Opinion
No. COA12–668.
2012-12-4
STATE of North Carolina v. Andre Anthony MOBLEY, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Roberta A. Ouellette, for the State. Michael E. Casterline for defendant-appellant.
Appeal by defendant from judgment entered 30 September 2011 by Judge James W. Morgan in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 November 2012. Attorney General Roy Cooper, by Assistant Attorney General Roberta A. Ouellette, for the State. Michael E. Casterline for defendant-appellant.
HUNTER, Robert C., Judge.
Defendant Andre Anthony Mobley appeals from judgment entered after a jury found him guilty of felony possession of cocaine and having attained habitual felon status. Defendant contends the trial court erred by denying his motion to dismiss the substantive charge, which he argues also renders invalid his conviction for having attained habitual felon status. We find no error.
On 3 March 2009, Detective David LaFranque (“LaFranque”) was working undercover in a Charlotte–Mecklenburg Police Department unit targeting high crime areas. While LaFranque was driving an unmarked car through one such area, he saw defendant and another man walking down the street. LaFranque and the two men made and sustained eye contact, and LaFranque made a hand signal to defendant indicating he was interested in buying marijuana. Defendant responded, “I have what you need.”
LaFranque told defendant he would return and then drove a short distance away while he contacted the officers supporting the operation. As LaFranque circled the block, the other officers moved into position to arrest defendant and the other man. A uniformed officer attempted to make contact with the two men in a parking lot, and the men fled.
Two other officers saw the fleeing men and pursued defendant on foot. The officers could not see defendant's hands during the pursuit and thought he might have a weapon. Defendant fell down an embankment. When defendant stood up, the officers pushed him back to the ground, face down on top of his hands. After the officers secured defendant's hands and got him back on his feet, they found a bag containing crack cocaine and marijuana on the ground where defendant had fallen.
The officers took defendant to the intake center at the jail. The officers advised defendant of his constitutional rights, and defendant agreed to talk. Defendant admitted he sold drugs but denied being a “high-roller drug dealer.” Defendant also admitted the crack cocaine and marijuana the officers seized were his. The officers did not record defendant's statement or have him sign a written statement.
The trial court denied defendant's motion to dismiss. The jury found defendant guilty of possession of cocaine and of having attained habitual felon status. The trial court imposed a term of 160 to 201 months imprisonment. Defendant appeals.
On appeal, defendant argues the evidence is insufficient to withstand his motion to dismiss the substantive charge of possession of cocaine and, therefore, does not support his conviction for having attained habitual felon status. We disagree.
“When a defendant moves to dismiss a charge against him on the ground of insufficiency of the evidence, the trial court must determine ‘whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.’ “ State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation omitted), cert. denied,543 U.S. 1156, 161 L.Ed.2d 122 (2005). “In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (citation omitted).
To support a conviction for felonious possession of a controlled substance, the State's evidence must establish the defendant knowingly possessed the controlled substance. State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985) (citation omitted). The State must prove the defendant had either actual or constructive possession of the controlled substance. State v. Butler, 356 N.C. 141, 146, 567 S.E.2d 137, 140 (2002) (citations omitted).
“A person has actual possession of a controlled 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.” State v. Alston, 193 N.C.App. 712, 715, 668 S.E.2d 383, 386 (2008), aff'd per curiam, 363 N.C. 367, 677 S.E.2d 455 (2009). “Constructive possession occurs when a person lacks actual physical possession, but nonetheless has the intent and power to maintain control over the disposition and use of the substance.” State v. Acolatse, 158 N.C.App. 485, 488, 581 S.E.2d 807, 810 (2003) (citation and quotation marks omitted). “However, unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.” State v. Tisdale, 153 N.C.App. 294, 297, 569 S.E.2d 680, 682 (2002) (citation and quotation marks omitted).
In this case, viewed in the light most favorable to the State, the evidence is sufficient to establish either actual or constructive possession of the crack cocaine. The officers pursued defendant after he fled, saw him fall down, and restrained him with handcuffs after they apprehended him. When the officers pulled defendant to his feet, they saw the bag containing crack cocaine and marijuana on the ground in the same spot where defendant had just been lying. Defendant confessed to the officers that he was a drug dealer and that the drugs they seized belonged to him. Although defendant challenges the weight of the State's evidence, particularly the unrecorded confession, we conclude there is substantial evidence to support a reasonable inference that defendant had actual possession of the drugs. See State v. Welch, 89 N.C.App. 135, 137, 365 S.E.2d 190, 191–92 (holding that direct evidence of possession is not required), appeal dismissed and disc. review denied, 322 N.C. 485, 370 S.E.2d 235 (1988).
Furthermore, even assuming, arguendo, that the evidence does not establish actual possession, the evidence supports constructive possession. Although defendant did not have exclusive control of the area where the officers found the drugs, there are sufficient incriminating circumstances from which to conclude defendant had constructive possession. The evidence shows defendant agreed to a drug transaction with an undercover officer. When another officer approached defendant, defendant fled until he fell down and was detained by other officers. Then, with no other individuals present in the area, the officers found the drugs in the exact area where defendant fell on the ground. These circumstances, considered in the light most favorable to the State, are sufficiently incriminating to support the conclusion that defendant constructively possessed the crack cocaine.
Finally, because we hold the trial court properly denied defendant's motion to dismiss the substantive charge, we reject defendant's contingent argument regarding his habitual felon status. Accordingly, we find no error.
No error. Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).