State v. McNeil

ELMORE, Judge,

dissenting.

I agree with the majority’s decision except on the issue of the motion to dismiss. On that issue, I respectfully dissent.

Defendant was forty-five years old at the time judgment was entered against him in this case. He worked as a handyman in his neighborhood, cutting grass, raking leaves, and doing odd jobs. On 31 August 2001 defendant was cutting grass and Mr. Keech, a friend, was assisting him. When they finished, at around 2:30 or 3:00 in the after *786 noon, the two men walked down the street. Defendant testified at trial that they went down the street because Mr. Keech wanted to “retrieve something that he had left there.” Defendant testified that they were walking to 1201 Fargo Street.

That same afternoon, Officer Broadwell was dispatched to 1108 Fargo Street following receipt of a complaint of drug sales taking place in the street in front of that address. When Officer Broadwell arrived, he found defendant and Keech standing in the road in front of 1108 Fargo Street. Officer Broadwell testified that he saw no other people in the area. He asked the men to stop for a second, and they complied. He testified that both men appeared nervous. Officer Broadwell conducted a pat down search of Mr. Keech, at which time defendant shoved his hand into his right front pant pocket. Defendant denied on the witness stand having put his hand into his pocket. Officer Broadwell testified that he asked defendant to take his hand out of his pocket, at which point defendant ran down the street and into the house at 1201 Fargo Street. Defendant testified that he was afraid because he assumed his wife had called the police concerning a domestic incident. He also testified that he knew the residence at 1201 Fargo Street because it was where “everybody goes to smoke this stuff that they have and drink. ...”

Officer Broadwell pursued defendant into the house and chased him through four rooms. In a room in the back of the house, defendant jumped over the top of a large chair. Officer Broadwell tackled defendant and attempted to pull him from his position on and partially behind the chair to the floor. Defendant struggled with Officer Broadwell, trying to get away. Officer Broadwell finally pinned defendant to the kitchen floor and handcuffed him. Officer Broadwell returned to the room with the large chair and looked behind the chair. He found more than twenty individually wrapped packages of crack cocaine totaling 5.5 grams on the floor behind the chair.

Officer Broadwell then escorted defendant back to his patrol car. In the area where Officer Broadwell had searched Mr. Keech, he found three more small bags of an off-white substance. Officer Broadwell testified that defendant then spontaneously stated that the substance on the ground wasn’t his, but that the crack cocaine was his. Defendant denied on the witness stand having made any statement to the officer.

Defendant assigns error to the trial court’s denial of his motion to dismiss the charge of possession with intent to sell and deliver *787 cocaine because, he argues, the state did not prove he constructively possessed the cocaine.

The standard by which we review the trial court’s ruling on a motion to dismiss 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. State v. Scott, 356 N.C. 591, 594-97 , 573 S.E.2d 866, 868-69 (2002). If so, the motion is properly denied. 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 of it, the motion should be allowed. Id. In analyzing a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State. State v. Davis, 325 N.C. 693, 696 , 386 S.E.2d 187, 189 (1989). The State is given every reasonable inference to be drawn from the evidence. Id. If substantial evidence exists, whether direct, circumstantial, or both, supporting a finding that the offense charged was committed by the defendant, the case must be left for the jury. Id. at 696-97 , 386 S.E.2d at 189 . “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Brown, 310 N.C. 563, 566 , 313 S.E.2d 585, 587 (1984).

Our Supreme Court has explained the doctrine of constructive possession:

Constructive possession exists when the defendant,, “while not having actual possession, . . . has the intent and capability to maintain control and dominion over” the narcotics. “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.” “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.”

State v. Butler, 356 N.C. 141, 146 , 567 S.E.2d 137, 140 (2002) (citations omitted).

Our Courts recognize constructive possession when a defendant, although not present in the location, has exclusive control of the location where the substance is found. However, “where possession of the premises [by defendant] is nonexclusive, constructive *788 possession of the contraband materials may not be inferred without other incriminating circumstances.” Brown, 310 N.C. at 569 , 313 S.E.2d at 589 .

In the Butler case, quoted above, the Supreme Court held that sufficient “other incriminating circumstances” existed where the defendant walked briskly away from officers, repeatedly looked back at the officers who followed him, entered a cab, bent over as if to place something under the driver’s seat, was asked to exit the cab by officers, and walked away from the cab to talk with the officers. The defendant in Butler was in the cab for less than two minutes, and another passenger occupied the cab before drugs were found under the driver’s seat in the cab several minutes later. That passenger was known to the cab driver.

In cases where other incriminating circumstances do not exist our Courts have required further proof of a proprietary interest in the location where the substance is found. See State v. Hamilton, 145 N.C. App. 152, 157 , 549 S.E.2d 233, 236 (2001) (“When the evidence presented lacks incriminating circumstances showing defendant’s exclusive use of the premises, maintenance of the premises as a residence, or some apparent proprietary interest in the premises or the controlled substance, our Supreme Court has held that the trial court should dismiss the charge of possession of the controlled substance”).

Control of the location sufficient for constructive possession may be found in an instance where a defendant shows some proprietary interest in the premises, for example if he possesses a key to the premises, receives mail there, or there is evidence that he resides there. See Brown, 310 N.C. at 569-70 , 313 S.E.2d at 589 (sufficient control shown where defendant had on his person a key to the residence being searched and on every occasion the police observed defendant prior to the date of the search defendant was at the residence in question); State v. Allen, 279 N.C. 406, 412 , 183 S.E.2d 680, 684-85 (1971) (sufficient control shown where utilities at the residence were in defendant’s name, personal papers including an Army identification card bearing defendant’s name were found on the premises and evidence that drugs belonged to defendant and were being sold at defendant’s direction); State v. Rich, 87 N.C. App. 380, 382 , 361 S.E.2d 321, 323 (1987) (sufficient control shown where defendant was seen on the premises the evening before the search, seen cooking dinner on the premises on the night of the search, mail *789 was found on the premises addressed to the defendant and an insurance policy listing the premises in question as defendant’s residence was also found on the premises).

In the case at bar, the evidence, taken in the light most favorable to the State, did not show that defendant had a proprietary interest in or exclusive control over the location where the drugs were found. The record is silent as to who possessed the house and whether any other persons were present in the house at the time of the arrest. There was no evidence that defendant possessed a key, paid for any utilities there, was welcome to enter at will, spent much time there, or received any mail there. There was also no evidence that the house was free of drugs before defendant entered.

While there was some evidence of other incriminating circumstances, that evidence was not substantial. Defendant attributed his nervousness to a fear that there was a warrant out for his arrest concerning an unrelated matter. He ran to the house which was familiar to him, 1201 Fargo Street, and not to 1108 Fargo Street, the house which was the location of drug activity according to the tip received by police that morning. Defendant and Mr. Keech were in transit to 1201 Fargo Street when the Officer arrived. He perceived them to be stopped in front of 1108 while they were en route. The Officer testified that defendant made an incriminating statement, which defendant denied. 2 While we recognize the inherent credibility of an officer’s testimony, that testimony standing alone, in opposition to the defendant’s evidence, with no other indication that defendant possessed the drugs or had any control over the premises, does not constitute substantial evidence of constructive possession.

I would therefore reverse the trial court’s denial of the motion to dismiss.

. The issue of whether the testimony of the Officer concerning defendant’s alleged statement to him was proper under the Rules of Evidence is not before us in this appeal.