Opinion
No. COA12–1274.
2013-04-16
STATE of North Carolina v. James Lefonte THOMPSON.
Attorney General Roy A. Cooper, by Assistant Attorney General Thomas D. Henry, for the State. Kimberly P. Hoppin, for defendant-appellant.
Appeal by defendant from judgment entered 19 March 2012 by Judge Jesse B. Caldwell in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 March 2013. Attorney General Roy A. Cooper, by Assistant Attorney General Thomas D. Henry, for the State. Kimberly P. Hoppin, for defendant-appellant.
BRYANT, Judge.
Where there was substantial evidence of defendant's constructive possession of cocaine, the trial court did not err by denying defendant's motion to dismiss.
Facts and Procedural History
On 16 November 2009, defendant James Lefonte Thompson was indicted for one count of felony possession of cocaine and for attaining habitual felon status. Defendant was tried during the 16–17 August 2011 session of criminal Superior Court of Mecklenburg County but because the jury was unable to reach a unanimous verdict, a mistrial was declared.
Defendant was retried on 19 March 2012. The evidence at trial indicated the following: On the evening of 13 August 2009, four officers of the Charlotte–Mecklenburg Police Department were driving around in an unmarked sport utility vehicle (“SUV”) through the Belmont community in northeast Charlotte in order to observe “street level narcotic sales and possession while in an undercover capacity.” The four officers included Matthew Zastrow, Justin Davies, Shawn Strayer, and Lance Fusco.
At approximately 10:30 p.m., the officers saw defendant at a convenience store at the intersection of Seigle Avenue and East 17th Street. Officer Zastrow testified that defendant was the only individual standing outside of the convenience store. Defendant was standing “at this second window along the closed side of the business that's next to the convenient [sic] store.” Officer Zastrow testified that he was about 50 feet from defendant when he saw defendant lean down and place something along the windowsill of the closed business. As the officers' vehicle approached defendant, defendant yelled “hey” at the officers.
Officer Davies, who was the driver of the unmarked SUV, had his window down and responded to defendant by saying, “what's up?” Officer Davies pulled over to a corner of the intersection. Defendant approached the driver's side of the SUV and engaged Officer Davies in conversation:
As we stopped at the corner, he came up to the window and said, what are you looking for or something like that. What are you looking for or what do you want? At that point I said, you know, whatever, you know. And he, you know, proceeded asking if we were looking for some weed. I said, yeah, sure. And he stated that he just bought some weed from a guy on Allen Street down the block and he could get us some good stuff, but he didn't have a way to contact them. He wanted to use our cell phones. We said we didn't have any cell phones at the time.
The conversation ended and defendant walked back to the windowsill where he had first been seen.
Officers Zastrow, Strayer, and Fusco exited the SUV and walked toward defendant. Officers Fusco and Strayer detained defendant while Officer Zastrow “immediately walked to that window ledge where [he] had seen [defendant] standing and yelling in our view.” Officer Zastrow saw an object on the same windowsill and in the same location Officer Zastrow had earlier witnessed defendant place an object. They seized the object. It was a small piece of paper, folded in half, and containing a rock of crack cocaine—which was later weighed and determined to be approximately 0.3 grams.
Defendant was arrested, placed in a police car, and transported to a parking lot down the road from the convenience store. Defendant asked Officer Strayer what he was being charged with and Officer Strayer replied, “you're being charged with the crack rock we found on the ledge.” Defendant responded, “oh, some dude just gave me that crack[.]”
At trial, defendant testified in his own defense. Defendant stated that when he first arrived at the convenience store, he was “with this dude, I don't know his real name, tall dude. We call him Red in the neighborhood.” Defendant testified that “Red” walked away. Defendant denied being the only person on the side of the convenience store on the night of 13 August 2009 and denied putting cocaine on the windowsill. However, defendant also testified that when he first came into contact with the officers, he was by himself—“Outside the convenient [sic] store right there I'm by myself, right there by myself.”
On 22 March 2012, a jury found him guilty of possession of cocaine. Defendant thereafter pled guilty to attaining the status of an habitual felon and admitted to the existence of an aggravating factor—that he was found to be in willful violation of probation during the ten year period prior to to the commission of the offense for which he had been found guilty. Defendant had five prior record level points and was a prior record level III. Defendant received an active sentence of 116 to 149 months. Defendant appeals.
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Defendant's sole argument on appeal is that the trial court erred by denying his motions to dismiss—made at the close of the State's evidence and at the close of all the evidence—the charge of possession of cocaine based on insufficiency of the evidence. Defendant argues that the evidence was insufficient to support the State's theory of possession of cocaine based on constructive possession. We disagree.
The denial of a motion to dismiss for insufficient evidence is a question of law ... which this Court reviews de novo [.] In ruling on a defendant's motion to dismiss, the trial court should consider if the state has presented substantial evidence on each element of the crime and substantial evidence that the defendant is the perpetrator.
State v. Louali, ––– N.C.App. ––––, ––––, 716 S.E.2d 385, 388 (2011) (citations omitted). “[A]ll of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal.” State v. Ly, 189 N.C.App. 422, 426, 658 S.E.2d 300, 304 (2008) (citations omitted).
A defendant has possession of cocaine
when he has both the power and intent to control its disposition. The possession may be either actual or constructive. Constructive possession of [a controlled substance] exists when the accused is without actual personal dominion over the material, but has the intent and capability to maintain control and dominion over it.
State v. Lane, 163 N.C.App. 495, 500, 594 S.E.2d 107, 111 (2004) (citation omitted). “When the substance is found on premises under the exclusive control of the defendant, this fact alone may support an inference of constructive possession. If the defendant's possession over the premises is nonexclusive, constructive possession may not be inferred without other incriminating circumstances.” State v. Cowan, 194 N.C.App. 330, 335, 669 S.E.2d 811, 816 (2008) (citation omitted).
“Constructive possession depends on the totality of circumstances in each case.” Id. (citation omitted). Our Court, along with the North Caroline Supreme Court, has identified the following incriminating circumstances as relevant to a constructive possession analysis:
[defendant] (1) owned other items found in proximity to the contraband, (2) was the only person who could have placed the contraband in the position where it was found, (3) acted nervously in the presence of law enforcement, (4) resided in, had some control of, or regularly visited the premises where the contraband was found, (5) was near contraband in plain view, or (6) possessed a large amount of cash[.]
Id. (citation omitted).
In the instant case, because defendant's possession over the premises cannot be said to be exclusive, other incriminating circumstances must exist in order to support an inference of constructive possession. Here, two incriminating circumstances support an inference of constructive possession: (1) defendant was the only person who could have placed the contraband in the position where it was found and (2) defendant was near the contraband in plain view. Officer Zastrow testified that he did not “recall anyone standing outside that evening other than [defendant.]” Officer Davies and Officer Strayer both testified that on the night of 13 August 2009, defendant was the only person they saw standing outside of the convenience store. Defendant himself testified that when he first saw the officers' unmarked SUV, he was alone outside of the convenience store. Officers Zastrow, Davies, and Strayer each testified that they witnessed defendant lean down and place something on the windowsill of the convenience store just moments before defendant approached them. Furthermore, Officer Strayer testified that after informing defendant he was being charged “with the crack rock on the ledge, ... [defendant] said some dude just gave me that rock.” Viewing the foregoing evidence in the light most favorable to the State, there was substantial evidence from which the jury could find that defendant constructively possessed the cocaine found on the windowsill.
Defendant relies on the holdings of State v. Chavis, 270 N.C. 306, 154 S.E.2d 340 (1967), State v. Acolatse, 158 N.C.App. 485, 581 S.E.2d 807 (2003), and State v. McLaurin, 320 N.C. 143, 357 S.E.2d 636 (1987), for the contention that there was insufficient evidence of constructive possession. Because the facts of the instant case are distinguishable from Chavis, Acolatse, and McLaurin, we disagree.
In Chavis, the State contended that marijuana found in an upturned hat in a grassy area had been in the possession of the defendant because the hat was identical to a hat the defendant was wearing when he passed in front of two officers earlier. Chavis, 270 N.C. at 310, 154 S.E.2d at 343. However, because “[t]here was no evidence that either officer observed [the] defendant make any disposition of the hat he had been wearing or of any article or articles he may have had in his possession[,]” “[t]here was no evidence that marijuana was in a hat while defendant was wearing it[,]” and there was no evidence “the marijuana was put in the hat found by the officers at defendant's direction,” the North Carolina Supreme Court held that the evidence fell short of supporting a finding that the defendant was in possession of the marijuana. Id. at 310–11,143 S.E.2d at 344.
In Acolatse, our Court held that the evidence raised only a suspicion of possession of cocaine. The Acolatse defendant ran away from detectives who were approaching him due to a determination that the defendant had been driving with a revoked license. Acolatse, 158 N.C.App. at 486, 581 S.E.2d at 808. The defendant was apprehended “in the bushes behind a detached garage near a fence after a police officer saw him make a straight throwing motion towards the bushes.” Id. at 490, 581 S.E.2d at 810. Although nothing was found in the bushes, drugs were found on the roof of the detached garage which was either directly across from the bushes or at a ninety degree angle to the bushes. Id. at 490, 581 S.E.2d at 810–11. Because no one observed the defendant throw anything on the roof and no fingerprints were found on the bags of cocaine found on the roof, our Court held that the State had failed to present any incriminating circumstances from which one could infer constructive possession. Id. at 490, 581 S.E.2d at 811.
Lastly, in McLaurin, a jury convicted the defendant of possession of drug paraphernalia found in the defendant's residence. The North Carolina Supreme Court held that because the defendant's control of the premises was patently nonexclusive—two individuals had been observed entering and leaving the residence the day of the search—and because there were no other incriminating circumstances that would support the defendant's constructive possession of the drug paraphernalia, the trial court erred by denying the defendant's motion to dismiss. McLaurin, 320 N.C. at 146–47, 357 S.E.2d at 638.
The facts of the instant case are markedly distinguishable from the facts of Chavis, Acolatse, and McLaurin. Here, several officers testified to observing defendant place an object on the windowsill of the convenience store. Said object was later confirmed to be cocaine. Officers also testified that defendant was the only individual outside of the convenience store and was within their sight from the time the object was placed on the windowsill until the time defendant was arrested. Defendant admitted to being alone outside of the convenience store at the time the officers arrived and stated that someone had given him the cocaine found on the windowsill.
Viewing the evidence in the light most favorable to the State, we hold that there was sufficient evidence to support the element of constructive possession. Accordingly, the trial court properly denied defendant's motion to dismiss. Defendant's argument is overruled.
No error. Judges HUNTER, JR., ROBERT N., and McCULLOUGH, concur.
Report per Rule 30(e).