Opinion
No. COA15-885
05-03-2016
STATE OF NORTH CAROLINA v. THOMAS LEE BRENNAN
Attorney General Roy Cooper, by Assistant Attorney General Kristine M. Ricketts, for the State. David Weiss for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Haywood County, No. 14 CRS 1090, 51228, 51230 Appeal by defendant from judgment entered 12 February 2015 by Judge Gary M. Gavenus in Haywood County Superior Court. Heard in the Court of Appeals 26 January 2016. Attorney General Roy Cooper, by Assistant Attorney General Kristine M. Ricketts, for the State. David Weiss for defendant-appellant. BRYANT, Judge.
Where, viewed in the light most favorable to the State, there was sufficient evidence of defendant's intent to sell or deliver methamphetamine, we affirm the trial court's ruling to deny defendant's motion to dismiss.
On 15 September 2014, defendant Thomas Lee Brennan was indicted on charges of possession with intent to manufacture, sell or deliver methamphetamine, possession of marijuana, possession of drug paraphernalia, and attaining habitual felon status. The matter came on for a jury trial during the Criminal Session of Superior Court in Haywood County commencing on 9 February 2015, the Honorable Gary M. Gavenus, Judge presiding.
At trial, the evidence tended to show that on 2 April 2014, two detectives—Phillips and Beck—with the Haywood County Sheriff's Office were assigned to the Unified Narcotics Investigative Team, a multi-agency team focused on narcotics in Haywood County. In response to complaints regarding heavy traffic and "high activity" at 116 Barefoot Ridge, the detectives set up surveillance near that address, sitting in an unmarked law enforcement vehicle and wearing plainclothes. Detective Phillips was familiar with the address: "[I]t was the residence of Robert Guinn, who we have had several ongoing cases with narcotics . . . ." Detective Phillips testified that at 5:00 p.m. that day, he observed a white Chevy Tahoe parked on the backside of the residence. After about five minutes, the Tahoe left the residence and came to the intersection of Barefoot Ridge and Poison Cove Road. The driver turned his head in the direction of the officers' vehicle and sat at the intersection for 20 to 30 seconds. When the vehicle turned onto Poison Cove Road, the detectives pulled away from their point of surveillance and followed the Tahoe. "[A]utomatically when he saw us coming behind the vehicle [the driver] began riding the brake." As the Tahoe approached New Clyde Highway, the Tahoe and the law enforcement vehicle were both traveling at 20 to 30 miles an hour when the Tahoe "just abruptly turned left," causing Detective Beck to slam on his brakes to keep from rear-ending the Tahoe. The detectives conducted a traffic stop of the Tahoe for making an unsafe turn without signaling. The Tahoe pulled over near a tobacco barn. Detective Phillips's testimony about defendant's behavior during the stop included the following:
[Defendant] was acting very erratic. His hands were shaking. He was very nervous. He would speak really loud and speak real soft and, I mean, just shaking nervous. . . . I could see his eyes. His eyes looked like his pupils were very constricted about the size of a pinhead. Just with my training and experience, that's somebody who appears to be under the influence of a substance. Since I didn't smell alcohol, me being a narcotics detective, I thought it was going to be - or he was going to be impaired of some kind of narcotic.Detective Phillips requested defendant's consent to search the vehicle, but defendant refused. Defendant was ordered to exit the vehicle and was informed that a K-9 unit was en route. Upon arrival, the K-9 officer "hit on the rear of the vehicle." Inside the vehicle in the center console between the front seats, officers discovered a bag of marijuana and in the cargo area of the rear, two digital scales, along with a golf-ball sized ball of crystallized methamphetamine weighing 8.75 grams.
Following the close of all of the evidence, the jury returned guilty verdicts against defendant on the charges of possession with intent to manufacture, sell or deliver methamphetamine, possession of marijuana, and possession of drug paraphernalia. Defendant pled guilty to attaining habitual felon status. In accordance with the jury verdicts and defendant's plea, the trial court entered a consolidated judgment against defendant on all charges. The trial court sentenced defendant to an active term of 84 to 113 months. Defendant filed a pro se notice of appeal. However, due to defects in the notice of appeal, defendant filed with this Court a petition for writ of certiorari, which we grant.
On appeal, defendant raises one question: whether the trial court erred by denying his motion to dismiss the charge of possession with intent to manufacture, sell or deliver methamphetamine. Acknowledging that intent to manufacture is not at issue, defendant argues that there was insufficient evidence he intended to sell or deliver methamphetamine to submit the matter to the jury. We disagree.
The standard for ruling on a motion to dismiss is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion.State v. Terry, 207 N.C. App. 311, 319, 699 S.E.2d 671, 677 (2010) (citation omitted). "All evidence, competent or incompetent, must be considered. Any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered." State v. Davis, 230 N.C. App. 50, 52, 748 S.E.2d 189, 191 (2013) (citation and quotation marks omitted). "We review the trial court's denial of a motion to dismiss de novo." Id. at 51, 748 S.E.2d at 191 (citation omitted).
While intent to sell or deliver may be shown by direct evidence, it is often proven by circumstantial evidence from which it may be inferred. The intent to sell or deliver 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. Although quantity of the controlled substance alone may suffice to support the inference of an intent to transfer, sell, or deliver, it must be a substantial amount.State v. Wilkins, 208 N.C. App. 729, 731, 703 S.E.2d 807, 809-10 (2010) (citations and quotation marks omitted).
Defendant argues that the State failed to present any direct evidence of an intent to sell or deliver methamphetamine, and instead, the evidence indicates that the methamphetamine in defendant's possession was for personal use. Defendant acknowledges that at the time of his arrest he informed Detective Phillips he had a history of abusing drugs. During Detective Phillips's testimony, he recounted the conversation he had with defendant during the traffic stop:
Again, I began a conversation with [defendant], asking him for his driver's license. In the conversation, Robert Guinn's residence came up, and I asked him if he had gone to Robert Guinn's residence or if he had spoken to Robert Guinn while at the residence. I could clearly see he had been there.Nancy Waldrop, a witness called by the defense and the owner of the Chevy Tahoe defendant was driving on 2 April 2014, testified that she allowed defendant to drive the truck on that date to use for a job he said he was doing in Waynesville: Defendant was a building contractor who did building and repair work. Waldrop had known defendant since 1998; she and her late husband had accepted legal guardianship of defendant's son.
In that conversation, he told me that he had been there and he was there to pay [Robert Guinn]. . . .
Again, started in asking him about methamphetamine sales in the residence, and he replied that—it around the basis of he has a—[sic] the mess with methamphetamine and that he was a history crack user throughout his life.
Q. So you know [defendant] very well then?Felicia Parker, another witness called by the defense, testified that at the time of his arrest, she had been dating defendant for about a year.
A. Yes, I do.
. . .
Q. Are you aware of [defendant's] substance abuse history?
. . .
A. Yes. I know that [defendant] has struggled with crack cocaine addiction for as long as I have known him.
Q. What about methamphetamine?
A. No, sir, not to my knowledge.
Q. Are you a drug addict, ma'am?
A. Yes, I am.
Q. And you get your methamphetamine from
[defendant]; is that correct?
. . .
A. His drug of choice is actually crack. He does not do methamphetamines . . . . But if he does any drug, it's crack.
Defendant concedes that he abused drugs, and the evidence presented by defendant indicates that he was known to abuse "crack" cocaine, but not methamphetamine. Nevertheless, defendant argues on appeal that the 8.75 grams of methamphetamine found in his possession was for personal use.
Despite defendant's witnesses, who testified that his drug of choice was "crack" cocaine, on a motion to dismiss, evidence is taken in the light most favorable to the State, and evidence favorable to defendant is not considered. See State v. Denny, 361 N.C. 662, 665, 652 S.E.2d 212, 213 (2007) ("It is well established that when considering a motion to dismiss, the evidence must be viewed in the light most favorable to the State, giving the State the benefit of 'every reasonable inference to be drawn therefrom. The defendant's evidence, unless favorable to the State, is not to be taken into consideration.' " (citations and quotation marks omitted)). Therefore, in this case, the State needed only to show there was substantial evidence of intent to sell or deliver methamphetamine, in order to overcome the motion to dismiss.
"Although 'quantity of the controlled substance alone may suffice to support the inference of an intent to transfer, sell, or deliver,' it must be a substantial amount." State v. Nettles, 170 N.C. App. 100, 105, 612 S.E.2d 172, 176 (2005) (quoting State v. Morgan, 329 N.C. 654, 659-60, 406 S.E.2d 833, 835-36 (1991)). In State v. Williams, 307 N.C. 452, 298 S.E.2d 372 (1983), our Supreme Court held that where the defendant possessed more than two-thirds of the amount of heroin necessary to sustain a trafficking conviction, "[w]e are satisfied that this amount . . . was a substantial amount and was more than an individual would possess for his personal consumption." 307 N.C. at 457, 298 S.E.2d at 376; see also State v. Blakney, 233 N.C. App. 516, 520, 756 S.E.2d 844, 847 (holding there was sufficient evidence of intent to sell or deliver 84.8 grams of marijuana, despite a ten pound requirement for trafficking in marijuana, where the marijuana was packaged in multiple bags and containers along with the presence of multiple sandwich bags and digital scales), review denied, 367 N.C. 522, 762 S.E.2d 204 (2014).
Here, defendant was found in possession of 8.75 grams of methamphetamine. Defendant was also found in possession of digital scales and charged with possession of drug paraphernalia, as scales are commonly used to facilitate the weighing and measuring of controlled substances. Notwithstanding defendant's immediate admission to a history of "crack" cocaine use, the drugs found in the Tahoe were 1.6 grams of marijuana and 8.75 grams of methamphetamine. No cocaine was found. Detective Phillips testified that in Haywood County, methamphetamine is usually priced and sold in half grams at $50 and whole grams at $100. Thus, if a half gram is considered an average user amount, the 8.75 grams of methamphetamine found in defendant's possession potentially represented 17.5 user amounts. The allowable inference to be drawn from the possession of such a large amount of methamphetamine along with two digital scales and $253 in cash found on defendant's person is that defendant's possession was with the intent to sell or deliver the methamphetamine.
Therefore, taken in the light most favorable to the State, there was sufficient evidence of defendant's intent to sell or deliver methamphetamine. The trial court did not err in denying defendant's motion to dismiss. Defendant's argument is overruled, and the judgment of the trial court is
AFFIRMED.
Judges DILLON and ZACHARY concur.
Report per Rule 30(e).