State v. Alston

• Decision Date: 18 November 2008
• Docket Number: No. COA08-230.,COA08-230.
• Citation: 668 S.E.2d 383
• Parties: STATE of North Carolina v. Walter Anthony ALSTON, Jr.
• Court: North Carolina Court of Appeals

668 S.E.2d 383

STATE of North Carolina v. Walter Anthony ALSTON, Jr.

No. COA08-230.

Court of Appeals of North Carolina.

November 18, 2008.

Appeal by defendant from judgment entered 8 August 2007 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 10 September 2008.

Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn Jones Cooper, for the State.

Duncan B. McCormick, Lillington, for defendant-appellant.

CALABRIA, Judge.

Walter Anthony Alston, Jr. ("defendant") appeals a judgment entered upon a jury verdict finding him guilty of trafficking in cocaine by possessing more than twenty-eight grams but less than two hundred grams of cocaine. We find no error.

From 28 November 2006 until 1 February 2007, Guilford County Sheriff's officers ("the officers") investigated drug activity at 300 Regan Street, Greensboro, North Carolina ("the home"). On 1 February 2007, the officers executed a search warrant at the home, using a battering ram to enter the home. The home was occupied by five people: Jimmy Wayne Knight ("Knight"), Yvonne Bio ("Bio"), Justin Hughes ("Hughes"), defendant, and Ruth Reyes ("Reyes"). Knight owned the home and rented it to Hughes. Knight permitted Hughes and defendant to sell cocaine from the home and accepted one third of the proceeds from the sales. When the officers came into the home, defendant ran down a hallway and crashed into a locked storm door. An officer observed defendant make a throwing motion toward the living room, but did not see anything leave defendant's hand. The defendant retreated and was arrested in the living room. Knight and Bio were detained in the kitchen. Hughes was detained in the entertainment room. Defendant and Reyes were detained in the living room.

The officers found 7.3 grams of cocaine in the living room and 32.8 grams of cocaine in the entertainment room.¹ The cocaine in the entertainment room was found in varying amounts around the room. Officers found 12.3 grams on the floor, 11.3 grams on a shelf near the VCR, 7.5 grams on the floor near the nightstand, 0.3 grams on the floor near one of the doors, 0.1 grams on the floor, and 1.3 grams on top of a bureau. In addition to the cocaine, officers found other items in the entertainment room. Specifically, they found a loaded .38 revolver, a laser pointer, two-hundred seventy dollars in cash, a razor blade and a metal measuring cup, which appeared to be used to cook crack cocaine. The revolver belonged to the defendant and the cash belonged to Hughes. Hughes sold drugs for the defendant. Defendant acknowledged that he owned the cocaine found in the living room.

Defendant was charged with trafficking in cocaine by possessing more than twenty-eight grams but less than two hundred grams of cocaine and possession with the intent to sell or deliver cocaine. Defendant was also charged with possession with intent to sell and deliver marijuana and possession of a firearm by a felon. Defendant pled guilty to the charges of possession of a firearm and possession with intent to sell and deliver marijuana. Trial was held on 2 August 2007 before the Honorable Stuart Albright of Guilford County Superior Court. Defendant moved to dismiss the charge of trafficking by possession at the close of the State's evidence. The trial court denied the motion. The jury returned a verdict finding defendant guilty of trafficking cocaine by possession and guilty of possession with intent to sell and deliver cocaine. The trial court consolidated the charges and sentenced defendant to serve a minimum term of thirty-five months to a maximum term of forty-two months in the North Carolina Department of Correction. Subsequently, the trial court imposed a consecutive active sentence of thirteen to sixteen months for possession of a firearm by a felon. Defendant appeals the trial court's denial of the motion to dismiss the charge of trafficking in cocaine by possession.

I. Standard of Review

"In ruling upon a motion to dismiss, the trial court must examine the evidence in the light most favorable to the [S]tate, giving the [S]tate the benefit of all reasonable inferences which may be drawn from the evidence." State v. Autry, 101 N.C.App. 245, 251, 399 S.E.2d 357, 361 (1991) (citations omitted). A motion to dismiss is properly denied where the State presents substantial evidence of each element of the crime charged and that defendant is the perpetrator of the offense. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). "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). "Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence." State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988).

II. Analysis

Defendant argues the trial court should have dismissed the trafficking in cocaine charge because the State failed to prove he possessed more than twenty-eight grams of cocaine. Defendant contends the State presented insufficient evidence of possession under either a constructive possession or acting in concert theory. Since we conclude that the State presented sufficient evidence to support the charge under a constructive possession theory, we do not need to address defendant's argument that the State did not present substantial evidence under an acting in concert theory. State v. Garcia, 111 N.C.App. 636, 639-40, 433 S.E.2d 187, 189 (1993) (to prove possession of a controlled substance, the State must prove actual possession, constructive possession, or acting in concert with another to commit a crime).

In order to support a charge of trafficking cocaine, the State must prove that defendant (1) knowingly possessed cocaine and (2) that the amount possessed was twenty-eight grams or more. State v. Jackson, 137 N.C.App. 570, 573, 529 S.E.2d 253, 256 (2000). The "knowingly possessed" element of the offense of trafficking by possession may be established by showing that: (1) defendant had actual possession; (2) defendant had constructive possession; or (3) defendant acted in concert with another to commit the crime. State v. Diaz, 155 N.C.App. 307, 313, 575 S.E.2d 523, 528 (2002); State v. Reid, 151 N.C.App. 420, 428, 566 S.E.2d 186, 192 (2002). A person has actual possession of a controlled substance if 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. Reid, 151 N.C.App. at 428-29, 566 S.E.2d at 192. "Constructive possession [of a controlled substance] occurs when a person lacks actual physical possession, but nonetheless has the intent and power to maintain control over the disposition and use of the [controlled] substance." State v. Wilder, 124 N.C.App. 136, 139-40, 476 S.E.2d 394, 397 (1996) (citation omitted) (concluding sufficient evidence for jury to infer possession where officer observed defendant throw an object in the bushes and officers recovered a bag of cocaine from that location). "[U]nless 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. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (citation omitted).

In the case sub judice, since defendant did not have exclusive possession of the home, the State was required to present sufficient evidence of incriminating circumstances in order to allow the jury to infer defendant constructively possessed the cocaine found in the entertainment room. Id.

Incriminating circumstances relevant to constructive possession

include evidence that defendant: (1) owned other items...