Opinion
No. 07-1078.
Filed April 1, 2008.
Pitt County Nos. 03CRS65084, 65086.
Appeal by Defendant from judgments dated 20 March 2007 by Judge Clifton W. Everett, Jr., in Superior Court, Pitt County. Heard in the Court of Appeals 17 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General James C. Holloway, for the State. Leslie C. Rawls for Defendant-Appellant.
Defendant appeals from judgments entered upon his convictions for trafficking in cocaine by possession, trafficking in heroin by possession, and possession of drug paraphernalia. The State's evidence at trial tended to show that on the afternoon of 4 December 2003, members of the Greenville Police Department executed a search warrant at a house located at 1308 West Third Street in Greenville, North Carolina. When the officers entered the house, they found Tina Carmon, Sasha Carney, and Carolyn Carney in the living room. The utilities to the house were registered in the name of Carolyn Carney. Officer Brandon Peebles (Officer Peebles) entered the rear bedroom and found Defendant and Michael Carney(Michael). Defendant was standing between the bed and a television, within an arm's length of each. Michael was at the foot of the bed at a distance of five or six feet from the television. Officer Peebles saw what appeared to be powder cocaine on top of the television. When he ordered Defendant and Michael to put their hands in the air, Defendant "dropped a small object" to the floor from waist-level. Officer Peebles handcuffed the two men and moved them into the kitchen.
Officer Tim McInerney (Officer McInerney) entered the bedroom while Defendant and Michael were on the bed being handcuffed. In addition to the cocaine laying in plain view on the television, Officer McInerney observed a white paper bag from a Wendy's restaurant on the floor between the television and the bed. Officer McInerney opened the bag, saw what appeared to be "a large quantity of drugs" inside, and handed the bag to Officer Rose Edmonds (Officer Edmonds). Although Officer Peebles testified that he "did not lock in on" the object that Defendant had dropped, he identified the white Wendy's bag to the jury as the item "collected from the area [where Defendant] was standing[,]" and further identified the object as "what . . . was dropped on the floor by [Defendant.]"
Police seized a set of digital scales, a small spoon, and a plastic bag containing 35 grams of powder cocaine from the top of the television in the bedroom where Defendant was located. Based on her training and experience, Officer Edmonds testified that digital scales are used to weigh portions of a controlled substance to be packaged for sale, and that "[t]he spoons are used . . . to dip the heroin into little small ziplock bags." Laying on the floor of the bedroom near a closet were ziplock baggies containing a total of 23.4 grams of crack cocaine. The white paper bag found on the floor by Officer McInerney held 87 glassine packets and one plastic bag containing a total of 18.9 grams of heroin. Defendant had $963.00 in cash on his person, as well as a cell phone and a photographic identification card from Florida in the name of Telles Cortez Carney.
Before leaving the house, Officer McInerney heard a knock at the back door. He opened the door and was met by "a gentleman . . . standing there with some money in his hand[.]" The man walked away when Officer McInerney "told him that they were closed for business for the day[.]"
On appeal, Defendant argues that the trial court erred in denying his motion to dismiss the charges and his motion to set aside the verdict, absent sufficient evidence to show that he possessed the drugs and paraphernalia found in the bedroom. Defendant argues that his "mere presence" in the proximity of contraband was insufficient to establish his possession thereof. Defendant notes that both Defendant and Michael were in the bedroom when police arrived and that the State offered no proof that Defendant either owned or lived in the house.
In reviewing the denial of a motion to dismiss, we must determine whether the State introduced substantial evidence of each essential element of the charged offense and of the defendant's identity as the perpetrator. State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 139 (2002). "Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Morgan, 111 N.C. App. 662, 665, 432 S.E.2d 877, 879 (1993). For purposes of our review, the evidence is construed in the light most favorable to the State; and the State is accorded all favorable inferences which may be reasonably drawn from the evidence. State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
Drug Trafficking
Defendant was charged with the Class E felony of trafficking by possession of at least 14 but less than 28 grams of heroin, and the Class G felony of trafficking by possession of at least 28 grams but less than 200 grams of cocaine. N.C. Gen. Stat. § 90-95(h)(3)(a), (4)(b) (2007). "To prove trafficking by possession, a `defendant's conviction must be based upon his knowing possession of the drugs.'" State v. Rashidi, 172 N.C. App. 628, 635-36, 617 S.E.2d 68, 74 (quoting State v. Rosario, 93 N.C. App. 627, 636, 379 S.E.2d 434, 439, disc. review denied, 325 N.C. 275, 384 S.E.2d 527 (1989)), aff'd per curiam, 360 N.C. 166, 622 S.E.2d 493 (2005). Defendant does not challenge the evidence of the quantity of heroin and cocaine found in the bedroom by police, but rather challenges the evidence of his possession thereof.
Possession may be actual or constructive. E.g., State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). A defendant has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or with others, he has the power and intent to control its disposition or use. Constructive possession occurs when a defendant has both the power and intent to control the disposition of the contraband, although he is not in actual possession.
State v. Diaz, 155 N.C. App. 307, 314, 575 S.E.2d 523, 528 (2002) (citations omitted), cert. denied, 357 N.C. 464, 586 S.E.2d 271 (2003). Where a defendant is present on premises where a controlled substance is found but the defendant lacks exclusive control of the premises, "`the State must show other incriminating circumstances'" that would permit a reasonable inference of the defendant's constructive possession of the drug. State v. McNeil, 359 N.C. 800, 810, 617 S.E.2d 271, 277 (2005) (quoting State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989)). The State can overcome a defendant's motion to dismiss by presenting evidence that places the defendant "`within such close juxtaposition to the narcotic drugs as to justify the jury in concluding that the same was in his possession.'" Harvey, 281 N.C. at 12-13 , 187 S.E.2d at 714 (citation omitted).
We find the State's evidence sufficient to establish Defendant's actual possession of the 18.9 grams of heroin found in the white Wendy's bag recovered by Officer McInerney. At the time of his arrest, Defendant was in the bedroom standing within arm's length of a pile of cocaine, digital scales, and a type of spoon commonly used to package drugs. These items were in plain view on top of a television. When ordered by Officer Peebles to put his hands in the air, Defendant dropped an object from waist-level. The white bag full of glassine packets of heroin was subsequently found on the floor in the area where Defendant had been standing. As noted above, Officer Peebles described the bag in court as "collected from the area [where Defendant] was standing[,]" and further described the bag as "what . . . was dropped on the floor by [Defendant.]" Defendant also had more than $900.00 on his person, including thirty-seven $20 bills. See State v. Taylor, 117 N.C. App. 644, 653, 453 S.E.2d 225, 230-31 (1995). These facts support a reasonable inference that the white bag found on the floor was the object Defendant dropped when confronted by police, and that Defendant was aware of the bag's illegal contents. See State v. Wilder, 124 N.C. App. 136, 140, 476 S.E.2d 394, 397 (1996) (finding sufficient evidence of possession where police saw the defendant throw an object into some bushes, and a neighbor later discovered a bag of drugs "in the bushes approximately ten feet from where [the] defendant had stopped and gotten out of the car"). We further find sufficient incriminating circumstances, beyond Defendant's mere presence in the bedroom, to support a reasonable inference of Defendant's constructive possession of the 35 grams of cocaine found within his reach and in plain view on the television. See State v. Autry, 101 N.C. App. 245, 251-53, 399 S.E.2d 357, 361-62 (1991) (finding sufficient evidence of constructive possession of cocaine where: cocaine was located on a kitchen table; the defendant, who was alone in the kitchen, was standing beside the table; cash belonging to the defendant was located on the table; and the defendant's jacket was hanging on the back of a chair next to the table).
Possession of Drug Paraphernalia
Defendant was also charged with and convicted of misdemeanor possession of drug paraphernalia under N.C. Gen. Stat. § 90-113.22. The statute makes it "unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia to . . . process, prepare, test, analyze, package, repackage, store, contain, or conceal a controlled substance[.]" N.C. Gen. Stat. § 90-113.22(a) (2007). "Scales and balances for weighing or measuring controlled substances" are expressly included within the statutory definition of drug paraphernalia, as are "spoons and mixing devices for compounding controlled substances[,]" "envelopes and other containers for packaging small quantities of controlled substances[,]" and "[m]iniature cocaine spoons[.]" N.C. Gen. Stat. § 90-113.21(a)(5), (8), (9), (12)(f) (2007). The character or intended use of these items as drug paraphernalia may be established by the surrounding circumstances, as set forth in N.C. Gen. Stat. § 90-113.21(b). See State v. Jones, 96 N.C. App. 389, 398-99, 386 S.E.2d 217, 222-23 (1989), disc. review denied, 326 N.C. 366, 389 S.E.2d 809 (1990). Defendant does not dispute the character of the scales, spoon, and baggies found in the bedroom as drug paraphernalia but again challenges the evidence of his possession of these items.
Inasmuch as the evidence supported a finding that Defendant possessed the cocaine found on the television, we further find it sufficient to show his constructive possession of the scales and spoon located next to the cocaine, as well as the ziplock baggies found on the bedroom floor. Among the circumstances supporting this inference are Defendant's close proximity to the television, his actual possession of a substantial quantity of heroin already packaged, and his possession of $963.00 in cash. See Jones, 96 N.C. App. at 399, 386 S.E.2d at 223.
Defendant separately assigns error to the trial court's denial of his motion to set aside the jury's verdict based on insufficiency of the evidence. "The standard of review of a trial court's denial of a motion to set aside a verdict for lack of substantial evidence is the same as reviewing its denial of a motion to dismiss, i.e., whether there is substantial evidence of each essential element of the crime." State v. Duncan, 136 N.C. App. 515, 520, 524 S.E.2d 808, 811 (2000). Accordingly, having found the State's evidence sufficient to withstand Defendant's motion to dismiss, we overrule his second assignment of error based on the same analysis.
No error.
Judges STROUD and ARROWOOD concur.
Report per Rule 30(e).