State v. Chekanow

IN THE SUPREME COURT OF NORTH CAROLINA

No. 390PA16

Filed 2 March 2017

STATE OF NORTH CAROLINA

v.

LINDA BETH CHEKANOW and ROBERT DAVID BISHOP

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,

unpublished decision of the Court of Appeals, ___ N.C. App. ___, 791 S.E.2d 872

(2016), reversing and remanding judgments entered on 5 August 2015 by Judge R.

Stuart Albright in Superior Court, Alleghany County. Heard in the Supreme Court

on 9 October 2017.

Joshua H. Stein, Attorney General, by Adrian W. Dellinger, Assistant Attorney

General, for the State-appellant.

J. Clark Fischer for defendant-appellees.

BEASLEY, Justice.

In this appeal we consider whether evidence was sufficient to permit a jury to

find defendants were aware of, and exercised control over, the twenty-two marijuana

plants found growing on their property. The Court of Appeals concluded that

defendants did not have exclusive possession of the portion of the property where the

plants were found, and therefore, the State was required to show evidence of other

incriminating circumstances to survive defendants’ motion to dismiss. Because the

STATE V. CHEKANOW

Opinion of the Court

Court of Appeals held the State failed to show other incriminating circumstances that

would permit a jury to find defendants were aware of, and exercised control over, the

marijuana plants, the unanimous panel reversed the trial court’s judgments, and

remanded the matter to the trial court for entry of an order granting defendants’

motions to dismiss. We hold that despite defendants’ nonexclusive control, the State

presented sufficient evidence of other incriminating circumstances to allow the case

to go to the jury. Accordingly, we reverse the decision of the Court of Appeals.

Defendants were charged with manufacturing marijuana, possession with

intent to manufacture, sell, or deliver marijuana, and felony possession of marijuana

and were tried during the 3 August 2015 criminal session of Superior Court in

Alleghany County.1

At trial, the State’s evidence tended to show that on 21 August 2014, law

enforcement agencies, while conducting marijuana eradication operations by

helicopter, observed marijuana plants growing on a three-acre parcel of land owned

by defendants. The officers were initially alerted to defendants’ property because

they observed defendant Chekanow standing on the front porch of her home making

an obscene gesture (“shooting the bird”) at the helicopter. When officers arrived at

the property, they found defendant Chekanow attempting to leave her house in a

1 Defendants waived any conflict of interest, were represented by the same defense

attorney, and were tried jointly.

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vehicle. The officers directed her back to her home and she complied. Chekanow was

the only person present at the residence, and she consented to a search of the area

where the plants were located, the outbuildings, and her home.

Officers on the ground located twenty-two marijuana plants growing on a

fenced-in, one-half acre portion of defendants’ property. This area was bordered by a

woven wire fence and contained a chicken coop, defendants’ chickens, and fruit trees.

Officers testified the fence was approximately four feet high and not easy to climb

over. In addition, officers testified the single gate to the fence was located adjacent

to defendants’ yard. One officer testified that to access the fenced-in area, one would

have to be “right there in front of the house, at the front yard,” and there were no

other designated access points from the public roadway. As the officers walked to the

location where the plants were growing, one observed that the grass along the fence

line was not as high as elsewhere; instead, it had been “cut down, mowed, trampled

on.” Also, inside the fenced-in area was a “cleared-out area . . . maybe weed-eated,

mowed, where the chicken house was.” Further, an officer in the helicopter testified

that a trail leading from the house to the plants was visible from the air. The path of

the trail appeared to be “smashed down” as if it had been used regularly.

The marijuana plants were located sixty to seventy yards beyond the gate; fifty

to seventy-five yards, or approximately two hundred feet, from defendants’ house;

and ten to twenty yards from a mowed and maintained area with a trampoline. The

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plants were “well taken care of,” growing in a row in a cleared area behind some high

weeds, and were placed in a location that allowed them to blend in with the weeds.

Officers on the ground testified they could not see the marijuana plants until they

were “right on top of [them]” or about five to ten feet away from the plants. The plants

were approximately three to five feet in height, and the ground at the base of the

plants had been tilled. One officer testified that it appeared the plants were started

individually in a pot and then transferred into the ground.

During the search, no marijuana or related paraphernalia was found in the

home or outbuildings; however, officers did locate small and large pots, shovels,

trowels, and other gardening equipment. One officer testified to finding a “small

starter kit” consisting of a very small cardboard cup:

Through my experience, we have seen that multiple times

. . . . they will plant the seeds—marijuana seeds into a

starter kit, which are the small cups that are cardboard.

And then they grow [the marijuana plants] to a certain

height or maturity; then they transplant them from there

to a bigger bucket or a planter until they reach another

maturity level. And then once a fuller maturity level is

reached, then they will take those and plant them into

dirt . . . .

The officer further testified that the gardening equipment could have been used for

growing marijuana or for legitimate gardening purposes because defendants had a

garden and potted plants on the property in addition to the marijuana plants. One

of the shovels was covered in dirt that was similar to the dirt at the base of the

marijuana plants, whereas the dirt in the garden was brown.

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The evidence was uncontroverted that defendants had owned and occupied the

property on which the marijuana plants were found for about nine years. Defendants’

nine-year old son also lived in the home. Defendants testified that another

individual—who lived nearby and possessed a key to defendants’ house—had been on

their property frequently to perform yard work, maintenance, and take care of the

house and animals while defendants were out of town. Defendants maintained they

had no knowledge of the marijuana plants.

Because the State could not prove actual possession of the marijuana plants,

the State proceeded on the theory of constructive possession based on the foregoing

evidence. At the close of the State’s evidence and again at the close of all the evidence,

defendants moved to dismiss the charges for insufficient evidence. The trial court

denied both motions. On 5 August 2015, a jury found both defendants guilty of all

charges against them, and the trial court sentenced defendants to six to seventeen

months of imprisonment, suspended for eighteen months subject to supervised

probation.

Defendants appealed their convictions to the Court of Appeals, arguing the

trial court erred in denying their motions to dismiss because the State presented

insufficient evidence to establish that they were in constructive possession of the

plants.2 The Court of Appeals agreed with defendants, holding that though

2 The Court of Appeals noted the defendants raised three proposed issues on appeal,

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defendants’ ownership and occupation of the property created an “inference of

constructive possession,” the defendants’ possession of the property was not exclusive

and the State “failed to show other incriminating circumstances” which would permit

a jury to find defendants were aware of, and exercised control over, the marijuana

plants. State v. Chekanow, ___ N.C. App. ___, 791 S.E.2d 872, 2016 WL 5746386, at

*4 (2016) (unpublished). The court reversed the trial court’s judgments, and

remanded the matter to the trial court for entry of an order granting defendants’

motions to dismiss. Id. This Court granted the State’s petition for discretionary

review of the sufficiency issue.

In this case, we review a unique application of the constructive possession

doctrine. The doctrine is typically applied in cases when a defendant does not have

actual possession of the contraband, but the contraband is found in a home or in a

vehicle associated with the defendant; however, in this case we examine the doctrine

as applied to marijuana plants found growing on a remote part of the property

defendants owned and occupied. The sole issue presented in this appeal is whether

the trial court properly denied defendants’ motions to dismiss, in which defendants

argued the State presented insufficient evidence showing defendants were aware of,

and exercised control over, the twenty-two marijuana plants growing on their

property.

but only addressed one in their brief. The court did not address the other two issues and

deemed them to be abandoned, pursuant to N.C. Rule of Appellate Procedure 28(b).

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“In ruling on a motion to dismiss, the trial court need determine only whether

there is substantial evidence of each essential element of the crime and that the

defendant is the perpetrator.” State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781

(quoting State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998), cert. denied, 537

U.S. 1005, 154 L. Ed. 2d 403 (2002)). “Substantial evidence is that amount of

relevant evidence necessary to persuade a rational juror to accept a conclusion.” Id.

at 301, 560 S.E.2d at 781 (citation omitted).

“In making its determination, the trial court must consider all evidence

admitted, whether competent or incompetent, in the light most favorable to the State,

giving the State the benefit of every reasonable inference and resolving any

contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223

(1994) (citation omitted), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). “[T]he

trial court is concerned only with the sufficiency of the evidence to take the case to

the jury and not with its weight,” and “[t]he test of the sufficiency of the evidence to

withstand the motion is the same whether the evidence is direct, circumstantial or

both.” State v. Malloy, 309 N.C. 176, 178-79, 305 S.E.2d 718, 720 (1983).

“Circumstantial evidence may withstand a motion to dismiss and support a conviction

even when the evidence does not rule out every hypothesis of innocence.” State v.

Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67,

75, 430 S.E.2d 913, 919 (1993) (quoting State v. Stone, 323 N.C. 447, 452, 373 S.E.2d

430, 433 (1988))), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Once the court

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decides that a reasonable inference of defendant’s guilt may be drawn from the

circumstances, then ‘it is for the jury to decide whether the facts . . . satisfy [the jury]

beyond a reasonable doubt that the defendant is actually guilty.’ ” Id. at 379, 526

S.E.2d at 455 (quoting Barnes, 334 N.C. at 75-76, 430 S.E.2d at 919). But if “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.” Malloy, 309 N.C. at 179, 305 S.E.2d at 720 (citing

State v. Poole, 285 N.C. 108, 119, 203 S.E.2d 786, 793 (1974)). “Whether the State

presented substantial evidence of each essential element of the offense is a question

of law; therefore, we review the denial of a motion to dismiss de novo.” State v.

Crockett, 368 N.C. 717, 720, 782 S.E.2d 878, 881 (2016) (citing State v. Cox, 367 N.C.

147, 150-51, 749 S.E.2d 271, 274-75 (2013)).

To survive a motion to dismiss when a defendant has been charged with

manufacturing marijuana, possession with intent to manufacture, sell, or deliver

marijuana, and felony possession of marijuana, the State must provide substantial

evidence that the defendant knowingly possessed the marijuana. N.C.G.S. § 90-

95(a)(1), (a)(3), (d)(4) (2015). Possession of contraband may be actual or constructive.

State v. Minor, 290 N.C. 68, 73, 224 S.E.2d 180, 184 (1976).

In this case the State proceeded on a theory that defendants constructively

possessed the marijuana plants. A defendant constructively possesses contraband

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when he or she does not have actual possession of the contraband but has “ ‘the intent

and capability to maintain control and dominion over’ it.” State v. Miller, 363 N.C.

96, 99, 678 S.E.2d 592, 594 (2009) (quoting State v. Beaver, 317 N.C. 643, 648, 346

S.E.2d 476, 480 (1986)). A finding of constructive possession requires a totality of the

circumstances analysis. See Miller, 363 N.C. at 99, 678 S.E.2d at 594; see also State

v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986) (“As the terms ‘intent’ and

‘capability’ suggest, constructive possession depends on the totality of circumstances

in each case.”). “The defendant may have the power to control either alone or jointly

with others.” Miller, 363 N.C. at 99, 678 S.E.2d at 594 (citing State v. Fuqua, 234

N.C. 168, 170-71, 66 S.E.2d 667, 668 (1951)).

When contraband is “found on the premises under the control of an accused,

this fact, in and of itself, gives rise to an inference of knowledge and possession which

may be sufficient to carry the case to the jury on a charge of unlawful possession.”

State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 (2001) (quoting State v.

Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)) (emphasis added). “However,

unless the person has exclusive possession of the place where the narcotics are found,

the State must show other incriminating circumstances before constructive

possession may be inferred.” Id. at 552, 556 S.E.2d at 271 (quoting State v. Davis,

325 N.C. 693, 697, 386 S.E.2d, 187 190 (1989)).

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In our jurisprudence, cases relying on a defendant’s exclusive possession of the

place the contraband is found have been limited to the specific factual circumstances

when contraband was discovered inside a contained area such as a home or vehicle of

which the defendant was the sole owner, resident, or occupant at the time the

contraband was discovered. See Harvey, 281 N.C. at 12-13, 187 S.E.2d at 714 (The

evidence supported a reasonable inference that the marijuana was in the defendant’s

possession when marijuana was found in the defendant’s home, within three or four

feet from him, and the defendant was the sole occupant of the room in which it was

found.); see also Jessica Smith, North Carolina Crimes 702 (7th ed. 2012) (comparing

two hypotheticals to explain the concept of exclusive possession: “[I]f drugs are found

in a closet in the defendant’s home and the defendant is the sole resident of the home,

the evidence of constructive possession is sufficient to take the issue to the jury.” But

if drugs are found “in a vehicle driven by one person and carrying several others as

passengers,” the defendant is not in exclusive possession and other incriminating

circumstances must be shown. (emphasis added)); cf. Davis, 325 N.C. at 695-97, 386

S.E.2d at 188-190 (requiring the State, despite the defendant’s ownership of the

mobile home, to prove other incriminating circumstances when seven individuals

were present in the mobile home at the time the contraband was discovered). Unlike

Harvey, the evidence in this case established that both defendants lived in the home

with their son, and defendants allowed another individual regular access to their

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property to help with maintenance and to care for their property while defendants

were away on vacation.

Further, this case involves consideration of a more sprawling area of real

property that included a remote section where the marijuana was growing and to

which others could potentially gain access. In State v. Spencer, an opinion issued on

the same day as Harvey, this Court did not rely on ownership and occupation of the

premises alone to determine the evidence was sufficient to show the defendant

constructively possessed marijuana discovered in a pig shed approximately twenty

yards behind his home and marijuana growing in a cornfield fifty-five yards beyond

the pig pen. 281 N.C. 121, 129-30, 187 S.E.2d 779, 784-85 (1972). Rather, the Court

also considered that the defendant had been seen in and around the shed, that

marijuana seeds were found in his bedroom, and that a path linked the pig shed to

the cornfield when holding that the evidence in that case raised a reasonable

inference that the defendant exercised control over the pig shed, the cornfield, and

their contents. Id. at 129-30, 187 S.E.2d at 784-85. The Court in Spencer did not

mention, much less apply, the standard it issued in Harvey and relied instead on

other incriminating circumstances, indicating there is a meaningful distinction in

one’s ability to control a contained space such as a home and vehicle versus sprawling

property.

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Thus, for evidence of constructive possession to be sufficient, if the defendant

owns the premises on which the contraband is found, (1) he must also have exclusive

possession of the premises on which the contraband is found, or (2) the State must

show additional incriminating circumstances demonstrating the defendant has

dominion or control over the contraband.3 See Matias, 354 N.C. at 552, 556 S.E.2d at

270-71 (synthesizing the law of constructive possession); Davis, 325 N.C. at 697-98,

386 S.E.2d at 190 (same). Reiterating that this is an inquiry that considers all the

circumstances of the individual case, when there is evidence that others have had

access to the premises where the contraband is discovered, whether they are other

occupants or invitees, or the nature of the premises is such that imputing exclusive

possession would otherwise be unjust, it is appropriate to look to circumstances

beyond a defendant’s ownership and occupation of the premises. As stated by two

federal courts of appeals, “ ‘when there is joint occupancy of a residence, dominion

over the premises by itself is insufficient to establish constructive possession. In joint

occupancy cases, there must be some additional nexus linking the defendant to the

contraband.” United States v. Wright, 739 F.3d 1160, 1168 (8th Cir. 2014) (citations

omitted), quoted in United States v. Blue, 808 F.3d 226, 232 (4th Cir. 2015); accord

3In a nonexclusive possession context, ownership of property is insufficient on its own

to withstand a motion to dismiss. Contra State v. Tate, 105 N.C. App. 175, 179, 412 S.E.2d

368, 370-71 (1992) (stating that “[i]n North Carolina, an inference of constructive possession

arises against an owner or lessee who occupies the premises where contraband is found,

regardless of whether the owner or lessee has exclusive or nonexclusive control of the

premises”).

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State v. Thorpe, 326 N.C. 451, 455-56, 390 S.E.2d 311, 314 (1990) (looking beyond the

defendant’s ownership and occupation of the bar and pool room to consider other

incriminating circumstances).4

Considering the circumstances of this case, neither defendant was in sole

occupation of the premises on which the contraband was found, defendants allowed

another individual regular access to the property, and the nature of the sprawling

property on which contraband was found was such that imputing exclusive control of

the premises would be unjust.5 Therefore, we must analyze the additional

incriminating circumstances present in this case.

4 The State cites State v. Thorpe as a case relying on Harvey’s standard for ownership

and occupation being sufficient to take a constructive possession case to the jury. To be sure,

Thorpe did include language from Harvey in its analysis. See State v. Thorpe, 326 N.C. 451,

455, 390 S.E.2d 311, 314 (1990). However, Thorpe did not merely rely on Harvey because

Thorpe was not an exclusive possession scenario. See id. at 455, 390 S.E.2d at 314. In Thorpe,

the defendant did not have exclusive possession over the bar he owned because others had

access to the bar and pool room. See id. at 455, 390 S.E.2d at 314. Thus, in its sufficiency

analysis, the Court considered, in addition to the defendant’s property ownership (which was

“strong evidence of control”) and his physical presence on the premises, the defendant’s

ability to personally control who entered the premises by use of a key, an officer’s observation

of defendant alone in the game room or behind the bar on more than one occasion, and the

defendant’s participation in the sale of controlled substances by knowing the undercover

officer’s errand and directing her inside. Id. at 455-56, 390 S.E.2d at 314. Rather than rely

on ownership and occupation alone, the Court in Thorpe applied a totality of the

circumstances test with property ownership being a weighty, but not dispositive, factor. See

id. at 455, 390 S.E.2d at 314 (“We hold that, considered as a whole, as required, the

circumstantial evidence of defendant’s power and intent to control the sale of dilaudid on

both dates listed in the indictments was sufficient to support an inference of both his

possession with an intent to sell or deliver that controlled substance and his participation in

the transfer transactions themselves.”).

5 The circumstances of this case raise several practical considerations cautioning

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If the defendant is not in exclusive possession of the place where contraband is

found, to survive a motion to dismiss the State must show other incriminating

circumstances linking the defendant to the contraband. Miller, 363 N.C. at 99, 678

S.E.2d at 594 (citing Matias, 354 N.C. at 552, 556 S.E.2d at 271). Whether

incriminating circumstances exist to support a finding of constructive possession is a

fact-specific inquiry. Id. at 99-100, 678 S.E.2d at 594-95. In determining whether

sufficient incriminating circumstances exist to support a finding of constructive

possession, a review of this Court’s cases reveals that we have considered the

following factors: (1) the defendant’s ownership and occupation of the property (as

previously discussed); (2) the defendant’s proximity to the contraband; (3) indicia of

the defendant’s control over the place where the contraband is found; (4) the

defendant’s suspicious behavior at or near the time of the contraband’s discovery; and

(5) other evidence found in the defendant’s possession that links the defendant to the

contraband. See id. at 99-100, 678 S.E.2d at 594-95 (explaining that proximity and

indicia of control are two factors frequently considered in this analysis); see State v.

Butler, 356 N.C. 141, 147-48, 567 S.E.2d 137, 141 (2002) (considering the defendant’s

suspicious actions among the sufficient “additional incriminating circumstances”);

State v. Brown, 310 N.C. 563, 569-70, 313 S.E.2d 585, 588-89 (1984) (considering the

defendant’s possession of over $1,700 in cash on his person among the sufficient

against the creation of bright line rules which could serve to implicate other innocent

property owners in constructive possession cases.

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“other incriminating circumstances”). No one factor controls, and courts must

consider the totality of the circumstances. See Miller, 363 N.C. at 99-101, 678 S.E.2d

at 594-95 (“Our cases addressing constructive possession have tended to turn on the

specific facts presented.”); State v. Butler, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311

(2001) (“[C]onstructive possession depends on the totality of the circumstances in

each case.”) (quoting State v. Jackson, 103 N.C. App. 239, 243, 405 S.E.2d 354, 357

(1991), aff’d per curiam, 331 N.C. 113, 413 S.E.2d 798 (1992))), aff’d, 356 N.C. 141,

567 S.E.2d 137 (2002). However, we reiterate, as this Court did in Thorpe, that

ownership of the premises on which the contraband is found is “strong evidence of

control,” and thus, should be considered as a weighty factor in the analysis. See

Thorpe, 326 N.C. at 455, 390 S.E.2d at 314.

First, in addressing a defendant’s proximity to the contraband, this Court

considers proximity in terms of space and time. For example, in Miller evidence was

sufficient when, inter alia, contraband was found within the defendant’s reach. 363

N.C. at 100, 678 S.E.2d at 595. In State v. Bradshaw, we considered evidence that

the defendant had recently occupied the location where the contraband was found.

366 N.C. 90, 96-97, 728 S.E.2d 345, 349-50 (2012). Specifically, in Bradshaw,

evidence was sufficient when, inter alia, the defendant had been present in the place

where the contraband was found approximately two days later, id. at 96-97, 728

S.E.2d at 349-50, while in State v. Finney evidence of the defendant’s prior presence

in the location where the contraband was found some forty-four days later was held

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to be insufficient to support a finding of constructive possession, 290 N.C. 755, 760-

61, 228 S.E.2d 433, 436 (1976).

Here, the State’s evidence shows that defendants’ residence was approximately

two hundred feet from the plants. The plants were also growing thirty to sixty feet

from a mowed and maintained portion of the property that contained a trampoline.

Addressing temporal proximity, there is evidence that the ground at the base of the

plants had been recently cleared of leaves and pine needles, that the plants had been

maintained for approximately two and a half months, and that the area surrounding

the plants had been recently accessed and maintained by defendant Bishop. Thus,

in the present case, the close proximity of the growing plants to an area maintained

by defendants, the reasonably close proximity of defendants’ residence to the plants,

and one defendant’s recent access to the area where the plants were found growing

are all factors to consider in the sufficiency analysis.

Second, this Court has considered as an indicator of control over the place

where the contraband is found whether a defendant’s personal items were found in

the same location as the contraband. In Miller, this Court held the State’s evidence

was sufficient when, inter alia, defendant’s birth certificate and State-issued

identification card were found next to small plastic baggies and in the same room as

cocaine. 363 N.C. at 97-98, 678 S.E.2d at 593. Also, a defendant’s opportunity to

place contraband in the place where it was found is additional indicia of control. In

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Matias, the State’s evidence was sufficient when, inter alia, officers discovered

contraband in the space between the pads in the seat where the defendant had been

sitting, 354 N.C. at 552-53, 556 S.E.2d at 271, and in Brown, evidence was sufficient

when, inter alia, the defendant possessed a key to the residence where contraband

was found, 310 N.C. at 569-70, 313 S.E.2d at 589.

Here, in addition to defendants’ proximity to the marijuana plants, multiple

indicia of control are present from which the jury could infer knowledge and

possession. The marijuana plants were surrounded by a fence that was not easily

surmountable. Similar to the defendant in Thorpe, defendants here had the ability

to control who entered this portion of the property by establishing the sole entry point

in the front yard next to their home. Also, as in Bradshaw, there is additional

evidence here that at least one of the defendants had recently occupied the area where

the marijuana was found. On the date the plants were discovered, defendant

Chekanow stated that she had not been in that area of the property for over a year,

while defendant Bishop testified to mowing about twenty percent of the fenced-in

area, including mowing a path for the chickens around the chicken coop, a path

around defendants’ fruit trees, and an area roughly six feet from the fence line,

indicating he frequently occupied the half-acre area. Also, viewing the evidence in

the light most favorable to the State, one officer reported a trail leading from

defendants’ residence, by the chicken coop, and to the location where the marijuana

plants were growing. This officer, who observed the trail from the helicopter, stated

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that the grass appeared to be “smashed down” as though it had been walked on

regularly. Additionally, like the defendant in Miller, the evidence here indicates that

additional items belonging to defendants were in the same location as the contraband

in that defendants kept their chickens and chicken coop in the same fenced-in, one-

half acre of their property where the marijuana was growing.

Third, this Court has considered evidence of a defendant’s suspicious behavior

in conjunction with the discovery of the contraband. For example, in Butler, this

Court held the State’s evidence was sufficient to survive a motion to dismiss when,

inter alia, defendant made eye contact with officers and then proceeded to walk “very

briskly” through a bus terminal, repeatedly glancing back at the officers following

him, before hurrying into a taxicab and shouting “let’s go, let’s go, let’s go.” 356 N.C.

at 147-48, 567 S.E.2d at 141. The evidence here shows that defendant Chekanow

directed an “unfortunate gesture” at the clearly marked State Highway Patrol

helicopter as it flew over her property. Further, in the light most favorable to the

State, defendant Chekanow appeared to flee the premises in a vehicle as the

helicopter hovered to investigate the possible field of marijuana.

Finally, in its sufficiency analysis, this Court has considered additional

evidence found in defendant’s possession which links the defendant to the

contraband. For example, in Brown, in addition to the defendant’s proximity to the

cocaine and indicia of his control over the apartment where the cocaine was

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discovered, this Court also considered that officers found over $1,700 in cash on the

defendant’s person in determining there was sufficient evidence of constructive

possession. 310 N.C. at 569, 313 S.E.2d at 589. Also, in State v. Spencer, the Court

considered in its sufficiency analysis the fact that officers found marijuana seeds in

the defendant’s bedroom at the same time marijuana plants were found in a

dilapidated shed located twenty yards behind defendant’s home. 281 N.C. at 129-30,

187 S.E.2d at 784.

Here, a search of defendants’ property resulted in the discovery of gardening

equipment outside an outbuilding. Though officers conceded the tools could have

been used either for marijuana cultivation or innocent gardening, the State’s evidence

further revealed dark red dirt found on the shovel consistent with the dark red clay

at the base of the marijuana plants, while the soil in defendants’ garden was dark

brown. In the light most favorable to the State, this evidence shows the tools found

in or around defendants’ outbuilding, including a “starter kit,” were used to cultivate

the marijuana plants.

Defendants provide several arguments based on their testimony at trial to

rebut their alleged knowledge and possession of the marijuana plants; however, this

evidence is for the jury to weigh, not the trial court, and it is certainly not for the

appellate courts to reweigh. Further, “[t]he State’s evidence need not exclude every

reasonable hypothesis of innocence before the trial court properly can deny the

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STATE V. CHEKANOW

Opinion of the Court

defendant's motion to dismiss for insufficiency of the evidence.” Beaver, 317 N.C. at

651, 346 S.E.2d at 481 (citing State v. Riddick, 315 N.C. 749, 759, 340 S.E.2d 55, 61

(1986)). When a trial court rules on a motion to dismiss, the court gives considerable

deference to the State’s evidence. Here, the Court of Appeals simply failed to consider

the State’s presentation of incriminating circumstances in addition to defendants’

proximity to the contraband and ownership of the property on which it was found; in

sum, instead of focusing on what the State did provide, the court focused on what the

State did not produce in distinguishing this case from other constructive possession

cases in which evidence was found sufficient to withstand a motion to dismiss.

Notwithstanding defendants’ nonexclusive possession of the location in which

the contraband was found, we hold there is sufficient evidence of constructive

possession when the State presents evidence of defendants’ ownership of the property

on which the plants were growing, defendants’ reasonable proximity to the growing

marijuana plants, defendants’ ability to control access to that portion of the property

via a fence and sole entry point, one defendant’s recent maintenance of the area where

the plants were found, the presence of defendants’ chickens and their chicken coop in

the area where the plants were found, one defendant’s suspicious behavior—the

gesture and flight—before the discovery of the plants, and the discovery of equipment

on defendants’ property that could have been used to cultivate the plants. From this

evidence a jury could reasonably infer that defendants knowingly possessed the

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STATE V. CHEKANOW

Opinion of the Court

marijuana plants. Thus, the trial court properly denied defendants’ motions to

dismiss for insufficiency of the evidence.

Therefore, for the reasons stated above, we reverse the decision of the Court of

Appeals as to the issue before us on appeal and instruct that court to reinstate the

trial court’s judgment.

REVERSED.

Justice NEWBY concurring in the result only.

Exclusive possession is a right inherent to the ownership of real property.

While the majority concedes that defendants owned and occupied the property, it

proceeds on a theory of nonexclusive constructive possession, without acknowledging

that defendants, as the owners in possession, have the “intent and capability to

maintain control and dominion” over their three-acre residential property. Because

property ownership by definition includes the right to exclusive possession, under the

facts of this case defendants’ ownership and occupancy raise an inference of

constructive possession sufficient to submit the case to the jury. Accordingly, I concur

in the result only.

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STATE V. CHEKANOW

Newby, J., concurring in the result only

The only question presented by this appeal is whether the State presented

substantial evidence that defendants knowingly possessed the twenty-two mature,

growing marijuana plants located on a one-half acre portion of their three-acre

residential property. The majority applies the test for constructive possession which

requires proof of defendants’ “intent and capability to maintain control and dominion

over” the marijuana plants on their real property, having either sole or joint control,

and considering the totality of the circumstances. Here it is undisputed that

defendants, being in actual possession of the land, owned and occupied the three-acre

residential property where the marijuana was growing. See Matthews v. Forrest, 235

N.C. 281, 284, 69 S.E.2d 553, 556 (1952) (opining that actual possession of land

includes acting in dominion over it and making the ordinary use of it).

The majority acknowledges that our cases recognize “exclusive possession”

arising under circumstances “when contraband was discovered inside a contained

area such as a home or vehicle of which the defendant was the sole owner, resident,

or occupant.” Nonetheless, the majority concludes that “[c]onsidering the

circumstances of this case, neither defendant was in sole occupation of the premises

on which the contraband was found, defendants allowed another individual regular

access to the property, and the nature of the sprawling property on which contraband

was found was such that imputing exclusive control of the premises would be unjust.”

Apparently based upon an assumption that a three-acre parcel is “sprawling” to

which “defendants allowed another individual regular access,” the majority declares

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STATE V. CHEKANOW

Newby, J., concurring in the result only

defendants’ possessory interest in their property “nonexclusive.” “Nonexclusive”

means not having the power to exclude others from use of the property. Cf. Exclusive

possession, Black’s Law Dictionary (10th ed. 2014) (“The exercise of exclusive

dominion over property, including the use and benefit of the property.”); Webster’s

Third New International Dictionary 793 (1971) (“excluding or having power to

exclude (as by preventing entrance or debarring from possession, participation, or

use) . . . . limiting or limited to possession, control, or use (as by a single individual or

organization or by a special group or class)”).

Yet, by definition, ownership of land includes the right to exclusive possession.

There is nothing which so generally strikes the

imagination and engages the affections of mankind, as the

right of property; or that sole and despotic dominion which

one man claims and exercises over the external things of

the world, in total exclusion of the right of any other

individual in the universe.

3 William Blackstone, Commentaries *1-2; see id. at *8 (noting as a foundational

principle that the right of property “g[ives] a man an exclusive right to retain in a

permanent manner . . . specific land, which before belonged generally to every body,

but particularly to nobody,” and that this right “excludes every one else but the owner

from the use of it”). By definition, property includes “[c]ollectively, the rights in a

valued resource such as land . . . . It is common to describe property as a ‘bundle of

rights.’ ”1 Property, Black’s Law Dictionary (10th ed. 2014).

1See also Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 831, 107 S. Ct. 3141, 3145,

97 L. Ed. 2d 677, 685-86 (1987) (“We have repeatedly held that, as to property reserved by

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STATE V. CHEKANOW

Newby, J., concurring in the result only

“Property rights are ‘in rem’ rights. That is, they are rights that may be

exercised and that are protectable ‘against all the world.’ Thus, if a person has a

property right, that person has a right to exclude others from the use of the

determinate thing that is owned.” 1 James A. Webster, Jr., Webster’s Real Estate

Law in North Carolina § 1.03, at 1-11 (Patrick K. Hetrick & James B. McLaughlin,

Jr. eds., 6th ed. 2011); see also Hildebrand v. S. Bell Tel. & Tel. Co., 219 N.C. 402,

408, 14 S.E.2d 252, 256 (1941) (“The term [property] comprehends not only the thing

possessed but also, in strict legal parlance, means the right of the owner to the land;

the right to possess, use, enjoy and dispose of it, and the corresponding right to

exclude others from its use.”). “Thus, it would appear that property is a right of

exclusive dominion and unrestricted user, within the law.” Stedman v. City of

Winston-Salem, 204 N.C. 203, 204, 167 S.E. 813, 814 (1933); see also Vann v.

Edwards, 135 N.C. 661, 665, 47 S.E. 784, 786 (1904) (defining “property” as “rightful

dominion over external objects; ownership; the unrestricted and exclusive right to a

thing; the right to dispose of the substance of a thing in every legal way, to possess it,

to use it and to exclude every one else from interfering with it”).

In accordance with these fundamental principles of real property ownership,

“[c]onstructive possession has been found when the contraband was on the property

its owner for private use, ‘the right to exclude [others is] “one of the most essential sticks in

the bundle of rights that are commonly characterized as property.” ’ ” (Alteration in

original) (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433, 102 S.

Ct. 3164, 3175, 73 L. Ed. 2d 868, 881 (1982))).

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STATE V. CHEKANOW

Newby, J., concurring in the result only

in which the defendant had some exclusive possessory interest and there was evidence

of his or her presence on the property and it has been found where possession is not

exclusive but defendant exercises sole or joint physical custody.” State v. Thorpe, 326

N.C. 451, 454-55, 390 S.E.2d 311, 313 (1990) (emphases added) (citing State v.

Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972), and State v. Brown, 310 N.C. 563, 313

S.E.2d 585 (1984)). Much like an essential aspect of real property ownership,

constructive possession has been described by this Court as the “intent and capability

to maintain control and dominion over,” State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d

476, 480 (1986), or the “power and intent to control”:

He has possession of the contraband material . . . when he

has both the power and intent to control its disposition or

use. Where such materials are found on the premises

under the control of an accused, this fact, in and of itself,

gives rise to an inference of knowledge and possession

which may be sufficient to carry the case to the jury on a

charge of unlawful possession.

Harvey, 281 N.C. at 12, 187 S.E.2d at 714. As a result, “constructive possession can

be reasonably inferred from the fact of ownership of premises where contraband is

found.” Thorpe, 326 N.C. at 455, 390 S.E.2d at 314; id. at 456, 390 S.E.2d at 314

(inferring knowledge and possession “by virtue of ownership and custody” and

buttressing the inference with the defendant’s physical presence). “Such ownership

is strong evidence of control and ‘gives rise to an inference of knowledge and

possession which may be sufficient to carry the case to the jury on a charge of

unlawful possession.’ ” Id. at 455, 390 S.E.2d at 314 (quoting Harvey, 281 N.C. at 12,

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STATE V. CHEKANOW

Newby, J., concurring in the result only

187 S.E. 2d at 714).2

When possession is not exclusive, with others having a common right to enter

the property, the State must “show other incriminating circumstances before

constructive possession may be inferred.” State v. Davis, 325 N.C. 693, 697, 386

S.E.2d 187, 190 (1989) (citation omitted); see id. at 695-99, 386 S.E.2d at 188-91

(finding sufficient evidence to go to the jury on the defendant’s nonexclusive

constructive possession of narcotics found in multi-occupant mobile home when, inter

alia, a “sales contract” indicated that the defendant had purchased the home, and the

defendant was present at the time of the search); see also State v. Williams, 307 N.C.

452, 456, 298 S.E. 2d 372, 375 (1983) (finding sufficient evidence of constructive

possession “giv[ing] rise to an inference of knowledge and possession” of heroin found

in a dilapidated building behind a residence when the mailbox bore the defendant’s

name and the defendant had been seen at the multi-occupant residence even though

he was not present at the time of the search).

Defendants’ ownership of the property here gave them the right of exclusive

possession, and their exercise of that right, occupying and using the property at the

time the marijuana plants were growing, gives rise to an inference that would permit

2 This view of property rights is consistent with our trespass laws. The legal right to

enter a property requires consent from the party with the current possessory interest. See

N.C.G.S. § 14-159.12(a)(1) (2015) (stating that a person commits first-degree trespass if,

“without authorization, he enters or remains . . . [o]n premises of another”); id. § 14-

159.13(a) (2015) (stating that a person commits second-degree trespass if, “without

authorization, he enters or remains on premises of another”).

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STATE V. CHEKANOW

Newby, J., concurring in the result only

a jury to find that defendants constructively possessed the plants. Moreover, here

defendants demonstrated their power and intent to exclusively control their property

as owners. The officers located the cultivated marijuana plants on roughly one-half

acre of defendants’ three-acre property in a fenced-in portion of the property adjacent

to the yard, accessible by a single gate “right there in front of the house, at the front

yard.” Officers located the marijuana plants just sixty to seventy yards from that

gate, around two hundred feet from the house itself, and approximately ten yards

from the maintained lawn area. These facts illustrate that defendants as owners

exercised their right to exclude others from the fenced-in property protected by the

gated access. As noted by the majority, defendants as the property owners recognized

their inherent right to exclude others from their property by explicitly granting access

to a third party.

Thus, not only did defendants own the three-acre residential property, but they

daily occupied and exercised exclusive control over it. Their status as owners and

their exercise of ownership rights constitute substantial evidence of the element of

constructive possession, see Brown, 310 N.C. at 568-70, 313 S.E.2d at 588-89,

particularly when viewed in the light most favorable to the State, see 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). While the majority correctly states the standard of

review, it nonetheless weighs the facts in favor of defendants to determine that the

possession was nonexclusive. When reviewing a motion to dismiss, facts that may

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STATE V. CHEKANOW

Newby, J., concurring in the result only

weigh in favor of defendants’ nonexclusive possession are reserved for the jury’s

consideration.

In its application, the majority uses ownership as one factor and glosses over

the distinctions between property owners and temporary occupants without clearly

differentiating between cases in which the defendant does not own, have a possessory

interest in, or occupy the property.3 Likewise, it fails to distinguish between different

types of property uses such as commercial property upon which the owner invites the

public. Such an analysis forsakes bedrock property ownership principles and

overlooks both defendant property owners’ right to control their property and their

demonstrated exercise of that right in this case.

Thus, while I agree that the other incriminating circumstances presented here

support the State’s case against defendants, I would conclude that defendants’

ownership of their three-acre residential property, and their demonstrated exercise

3 Compare Williams, 307 N.C. at 456, 298 S.E.2d at 375 (finding evidence of

permanent residence to be “substantial evidence to raise a reasonable inference that

defendant was in constructive possession” of an outbuilding where heroin was found), and

Harvey, 281 N.C. at 13, 187 S.E.2d at 714 (Evidence placing defendant “within three or four

feet of the marijuana within his home,” without anyone else in the room, “supports a

reasonable inference that the marijuana was in defendant’s possession.”), with State v.

Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 (2001) (stating that contraband “found

on the premises under the control of an accused, . . . in and of itself, gives rise to an

inference of knowledge and possession,” but requiring a showing of “other incriminating

circumstances” to prove a passenger, who had occupied a vehicle for twenty minutes,

possessed the cocaine), and State v. Butler, 356 N.C. 141, 147-48, 567 S.E.2d 137, 141

(2002) (requiring “additional incriminating circumstances” to establish defendant

passenger’s constructive possession of cocaine given his nonexclusive control over the

taxicab where it was found).

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STATE V. CHEKANOW

Newby, J., concurring in the result only

of exclusive control over it, are sufficient to allow the case to go to the jury.

Accordingly, I concur in the result only.

Chief Justice MARTIN and Justice JACKSON join in this concurring opinion.

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