Opinion
No. COA03-825
Filed April 6, 2004 This case not for publication
Appeal by defendant from judgment entered 26 March 2003 by Judge J.B. Allen, Jr., in Durham County Superior Court. Heard in the Court of Appeals 15 March 2004.
Attorney General Roy Cooper, by Assistant Attorney General LaShawn L. Strange, for the State. Kelly Scott Lee for defendant appellant.
Durham County Nos. 01 CRS 11523, 42599, 42600-01.
On 18 February 2001, Officer D.J. Osman of the Durham Police Department went to the Carolina Duke Motor Inn to investigate a large drug transaction which was supposed to be taking place. Officer Osman did not find any drugs, and left the motel. Officer Osman drove away from the motel for a short distance, and then turned around and headed back towards the motel. As he pulled into the entrance of the motel, he noticed a blue van exiting as he was entering. Officer Osman noticed that the license plate light was malfunctioning and stopped the van. Officer Osman discovered that defendant's driver's license had been revoked, and defendant was arrested. Officer Osman then asked defendant for permission to search the van, and defendant replied that he could because the vehicle was not his. The search of the vehicle yielded approximately 200 grams of crack cocaine and $6,000 in cash. Most of the cocaine was hidden above the headrests in a compartment in the ceiling of the van. A further search revealed a bill of sale for the van in defendant's name. A later search of defendant's room at the Carolina Duke Motor Inn revealed drug paraphernalia.
Defendant was convicted of possession with intent to sell or deliver cocaine, trafficking in cocaine by possession, trafficking in cocaine by transportation, and being an habitual felon. Defendant was sentenced to 107 to 138 months' imprisonment. Defendant appeals.
We first consider whether the trial court erred by denying defendant's requested instruction on constructive possession. Defendant contends that the instruction should have included specific language that "`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.'" State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001) (quoting State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989)). The trial court denied defendant's request and instead charged the jury with N.C.P.I., Crim. 104.41.
After careful review of the record, briefs and contentions of the parties, we find no error. This Court has stated:
"Proving constructive possession where defendant had nonexclusive possession of the place in which the drugs were found requires a showing by the State of other incriminating circumstances which would permit an inference of constructive possession." "Evidence of constructive possession is sufficient to support a conviction if it would allow a reasonable mind to conclude that defendant had the intent and capability to exercise control and dominion over the controlled substance."
State v. Martinez, 150 N.C. App. 364, 371, 562 S.E.2d 914, 918 (2002) (citations omitted). In the case sub judice, the Court instructed the jury that:
[P]ossession of cocaine may be either actual or constructive. . . . A person has constructive possession of cocaine if he does not have it on his person, but is aware of its presence, and has, either by himself or together with others, both the power and intent to control its disposition or use.
A person's awareness of the presence of cocaine and his power and intent to control its disposition or use may be shown by direct evidence or may be inferred from the circumstances.
If you find beyond a reasonable doubt that cocaine was found in close physical proximity to the defendant, that would be a circumstance from which, together with other circumstances, you may infer that the defendant was aware of the presence of the cocaine, and had the power and intent to control its disposition or use. However, the defendant's physical proximity, if any, to the cocaine, does not by itself permit an inference that the defendant was aware of the 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.
Also, . . . if you find beyond a reasonable doubt that cocaine was found in a certain motor vehicle, and that the defendant exercised control over that motor vehicle, whether or not he owned it, this would be a circumstance from which you may infer that the defendant was aware of the presence of the cocaine and had the power and intent to control its disposition or use.
(Emphasis added.) The trial court's instruction was similar in substance to the instruction requested by defendant, and was in compliance with North Carolina law. See Martinez, 150 N.C. App. at 372-73, 562 S.E.2d at 919. Accordingly, the assignment of error is overruled.
Defendant next argues that the trial court erred in denying his motion to suppress evidence of prior convictions that were obtained in violation of his rights to due process. However, defendant concedes that he is precluded from collaterally attacking his prior convictions. See State v. Creason, 123 N.C. App. 495, 473 S.E.2d 771 (1996), aff'd, 346 N.C. 165, 484 S.E.2d 525 (1997). Accordingly, we find no error.
No error.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).