State v. Douglas, 051920 NCCA, COA19-320

Docket Nº:COA19-320
Opinion Judge:MURPHY, JUDGE.
Party Name:STATE OF NORTH CAROLINA v. KENNETH BERNARD DOUGLAS, Defendant.
Attorney:Attorney General Joshua H. Stein, by Special Deputy Attorney General Keith Clayton, for the State. Vitrano Law Offices, PLLC, by Sean P. Vitrano, for defendant-appellant.
Judge Panel:Judges STROUD and BROOK concur.
Case Date:May 19, 2020
Court:Court of Appeals of North Carolina
 
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STATE OF NORTH CAROLINA

v.

KENNETH BERNARD DOUGLAS, Defendant.

No. COA19-320

Court of Appeals of North Carolina

May 19, 2020

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 13 November 2019.

Appeal by Defendant from judgments entered 27 July 2018 by Judge Joseph N. Crosswhite in Mecklenburg County Superior Court, Nos. 17 CRS 021112-14, 021116-17

Attorney General Joshua H. Stein, by Special Deputy Attorney General Keith Clayton, for the State.

Vitrano Law Offices, PLLC, by Sean P. Vitrano, for defendant-appellant.

MURPHY, JUDGE.

Where a person does not have exclusive possession of real property where a controlled substance is found, he may still be found to have constructive possession of the controlled substance. When considering constructive possession, we apply a totality of the circumstances analysis and consider the defendant's (1) ownership and occupation of the premises where the contraband is found, (2) proximity to the contraband, and (3) suspicious behavior at or near the time of the contraband's discovery, as well as (4) other evidence found in the defendant's possession linking the defendant to the contraband, and (5) indicia of the defendant's control over the place where the contraband is found. When a defendant makes a statement strongly indicating dominion and control over the contraband, even this single factor can be enough to indicate both constructive possession of the contraband, as well as intent regarding disposition of the same.

Defendant, Kenneth Bernard Douglas, argues the trial court erred by denying his motion to dismiss the charges of Class 1 misdemeanor possession of drug paraphernalia (a digital scale and plastic baggies), Class 3 misdemeanor possession of up to one-half ounce of marijuana, and Class H felony possession with intent to sell or deliver methamphetamine. The State presented sufficient evidence to support Defendant's constructive possession of drug paraphernalia, marijuana, and methamphetamine, as well as Defendant's intent to sell or deliver methamphetamine, and the trial court properly denied Defendant's motion to dismiss. Defendant was also convicted of possession with intent to sell or deliver cocaine; the trial court arrested judgment for that conviction.1

BACKGROUND

The Charlotte-Mecklenburg Police Department ("CMPD") received information regarding Defendant's illegal narcotics activity, and Officers Scottie Carson and Marquis Turner visited the apartment identified in the tip in order to conduct a knock-and-talk with Defendant. Officer Carson knocked on the door, no one answered, and both officers could hear individuals moving around inside the apartment. The scent of marijuana emanated from the apartment when the officers knocked on the door. When no one answered the door after multiple knocks, the officers left, while undercover Officer Patrick White remained in the parking lot surveilling the apartment.

Shortly thereafter, Defendant and another individual exited the apartment and left the parking lot in a black Mercury Milan. Officer White gave the following testimony: [State:] Did you see anyone go inside that apartment while you were watching?

[White:] While I was on scene, I did not observe anybody go inside.

[State:] Did you see anyone come out of that apartment while you were watching it?

[White:] While I was watching it, I did observe two subjects come out of the apartment and get into the black Mercury sedan.

[State:] And had you been given a description of people to be looking for?

[White:] I had a physical description and I had seen a photograph of the subject that was believed to be involved in illegal activity.

[State:] And who was that subject?

[White:] [Defendant]. . . .

[State:] What did you observe about those two people?

[White:] I didn't pay a lot of attention to the female mainly because I was trying to get an identification on the male subject that I observed come out of the residence. Both subjects exited the residence out of the primary front door, walked out of the breezeway and walked to the black Mercury sedan which was parked almost directly in front of the breezeway, and got into the vehicle.

[State:] The male person that you saw leave that residence, did he match the physical description that you had been given?

[White:] Yes, he did.

[State:] Did you see who got into the driver's side of the vehicle?

[White:] The male did.

[State:] And you mentioned a breezeway. Describe the breezeway for the jury.

[White:] When facing the building there -- it's a - a wide apartment complex and it's got two breezeways because each side has a stairwell that goes up, but this building is unique in that most apartment complexes that we come across the breezeway cuts all the way through to both sides of the building; this one does not. So each breezeway has access to the four units on that face of the building. The Defendant's apartment was the downstairs...

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