State v. Turner

• Decision Date: 18 January 2005
• Docket Number: No. COA03-1667.,COA03-1667.
• Citation: 168 NC App. 152,607 S.E.2d 19
• Parties: STATE of North Carolina v. Rodney Eugene TURNER, Defendant.
• Court: North Carolina Court of Appeals

607 S.E.2d 19

168 NC App. 152

STATE of North Carolina v. Rodney Eugene TURNER, Defendant.

No. COA03-1667.

Court of Appeals of North Carolina.

January 18, 2005.

Attorney General Roy C. Cooper, by Assistant Attorney General Roberta A. Ouellette, for the State.

William B. Gibson, Winston-Salem, for defendant-appellant. GEER, Judge.

Defendant Rodney Eugene Turner appeals his conviction for possession of cocaine with intent to sell and deliver, arguing that the evidence was insufficient to support the charge and the trial court should have granted his motion to dismiss. While we hold that the evidence was sufficient for a jury to find that defendant was in constructive possession of crack cocaine, we further hold that the evidence was insufficient to establish an intent to sell and deliver. Accordingly, we vacate the judgment imposed upon the verdict of guilty of possession with intent to sell and deliver and remand for resentencing for simple possession of cocaine.

Facts

The State's evidence tended to show the following. On 13 November 2001, police went to the residence of Neal Terry to serve an arrest warrant on Terry for violating his probation. They found Terry standing in his kitchen with another individual, Charles Byrd. Seated on a loveseat in the adjoining living room were defendant and Ishmar Smith, who were visitors. Police also found an unnamed female in one of the bedrooms. After Terry was taken into custody, he consented to a search of his house.

In the course of the search, Deputy R.T. Smith found a tube containing approximately ten rocks of a white substance, later determined to be crack cocaine. The tube was concealed under a blanket that was draped over the loveseat between defendant and Ishmar Smith. Deputy Smith testified as follows:

Q. And did you notice anything out of the ordinary when you approached where the two defendants [defendant and Ishmar Smith] were on the loveseat?

A. When we stepped — or when I stepped into the living room, I noticed the two defendants sitting. They were real jittery, and that they kind of had their hands on the outside of their legs, which would — toward each other. It's kind of if they're on the loveseat like so, you had one here and one here, and there was their legs coming out like so. And then they had hands here that was jumbling back and forth real nervously.

Q. Did you see anything else in that area where those hands were?

A. There was a blanket that was — that had been draped over the loveseat for one reason or another, and they kind of had the blanket wadded up a little bit, and you could see the tip of a white tube.

Q. Where was that in relation to the hands of the two defendants?

A. It was being pushed back and forth kind of.

When asked to identify the tube at trial, Deputy Smith reiterated, "That appears to be the tube that they were passing back and forth, kind of, on the loveseat there."

According to Deputy Smith, the size and number of crack cocaine rocks in the tube were greater than a drug user would normally carry for personal purposes. Deputy Smith testified that the average drug user in possession of drugs for personal use would, at any one time, typically carry only one or two rocks worth approximately $20.00 to $30.00, while the ten rocks in the tube weighed a total of 4.8 grams and were valued at approximately $150.00 to $200.00.

After the tube was discovered, everyone present denied knowledge of it. A search of defendant and Smith yielded no large sums of money or drug paraphernalia, nor was any paraphernalia found elsewhere in Terry's residence.

Defendant, Ishmar Smith, Terry, and Byrd were arrested and charged with possession with intent to manufacture, sell, and deliver cocaine. The charges against Byrd and Terry were later dismissed, although Terry pled guilty to a charge of maintaining a dwelling for keeping or selling controlled substances. Defendant was indicted on 1 July 2002 and tried jointly with Smith on 24 and 25 July 2003 in Gaston County Superior Court, the Honorable Robert C. Ervin presiding. At the close of the State's evidence, defendant made a motion to dismiss, in whole or in part, for insufficiency of the evidence. Although defendant did not offer any evidence of his own, he did renew his motion to dismiss. At that time, the trial court expressed doubts about the sufficiency of the evidence, but it deferred ruling on defendant's motion until after the jury rendered a verdict.

The jury found both defendant and Smith guilty on 25 July 2003. The trial court did not expressly rule on the deferred motion to dismiss, but proceeded to sentence defendant to a term of six to eight months. This sentence was suspended for 24 months, with defendant on intensive probation for the first six months. Following sentencing, defendant filed a motion for appropriate relief, based solely on the sufficiency of the evidence, which the trial court denied. Defendant appeals the denial of his motion to dismiss as well as his motion for appropriate relief.¹

Discussion

In ruling on a criminal defendant's motion to dismiss, the trial court must determine whether the State has presented substantial evidence (1) of each essential element of the offense with which defendant is charged and (2) of the defendant being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 123 S.Ct. 488, 154 L.Ed.2d 404 (2002). "`Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). "`Whether evidence presented constitutes substantial evidence is a question of law for the court.'" State v. Frogge, 351 N.C. 576, 584-85, 528 S.E.2d 893, 899 (quoting State v. Stager, 329 N.C. 278, 322, 406 S.E.2d 876, 901 (1991)), cert. denied, 531 U.S. 994, 121 S.Ct. 487, 148 L.Ed.2d 459 (2000).

When considering a defendant's motion to dismiss, the trial court must view all of the evidence "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), cert. denied, 515 U.S. 1135, 115 S.Ct. 2565, 132 L.Ed.2d 818 (1995). Specifically, if a reasonable juror could draw an inference of defendant's guilt from the evidence before him, the evidence is sufficient to allow the jury to consider the issue even if the same evidence may also support an equally reasonable inference of the defendant's innocence. Matias, 354 N.C. at 551, 556 S.E.2d at 270.

Defendant was convicted of violating N.C. Gen.Stat. § 90-95(a)(1) (2003), which prohibits possession with intent to sell or deliver a controlled substance. This offense involves two separate elements: (1) illegal possession of a controlled substance (here, crack cocaine) and (2) intent to sell or deliver that substance. State v. Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985). We consider each element in turn.

A. Constructive Possession of Cocaine

For the purposes of N.C. Gen.Stat. § 90-95(a)(1), unlawful possession of the controlled substance may be actual or constructive. State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638 (1987). "A person has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use." State v. Reid, 151 N.C.App. 420, 428-29, 566 S.E.2d 186, 192 (2002). Here, since the cocaine was found under a blanket next to defendant, rather than on his person, the State based its case on a theory of constructive possession.

Constructive possession exists when the defendant, "`while not having actual possession, ... has the intent and capability to maintain control and dominion over' the narcotics." Matias, 354 N.C. at 552, 556 S.E.2d at 270 (quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)). When the defendant does not have exclusive possession of the location where the drugs were found, the State must make a showing of "other incriminating circumstances" in order to establish constructive possession. Id. at 552, 556 S.E.2d at 271.

In the present case, it is undisputed that defendant was not in exclusive control of the premises. The State's evidence tended to show the following circumstances: Defendant was sitting next to a wadded-up blanket beneath which the drugs were concealed. He appeared agitated, and his hands were "jumbling" around "nervously." He and his co-defendant appeared to be passing the tube back and forth underneath the blanket. Our appellate courts have previously held that similar circumstances — involving close proximity to the controlled substance and conduct indicating an awareness of the drugs, such as efforts at concealment or behavior suggesting a fear of discovery — are sufficient to permit a jury to find constructive possession.

In State v. Butler, 356 N.C. 141, 147-48, 567 S.E.2d 137, 141 (2002), the Supreme Court found sufficient incriminating circumstances to survive a defendant's motion to dismiss when a taxicab driver felt defendant "struggling" in the backseat behind him and pushing against the front seat, and the police found drugs under the seat 12 minutes later. Similarly, in State v. Harrison, 14 N.C.App. 450, 450-51, 188 S.E.2d 541, 542, cert. denied, 281 N.C. 625, 190 S.E.2d 468 (1972), police stopped a car for a routine driver's license inspection, but asked all three of the car's occupants to step out of the car after an officer noticed the defendant moving around on the back seat and partially concealing a brown envelope with his hand. The envelope later proved to contain narcotics. The Court held that there was sufficient evidence to submit the charge of possession to the jury. Id. at 453, 188 S.E.2d at 543-44.

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