In the Matter of B.W., ___ N.C.App.___ (December 18, 2018)

Facts: Police responded to B.W.’s home following a call alleging that a juvenile was using drugs and alcohol there. B.W. answered the door and the detective smelled the odor of marijuana and observed B.W. to have red, glassy eyes. B.W. denied using marijuana. The police heard commotion in the home and a second person appeared on the front steps from inside the home and stated that there was a male inside the house. The police then conducted a protective sweep of the home. During that sweep, the police saw a bag of marijuana in plain view on a mattress in an attic space on the third floor of the house. B.W.’s father then returned home and signed consent for the police to search the house. The police seized the bag of marijuana during this second search of the home. They also found a backpack containing men’s clothing in the same third floor attic area and a cell phone that did not belong to B.W. B.W. was charged with resisting, delaying, and obstructing a public officer (“RPO”) and possession of a schedule VI controlled substance. B.W. was found not responsible for the RPO charge and the court set a subsequent date for adjudication of the possession charge. B.W. was found responsible for both possession and RPO on this subsequent date. The appeal raised three arguments:

• The trial court erred in denying the motion to suppress the seized marijuana;
• The trial court erred in denying the motion to dismiss the possession offense; and
• The record contained a clerical error regarding the RPO offense.

Opinion: The State did not put forth substantial evidence of the possession charge. Possession requires substantial evidence of actual or constructive possession. The State did not allege actual possession in this case. Constructive possession requires a showing of intent and capability to maintain control and dominion over the contraband. Because B.W. did not have exclusive control over the residence, there must be other incriminating circumstances, such as:

• proximity to the contraband,
• indicia of control over the location, and
• other incriminating circumstances.

No evidence was provided to show that B.W. was in the third floor attic space, in proximity to the marijuana. The backpack and cell phone found in that space did not belong to B.W. and therefore do not support proximity. There was also no evidence that B.W. had control over the attic space. While the police testified that the bonus room adjacent to the attic appeared to be a female’s room and B.W. is female, there was no evidence regarding who else lived in the home. It is possible that another female household member resided in that room. Finally, red, glassy eyes and the odor of marijuana, in the absence of proximity and control, are not sufficient to prove constructive possession. The trial court’s denial of the motion to dismiss for insufficient evidence regarding the possession charge is therefore reversed.

The court did not need to address the motion to suppress given that the possession charge is dismissed.

The trial court made a clerical error when it stated that B.W. was responsible for the RPO charge when she had previously been found not responsible for that charge. Because the motion to dismiss the other charge is granted in this decision, the case is not remanded for correction of the clerical error. Instead, in the interest of judicial efficiency, the judgment finding B.W. responsible for the RPO offense is vacated.