Opinion
No. COA09-1164
Filed 15 June 2010 This case not for publication
Appeal by Defendant from judgment entered 18 March 2009 by Judge Mark E. Powell in Superior Court, Transylvania County. Heard in the Court of Appeals 23 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General Creecy C. Johnson, for the State. Charles W. McKeller for Defendant.
Transylvania County 08 CRS 50467, 50473.
Andre Kareem Gordon (Defendant) was driving on a roadway in Brevard, North Carolina on 29 February 2008, when he was stopped by Officer Adam Spears (Officer Spears) of the Brevard Police Department. Officer Spears stopped Defendant because one of the headlights on Defendant's vehicle was out. Upon approaching Defendant's vehicle, Officer Spears noticed a strong smell of marijuana coming from Defendant's vehicle. Officer Spears asked Defendant for permission to search Defendant's vehicle, and Defendant consented. Officer Spears testified that Defendant informed him a pill was located in the vehicle's console and that Defendant had obtained the pill from his grandmother. Officer Spears retrieved the pill and sent it to the State Bureau of Investigation for analysis. Tests performed on the pill indicated that it contained small amounts of methamphetamine, a controlled substance.
Defendant was indicted for maintaining a vehicle for the purpose of keeping and selling a controlled substance, and for simple possession of a schedule II controlled substance — methamphetamine. Defendant was also indicted for having attained habitual felon status. At trial, following presentation of the State's evidence, Defendant moved to dismiss the charges. The trial court granted Defendant's motion to dismiss the charge of maintaining a vehicle, but it denied Defendant's motion to dismiss the drug possession charge. Defendant did not present any evidence, but he renewed his motion to dismiss the possession charge at the close of all the evidence, which was denied. The jury found Defendant guilty of possession of methamphetamine. Defendant then pleaded guilty to having obtained habitual felon status, but he preserved his right to appeal the underlying conviction. Defendant appeals.
Defendant contends in his first argument that the trial court erred by denying his motion to dismiss the indictment for possession of a controlled substance. We disagree.
N.C. Gen. Stat. § 15A-1227 (2005) allows a defendant to move to dismiss a criminal charge when the evidence is not sufficient to sustain a conviction. Evidence is sufficient to sustain a conviction when, viewed "in the light most favorable to the State" and giving the State "every reasonable inference" therefrom, there is substantial evidence "to support a [jury] finding" of "each essential element of the offense charged," and of "defendant's being the perpetrator of such offense[.]" The denial of a motion to dismiss for insufficient evidence is a question of law, which this Court reviews de novo[.]
State v. Bagley, 183 N.C. App. 514, 522-23, 644 S.E.2d 615, 621 (2007) (internal citations omitted). "Defendant's evidence, unless favorable to the state, is not considered." State v. Evans, 74 N.C. App. 31, 33, 327 S.E.2d 638, 640 (1985) (citation omitted). "Constructive possession exists when a person, while not having actual possession of the controlled substance, has the intent and capability to maintain control and dominion over a controlled substance." State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287, 289 (1993) (citation omitted).
Defendant concedes that the State presented sufficient evidence that he had constructive possession of the pill, but he argues that the State failed to present sufficient evidence that he knew the pill contained a controlled substance. When viewed in the light most favorable to the State, the evidence tended to show that Defendant knowingly possessed the pill. Testing performed by the State Bureau of Investigation showed that the pill contained methamphetamine, a controlled substance. Defendant argues that the amount of methamphetamine in the pill was extremely small. Defendant does not argue that it was legal for him to possess a pill containing low levels of methamphetamine. Defendant argues that, because the amount of methamphetamine in the pill was so small, the State failed to present sufficient evidence that Defendant knew the pill contained any methamphetamine.
We hold that the State presented sufficient evidence of possession of a controlled substance to survive Defendant's motion to dismiss. Absent testing, we fail to see how Defendant, or anyone else, could have determined the amount of methamphetamine in the pill. Furthermore, Defendant owned and was driving the vehicle, Defendant told Officer Spears the location of the pill, Defendant informed Officer Spears that Defendant and his passenger recently smoked marijuana, and a search of the passenger in Defendant's vehicle turned up both marijuana and cocain. Therefore, the jury could reasonably believe Defendant knew the pill contained methamphetamine. Whether Defendant knew the pill contained only a small amount of methamphetamine, or believed it contained a larger amount, is not relevant to Defendant's argument. The State provided evidence sufficient for the jury to infer that Defendant had the intent and capability to maintain control and dominion over the pill, that the pill contained methamphetamine, and that Defendant knew the pill contained methamphetamine. Neal, 109 N.C. App. at 686, 428 S.E.2d at 289. This was sufficient to survive Defendant's motion to dismiss on the charge of possession. The quantum of evidence presented by the State, including the amount of methamphetamine in the pill, was a matter for the jury to weigh in its deliberations. State v. Boone, 310 N.C. 284, 294 n. 3, 311 S.E.2d 552, 559 n. 3 (1984).
Defendant further argues that because he stated that he had obtained the pill from his grandmother, and his grandmother had an upstanding reputation in the community, it was unreasonable for anyone to believe that Defendant could have known the pill contained methamphetamine. First, Defendant's self-serving statement concerning the origins of the pill was not corroborated by any additional evidence. Second, and more importantly, "Defendant's evidence, unless favorable to the state, is not considered." Evans, 74 N.C. App. at 33, 327 S.E.2d at 640. This argument is without merit.
In Defendant's second argument, he contends the trial court erred in failing to "instruct the jury [that] Defendant had to have the specific intent to possess a schedule II controlled substance in order to convict him" of possession. We disagree.
This Court reviews jury instructions only for abuse of discretion. Abuse of discretion means "manifestly unsupported by reason or . . . so arbitrary that it could not have been the result of a reasoned decision." Jury instructions must be supported by the evidence. Conversely, all essential issues arising from the evidence require jury instructions.
Bagley, 183 N.C. App. at 524, 644 S.E.2d at 622. In the case before us, Defendant's counsel reviewed the proposed jury instructions and informed the trial court that Defendant had no objection to the instructions. The trial court instructed the jury on possession of a controlled substance in relevant part as follows:
[D]efendant has been charged with possessing methamphetamine, a controlled substance. For you to find [D]efendant guilty of this offense, the State must prove beyond a reasonable doubt that [D]efendant knowingly possessed methamphetamine. Methamphetamine is a controlled substance.
A person possesses methamphetamine when he is aware of its presence, and has either by himself or together with others both the power and intent to control the disposition or use of that substance.
. . . .
If you find beyond a reasonable doubt that a substance was found in close physical proximity to [D]efendant, that would be a circumstance from which together with other circumstances you may infer that [D]efendant was aware of the presence of the substance and had the power and intent to control [its] disposition or use.
However, [D]efendant's physical proximity, if any, to the substance does not by itself permit an inference that [D]efendant was aware of its presence or had the power or intent to control its disposition or use. Such an inference may be drawn only from this and other circumstances, which you find from the evidence beyond a reasonable doubt.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date [D]efendant knowingly possessed a controlled substance, it would be your duty to return a verdict of guilty. If you do not so find, or have a reasonable doubt it would be your duty to return a verdict of not guilty. [Tpp 81-83]
During deliberations, the jury sent the following question to the trial court: "Did [D]efendant need to know he had specifically meth?" [Rp 8] Defendant's counsel stated to the trial court: "It's possible what would actually clear that up would be an instruction on specific intent, which is a pattern jury instruction." The trial court responded: "Well, I think I'll recharge on possession and constructive possession of methamphetamine, send them back, and see if they're able to proceed from there." Defendant's counsel replied: "Thank you, Your Honor." [Tp 86] It is not clear from the record that Defendant formally requested the instruction on specific intent. Even assuming arguendo that the above colloquy can be considered a formal request for this instruction, we hold that the trial court did not abuse its discretion in proceeding as it did.
First, the specific intent instruction that Defendant alleges should have been given is found in a footnote to N.C.P.I. 260.10, the instruction for possession of a controlled substance. The footnote states: "If [D]efendant contends that he did not know the true identity of what he possessed, add this language to the first sentence: `and [D]efendant knew that what he possessed was [methamphetamine].'" N.C.P.I. 260.10, n. 2. Defendant did not present any evidence and Defendant's closing argument was not transcribed. There is nothing in the record to indicate that Defendant contended at trial that he did not know the true identity of what he possessed.
Second, the instruction, as given by the trial court, required that the jury find beyond a reasonable doubt that "Defendant knowingly possessed methamphetamine[;]" that Defendant was "aware of [methamphetamine's] presence[;]" and that Defendant intended to control the disposition or use of the methamphetamine. This instruction required the jury to find beyond a reasonable doubt that Defendant knew he was in possession of methamphetamine. It was the province of the jury to weigh the evidence and assess the credibility of the witnesses in order to determine whether the State had met its burden of proof on this issue. State v. Legins, 184 N.C. App. 156, 159, 645 S.E.2d 835, 837-38 (2007). This argument is without merit.
No error.
Judges GEER and ERVIN concur.
Report per Rule 30(e).