Opinion
No. COA12–1501.
2013-06-18
STATE of North Carolina v. Avery Lamont WILLIAMS, Jr.
Attorney General Roy Cooper, by Assistant Attorney General Saurabh A. Patel, for the State. Sue Genrich Berry for defendant-appellant.
Appeal by defendant from judgment entered 22 August 2012 by Judge Marvin K. Blount III in Martin County Superior Court. Heard in the Court of Appeals 3 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Saurabh A. Patel, for the State. Sue Genrich Berry for defendant-appellant.
ELMORE, Judge.
Avery Lamont Williams, Jr. (defendant) appeals from a judgment entered upon jury verdicts of possession with intent to sell or deliver cocaine and possession of marijuana. After careful consideration, we conclude that defendant received a trial free from error.
At trial, the State's evidence tended to show that Chris Wilkerson, a deputy with the Martin County Sheriff's Office, observed defendant sitting in a vehicle parked in a driveway by the side of the road. Wilkerson engaged defendant in conversation and approached the vehicle, which had a strong ordor of marijuana. Wilkerson asked defendant to step out of the vehicle, and Wilkerson then observed a small amount of marijuana fall from defendant's clothing to the ground. Wilkerson then asked defendant to place his hands on the vehicle so that he could be patted down for weapons. Defendant initially complied with Wilkerson's request, but during the search, defendant began to get agitated and repeatedly removed his hands from the vehicle.
During one of these instances, Wilkerson saw something hit the ground between defendant's legs. Wilkerson asked defendant what he had thrown on the ground, and defendant attempted to kick the object underneath the vehicle. Wilkerson retrieved the object, which was a package containing two small bags of white powder and one small bag of an off-white, rock-like substance. One of the bags of white powder was determined to contain 2.4 grams of cocaine, and the rock-like substance was determined to be 1.0 grams of crack cocaine. The smaller bag of white powder was not tested to determine its contents.
Wilkerson placed defendant under arrest, and conducted a search of defendant's vehicle. In the vehicle, Wilkerson found another bag of marijuana, a half-smoked marijuana cigarette, and a small digital scale. In the course of his initial pat-down of defendant, Wilkerson had also discovered a wad of money totaling $1,038.53 folded around two bags containing marijuana.
Defendant was tried for two counts of possession with intent to sell or deliver a controlled substance, and he was found guilty on both counts. Defendant was then sentenced to 6–17 months imprisonment, but rather than serving a full term, he was placed on probation. Defendant now appeals.
On appeal defendant argues that the trial court erred in denying his motion to dismiss the charge of possession with intent to sell or deliver cocaine. Defendant contends that the State offered insufficient evidence to support a finding that he possessed the cocaine, or that he had the intent to sell or deliver it.
“ ‘Upon defendant's motion for dismissal, the question for the Court 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. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v.. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “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) (citations omitted). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 132 L.Ed.2d 818 (1995) (citation omitted). “This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).
“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,disc. review denied,359 N.C. 640, 617 S.E.2d 286, 725 (2005) (citation omitted).
Possession of a controlled substance may be actual or constructive. A person has actual possession of a 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. In contrast, constructive possession exists when the defendant, while not having possession, ... has the intent and capability to maintain control and dominion over the narcotics.
When a defendant does not have exclusive possession of the location where the drugs are found, the State is required to show other incriminating circumstances in order to establish constructive possession. Constructive possession depends on the totality of circumstances in each case.
State v. Fuller, 196 N.C.App. 412, 421, 674 S.E.2d 824, 830–31 (2009) (quotations and citations omitted). “[T]he 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.” Nettles, 170 N.C.App. at 106, 612 S.E.2d at 176.
Defendant first contends there was insufficient evidence to establish his constructive possession of the cocaine. We disagree.
At trial, Deputy Wilkerson testified that he saw the package containing the cocaine hit the ground during one of the several times that defendant took his hands off of the vehicle and moved them down. Defendant then tried to conceal the bag containing the cocaine by attempting to kick it under the vehicle. We conclude that this testimony is sufficient to permit a jury to conclude that defendant constructively possessed the cocaine. See State v. Turner, 168 N.C.App. 152, 156, 607 S.E.2d 19, 22–23 (2005) (holding “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”).
Defendant also argues there was insufficient evidence to establish his intent to sell or deliver the cocaine. Again, we disagree.
Here, the State presented evidence that the cocaine was contained in three small bags, which in turn were bundled into a larger package. Additionally, Deputy Wilkerson found a large sum of cash in defendant's pocket, which was folded around two bags containing marijuana. In the car, Wilkerson found another bag containing marijuana and a small digital scale. We conclude that this evidence is sufficient to permit a reasonable inference that defendant intended to sell or distribute the cocaine. Accordingly, we find no error in the trial court's denial of defendant's motion to dismiss the charge of possession with intent to sell or deliver cocaine.
No error. Judges McGEE and STEPHENS, concur.
Report per Rule 30(e).