Opinion
No. 07-854.
Filed 20 May 2008.
Beaufort County No. 05CRS54402.
Appeal by defendant from judgment entered 15 March 2007 by Judge Cy A. Grant in Beaufort County Superior Court. Heard in the Court of Appeals 5 February 2008.
Attorney General Roy Cooper, by Deputy Director Caroline Farmer, for the State. D. Tucker Charns, for defendant-appellant.
Curtis Ray Parker ("defendant") appeals from judgment entered upon a jury verdict finding him guilty of possession of cocaine with intent to sell or deliver and possession of lottery tickets. We find no error.
The State presented evidence that on 5 November 2005, at approximately 9:25 p.m., Sergeant David Curtis of the Washington Police Department ("Sergeant Curtis") received a complaint from defendant's neighbor that people were "running through [her] backyard" to reach an outbuilding on defendant's property located behind her residence. Sergeant Curtis and several other police officers responded and arrived at the neighbor's residence. Then they walked to defendant's property, and noticed a crowd of people leaving an outbuilding ("the building") located on the property.
The front door of the building was closed and Detective Jesse Dickinson ("Detective Dickinson"), a narcotics police officer, could not see inside the building. Detective Dickinson asked a person standing outside to go inside the building and tell defendant to come outside. Defendant walked outside. A few minutes after Detective Dickinson spoke to both defendant and his wife, he received permission to search the building.
Although the interior was dark, when the officers entered the building, they observed people running out different exits. The building was divided into two rooms. One room appeared to be a bar area and the other room appeared to be a kitchen area. Sergeant Curtis searched the building and looked under a couch cushion. He discovered "a bag of what appeared to be crack cocaine." He also noticed two additional baggies lying on the floor in front of the couch that appeared to be filled with individual doses of crack cocaine. After discovering the baggies, Sergeant Curtis continued to search the building. He observed a partially paneled wall to his left, and after looking behind the paneling, he observed a plastic bag filled with what he believed were illegal lottery tickets.
Detective Dickinson sent the items he believed to be crack cocaine to the North Carolina State Bureau of Investigation ("SBI") lab to test the chemical composition of the substances. The SBI lab results revealed the substances found in the building totaled 2.8 grams of cocaine.
Defendant was charged with possession of cocaine with intent to sell or deliver and possession of lottery tickets. Defendant did not testify. On 15 March 2007, in Beaufort County Superior Court, the jury returned guilty verdicts for both charges. The Honorable Cy A. Grant sentenced defendant to a minimum of 8 months to a maximum of 10 months in the North Carolina Department of Correction. Defendant appeals.
On appeal, defendant argues the trial court erred in: (I) failing to grant defendant's motion to dismiss the charge of possession of cocaine with intent to sell or deliver at the close of all the evidence and (II) failing to grant defendant's motion to dismiss the charge of possession of lottery tickets at the close of all the evidence.
I. Standard of Review
Our standard of review on a motion to dismiss for insufficiency of the evidence is "whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quotation omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). All evidence must "be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal[.]" State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). If the evidence "is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed." State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).
II. Possession of cocaine with intent to sell or deliver
Defendant first argues there was insufficient evidence to submit the charge for possession of cocaine with intent to sell or deliver to the jury. "The offense of possession with intent to sell or deliver has three elements: (1) possession of a substance; (2) the substance must be a controlled substance; and (3) there must be intent to sell or distribute the controlled substance." State v. Nettles, 170 N.C. App. 100, 105, 612 S.E.2d 172, 175 (2005) (citations omitted). Specifically, defendant argues the State presented insufficient evidence of both his possession of cocaine and his intent to sell the cocaine. We disagree.
a. Possession
Since defendant was charged with possession of cocaine with intent to sell or deliver, the State must present evidence that defendant had either actual or constructive possession of the cocaine in order to survive defendant's motion to dismiss. See State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985). "Actual possession requires that a party have physical or personal custody of the item." State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (citation omitted). However, "in a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials. Proof of constructive possession is sufficient and that possession need not always be exclusive." State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986) (citations omitted). Under a theory of constructive possession:
a person may be charged with possession of an item such as narcotics when he has both the power and intent to control its disposition or use, even though he does not have actual possession. 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. 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. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (internal quotation marks omitted) (citations omitted).
In the instant case, although the evidence presented does not support a finding that defendant was in exclusive possession of the building since other persons were present, there were ample "incriminating circumstances" for the jury to conclude that defendant constructively possessed the cocaine found in the building. Id. Defendant and his wife owned the building where the cocaine was discovered and gave Detective Dickinson consent for the officers to search the building. In addition, defendant was located inside the building and in close proximity to the cocaine before he walked outside to speak with Detective Dickinson. This Court previously held that a defendant's presence in close proximity to contraband is sufficient evidence to prove constructive possession of contraband. See State v. Turner, 168 N.C. App. 152, 156, 607 S.E.2d 19, 22-23 (2005) ("Our appellate courts have previously held that similar circumstances — involving close proximity to the controlled substance and conduct indicating an awareness of the drugs, such as efforts at concealment or behavior suggesting a fear of discovery — are sufficient to permit a jury to find constructive possession."). Furthermore, Sergeant Curtis testified that after lifting a couch cushion, he discovered a bag underneath the cushion containing what appeared to be crack cocaine. The fact that a bag containing crack cocaine was found underneath a couch cushion in the building owned by defendant indicates defendant's awareness of the cocaine. See id. As such, we conclude the evidence was sufficient to show defendant possessed "both the power and intent to control" the cocaine discovered in the building situated on his premises. Davis, 325 N.C. at 697, 386 S.E.2d at 190. This assignment of error is overruled.
b. Intent to sell or deliver
Defendant next contends the State presented insufficient evidence to submit to the jury the issue of defendant's intent to sell or deliver the cocaine. We disagree. "While intent may be shown by direct evidence, it is often proven by circumstantial evidence from which it may be inferred." Nettles, 170 N.C. App. at 105, 612 S.E.2d at 175-76. "Based on North Carolina case law, the intent to sell or distribute may be inferred from (1) the packaging, labeling, and storage of the controlled substance, (2) the defendant's activities, (3) the quantity found, and (4) the presence of cash or drug paraphernalia." Id. at 106, 612 S.E.2d at 176 (citations omitted). See also State v. Morgan, 329 N.C. 654, 659, 406 S.E.2d 833, 835 (1991) ("A jury can reasonably infer from the amount of the controlled substance found within a defendant's constructive or actual possession and from the manner of its packaging an intent to transfer, sell, or deliver that substance.").
In the instant case, the State presented the testimony of the two police officers, Detective Dickinson and Sergeant Curtis, who searched the building. Detective Dickinson testified he had been assigned specifically to the narcotics division of the Washington Police Department for approximately two years and previously worked approximately seventy-five to one hundred cases involving cocaine. Sergeant Curtis testified he had been involved in approximately fifty prior cocaine-related cases. Both officers testified that the large bag containing crack cocaine discovered underneath the couch cushion held an amount of crack cocaine that was typically more than an amount an individual would possess for personal use. In addition, Detective Dickinson testified that the two smaller baggies discovered on the floor in front of the couch were items that "just a user" possessed.
Defendant relies in part on State v. Turner, supra, arguing the trial court should have granted his motion to dismiss the charge for possession of cocaine with intent to sell or deliver. In Turner, the State contended there was sufficient evidence to submit to the jury defendant's charge for possession of cocaine with intent to manufacture, sell, and deliver. Id. at 154, 607 S.E.2d at 21. However, the State's witness, Deputy R.T. Smith ("Deputy Smith"), testified that the quantity of the cocaine discovered was larger than what a person "normally" carries for personal consumption. Id. at 157, 607 S.E.2d at 23. In rejecting the evidence as a basis for the denial of defendant's motion to dismiss, this Court held:
[t]he State . . . presented no evidence of statements by defendant relating to his intent, of any sums of money found on defendant, of any drug transactions at that location or elsewhere, of any paraphernalia or equipment used in drug sales, of any drug packaging indicative of an intent to sell the cocaine, or of any other behavior or circumstances associated with drug transactions. The State's entire case rests only on a deputy's opinion testimony about what people "normally" and "generally" do. The State has cited no authority and we have found none in which such testimony — without any other circumstantial evidence of a defendant's intent — was found sufficient to submit the issue of intent to sell and deliver to the jury.
Id. at 158, 607 S.E.2d at 24.
In the instant case, unlike Turner, the State presented additional circumstantial evidence to show defendant's intent to sell or deliver the cocaine. Detective Dickinson not only testified to the discovery of a large bag and two smaller baggies of cocaine, but also explained his experience regarding the purpose of possessing large amounts of cocaine. Detective Dickinson stated that drug dealers typically have small pieces of cocaine because they break off pieces from the larger portion of cocaine to sell the smaller pieces, either by placing the smaller pieces in plastic or selling the pieces unpackaged and "raw." In Turner, Deputy Smith's testimony was not as specific when he explained the amount of cocaine he discovered was simply an amount that was greater than what a person would "normally" carry for individual consumption. Id. at 157, 607 S.E.2d at 23. This Court held that Deputy Smith's testimony was insufficient to show the defendant's intent. Id. at 158, 607 S.E.2d at 24.
In this case, Detective Dickinson's detailed testimony explaining how drug dealers break large portions of cocaine into smaller pieces was illustrated by the amount of cocaine he found underneath the couch cushion. This circumstantial evidence was evidence of defendant's intent and was sufficient to submit to the jury the issue of defendant's intent in order for the jury to conclude that defendant had the intent to sell the cocaine. Furthermore, his testimony coupled with the fact that two smaller baggies containing individual doses of cocaine were discovered in front of the couch is additional evidence of defendant's intent to sell the cocaine. Moreover, as the officers entered the building, they observed a man in the bar area "gathering up a large stack of cash" and a table with a calculator situated on top was located in close proximity to the bar area.
Therefore, when we view the evidence in the light most favorable to the State, we hold the State presented "substantial evidence" to show defendant's intent to sell the cocaine discovered in the building. Scott, 356 N.C. at 595, 573 S.E.2d at 868. As such, the trial court did not err in denying defendant's motion to dismiss the charge for possession of cocaine with intent to sell, and this assignment of error is overruled.
III. Lottery tickets
We lastly address defendant's contention that the trial court erred in denying his motion to dismiss the charge for possession of lottery tickets at the close of all the evidence. Defendant argues the State presented insufficient evidence to prove he possessed the lottery tickets discovered in the building located on his premises. We disagree.
Although defendant did not physically possess the lottery tickets, there were additional "incriminating circumstances" in which the jury could conclude defendant constructively possessed the lottery tickets. Davis, 325 N.C. at 697, 386 S.E.2d at 190. As stated earlier, defendant and his wife owned the building where police officers discovered the lottery tickets. In addition, after Sergeant Curtis discovered the cocaine, he observed a partially paneled wall to his left. When he looked behind the paneling, he discovered what appeared to be illegal lottery tickets. However, since he could not reach the lottery tickets, he asked Detective Dickinson to reach behind the paneling to retrieve the lottery tickets. The secret wall panel shows defendant had "both the power and intent to control" the location of the lottery tickets. Id. See also Turner, supra. Therefore, this assignment of error is overruled.
Defendant has failed to bring forth any argument regarding his remaining assignment of error. As such, we deem this assignment of error abandoned pursuant to N.C.R. App. P. 28(b)(6) (2007).
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).