Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

About

This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

Instructions

Navigate using the table of contents to the left or by using the search box below. Use quotations for an exact phrase search. A search for multiple terms without quotations functions as an “or” search. Not sure where to start? The 5 minute video tutorial offers a guided tour of main features – Launch Tutorial (opens in new tab).

E.g., 09/22/2021
E.g., 09/22/2021

Reversing an unpublished opinion below in this drug trafficking case, the supreme court held that the trial court did not err in its jury instructions regarding the defendant’s knowledge. The court noted that “[a] presumption that the defendant has the required guilty knowledge exists” when “the State makes a prima facie showing that the defendant has committed a crime, such as trafficking by possession, trafficking by transportation, or possession with the intent to sell or deliver, that lacks a specific intent element.” However, the court continued: “when the defendant denies having knowledge of the controlled substance that he has been charged with possessing or transporting, the existence of the requisite guilty knowledge becomes ‘a determinative issue of fact’ about which the trial court must instruct the jury.” As a result of these rules, footnote 4 to N.C.P.I. Crim. 260.17 (and parallel footnotes in related instructions) states that, “[i]f the defendant contends that he did not know the true identity of what he possessed,” the italicized language must be added to the jury instructions:

For you to find the defendant guilty of this offense the State must prove two things beyond a reasonable

doubt:

          First, that the defendant knowingly possessed cocaine and the defendant knew that what he possessed was cocaine. A person possesses cocaine if he is aware of its presence and has (either by himself or together with others) both the power and intent to control the disposition or use of that substance.

The defendant argued that the trial court erred by failing to add the “footnote four” language to the jury instructions. The supreme court disagreed, reasoning:

In this case, defendant did not either deny knowledge of the contents of the gift bag in which the cocaine was found or admit that he possessed a particular substance while denying any knowledge of the substance’s identity. Instead, defendant simply denied having had any knowledge that the van that he was driving contained either the gift bag or cocaine. As a result, since defendant did not “contend[ ] that he did not know the true identity of what he possessed,” the prerequisite for giving the instruction in question simply did not exist in this case. As a result, the trial court did not err by failing to deliver the additional instruction contained in footnote four . . . in this case. (citation omitted).

The court went on to distinguish the case before it from State v. Coleman, 227 N.C. App. 354 (2013).

In a case involving trafficking and possession with intent charges, the evidence was insufficient to establish that the defendant Villalvavo knowingly possessed the controlled substance. The drugs were found in secret compartments of a truck. The defendant was driving the vehicle, which was owned by a passenger, Velazquez-Perez, who hired Villalvavo to drive the truck. The court found insufficient incriminating circumstances to support a conclusion that Villalvavo acted knowingly with respect to the drugs; while evidence regarding the truck’s log books may have been incriminating as to Velazquez-Perez, it did not apply to Villalvavo, who had not been working for Velazquez-Perez long and had no stake in the company or control over Velazquez-Perez. The court was unconvinced that Villalvavo’s nervousness during the stop constituted adequate incriminating circumstances.

In a case in which the defendant was convicted of possession of heroin and trafficking in opium or heroin by transportation, the trial court did not err by denying the defendant’s request for an instruction about knowing possession or transportation. The court concluded that the requested instruction was not required because the defendant did not present any evidence that he was confused or mistaken about the nature of the illegal drug his accomplice was carrying.

In a heroin trafficking case where the defendant argued that he did not know that the item he possessed was heroin, the trial court committed plain error by denying the defendant’s request for a jury instruction that the State must prove that the defendant knew that he possessed heroin (footnote 4 of the relevant trafficking instructions). The court noted that knowledge that one possesses contraband is presumed by the act of possession unless the defendant denies knowledge of possession and contests knowledge as disputed fact. It went on to reject the State’s argument that the defendant was not entitled to the instruction because he did not testify or present any evidence to raise the issue of knowledge as a disputed fact. The court noted that its case in chief the State presented evidence that the defendant told a detective that he did not know the container in his vehicle contained heroin; this constituted a contention by the defendant that he did not know the true identity of what he possessed, the critical issue in the case. 

The trial court did not err by declining to give the defendant’s proposed jury instruction on the element that the defendant acted “knowingly.” The instructions given by the trial court adequately contained the substance of the defendant’s proposed instruction. Specifically, it instructed the jury that in order to possess or sell cocaine, the defendant must have been aware of its presence and have had the power and intent to control its distribution or use. These instructions effectively inform the jury that the defendant must have had knowledge of the substance and the crime being committed, and he must have intentionally and voluntarily participated in the crime.

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 821 S.E.2d 268 (2018), the Supreme Court concluded that the Court of Appeals misapplied State v. Ward, 356 N.C. 133 (2010), when it held that the absence of a scientifically valid chemical analysis meant that the State had not established beyond a reasonable doubt that the seized substance was heroin, and that the trial court therefore erred when it denied the defendant’s motion to dismiss for insufficiency of the evidence. Ward, the Supreme Court clarified, was a case about the admissibility of evidence under Rule of Evidence 702, not sufficiency. In this case, the defendant did not object to officers’ trial testimony that they found the defendant with syringes, spoons, and a rock substance that officers visually identified and twice field tested as heroin. An officer also testified without objection that when the defendant regained consciousness, she confirmed that she had ingested heroin. The Supreme Court concluded that the Court of Appeals erred by applying Ward’s high bar for the admissibility of evidence relating to the identity of a controlled substance to a motion to dismiss for insufficiency of the evidence. The court emphasized that

[F]or purposes of examining the sufficiency of the evidence to support a criminal conviction, it simply does not matter whether some or all of the evidence contained in the record should not have been admitted; instead, when evaluating the sufficiency of the evidence, all of the evidence, regardless of its admissibility, must be considered in determining the validity of the conviction in question. 

The court also disapproved of language in State v. Llamas-Hernandez, 363 N.C. 8 (2009), which had suggested that expert testimony is required to establish the identity of a controlled substance in the context of a motion to dismiss.

Applying the appropriate standard of review, and assuming without deciding that some of the evidence might have been excluded if the defendant had objected to its admission, the court determined that there was ample evidence showing that the substance the defendant allegedly possessed was heroin. The court therefore reversed the Court of Appeals and remanded the case for consideration of the defendant’s remaining arguments.

Justice Earls wrote a concurring opinion questioning whether the Good Samaritan law in G.S. 90-96.2, which came into effect in 2013, placed a limit on the trial court’s jurisdiction to prosecute the defendant in this case.

The evidence was sufficient to sustain the defendant’s conviction for possession of methamphetamine. After the police discovered a white crystalline substance in a vehicle, they arrested the defendant who had been sitting in the driver’s seat of the car. While being transported to a detention center the defendant admitted to a detective that she had “a baggie of meth hidden in her bra.” Upon arrival at the detention center, an officer found a bag of “crystal-like” substance in the defendant’s bra. At trial an officer testified without objection to the defendant’s statement regarding the methamphetamine in her bra. Additionally, the actual substance retrieved from her bra was admitted as exhibit. However, the State did not present any other evidence regarding the chemical composition of substance. On appeal, the defendant argued that the State failed to present evidence of the chemical nature of the substance in question. Under Ward, some form of scientifically valid chemical analysis is required unless the State establishes that another method of identification is sufficient to establish the identity of a controlled substance beyond a reasonable doubt. Citing the state Supreme Court’s opinions in Nabors and Ortiz-Zape, the court held that the defendant’s admission constitutes sufficient evidence that the substance was a controlled substance.

In a case involving a charge of possessing a controlled substance on the premises of a local confinement facility, the defendant’s own testimony that he had a “piece of dope . . . in the jail” was sufficient evidence that he possessed a controlled substance on the premises.

The Court per curiam affirmed the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 818 S.E.2d 178 (2018), finding no error in the trial court’s denial of the defendant’s motion to dismiss a felony maintaining a vehicle for keeping or selling controlled substances charge based on insufficient evidence.

The Court of Appeals had held, over a dissent, that the evidence was sufficient to support the defendant’s conviction of maintaining a vehicle for keeping or selling controlled substances. The defendant argued that the State presented insufficient evidence that he kept or maintained the vehicle over a duration of time. The court disagreed. The determination of whether a vehicle is used for keeping or selling drugs depends on the totality of the circumstances and a variety of factors are relevant, including occupancy of the property, possession over time, the presence of large amounts of cash or paraphernalia, and the defendant’s admission to selling controlled substances. Here, the totality of the circumstances supports a reasonable inference that the defendant knowingly kept or maintained the vehicle for the purposes of keeping or selling cocaine. Although the vehicle was registered in his wife’s name, the defendant described it as his truck. He admitted that it was his work vehicle, that no one else used it, and that he built the wooden drawers and compartments located in the back of the vehicle. When searching the vehicle, officers discovered a hidden compartment in the truck bed floor containing 1 kg of cocaine. The cocaine was packaged to evade canine detection. The defendant does not challenge the sufficiency of the evidence supporting his related trafficking convictions arising from the same incident. Additionally, evidence shows that the defendant knowingly participated in a drug transaction in a Walmart parking lot immediately before his arrest and that this was not an isolated incident. Specifically, evidence indicated that if the transaction worked out, further drug sales could occur in the future. The court concluded:

[T]he evidence showed, generally, that defendant exercised regular and continuous control over the truck; that he constructed and knew about the false-bottomed compartment in which one kilogram of cocaine—an amount consistent with trafficking, not personal use— was discovered . . . ; that he was aware that cocaine was hidden in his truck and willingly participated in the transaction in the Walmart parking lot; and that he held himself out as responsible for the ongoing distribution of drugs like those discovered in the truck.

State v. Rogers, 371 N.C. 397 (Aug. 17, 2018)

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 796 S.E.2d 91 (2017), the court reversed, holding that the evidence was sufficient to support a conviction of maintaining a vehicle for the purpose of keeping controlled substances in violation of G.S. 90-108(a)(7). The issues before the court were whether the defendant kept or maintained the vehicle and, if so, whether there was substantial evidence that the vehicle was used for the keeping of controlled substances. Considering the first question, the court found that the word “keep” with respect to “keeping or maintaining” “refers to possessing something for at least a short period of time—or intending to retain possession of something in the future—for a certain use.” Here, officers conducted surveillance for about an hour and a half before searching the vehicle and the defendant’s hotel room. During that surveillance, they saw the defendant arrive at the hotel in the vehicle, stay in his room for a period of time, and then leave the vehicle. The defendant was the only person seen using the car. Additionally, a service receipt bearing the defendant’s name was found inside the vehicle and was dated about 2½ months before the defendant’s arrest. From these facts a reasonable jury could conclude that the defendant had possessed the car for at least 2½ months. This was sufficient evidence that the defendant kept the vehicle.

            The court then turned to the second issue: whether there was sufficient evidence that the defendant used the vehicle for the keeping of illegal drugs. The court determined that in this context the word “keeps” refers to storing objects in the vehicle. The court found that here, there was substantial evidence that the defendant was using the vehicle to store crack cocaine, not merely to transport it, noting, among other things, the fact that the drugs were found in a hidden compartment and evidence suggesting that the defendant was involved in selling drugs. The court emphasized however that the statute does not create a separate crime simply because controlled substances are temporarily in a vehicle. It clarified:

In other words, merely possessing or transporting drugs inside a car—because, for instance, they are in an occupant’s pocket or they are being taken from one place to another—is not enough to justify a conviction under the “keeping” element of subsection 90-108(a)(7). Rather, courts must determine whether the defendant was using a car for the keeping of drugs—which, again, means the storing of drugs—and courts must focus their inquiry “on the use, not the contents, of the vehicle.”” (citation omitted)

The court went on to disavow its statement in State v. Mitchell, 336 N.C. 22 (1994), that keeping of drugs means “not just possession, but possession that occurs over a duration of time.” The court concluded that the statute does not require that the drugs be kept for a duration of time. Rather, “the linchpin of the inquiry into whether a defendant was using a vehicle, building, or other place ‘for the keeping . . . of’ drugs is whether the defendant was using that vehicle, building, or other place for the storing of drugs.” The court continued:

So, for instance, when the evidence indicates that a defendant has possessed a car for at least a short period of time, but that he had just begun storing drugs inside his car at the time of his arrest, that defendant has still violated subsection 90-108(a)(7)—even if, arguably, he has not stored the drugs for any appreciable “duration of time.” The critical question is whether a defendant’s car is used to store drugs, not how long the defendant’s car has been used to store drugs for. As a result, we reject any notion that subsection 90-108(a)(7) requires that a car kept or maintained by a defendant be used to store drugs for a certain minimum period of time—or that evidence of drugs must be found in the vehicle, building, or other place on more than one occasion—for a defendant to have violated subsection 90-108(a)(7). But again, merely having drugs in a car (or other place) is not enough to justify a conviction under subsection 90-108(a)(7). The evidence and all reasonable inferences drawn from the evidence must indicate, based “on the totality of the circumstances,” that the drugs are also being stored there. To the extent that Mitchell’s “duration of time” requirement conflicts with the text of subsection 90-108(a)(7), therefore, this aspect of Mitchell is disavowed. (citation omitted)

The Court per curiam affirmed the opinion below, ___ N.C. App. ___, 806 S.E.2d 697 (2017). Over a dissent, the Court of Appeals held that the trial court did not err by denying the defendant’s motion to dismiss a charge of maintaining a vehicle for keeping or selling controlled substances. The court disagreed with the defendant’s argument that case law establishes a bright-line rule that one incident of keeping or selling controlled substances always is insufficient to sustain a conviction for maintaining a vehicle. The determination, the court said, is based on the totality of the circumstances. Here, the defendant was in the vehicle at a location known for a high level of illegal drug activity. He was observed by officers unwrapping cigars and rerolling them after manipulating them. Based on the officer’s training and experience, the defendant’s actions were consistent with those used in distributing marijuana. The driver was observed in hand-to-hand exchange of cash with another person. When searched by officers, the driver was discovered to have marijuana and the defendant was no longer in possession of the “cigars.” Additionally, the defendant possessed a trafficking quantity of heroin along with plastic bags, two sets of digital scales, three cell phones, and $155 in cash. Additionally, the defendant’s ex-girlfriend testified that she was concerned about his negative influence on his nephew because she “knew the lifestyle.”

On appeal from an unpublished decision of a divided panel of the Court of Appeals which had found no error with respect to the defendant’s maintaining a vehicle conviction, the court affirmed per curiam. The defendant was convicted for maintaining a vehicle for the purpose of keeping a controlled substance. Before the Court of Appeals, he unsuccessfully argued that the trial court erred by denying his motion to dismiss for insufficiency of the evidence. Specifically, the defendant argued that to prove the “keeping” element of the offense, the State must show that the vehicle was used over time for the illegal activity. The Court of Appeals found the cases cited by the defendant distinguishable, noting that here 29.927 grams of marijuana was found in a plastic bag, tucked in a sock, and placed in a vent inside the vehicle’s engine compartment outside of the passenger area and remnants of marijuana were found throughout the vehicle’s interior. The Court of Appeals noted, in part, that a jury may infer “keeping” from the remnants of the controlled substance found throughout the interior space of the vehicle and a storage space in it for the keeping of controlled substances in the engine compartment.

In this keeping or maintaining a vehicle for the keeping or sale of controlled substances case, there was insufficient evidence that the defendant kept or maintained a vehicle or did so for the keeping or selling of controlled substances.  Officers had received information from another agency indicating that the defendant was selling drugs.  During a traffic stop and weapons frisk following 20-25 minutes of surveillance of the defendant driving, approximately 56 grams of methamphetamine and 7 grams of heroin were discovered on the defendant’s person, and an officer later testified that neither amount was consistent with personal use.  The defendant was driving a vehicle registered to his wife and mother-in-law. 

Noting that North Carolina courts have defined the words “keep” and “maintain” separately, the court explained that they are similar terms, “often used interchangeably, to establish a singular element of the offense” and that whether a vehicle is “kept or maintained” for the keeping or selling of controlled substances depends on the totality of the circumstances.  Finding that the State presented no evidence that the defendant “maintained” the vehicle because there was no evidence that the defendant had title to or owned the vehicle, had a property interest in it, or paid for its purchase or upkeep, the court turned to whether there was sufficient evidence that the defendant “kept” the car within the meaning of G.S. 90-108(a)(7).  Reviewing relevant caselaw, which establishes that the “keep or maintain” language of the statute “refers to possessing something at least for a short period of time—or intending to retain possession of something in the future—for a certain use,” the court determined that evidence of the defendant’s possession of the vehicle for approximately 20-25 minutes, standing alone, was insufficient to prove that the defendant “kept” the vehicle.  

The court then turned to whether, assuming there had been sufficient evidence of the defendant’s keeping or maintaining the vehicle, the State presented sufficient evidence that the defendant’s purpose in doing so was the “keeping or selling” of controlled substances.  Again reviewing relevant caselaw, the court determined that the discovery on the defendant’s person of single bags containing approximately 56 grams of methamphetamine and 7 grams of heroin was insufficient to prove the purpose of keeping or maintaining the vehicle was the keeping or selling of controlled substances.  The court noted that the State presented no evidence that cell phones, cash, scales, baggies or other paraphernalia had been discovered in the vehicle.  There also was no evidence that the vehicle had been modified to conceal drugs or that drugs had been discovered in the vehicle itself, hidden or otherwise.

Judge Berger dissented and expressed his view that there was sufficient evidence of the offense and that the majority erroneously conflated “keeping” and “maintaining” in its analysis of whether the defendant kept or maintained the vehicle.  In Judge Berger’s view there was sufficient evidence that the defendant “kept” the vehicle based on his possession of the vehicle while engaging in drug activity.  He also would have found sufficient evidence that the defendant’s purpose in doing so was the keeping or selling of controlled substances based on the defendant’s use of the vehicle to transport drugs, the discovery of a purported drug ledger in the vehicle, and other evidence that the defendant was involved in the sale of drugs.

The defendant’s conviction for maintaining a vehicle for keeping or selling drugs was supported by sufficient evidence.

The determination of whether a vehicle . . . is use for keeping or selling controlled substances will depend on the totality of the circumstances. . .While no factor is dispositive, ‘[t]he focus of the inquiry is on the use, not the contents, of the vehicle. Slip op. at 11 (citations omitted).

Here, the defendant hid a trafficking amount of methamphetamine in a tire-sealant can in his car and possessed paraphernalia. In the light most favorable to the State, this was sufficient evidence from which a jury could infer that the car was kept for purposes of keeping drugs. The defendant’s motion to dismiss this charge for insufficiency of the evidence was therefore properly denied and the convictions unanimously affirmed.

In this maintaining a dwelling case on remand from the state Supreme Court for reconsideration in light of State v. Rogers, __ N.C. __, 817 S.E.2d 150 (2018), the court held that the evidence was insufficient to support the conviction. The State’s evidence showed that the drugs were kept at the defendant’s home on one occasion. Under Rogers, “the State must produce other incriminating evidence of the ‘totality of the circumstances’ and more than just evidence of a single sale of illegal drugs or ‘merely having drugs in a car (or other place)’ to support a conviction under this charge.” Here, the State offered no evidence showing any drugs or paraphernalia, large amounts of cash, weapons or other implements of the drug trade at the defendant’s home. The State offered no evidence of any other drug sales occurring there, beyond the one sale at issue in the case. It stated: “Under ‘the totality of the circumstances,’ ‘merely having drugs in a car [or residence] is not enough to justify a conviction under subsection 90-108(a)(7).’” It concluded, stating that Roger was distinguishable because it involved keeping of drugs in a motor vehicle, where other drugs and incriminating evidence of ongoing drug sales were present.

The evidence was sufficient to sustain a conviction for maintaining a dwelling. Officer recovered from the home a Schedule I controlled substance, marijuana, a glass jar that had the odor of marijuana, Garcia y Vega cigar wraps, a marijuana roach, digital scales, sandwich bags, and a security camera set up in the living room that observed the front yard. The defendant, a convicted felon, had constructive possession of a handgun. And an officer observed traffic at the residence over several days consistent with illegal drug trade and observed a confidential source successfully buy a controlled substance from the residence.

The evidence was insufficient with respect to the maintaining a dwelling charge. There was no evidence that the defendant was the owner or lessee of the residence, there was no evidence that he paid for its utilities or upkeep, there was no evidence that he had been seen in or around the dwelling and there was no evidence that he lived there. 

The trial court did not err by denying the defendant’s motion to dismiss a charge of maintaining a dwelling. The court first held that the evidence established that the defendant kept or maintained the dwelling where it showed that he resided there. Specifically, the defendant received mail addressed to him at the residence; his probation officer visited him there numerous times to conduct routine home contacts; the defendant’s personal effects were found in the residence, including a pay stub and protective gear from his employment; and the defendant placed a phone call from the Detention Center and informed the other party that officers had “come and searched his house.” Next, the court held that the evidence was sufficient to show that the residence was being used for keeping or selling drugs. In assessing this issue, the court looks at factors including the amount of drugs present and paraphernalia found. Here, a bag containing 39.7 grams of 4-methylethcathinone and methylone was found in a bedroom closet alongside another plastic bag containing “numerous little corner baggies.” A set of digital scales and $460.00 in twenty dollar bills also were found. 

The trial court erred by denying the defendant’s motion to dismiss a charge of maintaining a vehicle for use, storage, or sale of a controlled substance. The statute provides two ways to show a violation: first, that the defendant knowingly allowed others to resort to his vehicle to use drugs; and second, that the defendant knowingly used the dwelling for the keeping or selling of drugs. The court reasoned that the defendant could not be convicted under the first prong because of his own use of drugs in his vehicle and that the State presented no evidence as to the second prong. [Author’s note: the court does not explain why the State’s evidence that the defendant’s acquaintance also “got[] high” with the defendant in the defendant’s vehicle was insufficient to prove the first prong.] 

There was sufficient evidence to support a conviction of maintaining a dwelling. The defendant argued that there was insufficient evidence that he knew about the drugs found in the home. However, the court held that its conclusion that he constructively possessed the drugs resolved that issue in favor of the State. 

The evidence was sufficient to support a conviction for maintaining a vehicle. Drugs were found in a vehicle being transported by a car carrier driven by the defendant. The evidence showed that the defendant kept or maintained the vehicle where the bill of lading showed that the defendant picked it up and maintained possession as the authorized bailee continuously and without variation for two days. Having stopped to rest overnight at least one time during the time period, the defendant retained control and disposition over the vehicle and resumed his planned route with the car carrier.

State v. Craven, 205 N.C. App. 393 (July 20, 2010) rev’d on other grounds, 367 N.C. 51 (Jun 27 2013)

The trial court did not err by denying the defendant’s motion to dismiss a charge of maintaining a vehicle where the evidence was sufficient to establish that the defendant had possession of cocaine in his mother’s vehicle over a duration of time and/or on more than one occasion.

There was insufficient evidence to establish that the defendant “maintained” the dwelling. Evidence showed only that the defendant had discussed, with the home’s actual tenant, taking over rent payments but never reached an agreement to do so; a car, similar to defendant’s was normally parked at the residence; and the defendant’s shoes and some of his personal papers were found there.

In this trafficking of methamphetamine case, substantial evidence showed that the defendant believed the white substance handed to him during a controlled drug sale was fake, rather than an impure mixture containing methamphetamine, and therefore there was insufficient evidence that the defendant knowingly possessed the methamphetamine.  At a controlled drug sale arranged by law enforcement with the help of an informant, the defendant stated his belief that the substance presented to him as methamphetamine was, contrary to his expectations, “re-rock,” a term that was defined by the State’s witnesses to describe “fake” drugs.  In fact, the substance was a mixture of 1 gram of methamphetamine and at least 28 grams of a cutting agent.  As the defendant and an associate inspected the substance, law enforcement officers entered the room and arrested them.  Finding the case to be controlled by State v. Wheeler, 138 N.C. App. 163 (2000), the court explained that when there is no evidence that a person intends to continue a drug transaction because he or she believes the drugs are fake, handling the drugs for the sole purpose of inspection does not constitute possession.

Judge Berger dissented and expressed his view that there was sufficient evidence that the defendant knowingly possessed the methamphetamine because of his previous dealings in methamphetamine with the informant and because the defendant’s use of the term “re-rock” may have been a reference to impure, rather than fake, methamphetamine.  Judge Berger also distinguished Wheeler on the grounds that the defendant in this case did not affirmatively reject the methamphetamine mixture.

In a case in which the defendant was convicted of possession of heroin and trafficking in opium or heroin by transportation, the trial court did not err by denying the defendant’s request for an instruction about knowing possession or transportation. The court concluded that the requested instruction was not required because the defendant did not present any evidence that he was confused or mistaken about the nature of the illegal drug his accomplice was carrying.

In a heroin trafficking case where the defendant argued that he did not know that the item he possessed was heroin, the trial court committed plain error by denying the defendant’s request for a jury instruction that the State must prove that the defendant knew that he possessed heroin (footnote 4 of the relevant trafficking instructions). The court noted that knowledge that one possesses contraband is presumed by the act of possession unless the defendant denies knowledge of possession and contests knowledge as disputed fact. It went on to reject the State’s argument that the defendant was not entitled to the instruction because he did not testify or present any evidence to raise the issue of knowledge as a disputed fact. The court noted that its case in chief the State presented evidence that the defendant told a detective that he did not know the container in his vehicle contained heroin; this constituted a contention by the defendant that he did not know the true identity of what he possessed, the critical issue in the case. 

In a trafficking by possession case there was sufficient evidence of knowing possession where the defendant was driving the vehicle that contained the cocaine.

The evidence was sufficient to establish that the defendant knowingly possessed and transported the controlled substance. The evidence showed that (1) the packages involved in the controlled delivery leading to the charges at issue were addressed to “Holly Wright;” although a person named Holly Wainwright had lived in the apartment with the defendant, she had moved out; (2) the defendant immediately accepted possession of the packages, dragged them into the apartment, and never mentioned to the delivery person that Wainwright no longer lived there; (3) Wainwright testified that she had not ordered the packages; (4) the defendant told a neighbor that another person (Smallwood) had ordered the packages for her; (5) the defendant did not open the packages, but immediately called Smallwood to tell him that they had arrived; (6) after getting off the phone with Smallwood, the defendant acted like she was in a hurry to leave; and (7) Smallwood came to the apartment within thirty-five minutes of the packages being delivered.

There was sufficient evidence to show that the defendant knowingly possessed marijuana in a case where the defendant was convicted of trafficking in marijuana and conspiracy to traffic by possession. Defendant signed for and collected a UPS package containing 44.1 pounds of marijuana. About a half hour later, the defendant helped load a second UPS package containing 43.8 pounds of marijuana into the back seat of a car. Both boxes were found when police searched the car, driven by the defendant. The defendant had once lived in the same residence as his niece, the person to whom the packages were addressed, and knew that his niece frequently got packages like these. Also, the defendant expected to earn between $50 and $200 for simply taking the package from UPS to his niece. Finally the address on one of the boxes did not exist. 

The court reversed a unanimous, unpublished decision of the Court of Appeals and held, in this drug case, that the State presented sufficient evidence of constructive possession of marijuana. While engaged in marijuana eradication operations by helicopter, officers saw marijuana plants growing on a three-acre parcel of land owned by the defendants. When the officers arrived at the home they found the defendant Chekanow leaving the house by vehicle. They directed her back to the home, and she complied. She was the only person at the residence and she consented to a search of the area where the plants were located, the outbuildings, and her home. The officers found 22 marijuana plants growing on a fenced-in, ½ acre portion of the property. The area was bordered by a woven wire fence and contained a chicken coop, chickens and fruit trees. The fence was approximately 4 feet high. The single gate to the area was adjacent to the defendants’ yard. At trial, an officer testified that a trail leading from the house to the plants was visible from the air. The plants themselves were located 60-70 yards beyond the gate; 50-75 yards from the defendant’s home; and 10-20 yards from a mowed and maintained area with a trampoline. The plants and the ground around them were well maintained. An officer testified that the plants appeared to have been started individually in pots and then transferred into the ground. No marijuana or related paraphernalia was found in the home or outbuildings; however officers found pots, shovels, and other gardening equipment. Additionally, they found a “small starter kit,” which an officer testified could be used for starting marijuana plants. The officer further testified that the gardening equipment could have been used for growing marijuana or legitimate purposes, because the defendants grew regular plants on the property. One of the shovels, however, was covered in dirt that was similar to that at the base of the marijuana plants, whereas dirt in the garden was brown. The State’s case relied on the theory of constructive possession. The defendants were found guilty and appealed. The court of appeals found for the defendant, concluding that the evidence was insufficient as to constructive possession. The Supreme Court reversed. It viewed the case as involving a unique application of the constructive possession doctrine. It explained: “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.” Reviewing the law, the court noted that unless a person has exclusive possession of the place where drugs are found, the State must show other incriminating circumstances before constructive possession can be inferred. Here, both defendants lived in the home with their son and they allowed another individual regular access to their property to help with maintenance when they were away. The court noted that the case also involves consideration of a more sprawling area of property, including a remote section where the marijuana was growing and to which others could potentially gain access. Against this backdrop, the court stated: “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.” It continued: “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.” The court thus turned to an analysis the additional incriminating circumstances present in the case. The court first noted as relevant to the analysis the close proximity of the plants to an area maintained by the defendants, the reasonably close proximity of the defendants’ residence to the plants, and one defendant’s recent access to the area where the plants were growing. Second, the court found multiple indicia of control, including, among other things, the fact that the plants were surrounded by a fence that was not easily surmountable. Third, the court considered evidence of suspicious behavior in conjunction with discovery of the marijuana, including the fact that defendant Chekanow appeared to flee the premises when officers arrived. Finally, the court considered evidence found in the defendants’ possession linking them to the contraband, here the shovel with dirt matching that found at the base of the plants and the “starter kit.” The court held that notwithstanding the defendants’ nonexclusive possession of the location where the contraband was found, there was sufficient evidence of constructive possession.

 

State v. Lindsey, 366 N.C. 325 (Dec. 14, 2012)

For the reasons stated in the dissenting opinion below, the court reversed State v. Lindsey, 219 N.C. App. 249 (Mar. 6, 2012). In the opinion below the court of appeals held—over a dissent—that there was insufficient evidence of constructive possession. After the defendant fled from his van, which he had crashed in a Wendy’s parking lot, an officer recovered a hat and a cell phone in the van’s vicinity. No weapons or contraband were found on the defendant or along his flight path. A search of the driver's side seat of the van revealed a "blunt wrapper" and a wallet with $800. Officers discovered a bag containing cocaine and a bag containing marijuana near trash receptacles in the Wendy's parking lot. The officers had no idea how long the bags had been there, and though the Wendy's was closed at the time, the lot was open and had been accessible by the public before the area was secured. Finding the evidence insufficient, the court of appeals noted that the defendant was not at his residence or in a place where he exercised any control; although an officer observed the defendant flee, he did not see the defendant take any actions consistent with disposing of the marijuana and cocaine in two separate locations in the parking lot; there was no physical evidence linking the defendant to the drugs recovered; and no drugs were found on or in the defendant's van. The dissenting court of appeals judge would have found the evidence sufficient to establish constructive possession of the marijuana.

Affirming an unpublished opinion below, the court held that the trial court properly denied the defendant’s motion to dismiss charges of trafficking by possession and possession of a firearm by a felon. The State presented sufficient evidence to support the jury’s determination that the defendant constructively possessed drugs and a rifle found in a bedroom that was not under the defendant’s exclusive control. Among other things, photographs, a Father’s Day card, a cable bill, a cable installation receipt, and a pay stub were found in the bedroom and all linked the defendant to the contraband. Some of the evidence placed the defendant in the bedroom within two days of when the contraband was found.

For the reasons stated in the dissenting opinion below, the court reversed a decision by the court of appeals in State v. Slaughter, 212 N.C. App. 59 (May 17, 2011). The court of appeals had held, over a dissent, that there was sufficient evidence of constructive possession of marijuana. The dissenting judge had noted that the evidence showed only that the defendant and two others were detained by a tactical team and placed on the floor of a 10-by-15 foot bedroom in the back of the mobile home, which had a pervasive odor of marijuana; inside the bedroom, police found, in plain view, numerous bags containing marijuana, approximately $38,000 in cash, several firearms, a grinder, and a digital scale; stacks of $20 and $100 bills, plastic sandwich baggies, and marijuana residue were found in the bathroom adjoining the bedroom. The dissenter noted that there was no evidence of the defendant's proximity to the contraband prior to being placed on the floor, after being placed on the floor, or relative to the other detained individuals. Having concluded that the evidence was insufficient as to proximity, the dissenting judge argued that mere presence in a room where contraband is located does not itself support an inference of constructive possession. The dissenting judge further concluded that the fact that the contraband was in plain view did not “take this case out of the realm of conjecture.” He asserted: “The contraband being in plain view suggests that defendant knew of its presence, but there is no evidence — and the majority points to none — indicating that defendant had the intent and capability to maintain control and dominion over it.” (quotation omitted). 

State v. Miller, 363 N.C. 96 (Mar. 20, 2009)

There was sufficient evidence that the defendant constructively possessed cocaine. Two factors frequently considered in analyzing constructive possession are the defendant’s proximity to the drugs and indicia of the defendant’s control over the place where the drugs are found. The court found the following evidence sufficient to support constructive possession: Officers found the defendant in a bedroom of a home where two of his children lived with their mother. When first seen, the defendant was sitting on the same end of the bed where the cocaine was recovered. Once the defendant slid to the floor, he was within reach of the package of cocaine recovered from the floor behind the bedroom door. The defendant’s birth certificate and state-issued identification card were found on top of a television stand in that bedroom. The only other person in the room was not near any of the cocaine. Even though the defendant did not exclusively possess the premises, these incriminating circumstances permitted a reasonable inference that the defendant had the intent and capability to exercise control and dominion over cocaine in that room. 

The defendant in this case previously appealed his convictions for possession of a firearm by a felon, trafficking in heroin, PWISD cocaine, and attaining habitual felon status. The Court of Appeals found no error in State v. Wynn, 264 N.C. App. 250 (2019) (unpublished) (“Wynn I”).

The state Supreme Court granted a petition for discretionary review and remanded to the Court of Appeals for the limited purpose of reconsideration in light of State v. Golder, 347 N.C. 238 (2020) (holding that a motion to dismiss made “at the proper time preserved all issues related to the sufficiency of the evidence for appellate review”). Applying Golder to the case at hand, the appellate court reconsidered defendant’s argument challenging the sufficiency of the evidence at trial, which the court in Wynn I had ruled was not preserved at the trial level. The court began by rejecting the state’s argument that Golder was inapplicable because defense counsel in this case moved for a directed verdict, rather than making a motion to dismiss; the court held that in criminal cases the terms are used interchangeably and are reviewed in the same manner.

Turning to the substantive offenses, the court held that the motion to dismiss the charge of possession of a firearm by a felon should have been granted. No firearm was found in this case; the state’s primary evidence for possession of a firearm was the defendant’s statement to the officers that he had one before they arrived but he had dropped it. Applying the corpus delicti principle, the court held that a confession alone cannot support a conviction unless there is substantial independent evidence to establish the trustworthiness of the confession, including facts which strongly corroborate the essential facts and circumstances in the confession. In this case, the police found a 9mm magazine in a home the defendant had broken into, and also found 9mm shell casings and bullet holes in the defendant’s own home; however, the court pointed out that a magazine is not a firearm, and it was unknown who caused the bullet holes or when. Without some additional evidence (such as recovering the firearm, testimony from a witness who saw a firearm or heard gunshots, or evidence of injury to a person or property), the court concluded that there was insufficient corroboration of the confession and vacated the conviction.

On his convictions for trafficking heroin and PWISD cocaine, the defendant challenged the sufficiency of the evidence that he possessed the drugs, but the appellate court held that there was sufficient evidence to establish constructive possession. The drugs were found inside a house where the defendant was seen actively moving from room to room, indicating that had dominion over the space, and the drugs were packaged in red plastic baggies that the defendant was known to use for selling drugs. When the defendant exited the house he also had over $2,000 in cash on him and a white powdery substance in and on his nose. Taken together, these facts presented sufficient evidence to withstand a motion to dismiss regarding the defendant’s constructive possession of the controlled substances, and the convictions were affirmed. 

Finally, the court declined to revisit its earlier ruling on defendant’s argument concerning the admissibility of evidence under Rule 403 and 404, since the case was only remanded for reconsideration in light of Golder. “As such, the Supreme Court left, and we shall too, leave intact our prior analysis, regarding defendant’s second argument of evidence of other wrongs.”

In this drug trafficking by possession and transportation case, the defendant fled an attempted traffic stop, was chased by officers for 3-5 miles until the defendant crashed his car, and then was pursued on foot. When the defendant was apprehended, he was searched and officers recovered a backpack containing digital scales, syringes, and small plastic bags. After the defendant was in custody and roughly thirty to forty-five minutes after the chase ended, the officers found two small plastic bags containing a “black tar substance” on the side of the highway roughly one hundred yards from where the car chase began. Collectively, the bags contained 4.66 grams of heroin. Although the bags were found on the route the defendant took, they were located “completely off of the roadway” and no officers testified that they saw anything thrown from the defendant’s vehicle. On appeal, the defendant challenged the sufficiency of the evidence.

(1) The Court of Appeals first addressed the State’s argument that the defendant failed to preserve the sufficiency issue for appellate review when he moved to dismiss the charges based upon a defect in the chain of custody, rather than for insufficiency of the evidence. The Court explained that the N.C. Supreme Court recently ruled in State v. Golder, 374 N.C. 238 (2020) that N.C. R. App. P. 10(a)(3) “does not require a defendant to assert a specific ground for a motion to dismiss for insufficiency of evidence” and the issue is preserved so long as a motion to dismiss is made at the proper time. Slip op. at ¶ 16. Therefore, the defendant preserved the argument on appeal.

(2) The trial court erred by denying the defendant’s motion to dismiss the charges of trafficking heroin by transportation and possession because the State’s evidence was insufficient to show that the defendant constructively possessed the two bags of heroin found on the side of the road. The court explained:

When the evidence is viewed in the light most favorable to the State, the bags of heroin were found on the driver’s side of the road approximately one hundred yards from the area where the car chase started. Inside Defendant’s vehicle, officers found scales, baggies, and syringes. Officers did not observe Defendant throw anything from the window while driving during the chase. Defendant was not in control of the area where the drugs were found, and there is no evidence connecting the bags of heroin to Defendant or to the vehicle he was driving. Without further incriminating circumstances to raise an inference of constructive possession, the State has failed to demonstrate substantial evidence that Defendant possessed the controlled substance.

In this possession of methamphetamine and felon in possession of a firearm case, the trial court did not err by instructing the jury that the defendant’s status as the driver of a stopped vehicle was sufficient to support an inference that he constructively possessed both methamphetamine and a firearm, even though another person was present in the vehicle. The defendant was stopped by officers while driving a beige Chevrolet pickup truck. Law enforcement had received drug complaints about a man named Sanchez. Officers conducted a two-hour surveillance of Sanchez and the defendant as they drove to several hotels in the area. Both Sanchez and the defendant were seen driving the truck during the two hour surveillance. Officers stopped the vehicle. The defendant was in the driver’s seat; Sanchez was in the passenger seat. A K-9 alert lead to a search of the vehicle. Officers found bags and backpacks in the truck bed that Sanchez stated belonged to him. While searching one of the backpacks they found pills and a notebook containing Sanchez’s name. Another backpack contained a compass with .2 g of a crystalline substance (later determined to be methamphetamine), a digital scale and counterweight, and a notebook containing entries in the defendant’s handwriting concerning the defendant’s wife. A revolver was found beneath the passenger seat. A later strip search of the defendant produced 39 pills, 15 of which were later determined to be diazepam. The defendant was indicted for possession of methamphetamine, possession of a firearm by a felon, and other charges. At the charge conference, the State requested an instruction stating that an inference of constructive possession can arise from evidence showing that a defendant was the custodian of a vehicle in which contraband was found. Over the defendant’s objection, the trial court gave the instruction. The defendant was found guilty and appealed.

            There was sufficient evidence to convict the defendant of possession of methamphetamine. Because the methamphetamine was found in a backpack in the bed of the truck, the State was required to show constructive possession. As the vehicle’s driver, the defendant’s dominion and control over the truck is sufficient to give rise to an inference of constructive possession. The court rejected the defendant’s argument that his dominion and control over the truck was insufficient because he was not the only occupant of the vehicle. The court went on to conclude that while the defendant’s status as the driver might be sufficient to uphold his conviction for possession of methamphetamine, the State also presented additional incriminating evidence to support an inference of constructive possession. Specifically, the defendant’s frequent stops at hotels and gas stations, indicative of drug transactions; the defendant’s possession of other controlled substances; and that the backpack in which the methamphetamine was found contained the defendant’s personal belongings.

            The evidence was also sufficient to show constructive possession of the firearm. As with possession of a controlled substance, the defendant’s dominion and control as the driver of the truck was sufficient to give rise to an inference of constructive possession. The court again rejected the defendant’s argument that his non-exclusive control over the truck required the State to provide additional incriminating evidence. Again, however, even though the defendant’s status as the driver is sufficient to give rise to an inference of possession, the State presented additional incriminating evidence in this case including the defendant’s proximity to the firearm and his behavior consistent with the sale of drugs.

State v. Royster, ___ N.C. App. ___, 822 S.E.2d 489 (Dec. 4, 2018) aff’d by an equally divided court, ___ N.C. ___, 834 S.E.2d 388 (Nov 1 2019)

In this drug trafficking case, the court held, over a dissent, that the evidence was insufficient to establish that the defendant knowingly possessed cocaine found in a black box in a wooded area approximately 18 hours after the defendant allegedly produced the same box in exchange for his kidnapped father. After the defendant’s father Mr. Royster was kidnapped, the kidnappers called the defendant; during that call Mr. Royster told the defendant that he needed to come and talk with the kidnappers. The next day, the defendant and a man named Cates went to the location. The defendant produced a black box that was given to one of the kidnappers and Mr. Royster was put in the defendant’s car. A shooting then broke out and one of the kidnappers, holding the box, ran into the woods behind the trailer park area. The defendant, Cates and Mr. Royster departed. One of the kidnappers died from gunshot wounds. Approximately 18 hours after the shooting, officers searched the woods behind the trailer park. 50 to 75 yards into the woods they found a black box containing a large amount of cocaine. The box was dry, despite heavy rain the previous night. A mason jar containing additional cocaine was found nearby; it also was dry. The defendant moved to dismiss the trafficking charge on the basis that the State failed to prove that he possessed the drugs in question. The trial court denied the defendant’s motion, he was convicted and he appealed. The court agreed that the evidence was insufficient to establish that the defendant possessed the controlled substances at issue. It concluded that the evidence established merely a suspicion that the defendant possessed the drugs at issue.

The trial court did not err by denying the defendant’s motion to dismiss charges of possession of stolen goods (a debit card) and possession of marijuana. The State presented substantial evidence establishing constructive possession of both the items. The items were found in close proximity to the defendant and his vehicle. Because of their proximity to the items, the defendant and his accomplices had the ability to exercise control over the contraband. Additionally, an officer spotted the defendant’s car and the suspects about one minute after receiving information from the Sheriff’s department about a robbery related to the charges at issue. The brief period between the robbery and locating the suspects with the stolen card supports an inference that the defendant knew of the robbery and the presence of the card. Based on the totality of the circumstances, there was substantial evidence that the defendant had constructive possession of the items.

The evidence was sufficient to support the defendant’s conviction of trafficking in cocaine by possession. At issue was whether the defendant constructively possessed the cocaine, found in the drawer of a bedroom dresser. Among other things, the defendant lived with Cunningham at the home. The two shared the bedroom, which also contained drug paraphernalia and illegal contraband, and was padlocked from the outside to prevent entry. The defendant and Cunningham had the only keys to the padlock. Officers found more than $400 of cash on the nightstand and a box near the nightstand contained latex gloves, a pair of goggles, and 2 boxes of plastic baggies, which the jury could infer were used to manufacture, package, or otherwise distribute crack cocaine. A reasonable juror could infer from Cunningham’s statements that she did not put the cocaine in the dresser. Moreover she stated that the cocaine did not belong to her. The jury could reasonably infer that the defendant, the only other individual with access to the bedroom, was the person who had control and dominion over the cocaine. Additionally, the defendant’s knowledge of the weight of cocaine found in the bedroom, as demonstrated by his conversation with another person, is another incriminating circumstance from which the jury could find constructive possession of cocaine.

In this possession of marijuana paraphernalia case, the State presented sufficient evidence to establish that the defendant constructively possessed a marijuana pipe found in a crashed vehicle. Although the defendant did not have exclusive possession of the vehicle, sufficient incriminating circumstances existed to establish constructive possession, including that the defendant was driving the vehicle; the pipe was found on the driver’s side floorboard; and the defendant admitted ownership of a small amount of marijuana found on his person.

In this drug case, there was insufficient evidence of constructive possession. Officers responded to a report of a breaking and entering at a residence. They heard a commotion inside and noticed smoke coming from the house. Two men, Robert McEntire and the defendant, left through the front door. Because the officers had responded to a breaking and entering in progress, they placed the men in custody. The source of the smoke turned out to be a quantity of marijuana burning in the oven. A subsequent search of the premises found over 19 pounds of marijuana and other items including drug paraphernalia. Officers later learned that McEntire lived at the premises. A photograph of the defendant was found in a container in a bedroom. The defendant was indicted on multiple drug charges including trafficking, possession with intent, maintaining a dwelling and possession of drug paraphernalia. At trial, the defendant’s mother explained why McEntire had a photograph of the defendant. McEntire testified that the defendant was merely visiting on the day in question, that the contraband belonged to McEntire and that the defendant did not know about its presence. The trial court denied the defendant’s motion to dismiss, which asserted insufficiency of the evidence. The defendant was convicted. The court found that the State failed to present substantial evidence demonstrating the defendant’s constructive possession of the contraband. The only evidence tying the defendant to the residence or the contraband was his presence on the afternoon in question and a single photograph of him found face down in a plastic storage bin located in a bedroom. There was no evidence that the defendant had any possessory interest in the house, that he had a key to the residence, that his fingerprints were found on any of the seized items, that any items belonging to him were found in the residence (on this issue it noted that the photograph belong to McEntire), or that any incriminating evidence was found on his person. 

(1) Because there was sufficient evidence that the defendant possessed drug paraphernalia, the trial court did not err by denying his motion to dismiss. The paraphernalia was found in plain view in a common living area of a home over which the defendant exercised nonexclusive control. The court found that following constituted “other incriminating circumstances” necessary to prove constructive possession: the defendant spent hours at the house on the day of the search; the defendant admitted that he had a “blunt” in the black truck parked in front of the house and the police found marijuana in the truck’s console; the police found marijuana in the house behind a photograph of the defendant; and several people visited the house while the defendant was there, including a man who shook hands with defendant “as if they were passing an item back and forth.” Of these facts, the most significant was that marijuana was found in a picture frame behind a photograph of the defendant. (2) Because there was insufficient evidence that the defendant constructively possessed marijuana found in an uncovered fishing boat located in the yard of a home occupied by multiple people, including the defendant, the trial court erred by denying his motion to dismiss the drug possession charge. The boat was located roughly 70 feet from the side of the house, in a non-fenced area of the yard. There was no evidence that the defendant had any ownership interest in or possession of the boat and the defendant was never seen near the boat.  

The court reversed the defendant’s conviction for possession with intent to sell or deliver methamphetamine, concluding that the State failed to present substantial evidence of constructive possession. The case arose out of a controlled drug buy. However the State’s evidence showed that “at nearly all relevant times” two other individuals—Fisher and Adams--were in actual possession of the methamphetamine. The defendant led Fisher and Adams to a trailer to purchase the drugs. The defendant entered the trailer with Fisher and Adams’ money to buy drugs. Adams followed him in and ten minutes later Adams returned with the methamphetamine and handed it to Fisher. This evidence was insufficient to establish constructive possession. 

In a possession of cocaine case, the evidence was sufficient to prove that the defendant constructively possessed cocaine. The drugs were found on the ground near the rear driver’s side of the defendant’s car after an officer had struggled with the defendant. Among other things, video from the officer’s squad car showed that during the struggle the defendant dropped something that looked like an off-white rock near rear driver’s side of the vehicle. This and other facts constituted sufficient evidence of other incriminating circumstances to establish constructive possession.

The evidence was sufficient to establish that the defendant constructively possessed the methamphetamine and drug paraphernalia. Agreeing with the defendant that the evidence tended to show that methamphetamine found in a handbag belonged to the defendant’s accomplice, the court found there was sufficient evidence that he constructively possessed methamphetamine found in a duffle bag. Among other things, the defendant and his accomplice were the only people observed by officers at the scene of the “one pot” outdoor meth lab, the officer watched the two for approximately forty minutes and both parties moved freely about the site where all of the items were laid out on a blanket.

(1) In a trafficking by possession case, there was sufficient evidence of constructive possession. The court rejected the defendant’s argument that the State’s evidence showed only “mere proximity” to the drugs. Among other things, the defendant hid from the agents when they entered the warehouse; he was discovered alone in a tractor-trailer where money was hidden; no one else was discovered in the warehouse; the cocaine was found in a car parked, with its doors open, in close proximity to the tractor-trailer containing the cash; the cash and the cocaine were packaged similarly; wrappings were all over the tractor-trailer, in which the defendant was hiding, and in the open area of a car parked close by; the defendant admitted knowing where the money was hidden; and the entire warehouse had a chemical smell of cocaine. (2) Conspiracy to traffic in cocaine is not a lesser-included offense of trafficking in cocaine. The former offense requires an agreement; the latter does not.

The evidence was sufficient to support a charge of trafficking in cocaine by possession. A detective set up a cocaine sale. The defendant and an individual named Blanco arrived at the location and both came over to the detective to look at the money. The defendant and Blanco left together, with the defendant telling Blanco to wait at a parking lot for the drug delivery. Later, the defendant told Blanco to come to the defendant’s house to get the drugs. Blanco complied and completed the sale.

There was sufficient evidence that the defendant had constructive possession of heroin found in an apartment that was not owned or rented by him. Evidence that the defendant was using the apartment included that he had a key to the apartment on his key ring, his clothing was found in the bedroom, he was seen entering and exiting the apartment shortly before the drug transaction, and he characterize the apartment as "where he was staying." Also, the defendant told the officer he had more heroin in the apartment and once inside lead them directly to it. The defendant also told the officers that his roommate was not involved with heroin and knew nothing of the defendant’s involvement with drugs.

The trial court did not err by denying the defendant’s motion to dismiss a charge of possession with intent to sell and deliver cocaine where there was sufficient evidence of constructive possession. Because the defendant did not have exclusive possession of the bedroom where the drugs were found, the State was required to show other incriminating circumstances. There was sufficient evidence of such circumstances where among other things, the defendant was sleeping in the bedroom, his dog was in the room, his clothes were in the closet, and plastic baggies, drug paraphernalia, and an electronic scale with white residue were in the bedroom. Additionally, the nightstand contained a wallet with a Medicare Health Insurance Card and customer service card identifying the defendant, a letter addressed to defendant at the address, and $600 in cash.

In this drug trafficking case the court held that there was sufficient evidence to support a finding of constructive possession of cocaine. Police had previously received a tip that drug sales were occurring at the home where the drugs were found; police later received similar information in connection with a DEA investigation; when officers went to the home the defendant admitted living there with his wife and children for three years, the defendant had a pistol, which he admitted having purchased illegally, ammunition, and more than $9,000.00 in cash in his closet; the defendant had more than $2,000 in cash on his person; almost 2 kilograms of powder cocaine worth more than $50,000 were found within easy reach of an opening leading from the hallway area to the attic; and the home small and had no residents other than the defendant and his family. 

In a trafficking by possession case, the evidence was sufficient to show constructive possession. After receiving a phone call from an individual named Shaw requesting cocaine, the defendant contacted a third person, Armstrong, to obtain the drugs. The defendant picked up Armstrong in a truck and drove to a location that the defendant had arranged with Shaw for the purchase. The defendant knew that Armstrong had the cocaine. Officers found cocaine on scales in the center of the truck. The defendant’s facilitation of the transaction by providing the vehicle, transportation, and arranging the location constituted sufficient incriminating circumstances to support a finding of constructive possession. 

In a trafficking case, the evidence was sufficient to show that the defendant constructively possessed cocaine found in a vehicle in which the defendant was a passenger. Another occupant in the vehicle testified that the cocaine belonged to the defendant, the cocaine was found in the vehicle “where [the defendant]’s feet would have been[,]” and, cocaine also was found on the defendant’s person.

There was sufficient evidence of constructive possession of drugs found in a house. The defendant lived at and owned a possessory interest in the house; he shared the master bedroom where the majority of the marijuana and drug paraphernalia were found; he was in the living space adjoining the master bedroom when the search warrant was executed; there were drugs in plain view in the back bedroom; he demonstrated actual control over the premises in demanding the search warrant; and in a conversation with his wife after their arrest, the two questioned each other about how the police found out about the drugs and the identity of the confidential informant who said that the contraband belonged to the defendant).

There was sufficient evidence of constructive possession to sustain a conviction for possession with the intent to sell and deliver marijuana. The drugs were found in a vehicle being transported by a car carrier driven by the defendant. The court determined that based on the defendant’s power and control of the vehicle in which the drugs were found, an inference arose that he had knowledge their presence. The vehicle had been under the defendant’s exclusive control since it was loaded onto his car carrier two days earlier and the defendant had keys to every car on the carrier. Although the defendant’s possession of the vehicle was not exclusive because he did not own it, other evidence created an inference of his knowledge. Specifically, he acted suspiciously when stopped (held his hands up, nervous, sweating), he turned over a suspect bill of lading, and he had fully functional keys for all cars on the carrier except the one at issue for which he gave the officers a “fob” key which prevented its user from opening the trunk housing the marijuana.

There was insufficient evidence that the defendant had constructive possession of bags of marijuana found in a vehicle. An officer found a vehicle that had failed to stop on his command in the middle of a nearby street with the engine running. The driver and passengers had fled. Officers searched the vehicle and found, underneath the front passenger seat, a large bag containing two smaller bags of marijuana; in the glove box, a small bag of marijuana; and in the defendant’s handbag, a burned marijuana cigarette. The defendant, who had been sitting in the back seat, did not own the vehicle. There was no evidence that the defendant behaved suspiciously or failed to cooperate with officers after being taken into custody. There was no evidence that the defendant made any incriminating admissions, had a relationship with the vehicle’s owner, had a history of selling drugs, or possessed an unusually large amount of cash. 

There was insufficient evidence that the defendant constructively possessed the controlled substances at issue. The defendant did not have exclusive possession of the premises where the drugs were found; evidence showed only that the defendant was present, with others, in the room where the drugs were found.

There was sufficient evidence of constructive possession even though the defendant did not have exclusive control of the residence where the controlled substances were found. The defendant admitted that he resided there, officers found luggage, mail, and a cellular telephone connected to the defendant at the residence, the defendant’s car was in the driveway, and when the officers arrived, no one else was present. Additionally, the defendant was found pushing a trash can that contained the bulk of the marijuana seized, acted suspiciously when approached by the officers, and ran when an officer attempted to lift the lid. 

There was insufficient evidence that the defendant constructively possessed cocaine and drug paraphernalia. When officers announced their presence at a residence to be searched pursuant to a warrant, the defendant exited through a back door and was detained on the ground; crack cocaine was found on the ground near the defendant and drug paraphernalia was found in the house. As to the cocaine, the defendant did not have exclusive control of the house, which was rented by a third party, and there was insufficient evidence of other incriminating circumstances. The defendant did not rent the premises, no documents bearing his name were found there, none of his family lived there, and there was no evidence that he slept or lived at the home. The defendant’s connection to the paraphernalia was even weaker where no evidence connected the defendant to the paraphernalia or to the room where it was found. 

There was sufficient evidence that the defendant constructively possessed controlled substances found in a motorcycle carry bag even though the defendant did not own the motorcycle. 

There was sufficient evidence of constructive possession of cocaine for purposes of charges of trafficking by possession, possession with intent, and possession of paraphernalia.

There was sufficient evidence to show that the defendant knowingly possessed marijuana in a case where the defendant was convicted of trafficking in marijuana and conspiracy to traffic by possession. Defendant signed for and collected a UPS package containing 44.1 pounds of marijuana. About a half hour later, the defendant helped load a second UPS package containing 43.8 pounds of marijuana into the back seat of a car. Both boxes were found when police searched the car, driven by the defendant. The defendant had once lived in the same residence as his niece, the person to whom the packages were addressed, and knew that his niece frequently got packages like these. Also, the defendant expected to earn between $50 and $200 for simply taking the package from UPS to his niece. Finally the address on one of the boxes did not exist. 

The defendant was stopped for a traffic violation after leaving a Buncombe County house that officers were surveilling due to complaints of illegal drug activity. Officers recovered from the defendant’s car one large bag and several smaller bags of a white crystalline substance, a bag of a leafy green substance believed to be marijuana, a baggie of cotton balls, several syringes, rolling papers, and a lockbox containing several smoked marijuana blunts and a number of plastic baggies. When he was arrested, the defendant offered to provide information about a woman he was supposed to meet who was involved in heroin trafficking.

The defendant was indicted for several drug charges including possession of methamphetamine and possession with intent to sell or deliver methamphetamine and for attaining habitual felon status. At trial, a forensic analyst from the State Crime Lab testified that that the white crystalline substance in the large plastic baggie was 6.51 grams of methamphetamine. The arresting officer testified that a typical methamphetamine sale for personal drug use was usually between one-half of a gram to a gram, and that two of the smaller baggies containing white crystalline substances (which were not analyzed) weighed 0.6 and 0.9 grams. The officer also testified that the baggies found in the car were consistent with those used in drug sales.

The defendant moved at the close of the State’s evidence to dismiss the charge of possession with intent to sell or deliver methamphetamine on the basis that the search of his person and vehicle yielded no cash, guns, financial records or other evidence to show that the defendant was a drug dealer as opposed to a drug user in possession of drugs. The trial court denied the motion, and the defendant was convicted of this charge and others and of being a habitual felon. The defendant appealed.  Over a dissent, the Court of Appeals concluded that the trial court did not err in denying the defendant’s motion to dismiss the possession with intent to sell or deliver charge. The majority opined that “‘[w]hile it is possible that [d]efendant had 13 hits of methamphetamine solely for personal use, it is also possible that [d]efendant possessed that quantity of methamphetamine with the intent to sell or deliver the same’” and that the issue was thus “‘properly resolved by the jury.’” Slip op. at ¶ 8.

On appeal, the Supreme Court considered whether the State presented sufficient evidence that the defendant intended to sell or deliver methamphetamine. The Court applied the following factors from State v. Nettles, 170 N.C. App. 100 (2005), to evaluate whether the defendant’s intent to sell or deliver could be inferred from the evidence: (1) the packaging, labeling and storage of the controlled substance, (2) the defendant’s activities, (3) the quantity of the drugs found, and (4) the presence of cash or drug paraphernalia including plastic baggies. The Court determined that the State’s evidence satisfied every factor and that the trial court properly denied the defendant’s motion to dismiss. Specifically, the court pointed to the following evidence: (1) the packaging of the confirmed methamphetamine and the untested white crystalline substances and the presence of clear plastic baggies in the car; (2) the storage of the methamphetamine in the center console after leaving a house where drug activity was suspected and while having a pending meeting with a drug trafficker; (3) the driving to a suspected drug house, entering and remaining inside for ten minutes, planning to meet with a drug trafficker, and driving a car with a large bag of methamphetamine inside and other items that appeared to be drug-related; and (4) the more than 8 grams of white crystalline substances in the defendant’s car, with 6.51 grams confirmed as methamphetamine (23.3 percent of the threshold amount to establish trafficking in methamphetamine), combined with evidence that the typical packaging of such a substance is one-half of a gram to a gram; and (5) the loaded syringe, bag of new syringes and baggie of cotton balls in the defendant’s car along with a lock box with plastic baggies in the back floorboard of the car. Focusing on the presence of evidence that could reasonably support an inference that the defendant possessed methamphetamine with intent to sell or deliver, the Court concluded that the State presented sufficient evidence of the defendant’s intent to sell or deliver methamphetamine. 

Justice Earls, joined by Justice Hudson, dissented. Justice Earls wrote that the majority had jettisoned the requirement that the State present substantial evidence of the defendant’s specific intent to sell or deliver the controlled substance by relying on evidence that was common to any individual who possesses a controlled substance.

The Court per curiam affirmed the opinion below, ___ N.C. App. ___, 804 S.E.2d 742 (2017). Over a dissent, the Court of Appeals held that the trial court did not err by denying the defendant’s motion to dismiss a charge of possession with intent to sell or deliver marijuana. The defendant argued that the State failed to present sufficient evidence of his intent to sell or deliver the drugs and that the evidence shows the marijuana in his possession was for personal use. The defendant possessed 10.88 grams of marijuana. Although the amount of drugs may not be sufficient, standing alone, to support an inference of intent to sell or deliver, other facts supported this element, including the packaging of the drugs. Additionally, the 20-year-old defendant was carrying a large amount of cash ($1,540) and was on the grounds of a high school. Moreover, a stolen, loaded handgun was found inside the glove compartment of the vehicle.

The defendant was convicted of possession with intent to sell or deliver cocaine (PWISD-Cocaine), felony possession of cocaine and attaining habitual felon status. He argued on appeal that State failed to offer sufficient evidence of an intent to sell or deliver cocaine. The Court of Appeals rejected that argument, determining that there was sufficient evidence to support submission of the PWISD-Cocaine charge to the jury.

The State’s evidence showed that the defendant possessed cocaine contained in two packages: a corner bag containing .34 grams and a package containing 11.19 grams. Though this amount is less than half the amount that would support a trafficking charge and less than what courts have previously recognized as a substantial amount, the Court of Appeals reasoned that the amount was not insubstantial and that it well exceeded amounts previously deemed to support a PWISD-Cocaine conviction. Thus, the court deemed evidence that the defendant possessed more than 11 grams of cocaine an important circumstance. Moreover, the court stated that evidence of the packaging (one small corner bag indicative of personal use and a larger package containing the bulk of the cocaine) supported an inference of intent to sell or deliver. The defendant’s actions at the time he possessed the cocaine further supported an inference of an intent to sell and distribute. The defendant was driving (and thus transporting the cocaine) to his brother’s apartment complex when a law enforcement officer signaled for him to stop. The defendant did not immediately stop. Instead, he accelerated away from the officer, only stopping once he reached the apartment complex. Once there, the defendant got out of his car, refused to comply with the officer’s directions, and ducked behind a parked car where the larger bag of cocaine was later found. The court stated that this supported an inference that the defendant attempted to hide the larger amount of cocaine while leaving the smaller corner bag—associated with only personal use—in plain view.

The court acknowledged that there was no evidence of cash, paraphernalia or other tools of the drug trade. Nevertheless, it viewed the amount of cocaine, the packaging, and the defendant’s evasive behavior to be enough to establish, “at a minimum, a borderline case to support submission of the PWISD-Cocaine charge to the jury.”

The evidence was sufficient to sustain a conviction for possession with intent to sell or deliver marijuana. The defendant’s vehicle contained 11.5 grams of marijuana packaged in two sandwich bags, a digital scale, and 23 additional loose sandwich bags. On appeal, the defendant’s primary argument was that the amount of marijuana found in his vehicle was too small to establish the requisite intent to sell or deliver. Citing prior case law, the court noted that with respect to showing intent, prior decisions have placed particular emphasis on the amount of drugs discovered, their method of packaging, and the presence of paraphernalia typically used to package drugs for sale. Moreover, the inquiry is fact specific in which the totality of the circumstances must be considered unless the quantity of drugs is so substantial that quantity alone supports an inference of intent to sell or deliver. Here, the relatively small quantity of marijuana was not be enough on its own to support an inference regarding the defendant’s intent. However, given the additional presence of the scale and the sandwich bags the evidence was sufficient to go to the jury.

 

The trial court did not err by denying the defendant’s motion to dismiss a charge of possession with intent to sell or deliver. The defendant argued that the amount of marijuana found in his car—84.8 grams—was insufficient to show the required intent. The court rejected this argument noting that the marijuana was found in multiple containers and a box of sandwich bags and digital scales were found in the vehicle. This evidence shows not only a significant quantity of marijuana, but the manner in which the marijuana was packaged raised more than an inference that defendant intended to sell or deliver the marijuana. Further, it noted, the presence of items commonly used in packaging and weighing drugs for sale—a box of sandwich bags and digital scales—along with a large quantity of cash in small denominations provided additional evidence that defendant intended to sell or deliver marijuana.

(No. COA10-534). The trial court erred by submitting to the jury the charge of possession with intent to manufacture cocaine because it is not a lesser-included offense of the charged crime of trafficking by possession of cocaine. However, possession of cocaine is a lesser of the charged offense; because the jury convicted on possession with intent to manufacture, the court remanded for entry of judgment on possession of cocaine.

The trial court erred by denying the defendant’s motion to dismiss a charge of possession with intent to sell or deliver. Evidence that an officer found 1.89 grams of marijuana on the defendant separated into three smaller packages, worth about $30, and that the defendant was carrying $1,264.00 in cash was insufficient to establish the requisite intent.

State v. Barnes, 367 N.C. 453 (Apr. 11, 2014)

Over a dissent, the court of appeals held, in part, that the trial court did not err by denying the defendant’s motion to dismiss a charge of possession of a controlled substance on the premises of a local confinement facility. The defendant first argued that the State failed to show that he intentionally brought the substance on the premises. The court held that the offense was a general intent crime. As such, there is no requirement that a defendant has to specifically intend to possess a controlled substance on the premises of a local confinement facility. It stated: “[W]e are simply unable to agree with Defendant’s contention that a conviction . . . requires proof of any sort of specific intent and believe that the relevant offense has been sufficiently shown to exist in the event that the record contains evidence tending to show that the defendant knowingly possessed a controlled substance while in a penal institution or local confinement facility.” The court also rejected the defendant’s argument that his motion should have been granted because he did not voluntarily enter the relevant premises but was brought to the facility by officers against his wishes. The court rejected this argument concluding, “a defendant may be found guilty of possession of a controlled substance in a local confinement facility even though he was not voluntarily present in the facility in question.” Following decisions from other jurisdictions, the court reasoned that while a voluntary act is required, “the necessary voluntary act occurs when the defendant knowingly possesses the controlled substance.” The court also concluded that the fact that officers may have failed to warn the defendant that taking a controlled substance into the jail would constitute a separate offense, was of no consequence. 

In this possession of a controlled substance on jail premises case involving Oxycodone, the trial court did not err by refusing to instruct the jury that an element of the offense is that the controlled substance be possessed unlawfully.  The court explained that a plain reading of the relevant statutes does not require the State to prove unlawful possession of a controlled substance as an element of the offense.  Instead, lawful possession is a defense that the defendant carries the burden of proving.

The trial court did not err by failing to instruct the jury on an exemption to a drug trafficking charge. The defendant argued that he was exempt from prosecution as an “ultimate user” pursuant to G.S. 90-101(c). The statute defines an ultimate user as a person who lawfully possesses a controlled substance for his own use, or for the use of a member of his household. The defendant was found in possession of 54 dosage units of oxycodone weighing 6.89 grams. The defendant argued that the trial court erred by not instructing the jury sua sponte on the ultimate user exception. The court found however that the record lacked substantial evidence by which a jury instruction on this exemption would have been required. The evidence showed that the defendant did not lawfully possess his father’s oxycodone pills solely for his father’s prescribed use, as required to fall within the ultimate user exemption. Rather, the record reflects overwhelming evidence that the defendant possessed his father’s oxycodone for his own purpose of unlawfully selling the pills. Although the defendant presented evidence that the oxycodone was prescribed to his father, that the defendant drove his father to and from appointments related to his care, and that the defendant lived with and cared for his father, “no reasonable person could conclude that Defendant was in lawful possession of his father’s oxycodone at the time of his arrest.” Among other things the defendant gave a written confession admitting that he was selling the pills to make money. Because the defendant failed to present substantial evidence that he possessed the pills solely for his father’s use, he was not entitled to the instruction.

State v. Barnes, 367 N.C. 453 (Apr. 11, 2014)

The court per curiam affirmed the decision below, State v. Barnes, 229 N.C. App. 556 (Sept. 17, 2013). The court of appeals held, in part, that the trial court erred by entering judgment for both simple possession of a controlled substance and possession of a controlled substance on the premises of a local confinement facility when both charges stemmed from the same act of possession. Simple possession is a lesser-included offense of the second charge.

Where the defendant was in possession of a bag containing two separate Schedule I controlled substances, Methylone and 4-Methylethcathinone, two convictions were proper. Noting that it had already rejected the argument advanced by the defendant in another case, the court held that the defendant could be punished for two offenses where two different drugs are found in the same mixture.

No double jeopardy violation occurred when the defendant was convicted of trafficking in methamphetamine, manufacturing methamphetamine, and possession of methamphetamine based on the same illegal substance.

For purposes of double jeopardy, a second-degree murder conviction based on unlawful distribution of and ingestion of a controlled substance was not the same offense as sale or delivery of a controlled substance to a juvenile or possession with intent to sell or deliver a controlled substance.

A defendant may be convicted and sentenced for both possession of ecstasy and possession of ketamine when both of the controlled substances are contained in a single pill.

A defendant may be convicted and punished for both felony possession of marijuana and felony possession of marijuana with intent to sell or deliver.

State v. Miller, 369 N.C. 658 (June 9, 2017)

Reversing a unanimous decision of the Court of Appeals, State v. Miller, ___ N.C. App. ___, ___, 783 S.E.2d 512 (2016), the court rejected the defendant’s as-applied challenge to the constitutionality of G.S. 90-95(d1)(1)(c) (felony to possess a pseudoephedrine product when the defendant has a prior conviction for possession or manufacture of methamphetamine). After holding that the General Assembly intended the statute to be a strict liability offense, the Court of Appeals had gone on to hold that the statute was unconstitutional “as applied to a defendant in the absence of notice to the subset of convicted felons whose otherwise lawful conduct is criminalized thereby or proof beyond a reasonable doubt by the State that a particular defendant was aware that his possession of a pseudoephedrine product was prohibited by law.” The Supreme Court began by noting that, as a general rule, ignorance of the law or a mistake of law is no defense to a criminal prosecution. In Lambert v. California, 355 U.S. 225 (1957), however, the United States Supreme Court sustained and as applied challenge to a municipal ordinance making it unlawful for any individual who had been convicted of a felony to remain in Los Angeles for more than five days without registering with the Chief of Police. In that case the defendant had no actual knowledge of the registration requirement and the ordinance did not require proof of willfulness. The issue presented was whether the registration act violated due process when applied to a person who has no actual knowledge of the duty to register, and where no showing is made of the probability of such knowledge. Acknowledging the rule that ignorance of the law is no excuse, the U.S. Supreme Court pointed out that due process conditions the exercise of governmental authority on the existence of proper notice where a person, wholly passive and unaware of any criminal wrongdoing, is charged with criminal conduct. Because the ordinance at issue in Lambert did not condition guilt on “any activity” and there were no surrounding circumstances which would have moved a person to inquire regarding registration, actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply were necessary before a conviction under the ordinance could stand consistent with due process. Lambert thus carves out a narrow exception to the general rule that ignorance of the law is no excuse. The subsequent Bryant decision from this court establishes that if the defendant’s conduct is not “wholly passive,” because it arises either from the commission of an act or failure to act under circumstances that reasonably could alert the defendant to the likelihood that inaction would subject him or her to criminal liability, Lambert does not apply. Turning to the facts of the case, the court noted that the defendant actively procured the pseudoephedrine product at issue. Moreover, the defendant never argued that he was ignorant of the fact that he possessed a pseudoephedrine product or that he had previously been convicted of methamphetamine possession. His conduct thus differs from that at issue in Lambert and in this court’s Bryant decision in that it was not a “wholly passive” failure to act. The court found no need to determine whether the surrounding circumstances should have put the defendant on notice that he needed to make inquiry into his ability to lawfully purchase products containing pseudoephedrine and that his as applied challenge failed. And it went on to conclude that the issue of whether the statute was a strict liability offense was not properly before it.

The evidence was sufficient with respect to 35 counts of possession of the precursor chemical pseudoephedrine with intent to manufacture methamphetamine. As to possession, the State introduced evidence that the defendant purchased pseudoephedrine, was seen “cooking meth,” and that others had purchased pseudoephedrine for him. The court rejected the defendant’s argument that the evidence was insufficient because the substance was not chemically identified as pseudoephedrine. The court concluded that the holding of State v. Ward regarding the need to identify substances through chemical analysis was limited to identifying controlled substances, and pseudoephedrine is not listed as a controlled substance in the North Carolina General Statutes.

The court rejected the defendant’s argument that the trial court erred by entering judgment for two separate counts of manufacturing methamphetamine. The defendant had argued that the crime was a single continuing offense and that therefore one of the conviction should be vacated. However two separate methamphetamine labs were discovered, in the trunk of a vehicle and in a storage unit. It was clear that the separate and distinct locations contained two separate methamphetamine manufacturing processes. Thus, the trial court did not err by entering judgment for two separate counts of manufacturing methamphetamine.

The trial court properly determined that a charge of conspiracy to manufacture methamphetamine was a Class C felony. The court rejected the defendant’s argument that G.S. 14-2.4(a) required punishment as a Class D felony (“Unless a different classification is expressly stated, a person who is convicted of a conspiracy to commit a felony is guilty of a felony that is one class lower than the felony he or she conspired to commit[.]”). Here, G.S. 90-98 requires that conviction for conspiracy to manufacture methamphetamine is punished at the same level as manufacture of methamphetamine.

There was sufficient evidence of manufacturing methamphetamine. An officer observed the defendant and another person at the scene for approximately 40 minutes. Among the items recovered were a handbag containing a syringe and methamphetamine, a duffle bag containing a clear two liter bottle containing methamphetamine, empty boxes and blister packs of pseudoephedrine, a full pseudoephedrine blister pack, an empty pack of lithium batteries, a lithium battery from which the lithium had been removed, iodized salt, sodium hydroxide, drain opener, funnels, tubing, coffee filters, syringes, various items of clothing, and a plastic bottle containing white and pink granular material. The defendant’s presence at the scene, the evidence recovered, the officer’s testimony that the defendant and his accomplice were going back and forth in the area, moving bottles, and testimony that the defendant gave instructions to his accomplice to keep the smoke out of her eyes was sufficient evidence of manufacturing.

(1) The trial court did not commit plain error by failing to instruct the jury that to convict the defendant for trafficking by compounding it had to find he did so with an intent to distribute. Because the evidence showed that the defendant also manufactured by packaging and repackaging, the court concluded that the defendant failed to establish that a different outcome would probably have been reached had the instruction at issue been delivered at trial. (2) The court rejected the defendant’s argument that the evidence was insufficient to show trafficking in cocaine by manufacture. Where officers find cocaine or a cocaine-related mixture and an array of items used to package and distribute that substance, the evidence suffices to support a manufacturing conviction. Here, State’s evidence showed that more than 28 grams of cocaine and several items that are commonly used to weigh, separate, and package cocaine for sale were seized from the defendant’s bedroom.

(1) Reiterating that in a manufacturing case based on preparing or compounding the State must prove intent to distribute, the court found that no plain error had occurred where such a jury instruction was lacking. (2)No double jeopardy violation occurred when the defendant was convicted of trafficking in methamphetamine, manufacturing methamphetamine, and possession of methamphetamine based on the same illegal substance.

State v. Hinson, 203 N.C. App. 172 (Apr. 6, 2010) rev’d on other grounds, 364 N.C. 414 (Oct 8 2010)

The offense of manufacturing a controlled substance does not require an intent to distribute unless the activity constituting manufacture is preparing or compounding. An indictment charging the defendant with manufacturing methamphetamine “by chemically combining and synthesizing precursor chemicals” does not charge compounding but rather charges chemically synthesizing and thus the State was not required to prove an intent to distribute.

State v. Land, 223 N.C. App. 305 (Nov. 6, 2012) aff’d per curiam, 366 N.C. 550 (Jun 13 2013)

(1) In a delivery of marijuana case, the evidence was sufficient to survive a motion to dismiss where it established that the defendant transferred less than five grams of marijuana for remuneration. The State need not show that the defendant personally received the compensation. (2) Where the evidence showed that the defendant transferred less than five grams of marijuana, the trial court erred by not instructing the jury that in order to prove delivery, the State was required to prove that the defendant transferred the marijuana for remuneration. The error, however, did not rise to the level of plain error.

In this case involving convictions for, among other offenses, sale of cocaine and delivery of cocaine, the trial court did not commit plain error in its application of G.S. 90-95 and in sentencing the defendant.  At sentencing, the trial judge arrested judgment on the conviction of delivering cocaine, a Class H felony, and consolidated other convictions into the single count of selling cocaine, a Class G felony.  On appeal the defendant argued that G.S. 90-95, which generally punishes the sale of cocaine more severely than the delivery of cocaine, is ambiguous as to the appropriate punishment for a judgment based on the “sale or delivery” of cocaine and that the rule of lenity requires that the lesser punishment be imposed.  Taking note of the North Carolina Supreme Court’s decision in State v. Moore, 327 N.C. 378 (1990) establishing that a defendant may not be convicted of both the sale and the delivery of a controlled substance when both offenses arise from a single transfer, the court held that the purpose of Moore was accomplished here by the trial judge arresting judgment on the delivery of cocaine conviction and that the defendant did not show that plain error occurred.

(1) The evidence was sufficient to support a conviction for attempted sale or delivery of a counterfeit controlled substance. The charges arose out of a drug transaction that was prearranged by an undercover officer. The officer arranged the transaction with a target, but the defendant and other individuals showed up to execute it. The defendant and the others were arrested when they produced what appeared to be cocaine during the drug transaction. The State proceeded on the acting in concert theory. The officer had twice purchased cocaine from the target at a Bojangles restaurant in Warsaw, North Carolina. He contacted the target again for a third purchase and the target agreed to sell him one ounce of cocaine for $1200 at the same location. When the officer arrived, the defendant and the other men appeared in a vehicle and waved the officer over to their car. The target told the officer by phone “them are my boys, deal with them” and hung up. One of the men in the car displayed a bag of white powder, which was weighed and determined by the men to be one ounce. The men then were arrested, before an actual delivery of the substance or exchange of money occurred. The white powder was later determined to be counterfeit cocaine. This was sufficient evidence of transferring a counterfeit controlled substance under both the attempted sale and delivery theories of transfer.

(2) When a defendant both sells and delivers a counterfeit controlled substance as part of the same transaction, only one conviction may obtain. The focus of the offense is a transfer, committed either by sale or delivery. Here, the defendant was improperly convicted of two offenses—attempted sale and attempted delivery—arising from a single transfer. However because the defendant did not raise the issue on appeal, it was not before the court. The court however noted that the defendant could raise the issue in a Motion for Appropriate Relief.

The trial court erred by sentencing the defendant for both selling marijuana and delivering marijuana when the acts occurred as part of a single transaction. 

For purposes of double jeopardy, a second-degree murder conviction based on unlawful distribution of and ingestion of a controlled substance was not the same offense as sale or delivery of a controlled substance to a juvenile or possession with intent to sell or deliver a controlled substance.

(1) The evidence was sufficient to support a conviction for attempted sale or delivery of a counterfeit controlled substance. The charges arose out of a drug transaction that was prearranged by an undercover officer. The officer arranged the transaction with a target, but the defendant and other individuals showed up to execute it. The defendant and the others were arrested when they produced what appeared to be cocaine during the drug transaction. The State proceeded on the acting in concert theory. The officer had twice purchased cocaine from the target at a Bojangles restaurant in Warsaw, North Carolina. He contacted the target again for a third purchase and the target agreed to sell him one ounce of cocaine for $1200 at the same location. When the officer arrived, the defendant and the other men appeared in a vehicle and waved the officer over to their car. The target told the officer by phone “them are my boys, deal with them” and hung up. One of the men in the car displayed a bag of white powder, which was weighed and determined by the men to be one ounce. The men then were arrested, before an actual delivery of the substance or exchange of money occurred. The white powder was later determined to be counterfeit cocaine. This was sufficient evidence of transferring a counterfeit controlled substance under both the attempted sale and delivery theories of transfer.

(2) When a defendant both sells and delivers a counterfeit controlled substance as part of the same transaction, only one conviction may obtain. The focus of the offense is a transfer, committed either by sale or delivery. Here, the defendant was improperly convicted of two offenses—attempted sale and attempted delivery—arising from a single transfer. However because the defendant did not raise the issue on appeal, it was not before the court. The court however noted that the defendant could raise the issue in a Motion for Appropriate Relief.

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of possession with the intent to sell or deliver a counterfeit controlled substance. The court rejected the argument that to be considered a counterfeit controlled substance, the State must prove all three factors listed in G.S. 90-87(6)(b); the statute simply sets out factors that can constitute evidence that the controlled substance was intentionally misrepresented as a controlled substance. (2) The court found sufficient evidence of intent to sell or deliver the counterfeit controlled substance given the substance’s packaging and weight and the presence of other materials used for drug packaging. 

There was sufficient evidence to support the defendant’s conviction of conspiracy to sell a counterfeit controlled substance. The court concluded that G.S. 90-87(6) (definition of counterfeit controlled substance) requires only that the substance be intentionally represented as a controlled substance, not that a defendant have specific knowledge that it is counterfeit. There was sufficient evidence that the defendant intentionally represented the substance as a controlled substance in this case: when an undercover officer asked for a “40” ($40 worth of crack cocaine), an accomplice produced a hard, white substance packaged in two small corner baggies, which the officers believed to be crack cocaine. There also was substantial evidence that the defendant conspired with the accomplice: the defendant initiated contact with the officers, directed them where to park, spoke briefly with the accomplice who emerged from a building with the substance, and the defendant brokered the deal.

For purposes of the counterfeit controlled substance offenses, a counterfeit controlled substance is defined, in part, by G.S. 90-87(6) to include any substance intentionally represented as a controlled substance. The statute further provides that “[i]t is evidence that the substance has been intentionally misrepresented as a controlled substance” if certain factors are established. The court rejected the defendant’s argument that for a controlled substance to be considered intentionally misrepresented, all of the factors listed in the statute must be proved, concluding that the factors are evidence that the substance has been intentionally misrepresented as a controlled substance, not elements of the crime. The court also concluded that the evidence was sufficient to establish that the defendant misrepresented the substance at issue—calcium carbonate—as crack cocaine where the defendant approached a vehicle, asked its occupants what they were looking for, departed to fill their request for “a twenty,” and handed the occupants a little baggie containing a white rock-like substance. Finally, the court held that the statute does not require the State to prove that the defendant had specific knowledge that the substance was counterfeit.

The evidence was insufficient to support a conviction for a drug offense within 1000 feet of a child care center. Under G.S. 90-95(e)(8), a defendant is punished as a Class E felon if he commits certain drug offenses within 1000 feet of the boundary of real property used for a child care center. G.S. 110-86(3) defines a child care center as “an arrangement where, at any one time, there are three or more preschool-age children or nine or more school-age children receiving child care.” Here, no evidence was elicited from any witness about how many children actually were in the facility at any given time; the witnesses only testified to the facility’s potential capacity. Thus, there was no evidence that the facility met the statutory definition. The court vacated and remanded for resentencing on the lesser included offenses.

Affirming the opinion below, the court held that G.S. 90-95(h)(4) (trafficking in opium) applies in cases involving prescription pharmaceutical tablets and pills. The court reasoned that the statute explicitly provides that criminal liability is based on the total weight of the mixture involved and that tablets and pills are mixtures covered by that provision. 

The evidence was sufficient to prove a trafficking amount of methamphetamine. The court rejected the defendant’s argument that the entire weight of a mixture containing methamphetamine at an intermediate stage in the manufacturing process cannot be used to support trafficking charges because the mixture is not ingestible, is unstable, and is not ready for distribution. The defendant admitted that the methamphetamine had already been formed in the liquid and it was only a matter of extracting it from the mixture. Also, the statute covers mixtures.

In a case in which the defendant was charged with trafficking in cocaine by manufacturing, the trial court did not commit plain error by failing to instruct the jury on manufacturing cocaine. The evidence showed that the defendant possessed cocaine and a mixture of cocaine and rice that exceeded the statutory trafficking amount. The defendant admitted to having mixed rice with the cocaine to remove moisture. The court rejected the defendant’s argument that the combination of cocaine base and rice does not constitute a “mixture” as used in the trafficking statutes and concluded that the statutory reference to a “mixture” encompasses the mixture of a controlled substance with any other substance regardless of the reason for which that mixture was prepared.

The trial court did not err by allowing heroin recovered from the defendant's person outside the apartment to be combined with the heroin recovered from the apartment for the purposes of arriving at a trafficking amount for trafficking by possession. The defendant was observed entering the apartment immediately before his sale of 3.97 grams of heroin to an undercover officer. Upon arrest, the defendant said that he had more heroin in the apartment, and provided the key and consent for the officers to enter the apartment where 0.97 grams of additional heroin were recovered. This additional heroin was packaged for sale in the same manner as the heroin sold to the officer. The defendant admitted to being a drug dealer. There was no evidence any of the heroin was for the defendant's personal use. Under these circumstances, the defendant possessed the heroin in the apartment simultaneously with the heroin sold to the officer.

The evidence was insufficient to support the defendant’s methamphetamine trafficking convictions because G.S. 90-95(h)(3b) requires the state to prove the actual weight of the methamphetamine in a mixture. The defendant was convicted of trafficking by possession and manufacture of 400 grams or more methamphetamine. The state’s evidence consisted of 530 grams of a liquid that contained a detectable amount of methamphetamine. The exact amount of methamphetamine was not determined. The court noted that the trafficking statutes for methaqualone, cocaine, heroin, LSD, and MDA/MDMA specifically contain the clause “or mixture containing such substance,” whereas G.S. 90-95(h)(3b) for methamphetamine and as amphetamine does not contain that clause. [Author’s note: in 2009 the statute was revised to provide: “[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of methamphetamine or any mixture containing such substance shall be guilty of a felony which felony shall be known as ‘trafficking in methamphetamine[.]’” (emphasis added).].

On appeal in this drug case from an unpublished opinion by the court of appeals, the supreme court held that there was sufficient evidence to support a conviction for conspiracy to traffic in opium. Specifically, the court pointed to evidence, detailed in the opinion, that the defendant agreed with another individual to traffic in opium by transportation. The court rejected the defendant’s argument that the evidence showed only a “the mere existence of a relationship between two individuals” and not an unlawful conspiracy.

The evidence was sufficient to show a drug trafficking conspiracy where there was evidence of an implied agreement between the defendant and his accomplice. The defendant was present at the scene and aware that his accomplice was involved producing methamphetamine and there was sufficient evidence that the defendant himself was involved in the manufacturing process. The court concluded: “Where two subjects are involved together in the manufacture of methamphetamine and the methamphetamine recovered is enough to sustain trafficking charges, we hold the evidence sufficient to infer an implied agreement between the subjects to traffic in methamphetamine by manufacture and withstand a motion to dismiss.”

The term “deliver,” used in the trafficking statutes, is defined by G.S. 90-87(7) to “mean[] the actual constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” Thus, an actual delivery is not required. In a prosecution under G.S. 90-95, the defendant bears the burden of establishing that an exemption applies, such as possession pursuant to a valid prescription. In this case, the trial court properly denied the defendant’s motion to dismiss and properly submitted to the jury the issue of whether the defendant was authorized to possess the controlled substances.

(1) The trial court did not commit plain error by failing to instruct the jury that to convict the defendant for trafficking by compounding it had to find he did so with an intent to distribute. Because the evidence showed that the defendant also manufactured by packaging and repackaging, the court concluded that the defendant failed to establish that a different outcome would probably have been reached had the instruction at issue been delivered at trial. (2) The court rejected the defendant’s argument that the evidence was insufficient to show trafficking in cocaine by manufacture. Where officers find cocaine or a cocaine-related mixture and an array of items used to package and distribute that substance, the evidence suffices to support a manufacturing conviction. Here, State’s evidence showed that more than 28 grams of cocaine and several items that are commonly used to weigh, separate, and package cocaine for sale were seized from the defendant’s bedroom.

 (No. COA10-534). The trial court erred by submitting to the jury the charge of possession with intent to manufacture cocaine because it is not a lesser-included offense of the charged crime of trafficking by possession of cocaine. However, possession of cocaine is a lesser of the charged offense; because the jury convicted on possession with intent to manufacture, the court remanded for entry of judgment on possession of cocaine.

No double jeopardy violation occurred when the defendant was convicted of trafficking in methamphetamine, manufacturing methamphetamine, and possession of methamphetamine based on the same illegal substance.

In this possession of marijuana paraphernalia case, the State presented sufficient evidence to establish that the defendant constructively possessed a marijuana pipe found in a crashed vehicle. Although the defendant did not have exclusive possession of the vehicle, sufficient incriminating circumstances existed to establish constructive possession, including that the defendant was driving the vehicle; the pipe was found on the driver’s side floorboard; and the defendant admitted ownership of a small amount of marijuana found on his person.

The trial court did not err by denying the defendant’s motion to dismiss the charge of possession of drug paraphernalia. When the arresting officer approached the vehicle, the defendant was sitting in the back seat and did not immediately show his hands at the officer’s request. Officers subsequently found the glass pipe on the rear floor board of the seat where the defendant was sitting. The defendant admitted that he smoked methamphetamine out of the pipe while in the car. Additionally Fisher testified that the pipe belonged to the defendant and the defendant had been carrying it in his pocket.

Where a drug paraphernalia indictment charged the defendant with possession of plastic baggies used to package and repackage pills but the State introduced no evidence of plastic baggies at trial, the trial court erred by denying the defendant’s motion to dismiss. At trial, the State’s evidence showed that the defendant used a bottle to deliver the pills. The court stated: “We hold that the specific items alleged to be drug paraphernalia must be enumerated in the indictment, and that evidence of such items must be presented at trial.” 

Show Table of Contents