upholding denial of motion to dismiss where no baggies, scales, written ledgers, or other client information were found
How later courts described this case
- upholding denial of motion to dismiss where no baggies, scales, written ledgers, or other client information were found
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-873
Filed: 15 August 2017
Wake County, No. 15 CRS 224056
STATE OF NORTH CAROLINA
v.
ASAIAH BEN YISRAEL
Appeal by defendant from judgment entered 13 April 2016 by Judge Paul C.
Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 20 April
2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Mary L.
Lucasse, for the State.
Cooley Law Office, by Craig M. Cooley, for defendant-appellant.
TYSON, Judge.
Asaiah Ben Yisrael (“Defendant”) appeals from a judgment entered upon a
jury’s verdict finding him guilty of possession with intent to sell or deliver marijuana.
We find no error.
I. Background
Raleigh Police Officer Dennis Brandenburg was employed as the school
resource officer at Enloe Magnet High School. On 30 October 2015 at approximately
10:00 a.m., Officer Brandenburg observed a white Chevrolet Impala vehicle pull into
STATE V. YISRAEL
Opinion of the Court
the front entrance of the school and illegally park in the fire lane. Officer
Brandenburg recognized the vehicle as belonging to Malik Jones (“Jones”), a former
Enloe student, who had previously been banned from the school’s grounds for
marijuana possession.
Officer Brandenburg believed Jones was driving the vehicle. He pulled in
behind the vehicle and activated the blue lights on his marked patrol car. Officer
Brandenburg approached the car and intended to ask Jones why he was illegally
present on school property after being banned. When he reached the driver’s side,
Officer Brandenburg saw Defendant was the driver and was alone in the car. Officer
Brandenburg did not recognize Defendant. Defendant, who was twenty years old,
told Officer Brandenburg that he did not possess a driver’s license, but presented an
identification card.
At trial, Jones testified he had allowed Defendant to borrow his car the night
before so that Defendant could “go out.” Jones had allowed Defendant to borrow his
car on four or five prior occasions.
While speaking with Defendant, Officer Brandenburg noticed a strong odor of
marijuana emanating from inside the vehicle. The odor of marijuana prompted
Officer Brandenburg to detain Defendant and search both him and the car.
Officer Brandenburg recovered $1,504.00 in cash and a small “dime bag” of
marijuana from inside Defendant’s pockets. The officer explained a “dime bag” is
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Opinion of the Court
normally a gram of marijuana. The “dime bag” of marijuana was packaged in a cut
corner of a plastic bag, which, according to Officer Brandenburg, is how a “dime bag”
is normally sold. A small amount of marijuana is placed into each corner of a “baggie,”
and the corners are tied off and cut.
Officer Brandenburg also found two larger bags of marijuana in the center
console of the Impala. Subsequent analysis of the three bags of marijuana
determined that the weight of the “dime bag” was 0.69 grams, and the weight of the
two larger bags was 4.62 grams and 5.57 grams.
Officer Brandenburg recovered no empty baggies or scales from inside the car
or from Defendant. Jones’ driver’s license was also found in the center console.
Officer Brandenburg also recovered a loaded .40-caliber Glock handgun in the glove
compartment, which was later determined to have been stolen. Jones testified at
Defendant’s trial and denied he owned the drugs or the stolen and loaded handgun
found inside his car.
Defendant was indicted and tried upon charges of felonious possession with
intent to sell or deliver marijuana and felonious possession of a weapon on
educational property. Prior to trial, Defendant conceded he possessed the two bags
of marijuana recovered from the center console of the vehicle. When questioned by
the trial court during a Harbison hearing, Defendant stated he understood and
agreed with defense counsel’s decision to concede this fact before the jury. See State
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Opinion of the Court
v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), cert. denied, 476 U.S. 1123, 90 L.
Ed. 2d 672 (1986). In his initial brief before this Court, Defendant argued insufficient
evidence was presented that he constructively possessed the marijuana recovered
from the center console. Defendant subsequently filed a reply brief and expressly
withdrew this argument due to the stipulation he had entered at the Harbison
hearing.
The jury returned a verdict of not guilty on the charge of possession of a weapon
on educational property, but found Defendant guilty of possession with intent to sell
or deliver marijuana. The trial court sentenced Defendant to a suspended term of six
to seventeen months’ imprisonment and placed him on supervised probation for
twenty-four months. Defendant appeals.
II. Jurisdiction
Jurisdiction lies in this Court from final judgment of the superior court entered
upon the jury’s verdict pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a)
(2015).
III. Possession with Intent to Sell or Deliver Marijuana
Defendant argues the trial court erred by denying his motion to dismiss.
Defendant asserts the State failed to present sufficient evidence of his intent to sell
or deliver marijuana and the evidence shows the marijuana in Defendant’s possession
was for personal use. We disagree.
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Opinion of the Court
A. Standard of Review
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “Upon defendant’s
motion for dismissal, the question for the Court is whether there is substantial
evidence (1) of each essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant’s being the perpetrator of such offense. If so,
the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,
455 (citation and quotation marks omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d
150 (2000). “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), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995) (emphasis supplied).
B. Evidence of Defendant’s Intent to Sell or Deliver
“The offense of possession with intent to sell or deliver has the following three
elements: (1) possession of a substance; (2) the substance must be a controlled
substance; (3) there must be intent to sell or distribute the controlled substance.”
State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001) (citing N.C. Gen.
Stat. § 90-95(a)(1)).
While intent [to sell or deliver] may be shown by direct
evidence, it is often proven by circumstantial evidence from
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Opinion of the Court
which it may be inferred. [T]he intent to sell or [deliver]
may be inferred from (1) the packaging, labeling, and
storage of the controlled substance, (2) the defendant’s
activities, (3) the quantity found, and (4) the presence of
cash or drug paraphernalia. Although quantity of the
controlled substance alone may suffice to support the
inference of an intent to transfer, sell, or deliver, it must be
a substantial amount.
State v. Wilkins, 208 N.C. App. 729, 731, 703 S.E.2d 807, 809-10 (2010) (citations and
internal quotation marks omitted).
On numerous occasions, this Court has applied these four and other related
factors to determine whether the evidence was sufficient to permit the jury to infer
the defendant possessed a controlled substance with the intent to sell or deliver and
overcome the defendant’s motion to dismiss.
1. Quantity of Illegal Drugs
In some cases, the amount of the controlled substance recovered, standing
alone, is sufficient to allow the jury to find the defendant possessed the requisite
intent to sell or deliver. See, e.g., State v. Morgan, 329 N.C. 654, 660, 406 S.E.2d 833,
836 (1991) (one ounce or 28.3 grams of cocaine “was sufficient evidence to support the
inference that defendant intended to deliver or sell the cocaine”); cf. State v. Wiggins,
33 N.C. App. 291, 294-95, 235 S.E.2d 265, 268 (evidence insufficient to support an
inference the defendant intended to sell or deliver where 215.5 grams of marijuana
was seized without evidence of any packaging paraphernalia related to rolling or
weighing), cert. denied, 293 N.C. 592, 241 S.E.2d 513 (1977).
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Opinion of the Court
Here, a total of 10.88 grams of marijuana was recovered from Defendant’s
person and inside the vehicle’s console. The two baggies inside the console contained
a total of 10.19 grams, while the “dime bag” recovered from inside Defendant’s pocket
contained .69 grams of marijuana. The amount of marijuana found on Defendant’s
person and inside the vehicle’s console might not be sufficient, standing alone, to
support an inference that Defendant intended to sell or deliver marijuana. See
Wilkins, 208 N.C. App. at 731-32, 703 S.E.2d at 810 (Because the quantity of
marijuana “alone is insufficient to prove that defendant had the intent to sell or
deliver[,] . . . we must examine the other evidence presented in the light most
favorable to the State.”). Defendant’s admitted possession, together with other
surrounding circumstances and evidence recovered, were sufficient to overcome
Defendant’s motion to dismiss and permit the jury to infer Defendant had the intent
to sell or deliver marijuana.
2. Packaging of Illegal Drugs
The 10.88 grams of marijuana was packaged in three plastic bags. The two
bags recovered from the center console contained a similar amount of marijuana (4.62
and 5.57 grams), and were considerably larger than the “dime bag” found upon
Defendant’s person. Officer Brandenburg testified one gram of marijuana, or a “dime
bag,” has a street value of twenty to twenty-five dollars.
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Opinion of the Court
The dissenting opinion cites the testimony of Officer Brandenburg, and
discusses the “quality” of marijuana contained in the two bags found in the center
console. Officer Brandenburg testified:
They were in larger bags, and if memory serves me right,
they were more of what I would consider remnant
marijuana, from where – if you were to bag up the dime
bags, this would be the remnant stuff that didn’t have as
many buds and stuff in it as the regular marijuana, or the
sellable marijuana.
Officer Brandenburg also testified the marijuana in the two larger bags “would
typically need to be divided up into smaller bags to be sold.”
The dissenting opinion concludes the clear implication of Officer
Brandenburg’s testimony was that the “remnant marijuana” he found in the console
was “not of a quality typically offered for sale.” The equal or stronger implication of
Officer Brandenburg’s testimony is that Defendant possessed marijuana for sale.
Marijuana that is not “sellable” is unlikely to be “useable.” It seems that an
individual who purchases marijuana from a dealer solely for personal use would have
no reason to possess the remnant or “unsellable” marijuana. The presence of two
larger bags of marijuana containing “remnant” marijuana suggests the bags had been
obtained in bulk and partially picked through for packaging “regular” or “sellable”
marijuana. Defendant also possessed a dime bag of marijuana, which is how Officer
Brandenburg testified that marijuana is packaged to sell. The packaging and
possession of both the “sellable” and “unsellable” marijuana is evidence which raises
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Opinion of the Court
an inference and from which the jury could determine Defendant had the intent to
sell marijuana.
3. Large Quantity of Unsourced Cash
While the amount and packaging of the marijuana arguably might raise an
issue whether Defendant possessed for personal use or the intent to sell or deliver,
these factors are for the jury to decide and are not solely determinative of whether
the charge was properly submitted to the jury. The uncontroverted evidence also
shows Defendant, twenty years old, was carrying a large amount of cash ($1,504.00)
on his person and was on the grounds of a high school while possessing illegal drugs.
The cash found upon Defendant was also presented as evidence for the jury to view,
and the prosecutor stated during his closing argument that the denominations of the
cash consisted of ten, twenty, and one-hundred dollar bills.
The presence of cash is another factor that case precedents require us to
consider to determine whether possession of illegal drugs with the intent to sell or
deliver may be inferred. Id. at 731, 703 S.E.2d at 809-10; see also State v. Alston, 91
N.C. App. 707, 711, 373 S.E.2d 306, 310 (1988) (holding the large amount of cash on
the defendant’s person supported an inference that the defendant had the intent to
sell or deliver the 4.27 grams of cocaine packaged in twenty separate envelopes).
4. Stolen and Loaded Handgun
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Opinion of the Court
A stolen and loaded handgun was also recovered from inside the glove
compartment of the vehicle. Jones denied any connection to the handgun. While the
presence or possession of a firearm is not specifically listed as a Wilkins factor to
determine intent to sell or deliver a controlled substance, see Wilkins, 208 N.C. App.
at 731, 703 S.E.2d at 809-10, this Court has specifically recognized: “As a practical
matter, firearms are frequently involved for protection in the illegal drug trade.” State
v. Smith, 99 N.C. App. 67, 72, 392 S.E.2d 642, 645 (1990), cert. denied, 328 N.C. 96,
402 S.E.2d 824 (1991).
The dissenting opinion does not recognize the presence of the stolen and loaded
firearm in the glove compartment of the vehicle Defendant was driving as relevant to
our consideration of whether Defendant’s intent can be inferred, and views the
packaging of the marijuana and cash recovered from Defendant as the only pertinent
factors. Neither the Supreme Court of North Carolina nor this Court has ever
recognized the factors set forth in Wilkins as exclusive.
This Court has specifically determined “the presence of a gun was relevant to
the possession [of cocaine with intent to manufacture, sell, or deliver] and trafficking
charges.” State v. Boyd, 177 N.C. App. 165, 171, 628 S.E.2d 796, 802 (2006); see also
State v. Willis, 125 N.C. App. 537, 543, 481 S.E.2d 407, 411 (1997) (recognizing the
“common-sense association of drugs and guns”).
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Opinion of the Court
On numerous occasions our federal courts have also recognized the nexus
between the presence or use of a firearm and the intent to sell or deliver controlled
substances. See, e.g., United States v. White, 969 F.2d 681, 684 (8th Cir. 1992)
(“Because a gun is ‘generally considered a tool of the trade for drug dealers, [it] is also
evidence of intent to distribute.’” (quoting United States v. Schubel, 912 F.2d 952, 956
(8th Cir. 1990))); United States v. Rush, 890 F.2d 45, 49-52 (7th Cir. 1989) (A loaded
firearm found in a car defendant was approaching when arrested was relevant to
show possession of heroin with intent to distribute, because the weapon was a “tool
of the trade,” and was an “essential part of the crime of possession with intent to
distribute.”); United States v. Dunn, 846 F.2d 761, 764 (D.C. Cir. 1988) (A loaded
firearm found on the couch near the defendant was a “tool of the narcotic trade,” and
supported inference of intent to distribute where defendant constructively possessed
drugs recovered from inside the house.).
The presence of a stolen and loaded handgun, a “tool of the trade for drug
dealers,” inside the vehicle and readily accessible to Defendant, is certainly relevant
to and is another factor the court should consider in determining whether Defendant
had the intent to sell or deliver an illegal substance. White, 969 F.2d at 684; Boyd,
177 N.C. App. at 171, 628 S.E.2d at 802. The registered owner of the vehicle testified
neither the drugs nor the stolen and loaded firearm belonged to him.
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Opinion of the Court
Despite our precedents, the dissenting opinion does not consider the additional
presence of the stolen and loaded firearm as an intent factor and cites this Court’s
decision in Wilkins to vote to reverse the jury’s verdict. In Wilkins, the defendant
possessed 1.89 grams of marijuana, contained within three separate “tied off” bags.
Wilkins, 208 N.C. App. at 730, 703 S.E.2d at 809. The defendant also carried
$1,264.00 in cash. Id. The defendant testified that he had purchased the marijuana
for personal use. Id. He further testified that approximately $1,000.00 of the cash
recovered was money his mother had given him for a cash bond because he was “on
the run,” and the remaining $264.00 was from a check he had cashed. Id.
This Court considered the amount and packaging of the marijuana and the
presence of explained cash on the defendant’s person, and determined the evidence
was insufficient to permit the jury to determine whether the defendant intended to
sell or deliver the marijuana. Id. at 732-33, 703 S.E.2d at 810.
Wilkins is distinguishable from the facts and circumstances before us. In
Wilkins, the defendant possessed only a small fraction of the amount of marijuana
that Defendant possessed here, and the value of the marijuana was only thirty
dollars. Id. at 732, 703 S.E.2d at 810. Here, no legitimate source is in the record for
the $1,504.00 multi-denominations of cash recovered from Defendant’s person and
introduced before the jury.
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Opinion of the Court
The dissenting opinion also cites State v. Nettles, 170 N.C. App. 100, 612 S.E.2d
172, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). In that case, officers
found 1.2 grams of crack cocaine, consisting of four or five rocks, rolled in a napkin
under the floor mat of a vehicle parked in the defendant’s yard. Id. at 104, 612 S.E.2d
at 175. The defendant was inside the house with $411.00 in cash on his person. Id.
This Court determined the evidence was insufficient to show intent to sell or deliver
the cocaine. Id. at 108, 612 S.E.2d at 177.
This Court explained that the defendant was not carrying a large amount of
cash; the defendant stated the source of the cash was part of the money he had
received from cashing his social security check; the officers could not state whether
the money was in the defendant’s pocket or wallet; and, the officers did not discover
any other money on the premises. Id. at 107, 612 S.E.2d at 176-77. Here, Defendant
was carrying a significantly larger amount of cash, consisting of ten, twenty, and
hundred-dollar bills, with the marijuana and a stolen and loaded handgun.
The following cumulative factors were present in this case, which distinguish
it from Wilkins and Nettles: (1) possessing illegal drugs on high school grounds where
Defendant was not a student; (2) possessing “unsellable” remnant marijuana in two
larger bags near a “dime bag” of “sellable” marijuana; (3) driving a vehicle owned by
Jones, who had been banned from the school for possession of drugs; (4) driving the
vehicle without a driver’s license; (5) illegally parking the vehicle in a fire lane near
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STATE V. YISRAEL
Opinion of the Court
the school’s entrance at 10:00 a.m.; and, (6) with the presence of a stolen and loaded
handgun inside the vehicle.
The presence of the stolen and loaded firearm in this case is relevant to ruling
on Defendant’s motion to dismiss, even though the jury returned a verdict of not
guilty of possessing a weapon on educational property. We review the totality of the
evidence on Defendant’s motion to dismiss in the light most favorable to the State to
determine its sufficiency to submit the charge to the jury. Rose, 339 N.C. at 192, 451
S.E.2d at 223. The jury’s ultimate determination on the separate crime is not
relevant to whether the trial court properly denied Defendant’s motion to dismiss the
charge of possession with intent to sell or deliver marijuana and submitted the charge
to the jury.
“In ‘borderline’ or close cases, our courts have consistently expressed a
preference for submitting issues to the jury[.]” State v. Hamilton, 77 N.C. App. 506,
512, 335 S.E.2d 506, 510 (1985), disc. review denied, 315 N.C. 593, 341 S.E.2d 33
(1986).
This quantity of illegal drugs and its packaging, together with Defendant’s
access to Jones’ vehicle since the previous evening; his illegal presence on high school
grounds; the large amount of unsourced cash on Defendant’s person; and the stolen
and loaded handgun is sufficient to support a reasonable inference that Defendant
intended to sell or deliver the marijuana he admittedly possessed, when reviewed in
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Opinion of the Court
the light most favorable to the State. Jones, the owner of the vehicle, denied
ownership of either the marijuana or the handgun. Defendant’s argument is
overruled. The trial court’s ruling on Defendant’s motion to dismiss is affirmed.
IV. Conclusion
The cumulative evidence, properly viewed in the light most favorable to the
State, is sufficient for the trial court to submit and permit the jury to consider the
intent element of possession with intent to sell or deliver marijuana. The trial court
did not err and correctly denied Defendant’s motion to dismiss.
We find no error in the denial of Defendant’s motion to dismiss, the jury’s
conviction, or in the judgment entered thereon. It is so ordered.
NO ERROR.
Judge DILLON concurs.
Chief Judge McGEE dissents with separate opinion.
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No. COA16-873 – State v. Yisrael
McGEE, Chief Judge, dissenting.
Because I believe “[t]he evidence in this case, viewed in the light most favorable
to the State, indicates that [D]efendant was a drug user, not a drug seller[,]” State v.
Wilkins, 208 N.C. App. 729, 733, 703 S.E.2d 807, 811 (2010), I respectfully dissent.
I do not believe the evidence constituted substantial evidence of the intent to
sell element of possession with intent to sell or deliver (“PWISD”). Specifically, (1)
the amount of marijuana recovered was de minimis, and suggestive of possession for
personal use rather than intent to sell; (2) the undisputed testimony was that the
vast majority of the marijuana was not of typically “sellable” quality; (3) the
packaging was likewise more consistent with personal use; (4) Defendant did not have
scales, baggies, or other paraphernalia to prepare the marijuana for sale; (5) there
was no testimony indicating that Defendant’s actions were suggestive of an intent to
sell marijuana; (6) the cash recovered, though some evidence of an intent to sell, was
not of such quantity to overcome the lack of additional supporting evidence, and there
was no testimony explaining the relevance of the cash to any intent to sell; (7) the
gun recovered from the glove compartment was introduced as evidence in support of
the possession of a firearm on educational property charge, not in support of PWISD,
and there was no testimony linking the gun to any intent to sell; (8) even considering
the gun, the totality of the evidence is more suggestive of possession for personal use
than for sale; and (9) the additional factors relied upon by the majority opinion have
minimal to no relevance to the contested issue.
STATE V. YISRAEL
McGEE, C.J., dissenting
I. Facts
In addition to the facts included in the majority opinion, I also note the
following. Officer Brandenburg testified that he saw Jones’ Impala “pull[] into the
main entrance, what we call the car loop, the car pool loop, of the school, which goes
right to the front entrance of the school.” The Impala parked in the “fire lane” of the
car pool loop, which Officer Brandenburg testified was “very common.” Officer
Brandenburg determined that Defendant, and not car owner Jones, was the sole
occupant. Officer Brandenburg did not know Defendant prior to this interaction and
he testified Defendant said he was there to pick up a friend, a student at Enloe.
Officer Brandenburg knew the student, and saw him looking out of the school at
Defendant while Defendant was detained.
Though Defendant did indicate during the Harbison hearing that he was going
to admit to possession of all the marijuana, Defendant did not admit at trial or in
closing that he was guilty of possessing the 10.19 grams recovered from the center
console of Jones’ vehicle. Defendant’s attorney, apparently having changed his trial
strategy, argued in his opening statement that Defendant was “guilty of one thing
and that’s for having a dime bag of marijuana in his pocket.” In closing, Defendant’s
attorney argued that “[Defendant] just has his own one bag for personal use. And
that’s what is called possession of marijuana. So we would ask you to find him guilty
of possession of marijuana.” Defendant moved to dismiss the charges against him at
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McGEE, C.J., dissenting
the close of the State’s evidence and all the evidence, specifically focusing on the
absence of sales-related paraphernalia, such as “baggies” and “scales.” For the
purposes of Defendant’s motion to dismiss, I assume Defendant possessed the entire
10.88 grams of marijuana recovered from both his person and the Impala. The trial
court denied Defendant’s motions.
II. Analysis
We must determine whether there was substantial evidence that Defendant
had the intent to sell marijuana. As noted by the majority opinion, intent to sell can
be inferred from “‘(1) the packaging, labeling, and storage of the controlled substance,
(2) the defendant’s activities, (3) the quantity found, and (4) the presence of cash or
drug paraphernalia.’” Wilkins, 208 N.C. App. at 731, 703 S.E.2d at 809–10 (citation
omitted). These factors (“Wilkins factors”) seem to have first appeared in their
current form in State v. Nettles, 170 N.C. App. 100, 106, 612 S.E.2d 172, 176 (2005),
an opinion that examined earlier case law. In prior opinions, the presence of firearms
was not considered in the intent to sell analyses, even when firearms were recovered.
See State v. Smith, 99 N.C. App. 67, 73–74, 392 S.E.2d 642, 646 (1990); State v. King,
42 N.C. App. 210, 212–13, 256 S.E.2d 247, 248–49 (1979).
Traditionally, the three Wilkins factors that appear to have been most
influential have been the amount of the substance, its packaging, and the presence
of paraphernalia used in portioning and packaging the substance for sale. See King,
3
STATE V. YISRAEL
McGEE, C.J., dissenting
42 N.C. App. at 212–13, 256 S.E.2d at 248–49; State v. Sanders, 171 N.C. App. 46, 48,
50 and 56-57, 613 S.E.2d 708, 710, 711 and 715, aff’d per curiam, 360 N.C. 170, 622
S.E.2d 492 (2005) (suspiciously packaged diazepam, marijuana residue in multiple
locations, “plastic baggies with corners ripped off,” scales, evidence defendant was not
personally using diazepam, and other evidence recovered not sufficient to prove
intent when there was no officer testimony stating certain evidence was “indicative
of an intent to sell rather than personal use”); State v. Roseboro, 55 N.C. App. 205,
210, 284 S.E.2d 725, 728 (1981) (“while the quantity of cocaine was small, there was
evidence of the presence of drug paraphernalia (two sets of scales, one beside a pouch
of cocaine, and an abundance of Ziploc bags) sufficient for the charge of possession
with intent to sell to go to the jury”).
The evidence in a number of these cases was stronger than in the present case,
and I note that in Sanders, our Supreme Court affirmed the majority opinion’s
analysis per curiam, including the importance of testimony demonstrating evidence
presented at trial is more suggestive of an intent to sell than personal use. In the
present case, there was no such testimony, and the State and the majority opinion
primarily rely on factors not contained in Wilkins or other binding precedent. I do
not contend the Wilkins factors are exclusive, but I do believe they have been
established as more relevant to our analysis than other potential evidence.
A. Quantity
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STATE V. YISRAEL
McGEE, C.J., dissenting
In order for the amount of a controlled substance to be considered a relevant
factor in determining an intent to sell, “it must be a substantial amount.” Wilkins,
208 N.C. App. at 731, 703 S.E.2d at 810 (quotation marks and citation omitted). The
closer the amount of a controlled substance approaches the amount required for a
trafficking conviction, the more relevant is the amount in suggesting an intent to sell.
State v. Morgan, 329 N.C. 654, 659-60, 406 S.E.2d 833, 836 (1991) (citations omitted).1
N.C. Gen. Stat. § 90-95(h)(1) sets out the smallest quantity of marijuana required for
a charge of “trafficking in marijuana[,]” which amount is in excess of ten pounds.
Defendant in this case was found to have been in possession of 10.88 grams of
marijuana — approximately 0.38 ounces or 0.024 pounds. Ten pounds equals
approximately 4,536 grams, or about 417 times the 10.88 grams recovered from
Defendant’s person and Jones’ Impala. Defendant possessed 0.0024% of the requisite
amount of marijuana for trafficking. This Court has deemed an amount of cocaine
that was relatively much greater than the amount of marijuana recovered in the
present case as a “de minimis” amount:
defendant possessed four to five crack cocaine rocks which
weighed 1.2 grams, or .04% of the requisite amount for
1 The majority opinion cites Morgan for the statement that “one ounce or 28.3 grams of cocaine
‘was sufficient to support the inference that defendant intended to deliver or sell the cocaine[.]’” I note
that according to Morgan: “The General Assembly has determined that twenty-eight grams of cocaine
evinces an intent to distribute that drug on a large scale. N.C.G.S. § 90–95(h)(3) (1990). As in
Williams, we are satisfied that the full ounce defendant had conspired with Mr. Queen to possess ‘was
a substantial amount and was more than an individual would possess for his personal consumption.’”
Morgan, 329 N.C. at 660, 406 S.E.2d at 836 (citations omitted). For trafficking purposes, one ounce of
cocaine is equivalent to ten pounds of marijuana. See N.C. Gen. Stat. § 90-95(h)(1) (2015).
5
STATE V. YISRAEL
McGEE, C.J., dissenting
trafficking. Therefore, under our Supreme Court’s holding
in Morgan, it cannot be inferred that defendant had an
intent to sell or distribute from such a de minimis amount
alone. The State was required to present either direct or
circumstantial evidence of an intent to sell.
Nettles, 170 N.C. App. at 106, 612 S.E.2d at 176 (citation omitted). In the present
case, Defendant possessed 0.0024% of the requisite amount of marijuana for
trafficking. For purposes of the trafficking statutes, as compared to the amount of
cocaine recovered in Nettles, the amount of marijuana recovered in the present case
is over sixteen times less than the amount of cocaine recovered in Nettles – 10.88
grams of marijuana must be considered de minimis. Id.; see also State v. Wiggins,
33 N.C. App. 291, 294–95, 235 S.E.2d 265, 268 (1977) (citations omitted) (215.5 grams
of marijuana, “without some additional evidence, is not sufficient to raise an inference
that the marijuana was for the purpose of distribution”). 10.88 grams of marijuana
was clearly insufficient “to raise an inference that the marijuana was for the purpose
of distribution.” Id.
The majority opinion attempts to compare the amount of marijuana recovered
in the present case to that recovered in certain other cases, such as Wilkins. The
relevant issue is not whether the amount of marijuana recovered in the present case
was more or less than the amount of marijuana recovered in some other case wherein
insufficient evidence of intent to sell was found; the issue is whether the amount
recovered in the present case was substantial enough to provide some evidence of
6
STATE V. YISRAEL
McGEE, C.J., dissenting
intent to sell. Since the amounts found in Wilkins, Nettles, and the present case are
all de minimis, the amounts recovered do not support a finding of an intent to sell. I
find no relevant difference between the 1.89 grams of marijuana involved in Wilkins,
208 N.C. App. at 730, 703 S.E.2d at 809, and the 10.88 grams recovered in the present
case, as both are de minimis, and substantially less than has been determined by this
court to be consistent with personal use. See Wiggins, 33 N.C. App. at 294–95, 235
S.E.2d at 268.
In its attempt to distinguish this case from Wilkins, the majority opinion notes
that the value of the marijuana in Wilkins was approximately $30.00.2 However, the
value of the marijuana is directly tied to the amount of the marijuana. The evidence
in this case shows only that Defendant possessed a small amount of marijuana,
consistent with personal use. See Nettles, 170 N.C. App. at 107–08, 612 S.E.2d at
177; State v. Turner, 168 N.C. App. 152, 158-59, 607 S.E.2d 19, 24 (officer testified
ten rocks of crack cocaine, weighing 4.8 grams, with value of $150.00 to $200.00, was
more than personal consumption amount; this Court held that testimony was
insufficient to support intent to sell).
B. Packaging
The majority opinion focuses almost exclusively on this dissent’s discussion of
the “quality” of the marijuana as testified to by Officer Brandenburg in its
2 The true value of all the marijuana recovered in the present case was not established at trial.
7
STATE V. YISRAEL
McGEE, C.J., dissenting
“packaging” analysis. However, this dissenting analysis is primarily focused
elsewhere, and I would reach the same conclusion even assuming arguendo that all
the marijuana was of “sellable” quality. This Court has analyzed the packaging prong
of PWISD as follows:
“The method of packaging a controlled substance, as well
as the amount of the substance, may constitute evidence
from which a jury can infer an intent to distribute.” State
v. Williams, 71 N.C. App. 136, 139, 321 S.E.2d 561, 564
(1984) (holding that the trial court did not err in denying
defendant’s motion to dismiss where “[t]he evidence at trial
showed that the [27.6 grams of] marijuana . . . was
packaged in seventeen separate, small brown envelopes
known in street terminology as ‘nickel or dime bags’”); see
also In re I.R.T., 184 N.C. App. 579, 589, 647 S.E.2d 129,
137 (2007) (“Cases in which packaging has been a factor
have tended to involve drugs divided into smaller quantities
and packaged separately.”); State v. McNeil, 165 N.C. App.
777, 783, 600 S.E.2d 31, 35 (2004) (finding an intent to sell
or deliver where defendant possessed 5.5 grams of cocaine
separated into 22 individually wrapped pieces); aff’d, 359
N.C. 800, 617 S.E.2d 271 (2005). The State has not pointed
to a case, nor have we found one, where the division of such
a small amount of a controlled substance constituted
sufficient evidence to survive a motion to dismiss.
Moreover, the [small amount of marijuana] was divided
into only three separate bags. While small bags may
typically be used to package marijuana, it is just as likely
that defendant was a consumer who purchased the drugs
in that particular packaging from a dealer. Consequently,
we hold that the separation of [the small amount] of
marijuana into three small packages, worth a total of
approximately $30.00, does not raise an inference that
defendant intended to sell or deliver the marijuana.
8
STATE V. YISRAEL
McGEE, C.J., dissenting
Wilkins, 208 N.C. App. at 732, 703 S.E.2d at 810 (citation omitted) (emphasis added);
see also Morgan, 329 N.C. at 659, 406 S.E.2d at 835.
The cases cited in Wilkins involved defendants found in possession of large
numbers of pre-packaged smaller units of contraband ready for individual sale. In
order for the number of pre-packaged units to support an inference of an intent to
sell, it must be a number large enough to suggest the units were not purchased for
personal use. For example, in an unpublished opinion, this Court held that 10.98
grams of marijuana, packaged in thirteen individual bags, was insufficient to prove
intent to sell. In re N.J., 230 N.C. App. 140, 752 S.E.2d 255 (2013) (unpublished)
(there was insufficient evidence to determine if marijuana was possessed for personal
use, or sale, where juvenile admitted that he possessed thirteen individually wrapped
bags of marijuana, weighing a total of 10.98 grams).
In the present case, as in Wilkins, the marijuana was only divided into three
bags, but one was a single “dime bag” found in Defendant’s pocket, while the other
two were “relatively small” plastic bags found in the center console of the car. There
were no additional empty bags or containers into which this marijuana could have
been divided for sale, nor any scale with which to measure the marijuana for sale.
Officer Brandenburg testified that he had arrested people pursuant to his duties as
a school resource officer, and that typically it was the small “dime-sized” bags that
were brought on school grounds for sale, and that “[n]ormally [the] dime-sized bag[s]
9
STATE V. YISRAEL
McGEE, C.J., dissenting
[are found] inside of another bag or a capsule. Recently . . . medical capsules has
been the new way to do it. But they’ll be the little dime bag inside bigger packages.”
Officer Brandenburg also responded: “Yes, ma’am” when he was asked: “[W]hen you
talk about the dime bags and how they – when they’re sold they will be inside some
larger container, there would often be multiple packages of dime bags in that larger
container[.]” The following colloquy occurred between Defendant’s attorney and
Officer Brandenburg:
Q. Because a drug seller will take – will have larger bags
of marijuana, put them in a smaller bag, reweigh them –
weigh them on a scale to determine the correct amount of
marijuana is being sold and then sell it to someone, correct?
A. That’s what I’ve heard, yes, ma’am.
Q. Okay. So in that sense, if you see plastic – a box of
plastic baggies in the car and you see scales in the car, you
assume it’s indicative of drug selling, correct?
A. Yes, ma’am.
Q. And you did not see a scale or a plastic – a box full of
plastic baggies in this car, correct?
A. I do not remember seeing that, no, ma’am.
....
Q. [T]hose two big bags would typically need to be divided
up into smaller bags to be sold, correct?
A. Yes, ma’am.
Q. And to do that you would need multiple plastic baggies
10
STATE V. YISRAEL
McGEE, C.J., dissenting
and scales, correct?
A. That would be correct.
In Officer Brandenburg’s opinion, the marijuana recovered from the console
was not “regular” or “sellable marijuana” and, even had it been “sellable,” no scales
were found in the car with which to divide the marijuana, nor was any separate
packaging found in the car with which to re-package the marijuana for sale. See
Nettles, 170 N.C. App. at 107, 612 S.E.2d at 177 (evidence not substantial in part
because there was no “drug paraphernalia typically used in the sale of drugs found
on the premises”). In short, “[t]here was no testimony that the drugs were packaged,
stored, or labeled in a manner consistent with the sale of drugs.” Id. at 107, 612
S.E.2d at 176 (emphasis added).
Assuming, arguendo, that the quality of the marijuana is an appropriate factor
to consider in the packaging analysis, the majority opinion, adopting the State’s
argument on appeal, states: “The packaging and possession of both the ‘sellable’ and
‘unsellable’ marijuana is evidence which raises an inference and from which the jury
could determine Defendant had the intent to sell marijuana.” The majority opinion
reaches this conclusion based upon its contentions that: “Marijuana that is not
‘sellable’ is unlikely to be ‘useable[;]’” a person “would have no reason to possess the
remnant or ‘unsellable’ marijuana[;]” and that the presence of the “larger bags of
marijuana containing ‘remnant’ marijuana suggests the bags had been obtained in
11
STATE V. YISRAEL
McGEE, C.J., dissenting
bulk and partially picked through for packaging ‘regular’ or ‘sellable’ marijuana.”
There was no testimony supporting this reasoning, and no such argument was made
to the trial court or the jury. Sanders, 171 N.C. App. at 50, 613 S.E.2d at 711; Nettles,
170 N.C. App. at 107, 612 S.E.2d at 176. Further, two bags of marijuana containing
4.62 and 5.57 grams of marijuana constitute a de minimis amount wholly consistent
with personal use, not “bulk” purchases. Marijuana of all qualities can be used, and
would be unlikely to be thrown out; however “remnants” would be difficult to sell.
The absence of scales and additional baggies suggests that to the extent the larger
bags had been “partially picked through,” it was to obtain the higher quality
marijuana for personal use, and not for the purpose of repackaging and sale.
Even assuming, arguendo, the larger bags had been picked through at some
earlier time to obtain the quality marijuana for sale, if the remaining marijuana in
the larger bags was not “sellable” at the time Defendant was arrested, that would
only constitute evidence that Defendant – or someone – had possessed that marijuana
in the past with the intent to sell it, and did sell it. However, “unsellable” marijuana
is, by definition, not indicative of a present intent to sell that particular unsellable
marijuana. Though the State could have attempted to do so, Defendant was not
indicted for having already sold the marijuana.
C. Cash
12
STATE V. YISRAEL
McGEE, C.J., dissenting
This Court had stated that “unexplained cash is only one factor that can help
support the intent element.” Wilkins, 208 N.C. App. at 732, 703 S.E.2d at 810
(citation omitted). In both Wilkins and the present case, reasonably large amounts
of cash were recovered – $1,264.00 and $1,504.00, respectively. “As with a large
quantity of drugs, we determine that the presence of cash, alone, is insufficient to
infer an intent to sell or distribute.” I.R.T., 184 N.C. App. at 589, 647 S.E.2d at 137.
In a case cited by the majority opinion “[t]he police . . . searched defendant’s person,
and seized large rolls of currency totaling $10,638.00” along with cocaine. State v.
Alston, 91 N.C. App. 707, 708, 373 S.E.2d 306, 308 (1988). This Court justified
holding that the evidence in Alston was sufficient to support a conclusion that the
defendant had the intent to sell cocaine as follows:
State’s evidence showed that there was, at the most, 4.27
grams of cocaine3 contained in the envelopes found in the
building. The cocaine was packaged, however, in twenty
separate envelopes. Even where the amount of a controlled
substance is small, the method of packaging is evidence
from which the jury may infer an intent to sell. The cash
[$10,638.00] found on defendant’s person also supports
such an inference.
Alston, 91 N.C. App. at 711, 373 S.E.2d at 310 (citation omitted). Neither the amount
of the drugs, the packaging, nor the cash recovered in the present case are similar to
3 Although this Court treated the amount of cocaine in Alston as “small,” 4.27 grams
constituted approximately 15.00% of the amount required for the lowest grade of “trafficking” cocaine,
as opposed to the amount of marijuana found in the present case, which was 0.0024% of the amount
required for a trafficking charge. N.C.G.S. § 90-95(h)(3)(a.). For trafficking purposes, the amount of
cocaine involved in Alston was 6,250 times greater than the amount of marijuana involved in this case.
13
STATE V. YISRAEL
McGEE, C.J., dissenting
those factors in Alston. The majority opinion argues that because the amount of cash
recovered in Nettles was less than that recovered in the present case, Nettles is
distinguishable. However, this Court in Wilkins analogized the facts before it with
those in Nettles as follows:
The present case is similar to Nettles where this Court held
that possession of a small amount of crack cocaine along
with $411.00 and a safety pin, which is typically used to
clean a crack pipe, was insufficient to support a charge of
possession with intent to sell or deliver. This Court held
that “[v]iewed in the light most favorable to the State, the
evidence tends to indicate defendant was a drug user, not
a drug seller.” We believe the totality of the circumstances
in this case compels the same conclusion. Defendant
possessed a very small amount of marijuana that was
packaged in three small bags and he had $1,264.00 in cash
on his person. The evidence in this case, viewed in the light
most favorable to the State, indicates that defendant was a
drug user, not a drug seller.
Wilkins, 208 N.C. App. at 733, 703 S.E.2d at 810–11 (citations omitted) (emphasis
added). The implication in Wilkins is that if $411.00 was not “a large amount of cash”
for the purposes of determining an intent to sell, then neither was $1,264.00. In line
with Wilkins, I do not believe that the difference in the amounts of cash recovered in
Nettles and the present case constitutes a strong distinguishing factor between the
two cases.
The majority opinion further attempts to distinguish Nettles on the bases that
in that case “the officers could not state whether the money was in the defendant’s
pocket or wallet,” and no other money was discovered on the premises. I see no
14
STATE V. YISRAEL
McGEE, C.J., dissenting
relevance attached to whether the cash in Nettles was recovered from the defendant’s
wallet or pocket, and there is no difference concerning whether cash was recovered
from any additional locations, since in neither Nettles nor the present case was any
additional cash recovered. See State v. Barnhart, 220 N.C. App. 125, 127–28, 724
S.E.2d 177, 179 (2012) (citations omitted) (emphasis added) (“When reviewing a
challenge to the denial of a defendant’s motion to dismiss a charge on the basis of
insufficiency of the evidence, this Court determines ‘whether the State presented
substantial evidence in support of each element of the charged offense.’ ‘Substantial
evidence is relevant evidence that a reasonable person might accept as adequate, or
would consider necessary to support a particular conclusion.’”).
Further, the majority opinion attempts to distinguish Wilkins and Nettles from
the present case by drawing a distinction between “explained” cash and
“unexplained” cash. The majority opinion states that “no legitimate source is in the
record for the $1,504.00 multi-denominations of cash recovered from Defendant’s
person and introduced before the jury[,]” whereas in Wilkins and Nettles the
defendants gave innocent explanations for possessing relatively large amounts of
cash. No such distinction between explained and unexplained cash is made in these
opinions, and any such distinction is irrelevant when reviewing the trial court’s
denial of a motion to dismiss based upon insufficient evidence. The majority opinion
relies on language in the fact section of Wilkins to support its assertion that this Court
15
STATE V. YISRAEL
McGEE, C.J., dissenting
factored “the presence of explained [‘legitimate source’] cash on the defendant’s
person” in reaching its conclusion that the defendant’s motion to dismiss should have
been granted. (Emphasis added). However, in the analysis portion of the opinion,
this Court did not address the defendant’s testimony concerning the provenance of the
cash, instead reasoning:
In addition to the packaging, we must also consider the fact
that defendant was carrying $1,264.00 in cash. “However,
unexplained cash is only one factor that can help support
the intent element.” Upon viewing the evidence of the
packaging and the cash “cumulatively,” we hold that the
evidence is insufficient to support the felony charge.
Id. at 732–33, 703 S.E.2d at 810 (citations omitted) (emphasis added).
Initially, contrary to the majority opinion’s characterization of the cash in
Wilkins as “explained cash,” this Court in Wilkins clearly characterized the $1,264.00
as “unexplained cash” in its PWISD analysis. Id. For the purposes of a motion to
dismiss, any large amount of cash found on a defendant is unexplained, regardless of
what the defendant says, unless there is uncontroverted evidence establishing the
provenance of the cash. Appropriately, this Court in Wilkins did not consider the
defendant’s explanation of how he had come by the $1,264.00, and it treated this cash
as “unexplained” because this Court was required to treat the $1,264.00 as
“unexplained cash.” Factoring the defendant’s self-serving testimony explaining why
he was carrying a large amount of cash would be violative of our standard of review
on a motion to dismiss, as Wilkins recognized. Id. at 732, 703 S.E.2d at 810 (“we must
16
STATE V. YISRAEL
McGEE, C.J., dissenting
examine the other evidence presented in the light most favorable to the State”). The
same standard of review applies to the fact, noted in the majority opinion, that the
defendant in Wilkins “testified that he had purchased the marijuana for personal
use.” The defendant’s testimony in this regard was irrelevant in Wilkins, and has no
relevance in attempting to distinguish the facts of Wilkins from the facts of the
present case.
Further, in Wilkins the $1,264.00 was recovered in denominations of “60
$20.00 bills, one $10.00 bill, nine $5.00 bills, and nine $1.00 bills.” Wilkins, 208 N.C.
App. at 730, 703 S.E.2d at 809. These are smaller denominations consistent with
what a drug dealer might accumulate when selling packages of marijuana. In the
present case, the majority opinion contends that the cash recovered from Defendant
“consist[ed] of ten, twenty, and hundred-dollar bills[.]” However, contrary to the
assertions of the State and the majority opinion, there is no record evidence of the
denominations comprising the $1,504.00 recovered from Defendant. There was no
testimony about the denominations of the bills, nor what denominations commonly
indicate drug sales. In its closing argument, the State contended the “$1500 [was
comprised of] twenties, hundreds, tens, small denominations, big denominations[.]”
However, the State’s closing argument is not record evidence. State v. Roache, 358
N.C. 243, 289, 595 S.E.2d 381, 411 (2004) (citation omitted) (“‘it is axiomatic that the
arguments of counsel are not evidence’”).
17
STATE V. YISRAEL
McGEE, C.J., dissenting
The majority opinion’s attempt to distinguish Nettles fails for the same reasons
discussed above. I do not believe this Court considered the defendant’s explanation
of where the cash came from in its analysis and, as stated above, it would have been
inappropriate for it to have done so. State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211,
223 (1994). I also note that Officer Brandenburg testified that he never asked
Defendant where the $1,504.00 came from. “[G]iven the fact that neither the amount
of marijuana nor the packaging raises an inference that [D]efendant intended to sell
the drugs, the presence of [$1,504.00] as the only additional factor is insufficient to
raise the inference.” Wilkins, 208 N.C. App. at 733, 703 S.E.2d at 810.
D. Non-Wilkins factors
The majority opinion relies heavily on evidence not related to the factors set
forth in Wilkins and, while I do not dispute that non-Wilkins factors may be relevant
to an intent to sell analysis, I do not believe they generally carry the same weight.
The majority opinion states:
The following cumulative factors were present in this case,
which distinguish it from Wilkins and Nettles: (1)
possessing illegal drugs on high school grounds where
Defendant was not a student; (2) possessing “unsellable”
remnant marijuana in two larger bags near a “dime bag” of
“sellable” marijuana; (3) driving a vehicle owned by Jones,
who had been banned from the school for possession of
drugs; (4) driving the vehicle without a driver’s license; (5)
illegally parking the vehicle in a fire lane near the school’s
entrance at 10:00 a.m.; and, (6) with the presence of a
stolen and loaded handgun inside the vehicle.
18
STATE V. YISRAEL
McGEE, C.J., dissenting
I believe the factors in Wilkins have been primarily relied upon in intent to sell
cases because they either relate directly to the controlled substance itself –
packaging, labeling, storage, quantity; or constitute evidence that is inextricably
associated with sale or delivery of the controlled substance – the actions of the
defendant (such as suspicious hand-to-hand transactions), see, e.g., State v. Stokley,
184 N.C. App. 336, 337, 646 S.E.2d 640, 642 (2007); suspiciously large amounts of
cash (which is often found on people who have been selling significant amounts of
illegal drugs), see, e.g., Alston, 91 N.C. App. at 708, 711, 373 S.E.2d at 308, 310; and,
most importantly, drug paraphernalia used for preparing the drugs for sale (such as
scales for weighing and multiple bags or other containers for individual packaging),
see, e.g., State v. Williams, __ N.C. App. __, __, 774 S.E.2d 880, 889 (2015).
I presume the majority opinion’s additional factors are not included among the
Wilkins factors because this Court has determined that, generally, the probative
value of non-Wilkins factors in determining intent to sell or deliver is less than that
of the chosen factors. Concerning the additional “factor” relied upon by the majority
opinion that Jones had been banned from Enloe for drug possession, as supporting
evidence of Defendant’s criminal intent, is improper. Endorsing this approach would
essentially allow the State to present prior bad act evidence of a third party as proof
that the defendant acted in conformity with the third party’s prior bad act. See N.C.
Gen. Stat. § 1A-1, Rule 402(b) (2015). The fact that a defendant is not in possession
19
STATE V. YISRAEL
McGEE, C.J., dissenting
of a valid driver’s license is not relevant in determining the defendant’s intent to sell
marijuana. Concerning the fact that Defendant had stopped the car in a fire lane,
absent evidence that this behavior had been observed in relationship to prior drug
transactions at Enloe, or similar evidence, it is also irrelevant. The fire lane was
directly in front of the school, and part of the “car pool lane” where students were
regularly picked up. Officer Brandenburg testified that people regularly parked in
that fire lane and, when they did so, he would ask them to move if they were still in
their vehicles, as Defendant was. The State did not rely on any of these alleged
“factors” in its prosecution of Defendant for PWISD. There was no testimony that
any of this evidence was indicative of, or related to, any intent to sell, nor were any
of these “factors” argued to the jury as such. Sanders, 171 N.C. App. at 50, 613 S.E.2d
at 711; Nettles, 170 N.C. App. at 107, 612 S.E.2d at 176.
Concerning Defendant’s presence on school property, the testimony of both
Officer Brandenburg and Jones supports Defendant’s statement to Officer
Brandenburg that he was in the car pool lane because he was going to pick up his
friend Wilson, a student at Enloe. Officer Brandenburg, who personally knew Wilson,
testified that when he was outside with Defendant: “I could see [Wilson] through the
main door windows of the school looking out at us.” Jones testified that after
Defendant was arrested, Defendant told him he went to Enloe to pick up Wilson.
There was no evidence that Defendant’s behavior was inconsistent with that of other
20
STATE V. YISRAEL
McGEE, C.J., dissenting
visitors to the school, and Officer Brandenburg testified to no suspicious activity on
the part of Defendant from which he could infer an intent to sell marijuana. See
Nettles, 170 N.C. App. at 107, 612 S.E.2d at 176 (“Defendant’s actions were not
similar to the actions of a drug dealer.”). Defendant did not interact with anyone
before he was approached by Officer Brandenburg, and the fact that Defendant was
not a student at Enloe does not show an intent to sell.
Again, the State neither solicited evidence, nor argued to the jury, that any of
the above non-Wilkins factors supported an inference that Defendant had the intent
to sell. Sanders, 171 N.C. App. at 50, 613 S.E.2d at 711; Nettles, 170 N.C. App. at
107, 612 S.E.2d at 176. Further, the State did not attach any significance to the above
evidence in its argument on appeal concerning intent to sell.
Concerning the handgun recovered from the glove compartment of Jones’ car,
I do not contend that recovery of a weapon can never be relevant to PWISD, I simply
do not believe its relevance in the present case, combined with the other relevant
evidence, was sufficient to survive Defendant’s motion to dismiss. The State neither
presented testimony suggesting that the presence of the gun in the glove
compartment of Jones’ Impala was indicative of an intent to sell on Defendant’s part,
nor made any such argument to the jury. If the jury considered the gun in its intent
to sell deliberation, it would have had to have done so on its own initiative, which
could have been improper. See State v. Mitchell, 336 N.C. 22, 29-30, 442 S.E.2d 24,
21
STATE V. YISRAEL
McGEE, C.J., dissenting
28 (1994); Smith, 99 N.C. App. at 71–72, 392 S.E.2d at 645. Because the State did
not present testimony in support of this argument, nor make this argument to the
jury, I presume the jury acted appropriately.4
The majority opinion, in arguing for greater relevance of the handgun in our
analysis, relies in part on a statement in Smith: “As a practical matter, firearms are
frequently involved for protection in the illegal drug trade.” Smith, 99 N.C. App. at
72, 392 S.E.2d at 645. It is important to place this quote in context. In Smith, upon
searching the two defendants’ residence, officers found, inter alia, four “nickel” bags
of marijuana; rolling papers; “a bag of marijuana in a photograph holder;” $355.00;
0.22 grams of cocaine in a “bottle labeled ‘manitol[;]’” a box of plastic baggies;
“seventeen individual baggies” with 2.1 grams of cocaine divided between them, all
located in a larger bag; three pistols; and “some scales.” Smith, 99 N.C. App. at 70,
392 S.E.2d at 644.
One of the defendants in Smith was “charged with felonious possession of a
firearm by a convicted felon.” Id. at 69, 392 S.E.2d at 643. Both the defendants were
charged with PWISD. Id. “The trial court granted defendant Smith’s motion to sever
the firearm possession charge” from the PWISD charges. Id. Therefore, the three
4 In light of Defendant’s acquittal for possessing a firearm on educational property, we now
know that the jury did not improperly consider the gun in its intent to sell analysis. I do not contend
that the not guilty verdict on the charge of possession of a firearm was relevant to Defendant’s motion
to dismiss the PWISD charge. The jury’s ultimate determination that the State had not proved
Defendant possessed the gun in the glove compartment cannot serve to retroactively support
Defendant’s motion to dismiss.
22
STATE V. YISRAEL
McGEE, C.J., dissenting
pistols recovered from the residence were not introduced as evidence of intent to sell
in the PWISD portion of the trial. However, at the PWISD portion of the trial an
officer testified that three guns were found in the residence. The defendants in Smith
first argued that admission of this testimony “was irrelevant and unduly prejudicial”
during the PWISD portion of the trial. Id. at 71, 392 S.E.2d at 644. In deciding the
defendants’ first argument, this Court first held the defendants’ argument was not
properly preserved, then further reasoned:
We think that the testimony concerning the guns was
relevant to “illustrate the circumstances surrounding
[defendant Crawford’s] arrest.” We also cannot say that it
is totally irrelevant to . . . the charges of possession with
intent to sell or deliver cocaine or marijuana. As a practical
matter, firearms are frequently involved for protection in
the illegal drug trade.
We recognize the highly inflammatory nature of raising the
issue of firearms before the jury, and that the probative
value of the testimony concerning the guns may have been
outweighed by the possibility of undue prejudice. In this
case, however, if there was error in admitting the
testimony, it was harmless to the defendants since the
evidence against them was ample.
Smith, 99 N.C. App. at 71–72, 392 S.E.2d at 645 (citations omitted) (emphasis added).
This analysis was solely limited to whether the defendants were prejudiced by
the admission of the gun evidence during the PWISD portion of the trial, and had no
connection to the defendants’ second argument, which concerned the sufficiency of the
evidence to support PWISD. Further, this Court in Smith recognized that evidence
23
STATE V. YISRAEL
McGEE, C.J., dissenting
of the presence of firearms in a trial for PWISD could be “highly inflammatory” and
“that the probative value of the testimony concerning the guns may have been
outweighed by the possibility of undue prejudice.” Id. at 72, 392 S.E.2d at 645. The
portion of the analysis cited by the majority opinion is also dicta. In the part of its
opinion where this Court addressed the defendants’ argument that the State has
failed to present sufficient evidence of intent to sell, the recovery of the firearms was
not considered, nor even mentioned. Id. at 73, 392 S.E.2d at 646.5
In the present case, Defendant’s charge of possession of a firearm on
educational property was not severed from his charge of PWISD, so the jury was not
prevented from hearing evidence of the gun recovered from the glove compartment of
Jones’ Impala prior to deliberating the PWISD charge. However, the questions,
testimony, and arguments made at trial indicate the evidence of the firearm was
presented solely in support of the charge of possession of a firearm on educational
property, and not in support of PWISD. See Sanders, 171 N.C. App. at 50, 613 S.E.2d
at 711 (emphasis added) (“In particular, the dissent points out that the thirty
diazepam pills were found inside a cellophane cigarette package inside a plastic bag.
5 I note that this Court has, in the past, improperly stated that Smith includes a firearm
related holding relevant to PWISD. See State v. Boyd, 177 N.C. App. 165, 171, 628 S.E.2d 796, 802
(2006) (“See State v. Smith, . . . (holding that trial court could properly determine that evidence of a
gun was relevant to the charge of possession with intent to sell or deliver cocaine because ‘[a]s a
practical matter, firearms are frequently involved for protection in the illegal drug trade’”)). There is
no such holding in Smith, however the majority opinion relies on this language from Boyd in support
of its argument.
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STATE V. YISRAEL
McGEE, C.J., dissenting
However, no officer testified that the packaging of the pills was indicative of an intent
to sell rather than personal use.”). There is no evidence that the trial court considered
the gun at all when it denied Defendant’s motion to dismiss the PWISD charge. It
appears, as in Smith, that the State presented the gun evidence solely in support of
the possession of a firearm charge. Because this argument was not made at trial,
Defendant had no opportunity to object to it and argue that the jury should be
prohibited from considering the evidence of the gun in its intent to sell deliberations,
pursuant to N.C. Gen. Stat. § 1A-1, Rule 403, or for any other reason.
The State’s arguments in closing made in support of the intent prong of
PWISD indicate that the gun had not been introduced as evidence of Defendant’s
intent to sell:
In this case you can look at the denominations of currency
in [D]efendant’s pocket,6 the evidence that you’ve heard
testimony of with relation to the street value of these drugs
. . . . Those are things that you can all – you can add
together and say that those are circumstantial pieces of
evidence that showed his intent to sell and deliver the
marijuana.
The fact that he is out of school, the fact that he is out of
school at 10:00 in the morning on a Friday as a 20-year-old
man who is not enrolled there, not a student there and says
he’s there to pick up someone else who they tried to locate
and can’t.7 What can you infer from that? Was he really
6 Again, because there is no record evidence of the denominations, we cannot consider the
State’s characterization of the cash recovered on appeal.
7 Officer Brandenburg’s testimony was that while he was detaining Defendant at the school,
he saw Wilson, the friend Defendant claimed he was picking up, and that they seemed to communicate
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STATE V. YISRAEL
McGEE, C.J., dissenting
there to pick somebody up, or was he there to do something
else?
....
In this case you’re looking at the circumstances under
which this evidence was recovered to determine what you
think [Defendant]’s intent was, if he, in fact, possessed it.
....
But [the marijuana was] packaged individually. If you’re
using for yourself, why have them in separate bags, the
separate packaging, the cash, the location of the items.
Those are things that you can look at and draw inferences
from to conclude [D]efendant’s intent, that his intent was
to distribute marijuana. It could very well be that his
intent was to distribute marijuana that day at the school.
He said he was there to pick somebody up.
The State, in closing, did not argue any relevance related to the amount of marijuana
recovered, the gun, or that the cash was “unexplained.”
The majority opinion also cites Boyd and State v. Willis, 125 N.C. App. 537,
481 S.E.2d 411 (1997) in support of its argument for the relevance of the gun
recovered from Jones’ Impala. As noted above, the “holding” in Smith upon which
the Boyd Court relied does not exist. Further, Boyd stands for the proposition that
on the facts of that case, the gun was relevant to PWISD, and that the trial court did
not abuse its discretion in ruling that the probative value of the gun was not
outweighed by its prejudicial effect. Boyd, 177 N.C. App. at 171-72, 628 S.E.2d at
in some manner at a distance, but that when Officer Brandenburg later tried to locate the friend at
the school, he could not.
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STATE V. YISRAEL
McGEE, C.J., dissenting
802-03. The trial court in the present case was never asked to make any rulings
pursuant to Rules 401 or 403, presumably because the gun was never presented as
evidence in support of PWISD, the trial was not bifurcated, and the gun was clearly
relevant and probative with respect to Defendant’s possession of a firearm charge.
Willis did not involve any issue of intent to sell. This Court mentioned the
“common-sense association of drugs and guns” in its analysis concerning whether the
officers in that case were justified in conducting a more thorough search of the
defendant, because the defendant had just left a known drug house, was acting
nervously, and the “sudden lunge of [the defendant’s] hand into the interior of his
jacket during the [initial] pat-down” put the officers in reasonable concern for their
safety. Willis, 125 N.C. App. at 543, 481 S.E.2d at 411. Based upon this reasoning,
this Court held: “At that point, the situation became fluid and volatile, and Detective
Sholar reacted reasonably and proportionately in searching and emptying the jacket
pocket.” Id. at 543-44, 481 S.E.2d at 412. That drug dealers are known to sometimes
carry weapons is not in dispute. This fact does not make every firearm found in
proximity to a defendant automatically relevant or admissible in a PWISD trial.
The majority opinion cites federal cases in support of its argument that
“[d]espite our precedents, the dissenting opinion does not consider the additional
presence of the stolen and locked firearm as an intent factor.” Initially, the majority
opinion has cited only one North Carolina precedent, Boyd, that considered the
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STATE V. YISRAEL
McGEE, C.J., dissenting
presence of a gun as an intent factor. The federal cases are not binding precedent in
the matter before us. Further, I reiterate that I do consider firearms as potential
“intent factors,” but based upon North Carolina precedent, I do not believe it is per se
proper to consider possession of a firearm in every PWISD case, nor do I believe
possession of a firearm should generally be given the same weight as the established
Wilkins factors. Finally, because the State did not introduce the gun recovered from
Jones’ Impala as evidence of Defendant’s intent to sell, Defendant had no opportunity
to make a Rule 403 objection.
“Quality” is not a Wilkins factor, but in the proper case I believe it can be
considered in an intent to sell analysis. Concerning the quality of the marijuana in
the present case, I rely on the uncontroverted testimony of Officer Brandenburg. As
the majority opinion acknowledges concerning the two bags of marijuana found in the
console, Officer Brandenburg testified:
They were in larger bags, and if memory serves me right,
they were more of what I would consider remnant
marijuana, from where – if you were to bag up the dime
bags, this would be the remnant stuff that didn’t have as
many buds and stuff in it as the regular marijuana, or the
sellable marijuana.
Officer Brandenburg’s testimony implies that the “remnant marijuana” he found in
the console was not “regular” or “sellable marijuana.” At a minimum, his testimony
strongly implies that the “remnant marijuana” recovered from the console was not of
a quality typically offered for sale. However, I would still vacate Defendant’s
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STATE V. YISRAEL
McGEE, C.J., dissenting
conviction if the de minimis 10.19 grams of marijuana was in fact quality “sellable
marijuana” and not low-quality “remnant stuff.”
E. Totality of the Evidence
The majority opinion devotes a significant portion of its analysis attempting to
distinguish the facts in the present case from those in Wilkins and Nettles by focusing
on individual differences between specific factors, and I have already addressed a
number of those arguments. However, it is the totality of the evidence in each case
that must be considered, and I do not rely solely on Wilkins in support of my “vote to
reverse the jury’s verdict.” This Court considered Wilkins and Nettles in a very recent
unpublished opinion, State v. Carter, __ N.C. App. __, __ S.E.2d __, 2017 WL 3027550
(2017) (unpublished), and then vacated the defendant’s conviction for PWISD. I find
the facts and reasoning in Carter relevant to our analysis. In Carter, police recovered
from the defendant 0.63 grams of methamphetamine in five separate baggies “or
.0225% of the minimum amount to presumptively constitute trafficking[,]” “two
unlabeled pill bottles containing fifty-two (52) tablets of oxycodone,” $431.00, a
syringe, and two cell phones. Id. at *1-3. This court in Carter compared the facts
before it to those in Wilkins and Nettles:
We find the evidence at hand substantially similar to that
in Wilkins and Nettles. The State presented no evidence
that the 0.63 grams of methamphetamine, a very small
amount, possessed by Defendant “was more than a drug
user normally would possess for personal use.” No evidence
was presented that the manner in which the
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STATE V. YISRAEL
McGEE, C.J., dissenting
methamphetamine was packaged [five separate baggies]
was more consistent with Defendant intending to sell rather
than having previously used the methamphetamine. The
$431.00 found on Defendant was almost two-thirds less
than the $1,264.00 found insufficient in Wilkins to support
an inference of intent to sell.8 There was no evidence of
other drug paraphernalia consistent with an intent to sell
methamphetamine such as weighing scales, chemicals, or
empty plastic baggies.9
Id. at *3 (emphasis added).
I find the evidence before us substantially similar to that in Carter, and would
likewise find it “substantially similar to that in Wilkins and Nettles.” Id. The amount
of drugs recovered in Nettles and Carter was relatively greater than that recovered in
the present case, though I would characterize the amounts recovered in all four cases
as de minimis. The amount of cash recovered in each instance was significant, but
not highly unusual. “There was no testimony that the drugs were packaged, stored,
or labeled in a manner consistent with the sale of drugs [in any of the four cases].”
Nettles, 170 N.C. App. at 107, 612 S.E.2d at 176. Paraphernalia was found with the
drugs in Nettles and Carter, but “[t]here was no evidence of other drug paraphernalia
consistent with an intent to sell . . . such as weighing scales, chemicals, or empty
8 $431.00 is slightly more than the amount of money recovered in Nettles.
9 In a footnote, this Court in Carter stated: “We note that the detectives found two cell phones
when they searched Defendant. However, the State made no argument in its brief on appeal
concerning the significance of Defendant’s possession of these cell phones; and, therefore, we do not
consider their significance either.” Carter, 2017 WL 3027550 at *3, n. 1. I would note, in the present
case, the State did not argue the significance of a number of the facts relied upon by the majority
opinion, and I do not believe we should consider them.
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STATE V. YISRAEL
McGEE, C.J., dissenting
plastic baggies.” Carter, 2017 WL 3027550 at *3. No paraphernalia, consistent with
an intent to sell or not, was found in Wilkins or the present case. The only potentially
relevant difference that I can find between the facts in Wilkins, Nettles, Carter, and
the present case, is the gun recovered from the glove compartment of Jones’ Impala.
However, for all the reasons discussed above, I do not believe the recovery of this gun
serves to transmute this case from one lacking substantial evidence of an intent to
sell into one including it.
III. Conclusion
At trial, the State presented evidence that Defendant was in possession of
$1,504.00 and a small amount of marijuana, packaged in a manner consistent with
personal use. The State also argues on appeal that we should consider the firearm
recovered from the Impala, even though this evidence was not presented to the jury
as evidence of any intent to sell. “The State points to no other [relevant] evidence or
circumstances that in any way suggest that [D]efendant had an intent to sell or
deliver the [marijuana].” Turner, 168 N.C. App. at 158, 607 S.E.2d at 24. “[W]hen
the evidence is . . . sufficient only to raise a suspicion or conjecture as to either the
commission of the offense or the identity of the defendant as the perpetrator, the
motion to dismiss must be allowed.” Id. at 158–59, 607 S.E.2d at 24 (citation omitted).
This is true even if “the suspicion so aroused by the evidence is strong.” State v.
Dulin, __ N.C. App. __, __, 786 S.E.2d 803, 807 (2016) (citation omitted). I do not find
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STATE V. YISRAEL
McGEE, C.J., dissenting
the suspicion aroused by the evidence in the present case to be strong. I reach the
same conclusion when fully considering the gun recovered from the glove
compartment of Jones’ Impala, and assuming the marijuana recovered from the
center console was all “sellable.”
The jury was also instructed on the lesser-included offense of possession of
marijuana, Defendant admitted at trial that he possessed the marijuana, and the jury
necessarily found that Defendant possessed the marijuana by convicting him of
PWISD. “Consequently, [I would] vacate [D]efendant’s sentence [of PWISD] and
remand for entry of a judgment ‘as upon a verdict of guilty of simple possession of
marijuana.’” Wilkins, 208 N.C. App. at 733, 703 S.E.2d at 811 (citation omitted).
32