... violations of the Controlled Substances Act[.] ...” N.C. Gen.Stat. § 90–113.21 (2011).
On appeal, Defendant challenges only the sufficiency of the evidence to support the first element of the crime of possession of drug paraphernalia—possession. “It is well established that possession may be actual or constructive.” State v. Bradshaw, ––– N.C. ––––, ––––, 728 S.E.2d 345, 348 (2012) (citation omitted). “A defendant constructively possesses contraband when he or she has the intent and capability to maintain control and dominion over it.” Id. at ––––, 728 S.E.2d at 348 (quotation omitted). “The defendant may have the power to control either alone or jointly with others.” Id. (quotation omitted). “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 a defendant had constructive possession.” Id. (quotation omitted) (emphasis added). “[C]onstructive possession depends on the totality of circumstances in each case. No single factor controls, but ordinarily the question will be for the jury.” State v. James, 81 N.C.App. 91, 93, 344 S.E.2d 77, 79 (1986).
In the case sub judice, we believe the evidence was sufficient to show incriminating circumstances from which a jury could reasonably infer that Defendant was in constructive possession of a marijuana pipe. Specifically, the State's evidence showed that Defendant was next to the kitchen in her home when the police arrived, close to where the marijuana pipe was discovered. See State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (stating that “two factors frequently considered are the defendant's proximity to the contraband and indicia of the defendant's control over the place where the contraband is found”). Moreover, Defendant testified at the trial in this case, and portions of her testimony were favorable to the State. We consider those portions in reviewing the trial court's denial of her motion to dismiss. Scott, 356 N.C. at 596, 573 S.E.2d at 869. Specifically, Defendant testified that she was in the kitchen prior to the search. Also, Defendant testified about the pipe, which she called a “cigar pipe[.]” Defendant admitted that the pipe belonged to her: Defendant testified that she had purchased the pipe for her ex-husband, that she had taken the pipe with her when she left her ex-husband, and that the pipe had been in her possession for approximately two years. Also, during her testimony, Defendant admitted that the pipe that one of the officers testified was a marijuana pipe, which still smelled of marijuana, was the same pipe Defendant referred to as the “cigar pipe” that belonged to her.
We also note that Defendant stated at trial that “my intent was never to use” the pipe. However, on appeal, Defendant does not challenge the sufficiency of the evidence supporting the intent element of the crime of possession of drug paraphernalia, and Rule 28 of the Rules of Appellate Procedure limits our review to questions that are supported by the arguments made and authorities cited in the brief. State v. Cohen, 301 N.C. 220, 222, 270 S.E.2d 416, 418 (1980).
Notwithstanding other potentially incriminating evidence surrounding the razor and the scale, we believe that Defendant's statement that she had had the pipe in her possession for approximately two years—alongside evidence that Defendant owned the home in which the pipe was discovered and was in close proximity to the pipe when officers found it—was substantial evidence to support the possession element of the crime of possession of drug paraphernalia in this case. See State v. Davis, 186 N.C.App. 242, 248, 650 S.E.2d 612, 617,disc. review dismissed,362 N.C. 89, 656 S.E.2d 280, (2007) (stating that the defendant's voluntary statement to police that he used methamphetamine was substantial evidence to support the elements of possession of drug paraphernalia found in his home, and concluding that defendant's motion to dismiss was properly denied); see also State v. Jones, 161 N.C.App. 615, 624, 589 S.E.2d 374, 379 (2003), disc. review denied and appeal dismissed,358 N.C. 379, 597 S.E.2d 770 (2004) (holding that a “written statement [in which the] defendant stated, ‘the cops searched the car and found my coat. I had some herb ... and a gun in my coat[,]’ “ was substantial evidence to support the possession element of the crime charged, and explaining that the defendant “acknowledges his possession of the gun in this statement, [which] ... effectively disposes of his argument that there is no evidence of possession”). As there is substantial evidence to support the possession element of the crime of possession of drug paraphernalia with regard to the marijuana pipe in this case, and as Defendant does not challenge the sufficiency of the evidence to support the intent element of the crime, we conclude the trial court did not err in denying Defendant's motion to dismiss.
NO ERROR. Judge STEPHENS and Judge STROUD concur.
Report per Rule 30(e).