Opinion
No. COA02-1414
Filed 3 June 2003 This case not for publication.
Appeal by defendant from judgment entered 30 April 2002 by Judge Steve Balog in Alamance County Superior Court. Heard in the Court of Appeals 2 June 2003.
Attorney General Roy Cooper, by Assistant Attorney General J. Bruce McKinney, for the State. Charns Charns, by D. Tucker Charns, for defendant-appellant.
Alamance County No. 01-CRS-58681.
Sharon Brincefield ("defendant") was found guilty of felony possession of cocaine and was sentenced to 6 to 8 months. The sentence was suspended and defendant was placed on probation for 36 months. We find no error.
I. Background
The State presented evidence which tended to show that on 24 October 2001, officers of the Alamance County Sheriff's Department executed a search warrant on premises located at 2273 Willie Pace Road, Lot No. 5, in Alamance County. When officers entered the premises, defendant, two young males identified as her sons, another female, and a baby were present. An officer found "[a] small off-white substance in the corner of [a dresser drawer],"subsequently identified as cocaine, in the master bedroom of the residence. The dresser drawer also contained women's undergarments. The officers found a telephone bill in defendant's name in the master bedroom, tucked between the mattress and box springs.
II. Issues
Defendant contends (1) the trial court committed plain error by failing to object ex mero motu when the State elicted testimony regarding the use of a search warrant, and (2) the trial court erred by denying her motion to dismiss the charge for insufficient evidence.
III. Failure to object
Defendant argues that although the search warrant itself was not introduced into evidence, the jury heard evidence that a magistrate signed the search warrant based upon information supplied to the magistrate, that included photographs.
By her failure to object to admission of the evidence, defendant waived appellate review of this issue. N.C.R. App. P. 10(b)(1) (2002). To obtain appellate relief, defendant must show plain error. State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804, 807 (1983). "[D]efendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). We are not convinced. The evidence is uncontradicted that the officers found the contraband in defendant's bedroom. It is not probable that the jury would have reached a different verdict had this evidence not been admitted.
IV. Motion to Dismiss
Defendant contends the court erred by denying her motion to dismiss the charge for insufficient evidence. In ruling on a motion to dismiss, the trial court determines whether the State has presented substantial evidence of each element of the offense and of perpetration of the offense by the accused. State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 415 (1991). The trial court must examine the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). If the evidence is sufficient to allow the jury to draw a reasonable inference of the defendant's guilt of the crime charged, the case should be submitted to the jury. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982).
Possession of a controlled substance may be actual or constructive. State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). "A person is in constructive possession of a thing when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing." State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). "Where such 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).
Here, the evidence viewed in the light most favorable to the State shows that defendant resided in the residence with her two young sons. The contraband was found in a dresser in defendant's bedroom among women's clothing. We hold this evidence sufficient to withstand defendant's motion to dismiss.
No error.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).