Lead Opinion
Wаlter Anthony Alston, Jr. (“defendant”) appeals a judgment entered upon a jury verdict finding him guilty of trafficking in cocaine by possessing more than twenty-eight grams but less than two hundred grams of cocaine. We find no error.
From 28 November 2006 until 1 February 2007, Guilford County Sheriff’s officеrs (“the officers”) investigated drug activity at 300 Regan Street, Greensboro, North Carolina (“the home”). On 1 February 2007, the officers executed a search warrant at the home, using a battering ram to enter the home. The home was occupied by fivе people: Jimmy Wayne Knight (“Knight”), Yvonne Bio (“Bio”), Justin Hughes (“Hughes”), defendant, and Ruth Reyes (“Reyes”). Knight owned the home and rented it to Hughes. Knight permitted Hughes and defendant to sell cocaine from the home and accepted one third of the proceeds from the sales. When the officers came into the home, defendant ran down a hallway and crashed into a locked storm door. An officer observed defendant make a throwing motion toward the living room, but did not see anything leave defendant’s hand. The defendant retreated and was arrested in the living room. Knight and Bio were detained in the kitchen. Hughes was detained in the entertainment room. Defendant and Reyes were detained in the living room. ■
The officers found 7.3 grams of coсaine in the living room and 32.8 grams of cocaine in the entertainment room.
Defendant was charged with trafficking in cocaine by possessing more than twenty-eight grams but less than two hundred grams of cоcaine and possession with the intent to sell or deliver cocaine. Defendant was also charged with possession with intent to sell and deliver marijuana and possession of a firearm by a felon. Defendant pled guilty to the charges оf possession of a firearm and possession with intent to sell and deliver marijuana. Trial was held on 2 August 2007 before the Honorable Stuart Albright of Guilford County Superior Court. Defendant moved to dismiss the charge of trafficking by possession at the close оf the State’s evidence. The trial court denied the motion. The jury returned a verdict finding defendant guilty of trafficking cocaine by possession and guilty of possession with intent to sell and deliver cocaine. The trial court consolidated the charges and sentenced defendant to serve a minimum term of thirty-five months to a maximum term of forty-two months in the North Carolina Department of Correction. Subsequently, the trial court imposed a consecutive active sentence of thirteеn to sixteen months for possession of a firearm by a felon. Defendant appeals the trial court’s denial of the motion to dismiss the charge of trafficking in cocaine by possession.
I. Standard of Review
“In ruling upon a motion to dismiss, the trial court must examine the evidence in the light most favorable to the [S]tate, giving the [S]tate the benefit of all reasonable inferences which may be drawn from the evidence.” State v. Autry,
II. Analysis
Defendant argues the trial court should have dismissed the trafficking in cocaine charge because the State failed to prove he possessed more than twenty-eight grams of cocaine. Defendant contends the State presented insufficient evidence of possession under either a constructive possession or acting in concert theory. Since we conclude that the State presented sufficient evidence to support the charge under a constructive possession theory, we do not need to address defendant’s argument that the State did not present substantial evidence under an acting in concert theory. State v. Garcia,
In order to support a charge of trafficking cocaine, the State must prove that defendant (1) knowingly possessed cocainе and (2) that the amount possessed was twenty-eight grams or more. State v. Jackson,
In the case sub judice, since defendant did not have exclusive possession of the home, the State was required to present sufficient evidence of incriminating circumstances in order to allow the jury to infer defendant constructively possessed the cocaine found in the entertainment room. Id.
Incriminating circumstances relevant to constructive possession
include evidence that defendant: (1) owned other items found in proximity to the contrаband; (2) was the only person who could have placed the contraband in the position where it was found; (3) acted nervously in the presence of law enforcement; (4) resided in, had some control of, or regularly visited the premises where the contraband was found; (5) was near contraband in plain view; or (6) possessed a large amount of cash.
State v. Miller,
In Miller, this Court held an inference of constructive possession was not supported by substantial evidence where the only evidence linking defendant to the cocaine was his proximity tо the cocaine and his birth certificate found in the same room as the cocaine. Miller,
Viewing the evidence in the light most favorable to the State and giving it the benefit of all inferences raised, we conclude the State presented sufficient evidence of incriminаting circumstances for the jury to infer defendant constructively possessed the cocaine found in the entertainment room. In particular, the State presented evidence tending to show defendant regularly visited and sold drugs from 300 Regan Streеt, defendant was present in the entertainment room prior to the officers entering the home, defendant sold crack cocaine to Reyes in the entertainment room earlier that evening, Hughes usually did not keep more than onе gram of cocaine on his person and kept his cocaine buried in the yard, the defendant was Hughes’ drug supplier, and defendant’s gun was found in the entertainment room. Accordingly, we find no error.
Defendant also argues that because the State introduced evidence that defendant told the officers he owned the cocaine in the living room but not the cocaine in the entertainment room, the State is bound by that statement. See State v. Carter,
No error.
Notes
. State Bureau of Investigation Special Agent Shane Moore testified the cocaine found in the living room weighed 6.5 grams and the cocaine found in the entertainment room weighed 30.6 grams. The parties do not dispute that more than twenty-eight grams of cocaine were found in the entertainment room.
Dissenting Opinion
dissenting.
I do not believe that the State established defendant’s constructive possession of the cocaine in the entertainment room by presenting additional incriminating circumstances sufficient to deny defendant’s motion to dismiss. Therefore, I respectfully dissent.
Simply put, there were too many other people with an interest in the cocaine to properly infer that dеfendant had constructive possession of the cocaine: There were four people besides defendant in the house at the time of the “bust.” One of those four people, Hughes, was also a drug dealer. A second person, Knight, received payment in kind from both defendant and Hughes for allowing them to use his house to sell drugs. The other two people, Bio and Reyes, were both drug users who were in the house for the purpose of purchasing and using cocaine. Morеover, Knight’s arrangement with defendant suggests that Knight, rather than defendant, was the owner of at least some of the cocaine in the entertainment room. As the owner, Knight, rather than defendant, would have had the intent and power to maintain cоntrol over his portion of the cocaine’s use and disposition. Because of these factors, I disagree with the majority’s conclusion that the State proved that defendant had constructive possession of the cocaine found in the entertainment room, and therefore would hold that the State failed to establish that he knowingly possessed twenty-eight grams or more of cocaine.