Opinion
No. COA08-1481.
Filed June 2, 2009.
Wake County Nos. 06CRS114677-78.
Appeal by defendant from judgment entered 13 August 2008 by Judge R. Allen Baddour, Jr. in Wake County Superior Court. Heard in the Court of Appeals 18 May 2009.
Attorney General Roy Cooper, by Assistant Attorney General Diane Martin Pomper, for the State. J. Clark Fischer, for defendant-appellant.
On 5 March 2007, defendant Andrew Mark Hudson ("defendant") was indicted for one count of trafficking in 14-28 grams of heroin by possession and one count of trafficking in 14-28 grams of heroin by transportation. On 13 August 2008, a jury found defendant guilty of both counts. On the same day, the trial court entered judgment consolidating the two counts for judgment and imposed a mandatory minimum sentence of 90-117 months active imprisonment.
Evidence at trial tends to show that on 29 December 2006, Gerald Rolle, a confidential informant, assisted the Raleigh Police Department (the "Department") with a controlled buy of heroin. Rolle informed Detective Anthony Pennica that defendant was involved in trafficking in controlled substances, and, after the Department corroborated the information, Rolle agreed to attempt a controlled buy. Rolle agreed to purchase one ounce of heroin from defendant and the two agreed that the deal would take place at Dive Bar, which is on the corner of Hillsborough Street and Glenwood Avenue in Raleigh.
Before the meeting with defendant, Detective Pennica met with Rolle and searched his person and his vehicle for drugs, but found nothing. Detective Pennica also gave Rolle a recording device to keep in his pocket, and, after turning it on, Detective Pennica instructed Rolle not to touch it. Rolle and Detective Pennica had planned for Rolle to drive defendant to Dive Bar in Rolle's vehicle, but when Rolle picked up defendant from his location in southeast Raleigh, defendant informed Rolle that he wanted to take his own car. Therefore, defendant drove the two to Dive Bar in defendant's car. Detective Pennica and several other officers followed. While the two were en route, defendant stopped his car and stood outside for a short time. During this time, Rolle called Detective Pennica and told him to hang back because defendant was becoming suspicious. Detective Pennica drove past defendant's car, and then instructed the other police cars to go to Dive Bar and wait.
After the brief stop, Rolle decided that he did not want to leave his car in southeast Raleigh, so he and defendant went back to retrieve it. Defendant followed Rolle back downtown, Rolle parked his vehicle a few blocks from Dive Bar, and Rolle got back in the passenger seat of defendant's car. At this point, defendant and Rolle discussed the heroin. Rolle testified that defendant showed him the heroin, which was sitting in the console between the driver's seat and passenger's seat. Defendant asked Rolle if he wanted to check the heroin, and Rolle stuck his finger in it. Rolle then placed the heroin in a plastic convenience store bag, which he had found in the car.
Defendant did not want to park in the Dive Bar parking lot, and, after driving around the block a couple of times, he turned the corner from Glenwood Avenue onto Hillsborough Street and pulled into a Char Grill restaurant. Defendant parked his car next a dumpster behind the restaurant. The two exited the car, and headed towards Dive Bar, but defendant "dropped back" and returned to his car. Rolle entered Dive Bar, which was a signal for the police. Rolle then returned to the Char Grill parking lot, where officers appeared and arrested them both.
The officers found a bag of heroin sitting on a retaining wall behind the dumpster next to defendant's car. According to Detective L.T. Marshburn, Rolle alerted him to the bag of heroin, and Detective Marshburn then spotted the bag and told Detective Pennica he found the heroin. The parties stipulated that the substance found was 27.4 grams of heroin.
During post-arrest questioning, defendant originally denied that the heroin was his. Then, he stated that "the other guy brought it, not me. I was there meeting a friend." Detective Pennica questioned defendant about the car he was driving. At that point, defendant changed his story again. He confessed that the heroin was his, because he did not want his girlfriend to get in trouble. Defendant also gave Detective Pennica details about the distribution and possible origin of the heroin. Finally, defendant told Detective Pennica that he was standing by the dumpster because he was waiting for Rolle to bring him $3,500 in exchange for the heroin.
Following the conclusion of the State's evidence, defendant moved to dismiss both counts, which the trial court denied. Defendant presented his own testimony at trial, denying that he possessed the heroin in question. Following the close of all evidence, defendant renewed his motion to dismiss, which the trial court denied. The jury returned a verdict of guilty on both counts, and, after defendant was sentenced, he gave oral notice of appeal in open court. Defendant only raises one assignment of error on appeal. Defendant argues that the trial court erred in denying his motion to dismiss. When reviewing a motion to dismiss, we view "the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005). A trial court may properly deny a motion to dismiss where "substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator." Id. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). In order to establish that defendant has committed the offense of trafficking in a controlled substance by possession, the State must prove that defendant (1) knowingly possessed a given controlled substance and (2) that the amount possessed was of the required weight. State v. Wiggins, 185 N.C. App. 376, 386, 648 S.E.2d 865, 872, disc. review denied, 361 N.C. 703, 653 S.E.2d 160 (2007). Here, defendant only challenges the element of possession.
The State may prove possession of a controlled substance through either actual or constructive possession. "Actual possession requires that a party have physical or personal custody of the item." State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). A person has actual possession of an item where 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.'" State v. Boyd, 177 N.C. App. 165, 175, 628 S.E.2d 796, 805 (2006) (quoting State v. Reid, 151 N.C. App. 420, 428-29, 566 S.E.2d 186, 192 (2002)). Constructive possession, on the other, exists when defendant does not actual possession, but has "the power and intent to control its disposition or use," State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (citing State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)). Our Supreme Court further explained:
"Where such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession." However, unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.
Id. (internal citations omitted).
We agree with defendant's assertion that this case is one of constructive possession. Even though Rolle gave direct testimony regarding the heroin sale and defendant offered various confessions, the drugs were ultimately found in a public place, not in defendant's personal custody. Because the defendant did not have exclusive control of the area where the drugs were found, the State was required to show other incriminating circumstances. See id. Defendant argues that the surrounding circumstances only give rise to a suspicion of guilt because the tape recording inexplicably cut off and because the heroin did not contain fingerprints. Defendant also claims that Rolle is an "inherently unreliable" witness based on his prior drug convictions and status as an informant for the Department. We disagree.
We find that the State proved sufficient other incriminating circumstances to survive a motion to dismiss. To begin, the drugs were found in close proximity to defendant, on a retaining wall next to his car and the spot where he was standing. Second, defendant made several confessions that the heroin was his and even provided detail regarding its source and distribution. Finally, Rolle provided direct evidence regarding defendant's possession. He set up the controlled buy, defendant presented Rolle a substance which Rolle believed to be heroin, and defendant asked Rolle if he wanted to test it. We conclude that the foregoing evidence was sufficient to raise more than a suspicion that defendant constructively possessed the heroin in question, and, therefore, the trial court properly denied defendant's motion to dismiss.
We find defendant's arguments regarding the sufficiency of Rolle's testimony to be misplaced, because defendant only raises issues related to Rolle's credibility. It is well-established that, "[o]n a motion to dismiss, it is not the duty of the trial court to weigh the evidence or determine any witness' credibility." State v. Charles, ___ N.C. App. ___, ___, 669 S.E.2d 859, 863 (2008) (citing State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 256, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002)). Regardless of Rolle's criminal history, his cooperation with the Department, and the recording's premature ending, questions regarding Rolle's credibility were questions for the jury to resolve. See id.
As noted above, defendant was also convicted of trafficking in heroin by transportation. In order to establish that defendant has committed this offense, the State must prove that defendant (1) knowingly (2) transported a given controlled substance and (3) the amount transported was of the required weight. State v. Zamora-Ramos, ___ N.C. App. ___, ___, 660 S.E.2d 151, 155 (2008) (internal citation omitted). The element of transportation has been further defined as "any actual carrying about or movement of a particular quantity of drugs from one place to another." Id.
Although defendant assigns error to the denial of his motion to dismiss, which encompassed both counts, he has failed to properly challenge his trafficking in heroin by transportation conviction. His argument focuses solely on possession. Therefore, to the extent that defendant's assignment of error encompasses trafficking in heroin by transportation, it is deemed abandoned. N.C.R. App. P. 28(b)(6).
Nonetheless, after reviewing the transcript of proceedings, we conclude that the State presented sufficient evidence to satisfy all the elements of trafficking in heroin by transportation. The evidence detailed above is sufficient to support the conclusion that defendant carried or moved 27.4 grams of heroin from one location to another. See Zamora-Ramos, ___ N.C. App. at ___, 660 S.E.2d at 155 . Accordingly, we find that the State presented sufficient evidence to survive defendant's motion to dismiss all charges and therefore find no error.
No error.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).