Opinion
No. COA11–1013.
2012-07-17
STATE of North Carolina v. Kendrick D. ARMSTRONG.
Attorney General Roy Cooper by Special Deputy Attorney General E. Burke Haywood for the State. Guy J. Loranger for defendant-appellant.
Appeal by defendant from judgment entered 17 March 2011 by Judge H. William Constangy in Mecklenburg County Superior Court. Heard in the Court of Appeals 11 January 2012. Attorney General Roy Cooper by Special Deputy Attorney General E. Burke Haywood for the State. Guy J. Loranger for defendant-appellant.
STEELMAN, Judge.
The State presented insufficient evidence of incriminating circumstances to support defendant's constructive possession of cocaine. The trial court erred in not dismissing the charges.
I. Factual and Procedural History
Defendant was the front-seat passenger in the pick-up truck in which contraband was found. When the truck was stopped, cocaine was found in a plastic bag on top of an electronic scale on the “transmission hump” in the front of the truck, between the driver and passenger seats. Defendant was indicted for trafficking in cocaine by possession, 28–200 grams. On 17 March 2011, a jury found defendant guilty of that offense. The trial court sentenced defendant to the statutorily mandated sentence of 35–42 months imprisonment and a fine of $50,000.
Defendant appeals.
II. Sufficiency of the Evidence
In his third argument, defendant contends that the trial court erred in failing to dismiss the charge of trafficking in cocaine by possession. We agree.
A. Standard of Review
We review 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). The trial court must determine whether there is substantial evidence of each essential element of the offense charged and that the defendant is the perpetrator of the offense. Id. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Bates, 313 N.C. 580, 581, 330 S.E.2d 200, 201 (1985). “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. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 256 (2002).
B. Analysis
Trafficking in cocaine by possession has two elements: (1) knowing possession of cocaine, and (2) the cocaine weighed 28 grams or more. State v. White, 104 N.C.App. 165, 168, 408 S.E.2d 871, 873 (1991).
A defendant may be convicted for a possessory offense where the defendant had actual or constructive possession of the contraband. State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). Constructive possession exists when the defendant, while not having actual possession, has the intent and capability to maintain control and dominion over the contraband. State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009). The defendant may have the power to control either alone or jointly with others. Id.
When the defendant does not have exclusive control of the place where the contraband is found, the State must show other incriminating circumstances beyond mere association or presence to establish sufficient evidence of constructive possession. Id.; State v. Alston, 131 N.C.App. 514, 519, 508 S.E.2d 315, 318 (1998). “As the terms ‘intent’ and ‘capability’ suggest, constructive possession depends on the totality of circumstances in each case, and thus ordinarily the question will be for the jury.” State v. Slaughter, ––– N.C.App. ––––, ––––, 710 S.E.2d 377, 383 (Hunter, J., dissenting), rev'd for reasons stated in the dissent,365 N.C. 321, 718 S.E.2d 362 (2011) (per curiam) (internal quotation marks omitted).
The determination of whether sufficient incriminating circumstances exist to support constructive possession is fact-specific. We consider the totality of the circumstances, and no single factor controls. State v. McBride, 173 N.C.App. 101, 106, 618 S.E.2d 754, 758 (2005). Among the factors to be considered is the defendant's proximity to the contraband. Miller, 363 N.C. at 100, 678 S.E.2d at 595.
Necessarily, power and intent to control the contraband material can exist only when one is aware of its presence. Therefore, evidence which places an accused within close juxtaposition to [contraband] under circumstances giving rise to a reasonable inference that he knew of its presence may be sufficient to justify the jury in concluding that it was in his possession. However, mere proximity to persons or locations with [contraband] about them is usually insufficient, in the absence of other incriminating circumstances, to convict for possession.
Slaughter, ––– N.C.App. at ––––, 710 S.E.2d at 384 (alterations in original) (internal quotation marks omitted).
In the instant case, the evidence of defendant's constructive possession was his proximity to the contraband. Defendant was the front-seat passenger in the pick-up truck in which contraband was found. When defendant was apprehended, cocaine was in a plastic bag on top of an electronic scale on the “transmission hump” in the front of the truck, between the driver and passenger seats.
The State relies solely upon State v. Jenkins, 167 N.C.App. 696, 606 S.E.2d 430,aff'd,359 N.C. 423, 611 S.E.2d 833 (2005) (per curiam), to support its assertion that defendant constructively possessed the cocaine. This case is distinguishable from the instant case.
In Jenkins, the defendant was charged and convicted of conspiracy to traffic in cocaine by possession. Jenkins, 167 N.C.App. at 699, 606 S.E.2d at 432. In the instant case, defendant was charged with trafficking in cocaine by possession. The essential element of the crime in Jenkins was an understanding supporting the conspiracy. This could be shown by circumstantial evidence or defendant's behavior. Id. We held that, where there were three men in the front seat of a pickup truck, the driver was counting thousands of dollars in cash, there was 79.3 grams of cocaine on the seat between the two passengers, and there was a gun in the vehicle, the jury could reasonably infer that a drug deal was going down, and that there was sufficient evidence to support a conspiracy charge against one of the passengers. Jenkins, 167 N.C.App. at 701, 606 S.E.2d at 433–34.
The instant case is not a conspiracy case. The State was required to show incriminating circumstances beyond mere proximity to the contraband. The State failed to do this before the trial court and on appeal. It is not the duty of this Court to supplement an appellant's brief with legal authority or arguments. Goodson v. P.H. Glatfelter Co., 171 N.C.App. 596, 606, 615 S.E.2d 350, 358 (2005); N.C.R.App. P. 28(b)(6) (2011).
The State relied solely on Jenkins at the motion to dismiss hearing.
We hold that this case is controlled by our decision in Alston, supra. In that case, a handgun that the defendant's wife owned was found on the console between the passenger and driver seats in an automobile. When the handgun was found, the defendant's wife was in the driver's seat, and the defendant was in the front passenger seat. Alston, 131 N.C.App. at 519, 508 S.E.2d at 319. The defendant was charged with possession of a firearm by a felon. Alston, 131 N.C.App. at 516, 508 S.E.2d at 317. “Both Defendant and his wife had equal access to the handgun, but there is no evidence otherwise linking the handgun to Defendant.” Alston, 131 N.C.App. at 519, 508 S.E.2d at 319. The Court held that the motion to dismiss should have been allowed. Id.
The instant case is not distinguishable. Defendant was within reaching distance of the bag of cocaine which was in plain view on top of an electronic scale. Defendant knew the driver of the vehicle, but the State presented no evidence otherwise linking the contraband to defendant.
There were insufficient other incriminating circumstances to support a finding of constructive possession. Slaughter, ––– N.C.App. at ––––, 710 S.E.2d at 384–85. The trial court erred in denying defendant's motion to dismiss.
Because we have held that the trial court erred in denying defendant's motion to dismiss, we need not address the remaining issues presented by defendant's brief.
REVERSED. Judges GEER and HUNTER, JR., ROBERT N. concur.
Report per Rule 30(e).