State v. Brown

• Decision Date: 01 November 1983
• Docket Number: No. 8221SC1226,8221SC1226
• Citation: 64 N.C.App. 637,308 S.E.2d 346
• Parties: STATE of North Carolina v. Soloman BROWN.
• Court: North Carolina Court of Appeals

Page 346

308 S.E.2d 346

64 N.C.App. 637

STATE of North Carolina v. Soloman BROWN.

No. 8221SC1226.

Court of Appeals of North Carolina.

Nov. 1, 1983.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. David S. Crump, Raleigh, for the State.

Yokley & Teeter by D. Blake Yokley, Winston-Salem, for defendant-appellant.

BRASWELL, Judge.

The defendant was convicted under G.S. 90-95(a)(1) for manufacturing cocaine, a Schedule II controlled substance. The questions presented for review concern: (1) whether the evidence was sufficient to establish the possession and the manufacture of cocaine by the defendant; and (2) whether the defendant's motion for a mistrial was properly denied even though the jury was allowed to hear testimony concerning the defendant's previous drug conviction. We have carefully considered each assignment of error and conclude that there was sufficient evidence to support the conviction and that the motion for a mistrial was properly denied.

The evidence for the State tended to show that on 10 September 1981 Detective Jerry Pitman and three other policemen went to Apartment C on 1634 Chestnut Street with a search warrant issued for this apartment in the name of the defendant. They entered the apartment after announcing at the door that they were police officers and that they had a search warrant. Detective Pitman observed Olin Carter in the living room, Nathaniel Small behind the bar, and the defendant in an adjacent room. Detective Pitman immediately crossed the apartment into the room where the defendant was standing. As Pitman entered the room, the defendant, standing six to eight inches from a table, turned towards him.

According to the testimony of Detective Pitman, the following items were on the table or in a box on the table: an open brown paper envelope which contained two plastic packages of a white powdery substance determined by toxicologist, Garland Nelson, to be cocaine; several sandwich-type baggies cut in a manner for use in the packaging and distribution of controlled substances; plastic bags which contained flakes of a green vegetable substance; wire ties used to secure the plastic bags; one roll of cellophane tape which can be used to prevent the plastic bags once filled from unrolling; three packs of rolling paper; two containers of rice and another container of a chemical used to absorb moisture in order to keep powdery controlled substances a higher quality; four sheets of aluminum foil which is commonly utilized as the packaging agent for smaller quantities of powdery controlled substances; a single edge razor blade which is used to chop the powder into a finer substance; and finally a two-inch plastic straw, tapered at one end, which is used to ingest cocaine through the nose. The entire testimony of Detective Pitman was corroborated by the other police officers called.

The defendant was arrested and searched. On his person there was a key to the apartment and over seventeen hundred dollars, but no controlled substances. The other two individuals present were also arrested. A pat-down search to secure the scene revealed in plain view that Small was in possession of marijuana. A routine records check of Carter revealed an outstanding warrant on him for giving worthless checks. Through the search incident to his arrest, Carter was also found in possession of marijuana.

Testimony from the State revealed that the apartment is used as a "drink house," a place used only for parties where alcoholic beverages are served. No person actually lives there, not even the apartment lessee, Lucious Brown, the defendant's brother.

Evidence for the defendant attempted to show that the defendant was not in control of the premises or in possession of the drugs seized. Nathaniel Small testified that the defendant was by the bar with him when the police entered and not by the table with the drugs. Lucious Brown stated that the defendant did not help pay the expenses of the apartment nor did he ever give him a key to the apartment. Finally, Jay Waller, the defendant's parole officer, was called by the defendant to establish that his residence for the past two years had not been the apartment in question. In view of the fact that Waller, on direct examination, stated that the defendant had been on parole for two years, the State, on cross-examination, asked Waller for what was the defendant on parole. Over the defendant's objection, Waller stated that he was on parole for the sale of the controlled substance heroin and two counts of possession of heroin.

The defendant's motion for a mistrial was denied and he was subsequently found guilty by a jury of manufacturing cocaine.

The defendant's first and third assignments of error question whether the evidence was sufficient to support a conviction for the manufacture of cocaine. The State standard determining whether there is sufficient evidence to support a criminal conviction requires that there must be "substantial evidence of each essential element of the offense charged." State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980). Substantial evidence has been held as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 78-79, 265 S.E.2d at 169. The federal standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), states that the appropriate standard of review of a claim of insufficient evidence to support a criminal conviction is whether there is sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. We must apply both standards.

The defendant was convicted of manufacturing a controlled substance. According to G.S. 90-87(15), the term "manufacture" means "the production, preparation, propagation, compounding ... packaging or repackaging of the substance." As the facts indicate, the applicable portion of this statute includes "packaging and repackaging." See generally, State v. Childers, 41 N.C.App. 729, 255 S.E.2d 654, disc. rev. denied, 298 N.C. 302, 259 S.E.2d 916 (1979). There is substantial evidence that cocaine was in fact being "manufactured." Detective Pitman and the other officers found on the table in the apartment an array of items all used as a means to package and distribute cocaine, from the plastic baggies to the tinfoil, from the cellophane tape to the wire ties. We hold that a rational trier of fact had sufficient evidence to convict one of manufacturing cocaine. The question in this case then becomes who was the manufacturer, and this question can be answered by determining who was in actual or constructive possession of the cocaine and the manufacturing materials. Although the defendant was not convicted of a separate offense of possession of a controlled substance, his conviction of manufacturing cocaine necessarily depends on his possession of the controlled substance.

There was no evidence at trial by any of the police officers that the defendant was in physical possession of the items on the table. Basically, the testimony places the defendant inside the house and very close to the table. Detective Pitman stated that when he entered the room that the defendant was six to eight inches from the table and that the cocaine found in the brown envelope was a foot from his hand. Thus, the establishment of possession, and in turn, the basis for the manufacturing conviction, rests on his constructive possession of the cocaine and the other packaging devices.

The general rule states that "[c]onstructive possession exists when there is no actual personal dominion over the material, but there is an intent and capability to maintain control and dominion over it." State v. Atkinson, 33 N.C.App. 247, 251, 234 S.E.2d 770, 773 (1977). We hold that the defendant, standing in close proximity to the table and being the only person in the room, had the capability of exercising control over the cocaine. There was sufficient evidence before the jury in which the intent of the defendant could be inferred from the circumstances. Detective Pitman testified in detail that all of the items found on the table with the cocaine were in some way used to package and distribute controlled substances. In State v. Long, 58 N.C.App. 467, 475, 294 S.E.2d 4, 10 (1982), the court added that "[a]n accused has possession of narcotics within the meaning of the law when he has the power and intent to control their disposition or use or when the evidence places him in such close juxtaposition to them that a jury could conclude that they were in his possession." Surely, the evidence provided places the defendant in such a position that even though he was not physically in custody of the cocaine or the other items, a jury could conclude that he was nevertheless constructively in possession of them.

In State v. Harvey, 281 N.C. 1, 13, 187 S.E.2d 706, 714 (1972), the court held that the defendant's motion to dismiss was correctly overruled when "the State's evidence placed defendant within three or four feet of the marijuana within his home. No one else was in the room. This evidence supports a reasonable inference that the marijuana was in defendant's possession." In the present case the defendant was also alone in the room and within a closer distance to the controlled substance. The fact that the defendant in our case was not the lessee of the apartment or that other persons also had access to the contraband does not exonerate the defendant because exclusive possession of the contraband on the premises where the contraband is found is not required. State v. Roseboro, 55 N.C.App. 205, 209, 284 S.E.2d 725, 727 (1981), disc. rev. denied, 305 N.C. 155, 289 S.E.2d 566 (1982); State v. Atkinson, supra, 33 N.C.App. at 251, 234 S.E.2d at 773. "[W]here possession of the premises is nonexclusive, constructive possession of the contraband by the accused may not be inferred without other incriminating circumstances." Id....