Opinion
No. 06-1089.
Filed 15 May 2007.
Cabarrus County No. 99 J 108.
Appeal by Respondent from order entered 23 September 2005 by Judge William G. Hamby, Jr., in Cabarrus County District Court. Heard in the Court of Appeals 27 March 2007.
Robert W. Ewing for Respondent-Appellant. Attorney General Roy Cooper, by Assistant Attorney General Ebony J. Pittman, for the State.
During the evening of 1 August 2005, a Concord police officer, while driving through a neighborhood on routine patrol, observed Respondent walk across his path thirty yards away. Upon seeing the officer, Respondent immediately ran away. Thereafter, Respondent made repeated attempts to avoid the officer's efforts to stop him. The officer eventually arrested Respondent for resisting, obstructing, and delaying a police officer. During a search incident to the arrest, the officer found seven "rocks" of cocaine in one plastic bag on Respondent's person. The cocaine weighed, in total, one gram. On 23 September 2005, Respondent was adjudicated delinquent for possession with intent to sell or deliver cocaine and resisting a law enforcement officer. Respondent appeals.
Respondent contends that the trial court erred in denying his motion to dismiss the charge of possession with intent to sell or deliver cocaine because there was insufficient evidence of Respondent's intent to sell or deliver the cocaine found in his possession. We agree.
The standard of review on a motion to dismiss for insufficient evidence is whether the State has offered substantial evidence (1) of each required element of the offense charged, and (2) of the juvenile being the perpetrator of the offense. In re Heil, 145 N.C. App. 24, 550 S.E.2d 815 (2001). The evidence must be "sufficient to convince a rational trier of fact beyond a reasonable doubt of defendant's guilt." In re T.C.S., 148 N.C. App. 297, 301, 558 S.E.2d 251, 253 (2002) (internal quotations and citations omitted). We view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference which may be drawn therefrom. In re Lucas, 94 N.C. App. 442, 380 S.E.2d 563 (1989).
The elements of possession with intent to sell or deliver cocaine are (1) possession, (2) of cocaine, (3) with intent to sell or deliver. See N.C. Gen. Stat. § 90-95(a)(1) (2005); State v. Nettles, 170 N.C. App. 100, 612 S.E.2d 172, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Intent may be inferred from (1) the packaging, labeling, and storage of the substance; (2) the defendant's activities; (3) the quantity of the substance found; and (4) the presence of cash or drug paraphernalia. Nettles, 170 N.C. App. 100, 612 S.E.2d 172.
Viewing the evidence in the light most favorable to the State and giving the State the benefit of every reasonable inference, the State did not present substantial evidence of Respondent's intent to sell or deliver the cocaine found in his possession. At the adjudicatory hearing, the police officer testified that, upon seeing the officer and for no apparent reason, Respondent "immediately took off running[.]" During the ensuing chase, the officer activated his blue lights and siren, "hit the air horn a couple of times[,]" and yelled at Respondent to stop. The officer finally apprehended Respondent after discovering him hiding in the crawl space of a vacant house. In the resulting search incident to arrest, the officer found one plastic bag containing seven "rock-like" substances which the officer suspected to be cocaine. The bag was discovered inside a cast on Respondent's arm. An SBI crime lab chemist verified that the substances were, in fact, cocaine and testified that they weighed, in sum, one gram.
Neither the packaging, labeling, and storage of the cocaine nor Respondent's activities support an inference of Respondent's intent to sell or deliver. Likewise, the amount of cocaine found in Respondent's possession does not give rise to an inference of Respondent's intent. See Nettles, 170 N.C. App. at 106, 612 S.E.2d at 176 (holding that the possession of "four to five crack cocaine rocks which weighed 1.2 grams, or .04% of the requisite amount for trafficking[,]" by itself, was not sufficient to support a finding of intent). Finally, since the officer offered no testimony regarding any other items found in Respondent's possession, intent may not be inferred from the presence of cash or drug paraphernalia.
Nevertheless, the State contends that Respondent's "suspicious behavior" after first seeing the police officer, "coupled with the fact that no evidence was presented showing any apparatus was found on the juvenile's person for smoking or otherwise using the [cocaine], evinces ? Respondent's intent to sell or distribute the [cocaine]." The State further contends "that the limited quantity of the drugs found in [Respondent's] possession does not alone negate ? Respondent having the intent to sell or distribute." (Emphasis added.) We are unpersuaded. While the introduction of certain kinds of evidence may give rise to an inference of intent, see Nettles, 170 N.C. App. 100, 612 S.E.2d 172, it does not follow that the lack of such evidence gives rise to the same inference. The State did not offer substantial evidence of Respondent's intent to sell or deliver cocaine.
However, the State did present substantial evidence of Respondent's possession of cocaine, see State v. Reid, 151 N.C. App. 420, 428-29, 566 S.E.2d 186, 192 (2002) ("A person has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use"), a lesser included offense of possession with intent to sell or deliver cocaine. See N.C. Gen. Stat. § 90-95(a)(3) (2005). The judgment on the charge of possession with intent to sell or deliver is therefore vacated, and the case is remanded for entry of judgment on possession of cocaine, with resentencing accordingly. See State v. Turner, 168 N.C. App. 152, 607 S.E.2d 19 (2005) (vacating judgment on charge of possession with intent to sell and deliver, remanding for entry of judgment on charge of possession and resentencing).
Because we remand for resentencing, we need not address Respondent's contention that the trial court erred in committing Respondent to the Department of Juvenile Justice and Delinquency Prevention until his eighteenth birthday since such commitment period exceeds the maximum period allowable under N.C. Gen. Stat. § 7B-2513(a). Pursuant to this statute,
[n]o juvenile shall be committed to a youth development center beyond the minimum six-month commitment for a period of time in excess of the maximum term of imprisonment for which an adult in prior record level VI for felonies or in prior conviction level III for misdemeanors could be sentenced for the same offense[.]
N.C. Gen. Stat. § 7B-2513(a) (2005). We would merely agree with Respondent that he is entitled to a sentencing credit for the number of days he spent in detention prior to the adjudicatory hearing. See In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001) (recognizing that provisions of N.C. Gen. Stat. § 15-196.1, whereby the "maximum term of a sentence shall be credited with and diminished by the total amount of time a defendant has spent . . . in any State or local correctional, mental or other institution as a result of the charge that culminated in the sentence[,]" apply to juvenile offenders).
The judgment of the trial court is vacated as to the charge of possession with intent to sell or deliver cocaine, and the case is remanded for entry of judgment on the charge of possession of cocaine and resentencing.
Vacated in part; remanded for resentencing.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).