# State v. Sanders > Court of Appeals of North Carolina · June 21, 2005 · 171 N.C. App. 46 URL: https://www.frixlaw.com/law-library/cases/9600328 ## Case - **Full name:** State of North Carolina v. Michael Lee Sanders - **Court:** Court of Appeals of North Carolina - **Decided:** June 21, 2005 - **Citations:** 171 N.C. App. 46; 613 S.E.2d 708; 2005 N.C. App. LEXIS 1158 - **Precedential status:** Published - **Opinion:** Concurring in part by Tyson - **Judges:** Wynn, Elmore, Tyson - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9600328 ## Opinion text Tyson, Judge concurring in part, dissenting in part. The majority’s opinion holds: (1) the trial court did not err in denying defendant’s two motions for jury instructions; and (2) the trial court erred by denying defendant’s motion to dismiss the charge of felonious possession with intent to sell diazepam/valium due to insufficiency of evidence to support intent. I concur with the analysis and holding in the majority’s opinion with regards to the jury instructions. However, I respectfully dissent from its holding concerning defendant’s motion to dismiss. I. State’s Concession The majority’s opinion holds the trial court erred by not granting defendant’s motion to dismiss and cites the State’s concession in its brief that it “is unable to distinguish” our holding in State v. King, 42 N.C. App. 210 , 256 S.E.2d 247 (1979) from the facts at bar. We are not bound by parties’ concessions or stipulations concerning an issue of law. See State v. Phifer, 297 N.C. 216, 226 , 254 S.E.2d 586, 591 (1979) (“This Court, however, is not bound by the State’s concession. The general rule is that stipulations as to the law are of no validity. Whether the facts in this case give rise to probable cause is a legal determination reserved for the courts. Where a particular legal conclusion follows from a given state of facts, no stipulation of counsel can prevent the court from so declaring.”) (internal citations and quotations omitted). Conclusions of law are reviewable de novo. State v. Barber, 335 N.C. 120, 129 , 436 S.E.2d 106, 111 (1993), cert. denied, 512 U.S. 1239 , 129 L. Ed. 2d 865 (1994). Under de novo review, we consider the issue “anew” and determine the applicability of the law. Mann Media, Inc. v. Randolph County Planning Bd., 356 N.C. 1, 13 , 565 S.E.2d 9, 17 (2002). The State’s concession is not binding on appeal to this Court. Phifer, 297 N.C. at 226 , 254 S.E.2d at 591 . II. Sufficiency of the Evidence The majority’s opinion holds insufficient evidence supports a finding that defendant “intended” to sell the controlled substance. I disagree. *56 The elements of the crime of possession with intent to sell or deliver a controlled substance are: (1) the defendant possessed the substance; (2) the substance is a controlled substance; and (3) the defendant intended to sell or deliver the controlled substance. N.C. Gen. Stat. § 90-95 (a)(l) (2003); State v. Mackey, 352 N.C. 650, 658 , 535 S.E.2d 555, 559 (2000). Defendant admits he possessed diazepam, a schedule IV controlled substance. Defendant challenges the sufficiency of the State’s evidence regarding the third element of the offense: whether defendant intended to sell or deliver the controlled substance. See N.C. Gen. Stat. § 90-95 (a)(l). A defendant’s intent to sell or deliver may be shown by: (1) the quantity of the substance found; (2) the manner in which its packaged; and (3) the presence of other packaging materials. State v. Baxter, 285 N.C. 735, 738 , 208 S.E.2d 696, 698 (1974). The large quantity of controlled substance along with the existence of paraphernalia for measuring, weighing, packaging, and/or distribution are all circumstances from which it could properly be inferred that the controlled substance was possessed for sale or delivery rather than for personal use. State v. Mitchell, 27 N.C. App. 313, 314-16 , 219 S.E.2d 295, 297-98 (1975) (citations omitted), cert. denied, 289 N.C. 301 , 222 S.E.2d 701 (1976). In King , the defendant was charged and convicted of possession with intent to sell a controlled substance1. 42 N.C. App. at 210 , 256 S.E.2d at 247 . The only evidence of the defendant’s intent to sell that the State tendered was his possession Of seventy pills of a controlled substance. Id. We acknowledged in King that “the requisite intent can be at least partially inferred from the quantity of controlled substance found in defendant’s possession.” 42 N.C. App. at 212-13 , 256 S.E.2d at 248 -49 (citing Mitchell, 27 N.C. App. 313 , 219 S.E.2d 295 ). The trial court’s denial of the defendant’s motion for nonsuit was reversed. Id. We held that the “defendant’s possession of seventy tablets of [a controlled substance], absent other factors supplying an intent to sell, is insufficient to withstand a motion for nonsuit on the charge of possession with intent to sell.” Id. at 213, 256 S.E.2d at 249 . King is readily distinguishable from the facts at bar. In King , the Court found “no evidence of intent was presented other than the seventy tablets of phenobarbital found in defendant’s cabinet. . . [and] [n]o items usually associated with drug trafficking were found which would supply an inference of an intent to sell.” 42 N.C. App. at 213 , 256 S.E.2d at 249 . *57 Here, the State’s evidence was not limited solely to the large quantity of thirty pills of diazepam and its packaging. The thirty diazepam pills were placed and found inside a cellophane cigarette package, which itself was placed inside a plastic bag. The State also proffered testimony and exhibits showing a considerable amount of drug paraphernalia was present inside both defendant’s house and his bedroom. This evidence included measuring scales, cigarette/marijuana rolling papers, plastic baggies with comers ripped off, and one plastic bag containing marijuana residue. The only prescription bottle for diazepam found inside the house belonged to someone other than defendant, and had a portion of the label torn off. In addition, defendant’s probation officer testified that defendant did not show a positive presence of diazepam in his body after drug tests, although defendant testified he took diazepam every day for his nerves. III. Conclusion After considering the evidence in the light most favorable to the State and giving the State every reasonable inference, the trial court did not err in denying defendant’s motions to dismiss. See Morgan, 359 N.C. at 161, 604 S.E.2d at 904 (standard of review of a trial court’s ruling on a motion to dismiss as described in footnote 1 of majority opinion). Substantial direct and circumstantial evidence was proffered and tended to show defendant possessed a controlled substance which he intended to sell or deliver. See id.; see also Brown, 310 N.C. at 566, 313 S.E.2d at 587. Other than solely relying on the State’s concession that King is controlling, the majority’s opinion does not address the uncontested evidence described above that defendant’s actions far exceeded mere possession of a schedule IV narcotic. The diazepam was not contained in its original container: (1) it was not legally connected to defendant through a prescription; (2) defendant’s drug tests showed no presence of diazepam in his body despite his testimony that he took the drag every day; and (3) defendant’s home contained diverse and substantial quantities of other drug paraphernalia. These facts clearly distinguish this case from King . The evidence was sufficient to survive defendant’s motion to dismiss and to allow the jury to determine the issue. I vote to affirm the trial court’s denial of defendant’s motion to dismiss and find no error in defendant’s conviction and judgment entered thereon. I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9600328. Public record. Not legal advice.