Opinion
No. COA10-517
Filed 4 January 2011 This case not for publication
Appeal by defendant from judgment entered 9 October 2009 by Judge Paul C. Ridgeway in Orange County Superior Court. Heard in the Court of Appeals 20 December 2010.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Thomas D. Henry, for the State. Russell J. Hollers, III, and The Dickerson Law Firm, P.A., by Donald R. Dickerson, for defendant-appellant.
Orange County No. 07 CRS 55136.
Alonzo L. Smith ("defendant") appeals from the judgment entered upon a jury's verdict finding him guilty of trafficking in cocaine. Defendant contends that the trial court erred by denying his motion to dismiss the charge because the State presented insufficient evidence that he had constructive possession of the cocaine. For the reasons set forth below, we hold no error.
At approximately 11:00 p.m. on 24 September 2007, Chapel Hill Police Officer Nate Chambers ("Officer Chambers") was on patrol when he stopped a car for speeding on Highway 15/501 near Manning Drive. Shortly thereafter, Officer Terrence Fearrington ("Officer Fearrington") responded to assist Officer Chambers. Officer Fearrington was part of a canine unit, and he had his police dog in his patrol car. When the officers were stopped by the right side of the highway, a car drove past them in the right lane and failed to move into the unoccupied left lane of the highway. With his blue light already activated, Officer Fearrington left Officer Chambers to pursue the passing car for failing to move over into the left lane.
Officer Fearrington stopped the car a short distance down the highway and approached it on the passenger side. Officer Fearrington asked defendant, who was the driver, for his license and registration. While defendant looked for the documents, Officer Fearrington explained why he had stopped the car. After defendant provided his license, Officer Fearrington asked the passenger for identification, but the passenger did not provide any. During the stop, Officer Fearrington noticed some cigars in the car's center console as well as some loose tobacco on the passenger-side floorboard. Based upon his training and experience in narcotics interdiction, Officer Fearrington recognized hollowed-out cigars as a sign of drug activity.
Officer Fearrington took defendant's license back to his patrol car and wrote defendant a citation. Officer Chambers arrived at the scene approximately five minutes later, and Officer Fearrington gave defendant the citation, explained the offense, and returned defendant's driver's license. Officer Fearrington then asked defendant, "Mr. Smith, is anything in here that's not supposed to be in here?", and he asked for permission to have his dog conduct an exterior sweep of defendant's car. Defendant told Officer Fearrington that he did not want to wait for a canine unit, then started his car and sped away when Officer Fearrington informed him that he was part of a canine unit and could conduct the sweep.
Officer Fearrington got back in his patrol car and pursued defendant as he fled down Highway 15/501 and turned onto Raleigh Road. Officer Fearrington estimated that defendant was driving between sixty and sixty-five miles per hour in thirty-five and forty-five mile-per-hour zones. During a chase that involved multiple police cars, Officer Fearrington saw a brown paper bag tossed from the passenger side window of defendant's car to the side of the highway. Defendant eventually stopped his car in a parking lot, and he and the passenger fled toward a wooded area. The officers were unable to apprehend defendant or the passenger.
Officer Fearrington returned with his dog to search the area where the bag had been thrown from defendant's car. In that area, Officer Fearrington located a brown paper bag that contained a plastic bag. There was a white, powdery substance inside the plastic bag. Field testing initially indicated that the substance in the bag was cocaine, and laboratory testing later confirmed the white substance was 60.5 grams of cocaine.
On 26 September 2007, defendant turned himself in at the police station. When Officer Fearrington brought defendant before the magistrate for a bond hearing, he overheard defendant say, "That's a high bond for 64 grams of soft white." Officer Fearrington later overheard defendant say, on the telephone, "They got me. I'm going to be gone this time."
Defendant testified that he was released from prison in 2006 after serving a sentence for second-degree murder. On 24 September 2007, he met his cousin, Carlos Baldwin, at a restaurant in Chapel Hill at about 9:00 p.m. Baldwin already was at the restaurant when defendant arrived, and he introduced defendant to a man known as "A.C." The men drank together at the restaurant, and A.C. asked defendant to give him a ride to Durham. A.C. offered to pay defendant $20.00 for gas, and defendant agreed to give him a ride. Defendant, with A.C. as a passenger, then drove past the officers on Highway 15/501 on his way from Chapel Hill to Durham. Defendant denied that he had any cocaine on his person or in the car, and claimed that he thought he was free to leave the scene after Officer Fearrington issued him the traffic citation. Defendant also testified that Baldwin told him that A.C. had thrown the bag out of the car, but defendant claimed that he did not see anything thrown out of the car. Defendant was not able to find A.C. again after the incident.
The trial court denied defendant's motion to dismiss. The jury found defendant guilty of trafficking in cocaine, and the misdemeanor offenses of speeding to elude arrest, reckless driving, failure to heed a light or siren, and resisting a public officer. The trial court denied defendant's motion to set aside the verdicts. For the trafficking offense, the trial court imposed a mandatory term of thirty-five to forty-two months imprisonment and a $50,000.00 fine. The trial court consolidated the misdemeanors into one judgment imposing a term of 120 days imprisonment to run concurrently with the trafficking sentence. Defendant gave oral notice of appeal only as to the judgment entered upon the trafficking conviction.
Defendant's sole argument on appeal is that the trial court erred by denying his motion to dismiss the trafficking in cocaine charge because the State failed to provide sufficient evidence that he possessed cocaine. 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) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). "The trial court must review the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003), cert. denied, 541 U.S. 1088, 159 L. Ed. 2d. 252 (2004).
In the case sub judice, defendant was indicted for, and convicted of, trafficking in cocaine by transportation. "In the context of drug trafficking, transportation is `any real carrying about or movement from one place to another.'" State v. Sares, 182 N.C. App. 762, 763, 643 S.E.2d 49, 50 (quoting State v. Outlaw, 96 N.C. App. 192, 197, 385 S.E.2d 165, 168 (1989)), disc. rev. denied and appeal dismissed, 361 N.C. 574, 651 S.E.2d 557 (2007).
"Trafficking in cocaine by possession and trafficking in cocaine by transportation, in violation of N.C. Gen. Stat. § 90-95(h)(3) (2001), require the State to prove that the substance was knowingly possessed and transported." State v. Baldwin, 161 N.C. App. 382, 391, 588 S.E.2d 497, 504 (2003) (citing State v. Munoz, 141 N.C. App. 675, 684, 541 S.E.2d 218, 224, cert. denied, 353 N.C. 454, 548 S.E.2d 534 (2001)). "`[O]nly a person in the actual or constructive possession of [contraband], absent conspiracy or aiding and abetting, could be guilty of the unlawful transportation thereof.'" State v. Boyd, 154 N.C. App. 302, 307, 572 S.E.2d 192, 196 (2002) (quoting State v. Wells, 259 N.C. 173, 177, 130 S.E.2d 299, 303 (1963)) (emphasis added), cert. denied, 357 N.C. 463, 586 S.E.2d 104 (2003).
"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, 363 N.C. 367, 677 S.E.2d 455 (2009) (per curiam). "`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) (quoting State v. Wilder, 124 N.C. App. 136, 139-40, 476 S.E.2d 394, 397 (1996)). "`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) (quoting State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989)).
We hold that the evidence of constructive possession, taken in the light most favorable to the State, is sufficient to withstand defendant's motion to dismiss. Although defendant did not have exclusive control of the car or of the area where Officer Fearrington found the cocaine, there is ample evidence of other incriminating circumstances. Officer Fearrington observed cigars and loose tobacco in the passenger area of defendant's car, which his experience with drug interdiction cases indicated were a sign of drug activity. Defendant waited several minutes for Officer Fearrington to issue him a traffic citation, and only fled when Officer Fearrington requested permission to conduct a canine sweep of the outside of his car. While the officers pursued defendant, Officer Fearrington observed a brown paper bag thrown from the passenger side of defendant's car. A short time later, Officer Fearrington and his dog located a brown paper bag containing cocaine in the same area where Officer Fearrington observed a bag tossed from defendant's car. When defendant was brought before the magistrate, he indicated that he knew the amount of cocaine in the bag, to within 3.5 grams. Taken in the light most favorable to the State, we believe that this evidence demonstrates sufficient incriminating circumstances to support denying defendant's motion to dismiss and submitting the trafficking charge to the jury.
Defendant cites this Court's opinion in Acolatse, 158 N.C. App. 485, 581 S.E.2d 807, in support of his argument that the evidence does not support constructive possession, but we conclude that his reliance is misplaced. In Acolatse, as officers pursued the defendant on foot, they saw him make a throwing motion toward some bushes. Id. at 487, 581 S.E.2d at 809. Officers did not find drugs in the bushes, but they later found drugs on a nearby garage roof. Id. Significantly, "[t]he bushes were either directly across from the roof or off to a ninety degree angle. None of the detectives saw the defendant throw anything on the roof and no fingerprints were found on the bags of cocaine." Id. at 490, 581 S.E.2d at 811.
Here, unlike in Acolatse, Officer Fearrington actually saw a brown paper bag tossed from defendant's car, and then, a short time later, located an identical bag that contained cocaine in the same area where he observed the bag being thrown from defendant's car. Furthermore, as we already have discussed, numerous other incriminating circumstances support an inference of constructive possession.
Rather than Acolatse, we believe that the facts of this case more closely resemble the circumstances we examined in Wilder, 124 N.C. App. 136, 476 S.E.2d 394. In Wilder, we held the State's evidence to be sufficient to demonstrate constructive possession when an officer witnessed the defendant throw an object into some bushes from a parked car. Id. at 140, 476 S.E.2d at 397. A witness then found a bag containing cocaine in the same bushes where the defendant threw the object. Id. at 140, 476 S.E.2d at 397. As in the case sub judice, the defendant in Wilder lacked exclusive control of the car or of the area where the drugs were found, but "a reasonable mind could rationally conclude that the defendant possessed the cocaine" based on the actions the officers observed and the location where the cocaine was found. Id. at 140, 476 S.E.2d at 397.
Accordingly, we hold that the trial court properly denied defendant's motion to dismiss.
No error.
Chief Judge MARTIN and Judge ELMORE concur.
Reported per Rule 30(e).
Judge JACKSON concurred prior to December 31, 2010.