State v. Linda Beth Chekanow & Robert David Bishop

• Decision Date: 02 March 2018
• Docket Number: No. 390PA16,390PA16
• Court: United States State Supreme Court of North Carolina
• Parties: STATE OF NORTH CAROLINA v. LINDA BETH CHEKANOW and ROBERT DAVID BISHOP

STATE OF NORTH CAROLINA
v.
LINDA BETH CHEKANOW and ROBERT DAVID BISHOP

No. 390PA16

SUPREME COURT OF NORTH CAROLINA

March 2, 2018

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 791 S.E.2d 872 (2016), reversing and remanding judgments entered on 5 August 2015 by Judge R. Stuart Albright in Superior Court, Alleghany County. Heard in the Supreme Court on 9 October 2017.

Joshua H. Stein, Attorney General, by Adrian W. Dellinger, Assistant Attorney General, for the State-appellant.

J. Clark Fischer for defendant-appellees.

BEASLEY, Justice.

In this appeal we consider whether evidence was sufficient to permit a jury to find defendants were aware of, and exercised control over, the twenty-two marijuana plants found growing on their property. The Court of Appeals concluded that defendants did not have exclusive possession of the portion of the property where the plants were found, and therefore, the State was required to show evidence of other incriminating circumstances to survive defendants' motion to dismiss. Because the

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Court of Appeals held the State failed to show other incriminating circumstances that would permit a jury to find defendants were aware of, and exercised control over, the marijuana plants, the unanimous panel reversed the trial court's judgments, and remanded the matter to the trial court for entry of an order granting defendants' motions to dismiss. We hold that despite defendants' nonexclusive control, the State presented sufficient evidence of other incriminating circumstances to allow the case to go to the jury. Accordingly, we reverse the decision of the Court of Appeals.

Defendants were charged with manufacturing marijuana, possession with intent to manufacture, sell, or deliver marijuana, and felony possession of marijuana and were tried during the 3 August 2015 criminal session of Superior Court in Alleghany County.¹

At trial, the State's evidence tended to show that on 21 August 2014, law enforcement agencies, while conducting marijuana eradication operations by helicopter, observed marijuana plants growing on a three-acre parcel of land owned by defendants. The officers were initially alerted to defendants' property because they observed defendant Chekanow standing on the front porch of her home making an obscene gesture ("shooting the bird") at the helicopter. When officers arrived at the property, they found defendant Chekanow attempting to leave her house in a

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vehicle. The officers directed her back to her home and she complied. Chekanow was the only person present at the residence, and she consented to a search of the area where the plants were located, the outbuildings, and her home.

Officers on the ground located twenty-two marijuana plants growing on a fenced-in, one-half acre portion of defendants' property. This area was bordered by a woven wire fence and contained a chicken coop, defendants' chickens, and fruit trees. Officers testified the fence was approximately four feet high and not easy to climb over. In addition, officers testified the single gate to the fence was located adjacent to defendants' yard. One officer testified that to access the fenced-in area, one would have to be "right there in front of the house, at the front yard," and there were no other designated access points from the public roadway. As the officers walked to the location where the plants were growing, one observed that the grass along the fence line was not as high as elsewhere; instead, it had been "cut down, mowed, trampled on." Also, inside the fenced-in area was a "cleared-out area . . . maybe weed-eated, mowed, where the chicken house was." Further, an officer in the helicopter testified that a trail leading from the house to the plants was visible from the air. The path of the trail appeared to be "smashed down" as if it had been used regularly.

The marijuana plants were located sixty to seventy yards beyond the gate; fifty to seventy-five yards, or approximately two hundred feet, from defendants' house; and ten to twenty yards from a mowed and maintained area with a trampoline. The

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plants were "well taken care of," growing in a row in a cleared area behind some high weeds, and were placed in a location that allowed them to blend in with the weeds. Officers on the ground testified they could not see the marijuana plants until they were "right on top of [them]" or about five to ten feet away from the plants. The plants were approximately three to five feet in height, and the ground at the base of the plants had been tilled. One officer testified that it appeared the plants were started individually in a pot and then transferred into the ground.

During the search, no marijuana or related paraphernalia was found in the home or outbuildings; however, officers did locate small and large pots, shovels, trowels, and other gardening equipment. One officer testified to finding a "small starter kit" consisting of a very small cardboard cup:

Through my experience, we have seen that multiple times . . . . they will plant the seeds—marijuana seeds into a starter kit, which are the small cups that are cardboard. And then they grow [the marijuana plants] to a certain height or maturity; then they transplant them from there to a bigger bucket or a planter until they reach another maturity level. And then once a fuller maturity level is reached, then they will take those and plant them into dirt . . . .

The officer further testified that the gardening equipment could have been used for growing marijuana or for legitimate gardening purposes because defendants had a garden and potted plants on the property in addition to the marijuana plants. One of the shovels was covered in dirt that was similar to the dirt at the base of the marijuana plants, whereas the dirt in the garden was brown.

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The evidence was uncontroverted that defendants had owned and occupied the property on which the marijuana plants were found for about nine years. Defendants' nine-year old son also lived in the home. Defendants testified that another individual—who lived nearby and possessed a key to defendants' house—had been on their property frequently to perform yard work, maintenance, and take care of the house and animals while defendants were out of town. Defendants maintained they had no knowledge of the marijuana plants.

Because the State could not prove actual possession of the marijuana plants, the State proceeded on the theory of constructive possession based on the foregoing evidence. At the close of the State's evidence and again at the close of all the evidence, defendants moved to dismiss the charges for insufficient evidence. The trial court denied both motions. On 5 August 2015, a jury found both defendants guilty of all charges against them, and the trial court sentenced defendants to six to seventeen months of imprisonment, suspended for eighteen months subject to supervised probation.

Defendants appealed their convictions to the Court of Appeals, arguing the trial court erred in denying their motions to dismiss because the State presented insufficient evidence to establish that they were in constructive possession of the plants.² The Court of Appeals agreed with defendants, holding that though

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defendants' ownership and occupation of the property created an "inference of constructive possession," the defendants' possession of the property was not exclusive and the State "failed to show other incriminating circumstances" which would permit a jury to find defendants were aware of, and exercised control over, the marijuana plants. State v. Chekanow, ___ N.C. App. ___, 791 S.E.2d 872, 2016 WL 5746386, at *4 (2016) (unpublished). The court reversed the trial court's judgments, and remanded the matter to the trial court for entry of an order granting defendants' motions to dismiss. Id. This Court granted the State's petition for discretionary review of the sufficiency issue.

In this case, we review a unique application of the constructive possession doctrine. The doctrine is typically applied in cases when a defendant does not have actual possession of the contraband, but the contraband is found in a home or in a vehicle associated with the defendant; however, in this case we examine the doctrine as applied to marijuana plants found growing on a remote part of the property defendants owned and occupied. The sole issue presented in this appeal is whether the trial court properly denied defendants' motions to dismiss, in which defendants argued the State presented insufficient evidence showing defendants were aware of, and exercised control over, the twenty-two marijuana plants growing on their property.

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"In ruling on a motion to dismiss, the trial court need determine only whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator." State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (quoting State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998), cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002)). "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." Id. at 301, 560 S.E.2d at 781 (citation omitted).

"In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). "[T]he trial court is concerned only with the sufficiency of the evidence to take the case to the jury and not with its weight," and "[t]he test of the sufficiency of the evidence to withstand the motion is the same whether the evidence is direct, circumstantial or both."...