Opinion
No. 07-956.
Filed March 4, 2008.
Wake County No. 06CRS026800.
Appeal by Defendant from judgment entered 7 December 2006 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 25 February 2008.
Attorney General Roy Cooper, by Assistant Attorney General Ann Stone, for the State. Carol Ann Bauer, for Defendant.
Joshua Maurice Mitchell (Defendant) appeals from judgment entered consistent with a jury verdict finding him guilty of felony possession of cocaine. Defendant received a suspended sentence of four to five months imprisonment and twenty-four months of supervised probation.
On 25 March 2006, Detective J.L. Clayton of the Wake County Sheriff's Office was working a DWI checkpoint. His role at the checkpoint was to man, along with other officers, a "turn around vehicle" stationed in the driveway of an abandoned house about 200 yards in front of the checkpoint. At approximately 10:55 p.m., a Ford Focus turned in the driveway and Detective Clayton and other officers immediately approached the vehicle on foot and used their flashlights to illuminate inside the vehicle.
The Focus was driven by Defendant and there was a female in the front passenger seat. Detective Clayton noticed Defendant had reached around the driver's seat into the back of the vehicle and was holding a plastic bag in his hand. Detective Clayton could not see what was in defendant's other hand, or for what, if anything, defendant was reaching.
The officers ordered Defendant to put his hands up and Defendant dropped the plastic bag on the floorboard. Defendant was removed from the car and taken into custody because the plastic bag appeared to contain marijuana. Immediately upon removing Defendant from the car, and while placing handcuffs on him, Detective Clayton noticed a small plastic tube laying on the driver's seat. Detective Clayton seized the tube and, upon opening it, discovered what was later determined to be 0.2 grams of crack cocaine.
During Defendant's arrest, the female passenger remained seated in the front passenger seat. Detective Clayton maintained visual contact with the female passenger from the moment the officers' flashlights illuminated the vehicle up until Defendant was removed from the vehicle.
The Ford Focus was rented from Hertz on 24 March 2006 to Defendant's mother. It is the policy of Hertz to service each of their rental vehicles before they are rented. The servicing includes vacuuming and washing the vehicle, and checking under the seats, glove compartments and trunks. Defendant testified that four or five others had driven the vehicle, and that he did not have any crack cocaine in his possession the night of his arrest.
Defendant argues the trial court erred in denying his motion to dismiss the charge of felony possession of cocaine for lack of sufficient evidence. To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense and that the defendant is the perpetrator. 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.'" Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). "In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence." State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). "[C]ontradictions and inconsistencies do not warrant dismissal; the trial court is not to be concerned with the weight of the evidence." State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998) (citation omitted). "[I]f the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion even though the evidence may also support reasonable inferences of the defendant's innocence." State v. Ford, 136 N.C. App. 634, 641, 525 S.E.2d 218, 223 (2000). However, "[e]vidence that raises only a strong suspicion without producing any incriminating circumstances does not reach the level of substantial evidence necessary for the denial of a motion to dismiss." State v. Hamilton, 145 N.C. App. 152, 158, 549 S.E.2d 233, 237 (2001).
Defendant contends the State presented insufficient evidence to support a reasonable inference that he was in possession of the crack cocaine. This Court has held, that "[a] person has constructive possession of an item when the item is not in his physical custody, but he nonetheless has the power and intent to control its disposition." State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (citation omitted). "`[C]onstructive possession depends on the totality of the circumstances in each case. No single factor controls, but ordinarily the questions will be for the jury.'" State v. Butler, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001) (quoting State v. Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357 (1991)), aff'd, 356 N. C. 141, 567 S.E.2d 137 (2002). Further, when a "defendant [does] not have exclusive control of the location where contraband is found, `constructive possession of the contraband materials may not be inferred without other incriminating circumstances.'" State v. Clark, 159 N.C. App. 520, 525, 583 S.E.2d 680, 683 (2003) (quoting State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984)).
Here, the plastic tube was found on the driver's seat of the vehicle, which had not been in defendant's exclusive control. While defendant testified that others drove the vehicle, there was no evidence of exactly when these other drivers had control over the car. Defendant was the driver of the vehicle and was arrested while trying to avoid a DWI checkpoint. Upon approaching the vehicle, Defendant was observed trying to hide a bag of marijuana. Detective Clayton removed defendant from the vehicle and placed Defendant under arrest. Detective Clayton testified that he noticed the plastic tube containing the crack cocaine laying on the driver's seat "immediately" upon arresting defendant. This evidence, when viewed in the light most favorable to the State, constitutes sufficient evidence to support a reasonable inference that defendant constructively possessed the crack cocaine. See, e.g., State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001) (constructive possession of cocaine established where there was an odor of marijuana in the car and drugs were found in rear seat of car with several passengers, but arresting officer testified that defendant was the only person who could have placed the drugs in the location where they were discovered). This assignment of error is overruled.
No error.
Judges MCGEE and STROUD concur.
Report per Rule 30(e).