State v. Nettles

• Decision Date: 03 May 2005
• Docket Number: No. COA04-583.,COA04-583.
• Citation: 612 S.E.2d 172
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Lee Edward NETTLES.

612 S.E.2d 172

STATE of North Carolina v. Lee Edward NETTLES.

No. COA04-583.

Court of Appeals of North Carolina.

May 3, 2005.

Appeal by defendant from judgment entered 29 October 2003 by Judge Edwin G. Wilson, Jr. in Randolph County Superior Court. Heard in the Court of Appeals 16 February 2005.

Attorney General Roy A. Cooper III, by Assistant Attorney General Angel E. Gray, for the State.

Ligon and Hinton by Lemuel W. Hinton, Raleigh, for defendant-appellant.

JACKSON, Judge.

On 24 October 2003, a jury found defendant guilty of possession with intent to manufacture, sell, or deliver cocaine. As a level three offender, defendant pled guilty to obtaining habitual felon status and was sentenced to the North Carolina Department of Correction for ninety-three months minimum and 121 months maximum.

On 16 January 2002, Randolph County Sheriff's Department executed a search warrant at defendant's home, which was owned jointly by defendant and his siblings. Deputy Timothy James ("Deputy James") searched the living room and bedroom of defendant's home and seized a safety pin in the living room. The State Bureau of Investigation (the "SBI") later determined the head of the safety pin contained a residual amount of cocaine. Deputy James also seized a Certificate of Title for a Mercedes Benz registered to Charles Nettles ("Nettles"), defendant's deceased nephew, an expired insurance policy for the Mercedes Benz insured in defendant's name, and four hundred and eleven dollars from defendant's pocket.

Defendant consented to a search of four vehicles in the yard, including the Mercedes Benz. Deputy James Martin ("Deputy Martin") searched the Mercedes Benz, using one key defendant gave to him from his pant's pocket to open the vehicle, and found 1.2 grams of cocaine under the floor mat rolled in a napkin and a registration card for the Mercedes Benz. Photographs taken of the vehicle also showed that the passenger side window was rolled down about one to two inches. Defendant testified that the window to the vehicle could not be rolled up, the windows always stayed halfway open, and people occasionally slept in the vehicles. Defendant also testified that his niece had cashed his social security check, used an amount to purchase medication, and returned the remaining four hundred and eleven dollars to him. Earl Kimes ("Kimes") testified that within three days of the search, other people visited defendant's home and that the windows on the Mercedes Benz were not rolled up.

At the close of the evidence, the trial court denied defendant's motion to dismiss the charge of possession with intent to sell, deliver, or manufacture cocaine. Defendant was convicted under N.C. Gen.Stat. § 90-95(a)(1)(2003), which prohibits possession with intent to sell or deliver a controlled substance. The elements of the crime of possession with intent to manufacture, sell, or deliver cocaine are: (1) illegal possession of cocaine, and (2) intent to sell or deliver the cocaine. N.C. Gen.Stat. § 90-95(a)(1); State v. Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985). Defendant contends the trial court erred when it allowed the State to submit the charge of possession with intent to sell or deliver a controlled substance to the jury. We disagree.

A trial court properly denies a defendant's motion to dismiss if it finds the State presented substantial evidence of: (1) each essential element of each offense defendant was charged with; and (2) defendant's being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255 (2002)(quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)), cert. denied, 537 U.S. 1006, 123 S.Ct. 488, 154 L.Ed.2d 404 (2002); see also State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). "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 (1984)(citing State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980)). When ruling on a defendant's motion to dismiss, the trial court must: (1) determine whether the evidence presented is substantial, which is a question of law for the court, and (2) consider the evidence in the light most favorable to the State. State v. Turner, ___ N.C.App. ___, 607 S.E.2d 19, 22 (2005); State v. Tisdale, 153 N.C.App. 294, 296, 569 S.E.2d 680, 682 (2002). "If the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence." Id. at 297, 569 S.E.2d at 682 (quoting State v. Grigsby, 351 N.C. 454, 456-57, 526 S.E.2d 460, 462 (2000)).

Defendant contends the trial court erred when it determined the State presented substantial evidence that defendant constructively possessed cocaine. "`"Possession of controlled substances may be either actual or constructive."'" State v. Boyd, 154 N.C.App. 302, 306, 572 S.E.2d 192, 195 (2002) (quoting State v. Carr, 122 N.C.App. 369, 372, 470 S.E.2d 70, 73 (1996)). "`Where contraband is found on premises under the control of the defendant, that in itself is sufficient to go to the jury on the question of constructive possession.'" Id. (quoting State v. Peek, 89 N.C.App. 123, 126, 365 S.E.2d 320, 322 (1988)); see also State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986) (defendant constructively possessed narcotics when he had the "intent and capability to maintain control and dominion over the narcotics") (citing State v. Williams, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983)). In addition, our Supreme Court has stated that the State must show "`other incriminating circumstances before constructive possession may be inferred.'" State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001) (quoting State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989)).

This Court previously has stated that an inference of constructive possession arises when the State's evidence shows a defendant was the "custodian of the vehicle where the controlled substance was found." Tisdale, 153 N.C.App. at 297-98, 569 S.E.2d at 682 (2002)(citing State v. Dow, 70 N.C.App. 82, 85, 318 S.E.2d 883, 886 (1984)). Here, Defendant gave police officers permission to search the Mercedes Benz and a key to the Mercedes Benz from his front pants pocket. An auto registration card for the vehicle and auto insurance policy for the Mercedes Benz listed defendant as the owner. Defendant also placed a license plate on the Mercedes Benz from defendant's previous vehicle.

When a defendant is charged with possession of a contraband, the State is not required to show defendant had actual possession of the contraband. Tisdale, 153 N.C.App. at 297, 569 S.E.2d at 682 (citing State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986)). Our Supreme Court explicitly has held that the "prosecution is not required to prove actual physical possession of the [contraband] materials." Id. (citing State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986)). A defendant can be charged with constructively possessing contraband when the defendant has the intent and ability to exhibit control and dominion over the contraband. Tisdale, 153 N.C.App. at 297, 569 S.E.2d at 682 (citing State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)).

In the instant case, although defendant did not physically possess the cocaine, the evidence presented at trial tended to show he constructively possessed the cocaine found in the Mercedes Benz by "`exercis[ing] [some] control and dominion over'" the cocaine. State v. Matias, 143 N.C.App. 445, 448, 550 S.E.2d 1, 3 (2001), aff'd, 354 N.C. 549, 556 S.E.2d 269 (2001); Boyd, 154 N.C.App. at 306, 572 S.E.2d at 195 (2002)(quoting Peek, 89 N.C.App. at 126, 365 S.E.2d at 322). And though his control over the Mercedes Benz and residence was not exclusive, "the evidence... suggests incriminating circumstances, other than defendant's control of the premises, sufficient to permit the jury to infer constructive possession." State v. Alston, 91 N.C.App. 707, 710, 373 S.E.2d 306, 309 (1988).

Here, only defendant was present during the search of the premises, and he consented to that search. During the search, police officers found on the premises four hundred and eleven dollars in cash on defendant's person, 1.2 grams of cocaine rolled in a napkin under the floor mat in the Mercedes Benz, a safety pin with cocaine residue on its tip in the living room of the home, and letters, papers, and registration forms with defendant's name on them in the Mercedes Benz, the living room, and defendant's bedroom.

"Our appellate courts have previously held that similar circumstances involving close proximity to the controlled substance ... are sufficient to permit a jury to find constructive possession." Turner, ___ N.C.App. at ___, 607 S.E.2d at 22. "These circumstances, coupled with defendant's nonexclusive control of the premises, were sufficient to allow the jury to infer defendant had constructive possession of the cocaine." Alston, 91 N.C.App. at 711, 373 S.E.2d at 310. Accordingly, this assignment of error is overruled.

We now turn to the issue of whether defendant intended to manufacture, sell, or deliver the cocaine found on the premises. Defendant contends that neither case law nor the legislature has set forth the minimum amount of a controlled substance required for this offense, but that it is clear from case law that the amount of controlled substance must be "substantial." Defendant further asserts that the cocaine amount of 1.2 grams did not exceed the traffic amount of twenty-eight grams, as required by state statute, and he only possessed the cocaine broken down into four to five crack-rocks for personal use. We agree.

The offense of possession with intent to sell or deliver has three elements: (1) possession of a...