State v. Butler

• Decision Date: 16 August 2002
• Docket Number: No. 653A01.,653A01.
• Citation: 567 S.E.2d 137,356 N.C. 141
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Keith BUTLER.

567 S.E.2d 137

356 N.C. 141

STATE of North Carolina v. Keith BUTLER.

No. 653A01.

Supreme Court of North Carolina.

August 16, 2002.

Roy Cooper, Attorney General, by Claud R. Whitener, III, Assistant Attorney General, for the State.

John T. Hall, Raleigh, for defendant-appellant.

BUTTERFIELD, Justice.

Defendant Keith Butler was indicted on 7 July 1998 for trafficking in cocaine by transportation of twenty-eight grams or more but less than two hundred grams of cocaine and trafficking in cocaine by possession of twenty-eight grams or more but less than two hundred grams of cocaine. The trial court consolidated the charges for trial, and the jury found defendant guilty of both offenses. Thereupon, the trial court sentenced defendant to two consecutive terms of thirty-five to forty-two months' imprisonment. From the judgments entered upon his convictions, defendant appealed to the Court of Appeals, assigning error, inter alia, to the trial court's failure to dismiss the charges for lack of sufficient evidence. The Court of Appeals, in a split decision, affirmed the trial court. Defendant appeals to this Court as of right based on the dissent.

At trial, the State presented evidence tending to show the following facts. Detectives D.C. Murphy and K.A. Halsaber, who were assigned to the Interdiction Unit of the Drug Task Force of the Raleigh Police Department, were surveilling the Greyhound Bus terminal on Jones Street on the morning of 20 January 1998. The objective of the Interdiction Unit, according to Murphy's testimony, was to intercept drugs entering Raleigh from "source" cities, those cities where drugs are known to be prevalent. On this occasion, the officers were watching the passengers of a bus that had just arrived from New York City, a source city, and that had as its final destination Miami Beach, which is also a source city. Defendant exited the bus carrying only a small duffel bag and quickly drew the attention of the officers when he began to behave in a suspicious manner. Murphy testified that defendant stopped when he reached the entrance to the terminal, turned around to look at the officers, paused momentarily, and then proceeded to walk "very briskly" through the terminal. The officers followed, and as defendant pressed his way to the exit, he looked back several times, making eye contact with the officers. Murphy stated that when defendant reached the exit, he hesitated, glanced back at the officers again, and then hurried through the door.

Christopher Thomas, a driver for the Checker Cab Company, was parked outside the terminal approximately two feet from the exit. Thomas testified that defendant hopped into the backseat of the cab directly behind the driver's seat; slammed the door; and yelled, "let's go, let's go, let's go." Before Thomas could drive off, however, the officers exited the terminal and signaled him not to move. The officers then identified themselves to defendant and asked him to get out of the vehicle with his bag, which was resting on the seat beside him. Murphy described defendant's demeanor at that time as "very nervous" and "fidgety." Further, Murphy noted that defendant was "very slow" to exit the vehicle and that he bent down and reached toward the driver's seat prior to opening the door. Murphy testified that he and Halsaber were able to "see just barely the top of [defendant's] head and part of his shoulder." Defendant's hands, according to Murphy, were hidden from the officers' view. Regarding defendant's movements, Thomas testified that he felt defendant "struggling" behind him and "pushing the back of [Thomas'] seat" before opening the door.

Upon exiting the cab, and without being instructed to do so, defendant walked over to the front doors of the terminal, drawing the officers away from the vehicle. Murphy testified that this was unusual, in that the officers would typically begin such an interview standing right next to the cab so that the subject of the interview could get back into the cab and leave if the officers saw no need for further questioning.

While standing outside the terminal doors, the officers briefly questioned defendant concerning his name, point of origin, and destination. They then asked defendant to accompany them to a private room inside the terminal and, with defendant's permission, conducted a pat down of his person and a search of his duffel bag. Finding no contraband in defendant's possession, the officers told defendant he was free to leave, which he did. Rather than attempt to secure another taxicab, however, defendant left the terminal on foot.

Meanwhile, Thomas picked up another fare, a man Thomas recognized from having previously provided him taxi services. Thomas testified that the man entered the cab through the rear passenger door and occupied the rear passenger seat throughout the trip. Thomas said that he drove the man approximately six or seven blocks to the Wake County Public Safety Building. Additionally, Thomas stated that at no time during the ride did he observe or otherwise detect the man make any movements toward the driver's side of the cab. After dropping the man at his destination, Thomas returned directly to the bus terminal and did not pick up any other fares along the way. The entire trip, according to Thomas, lasted approximately ten minutes.

When Thomas returned to the terminal, Detective Murphy approached and asked to search his cab. Thomas consented, and Murphy discovered a package under the driver's seat, wrapped in a white napkin and secured with Scotch tape. The package contained a white powdery substance later identified as cocaine. Murphy asked Thomas when he had last cleaned the cab. Thomas stated that he had cleaned and vacuumed the cab prior to beginning his shift and that defendant was his first fare of the morning. According to Thomas, the cocaine had not been under the driver's seat when defendant entered the cab.

Shortly thereafter, the officers found defendant walking northbound on Glenwood Avenue, approximately ten to twelve blocks away from the terminal. They arrested defendant, and a search of his person revealed a small sum of money, a pager, and a cell phone.

By his sole assignment of error, defendant contends that the Court of Appeals erred in affirming the trial court's denial of his motion to dismiss the charges of trafficking in cocaine. Defendant argues that the evidence was insufficient to demonstrate beyond a reasonable doubt that he was in either actual or constructive possession of any contraband substance. For the reasons that follow, we must disagree.

When considering a motion to dismiss, the trial court's inquiry is limited to a determination of "whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). To be substantial, the evidence need not be irrefutable or uncontroverted; it need only be such as would satisfy a reasonable mind as being "adequate to support a conclusion." State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). For purposes of a motion to dismiss, evidence is deemed less than substantial if it raises no more than mere suspicion or conjecture as to the defendant's guilt. State v. Wilson, 354 N.C. 493, 521, 556 S.E.2d 272, 290 (2001).

In ruling on a motion to dismiss, the trial court must examine the evidence in the light most beneficial to the State, drawing all reasonable inferences therefrom in favor of the State's case. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 256 (2002). "The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility." State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001), cert. denied, ___ U.S. ___, 122 S.Ct. 2332, 153 L.Ed.2d 162 (2002). "If there is substantial evidence—whether direct, circumstantial, or both—to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied." State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). This is true, even if the evidence likewise permits a reasonable inference of the defendant's innocence. State v. Grigsby, 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000).

With regard to possession of contraband, this Court recently set forth the applicable law as follows:

"[I]n a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials." State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). Proof of nonexclusive, constructive possession is sufficient. Id. Constructive possession exists when the defendant, "while not having actual possession, ... has the intent and capability to maintain control and dominion over" the narcotics. State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). "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." State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). "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." [State v.] Davis, 325 N.C. [693,] 697, 386 S.E.2d [187,] 190 [(1989)

]; see also [State v.] Brown, 310 N.C. [563,] 569, 313 S.E.2d [585,] 588-89 [ (1984) ].

State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 (2001).

In Matias, a majority of this Court concluded that the State's evidence was sufficient to establish the defendant's constructive possession of cocaine and that the trial court properly denied the defendant's motion to dismiss the charge. The...