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 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 this Henderson County case, defendant appealed his convictions for trafficking in methamphetamine by possession and trafficking in opium by possession, arguing error in (1) denying his motion to dismiss the opium charge; (2) instructing the jury that opioids were included in the definition of “opium or opiate” at the time of the offense; and (3) considering evidence of improper factors at sentencing. The Court of Appeals majority disagreed, finding no error.

In November of 2018, the Henderson County Sheriff's Office executed a search warrant at defendant’s residence, and relevant to the current appeal, discovered a bottle of white pills later determined to be hydrocodone. At the trial, defendant moved to dismiss all charges, and the trial court denied defendant’s motion. During jury instructions, the trial court explained “that opioids were included in the definition of ‘opium or opiate’ under [G.S.] 90-95(h)(4)” over defendant’s objection. Slip Op. at 2. At the sentencing hearing after defendant’s conviction, the State mentioned that defendant rejected a plea deal and conducted additional drug activity at his home. Defendant subsequently appealed. 

Looking to (1), the Court of Appeals disagreed with defendant’s argument that hydrocodone was not a prohibited substance under G.S. 90-95(h)(4) at the time of the alleged offense. In State v. Garrett, 277 N.C. App. 493 (2021), the court held that opioids “qualify as an opiate within the meaning of the statute.” Slip Op. at 5, quoting Garrett at 497-98. The court explained that the same language from the 2016 statute interpreted in Garrett applied in to the 2017 version considered in the current case, and substantial evidence showed defendant possessed the opioid, supporting denial of his motion. This conclusion also addressed (2), as the court explained it was not error to provide a jury instruction that “opium or opiates” included “opioids” for purposes of the statute. Id. at 10.

In (3), the court found no evidence of improper sentencing, explaining “[a]lthough the State mentioned Defendant’s failure to accept a plea offer, there is no evidence in the record that the trial court specifically commented on or considered the refusal.” Id. at 12. 

Judge Murphy dissented by separate opinion, and would have held that the court was not bound by the opinion in Garrett because the General Assembly subsequently defined “opioids” in the 2017 version of G.S. 90-87(18a). Id. at 14. 

In this Wake County case, a drug investigator was working at a local FedEx facility and noticed a package from California with the seams taped shut and with an apparently fake phone number for the recipient. The officer removed the package from the conveyor belt and searched law enforcement databases for information on the sender and the recipient. He discovered that the telephone number for the sender listed on the package was incorrect, that the telephone number for the recipient was fictitious, and that the package had been mailed from a location other than the listed shipping address. The package was placed alongside several other similar packages and was examined by a drug dog already present in the facility. Following an alert by the canine, officer obtained a search warrant for the package. Inside, officers discovered packages of around 15 pounds of suspected marijuana, along with a GPS tracker. Officers visited the address of the recipient, where they noticed the defendant in the driveway. They also noted the presence of a storage unit facility nearby and later learned the defendant rented a unit there. A man (apparently the sender) called the FedEx facility to inquire about the status of the package. An officer called him back, first verifying the intended address and recipient of the package and then identifying himself as law enforcement. The man on the phone cursed and ended the call. The next day, officers visited the storage facility near the defendant’s home with a canine unit, which alerted to a certain unit. While officers were obtaining a search warrant for the unit, the defendant arrived on scene holding a bag. Officers saw what they believed to be marijuana extract or “wax” inside the bag and placed the defendant under arrest. Once the search warrant for the storage unit was approved, officers discovered more apparent marijuana and marijuana extract inside. Search warrants for the defendant’s house were then obtained, leading to the discovery of marijuana paraphernalia and a substance used to produce marijuana extract. 

The defendant was charged with conspiracy to traffic marijuana, possession with intent to sell/deliver marijuana and possession with intent to sell/deliver THC (among other related offenses). The defendant moved to suppress, arguing that the seizure of the package at the FedEx facility was unconstitutional. The trial court denied the motion, and the defendant was convicted of trafficking and other offenses at trial. On appeal, the defendant challenged the denial of his suppression motion, the denial of his motion to dismiss for insufficient evidence, the admission of lay opinions identifying the substances in the case as marijuana, marijuana wax, and THC, and the admission of the phone call between the officer and the man who called the FedEx facility inquiring about the package. The Court of Appeals affirmed.

(1) The court rejected the argument that the defendant’s Fourth Amendment rights were violated by the seizure of the package and canine sniff at the FedEx facility. “[W]e do not accept Defendant’s initial contention that the mere removal of the target package from the conveyor belt for a drug dog sniff was a ‘seizure’ implicating his Fourth Amendment rights. Neither was the drug dog sniff a ‘search. . .’” Teague Slip op. at 13. While both the sender and recipient of a mailed package have a reasonable expectation of privacy in the contents of a package, the temporary detention and investigation of the package in a manner that does not significantly delay its delivery does not amount to a Fourth Amendment seizure. Officers here had reasonable suspicion to justify a brief investigation and dog sniff of the package. From there, officers properly obtained search warrants of the package, which led to additional search warrants supported by probable cause. Thus, the acts of removing the package for investigation and subjecting it to a canine sniff did not implicate the defendant’s Fourth Amendment rights and the motion to suppress was properly denied. 

(2) Assuming arguendo that the seizure and canine sniff of the package did implicate the defendant’s Fourth Amendment rights, he failed to preserve those arguments for appellate review. While the defendant filed a pretrial motion to suppress and fully litigated those issues (including objecting to the canine alert evidence at trial), he failed to object to testimony at trial about the removal of the package from the conveyor belt for additional investigation. Appellate review of that issue was therefore waived. The dog sniff on its own did not amount to a search, given it took place at the FedEx facility while the item was “still in the mail stream” and was completed within ten minutes. “…Defendant’s renewed objection at trial to the introduction of . . . the dog sniff was insufficient to resurrect any prior unpreserved Fourth Amendment argument for appellate review.” Id. at 25. The trial court also did not plainly err by denying the suppression. Because the defendant’s Fourth Amendment rights were not implicated, no error occurred, much less any plain error in the trial court’s denial of the suppression motion. 

Regarding the defendant’s other challenges, the court noted the continued ambiguity surrounding the impact of hemp legalization on marijuana prosecutions, citing State v. Parker, 277 N.C. App. 531 (2021). The court opined that the now-defunct Industrial Hemp Act did not impact the State’s burden of proof in criminal proceedings “to the degree the Defendant contends,” while also acknowledging that “our appellate courts have yet to fully address the effect of industrial hemp’s legalization on . . . the various stages of a criminal investigation and prosecution for acts involving marijuana.” Teague Slip op. at 28 (citation omitted). 

(3) The defendant argued that the indictment charging him with possession with intent to sell/deliver THC was fatally defective for failure to state a crime because the indictment failed to specify that the THC possessed by the defendant contained a delta-9 THC concentration of more than 0.3%. The court rejected this argument, finding that the concentration of delta-9 THC is not an element of the crime and that the then-applicable Industrial Hemp Act did not remove THC from the list of prohibited controlled substances under Chapter 90 of the North Carolina General Statues. Moreover, the defendant has the burden under G.S. 90-113.1 to prove lawful possession of a controlled substance, which is an exception to the prohibitions on controlled substances and (again) not an element of the offense. (The prohibition on possession of THC in G.S. 90-94 has since been amended to exclude all THC products containing no more than 0.3% delta-9 THC, which expressly removes delta-9 THC within the legal limit and all other hemp-derived THCs not exceeding the delta-9 THC limit from the list of prohibited controlled substances).

(4) The trial correctly denied the defendant’s motion to dismiss the charge of possession with intent to sell/deliver THC for insufficient evidence. The defendant pointed to the lack of any chemical analysis for the brown marijuana “wax” and argued that the State failed to present proof that the substance was an illegal controlled substance given the existence of legal hemp. The court found that the brown material did not qualify as industrial hemp under the then-existing definition but met the definition of THC in place at the time. “The brown material was neither a part nor a variety of the plant Cannabis sativa.” Teague Slip op. at 34 (emphasis in original). Moreover, even if the material did qualify as a part of the plant, “Defendant makes no argument that he was a ‘grower licensed by the Commission’, or that the brown material was cultivated by such a licensed grower, as the statutory definition of ‘industrial hemp’ requires.” Id. at 35. In the light most favorable to the State, there was therefore sufficient evidence that the brown material was THC, and the motion was properly denied. (Industrial hemp is no longer defined under state law and has been replaced by new state definitions for marijuana, hemp and hemp products, as discussed here. Under the new definitions, hemp is defined to include all extracts and derivatives of hemp, and hemp products are defined as anything made from hemp. There is no longer any requirement that hemp be grown by a licensed grower.)

(5) The defendant argued that the legalization of hemp in the state undercut the justifications in the decisions allowing the lay identification of marijuana without the need for a chemical analysis. See, e.g., State v. Mitchell, 224 N.C. App. 171, 179 (2013). He complained on appeal that the admission of lay opinion testimony identifying “marijuana wax,” “THC,” and marijuana as such without a valid chemical analysis violated N.C. Evid R. 702 and was reversible error. The Court of Appeals disagreed. Assuming without deciding that the trial court erred in admitting this testimony, the defendant could not show prejudice. The flower marijuana in the package was properly lab-tested and found to contain illegal levels of delta-9 THC. While the brown wax material was tested only for the presence of delta-9 THC and not for specific levels of THC, the material again did not qualify as industrial hemp under the then-existing definition. While other flower material found in the storage shed was likewise only tested for the presence of THC (and not for quantified THC levels), there was overwhelming evidence of the defendant’s guilt. Given the marijuana that was properly tested, along with the discovery of other drugs and drug paraphernalia at the defendant’s house, storage unit, and in the bag that the defendant was carrying when he encountered officers at the storage unit (among other evidence), there was no reasonable likelihood of a different result at trial had this identification testimony been excluded. 

(6) There was also sufficient evidence supporting the defendant’s conviction for conspiring to traffic marijuana by transportation, and the trial court did not err in admitting a recording of the phone call between the apparent sender of the package and the law enforcement officer. The shipping label accurately named the defendant and his address, and the sender acknowledged that information on the call with the officer. The sender was also upset upon learning that the package had been intercepted by law enforcement. Additionally, the drugs in the package were worth more than $150,00.00 and included a GPS tracking device. This was sufficient to show the defendant and co-conspirator’s “mutual concern for and interest in” the package, thus providing sufficient evidence of the conspiracy. Id. at 44. The phone call between the sender of the package and law enforcement was properly admitted under the hearsay exception for statements of co-conspirators under N.C. Evid. R. 801(d)(E). The court rejected the defendant’s argument that the statement at issue here did not qualify under that exception because it was not a statement made between the conspirators. The court observed:

[W]hen the State has introduced prima facie evidence of a conspiracy, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members regardless of their presence or absence at the time the acts and declarations were done or uttered. Teague Slip op. at 46 (citation omitted) (emphasis in original). 

There was therefore sufficient evidence of the conspiracy conviction and no error in admission of the phone call between law enforcement and the co-conspirator. 

In this Beaufort County case, defendant appealed his possession of marijuana and marijuana paraphernalia convictions, arguing the trial court erred by admitting hearsay testimony and denying his motion to dismiss for insufficient evidence. The Court of Appeals found harmless error in admitting the hearsay testimony and sufficient evidence to support the convictions.

Between February and March of 2019, the Beaufort County Sheriff’s Office used a confidential informant to conduct drug buys at a car wash owned by defendant’s father. Using audio and video transmitters, the officers heard and observed defendant discuss the price of drugs and handing drugs over for sale. Defendant was subsequently convicted based on the testimony of one of the officers who arranged the buys and observed the transmitters during the buys from defendant. This officer testified that he had known defendant since he was a little boy and would recognize his voice in a recording.

Defendant argued that the testimony of the officer was hearsay, as he read directly from the search warrant and affidavit; the court disagreed, noting that the officer offered extensive testimony from personal memory, and evidence in the record supported the conclusions outside of the hearsay statements. Additionally, the court noted defendant had ample opportunity for cross-examination on the substance of the officer’s testimony, meaning even if the portions of testimony that were hearsay were admitted erroneously, they did not rise to the level of prejudicial under the plain error standard. Slip Op. at 6-7, citing State v. Ridgeway, 137 N.C. App. 144 (2000). The court likewise held that admitting the search warrant and affidavit was harmless error, as the officer was present on the stand for cross-examination about the contents of the search warrant. Id. at 9-10, citing State v. Jackson, 24 N.C. App. 394 (1975).

The basis of defendant’s motion to dismiss was the State did not admit sufficient evidence to establish that the product seized was marijuana instead of hemp. The court noted extensive evidence in the record regarding (1) defendant referring to the substance for sale as “marijuana” and (2) the officer’s testimony about the substance and the paraphernalia present that supported the conclusion that defendant was selling marijuana. Id. at 13-14. Based on this evidence the court found no error with the denial of defendant’s motion. 

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)

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 Johnston County case, defendant appealed his controlled substance related convictions arguing error in (1) the admission of prior bad act evidence, and (2) denying his motion to dismiss some of the controlled substances charges. The Court of Appeals vacated and arrested the judgment for maintaining a dwelling resorted to by persons using methamphetamine, but otherwise found no error.

In March of 2019, Johnston County Sheriff’s Office executed a search warrant on defendant’s home, discovering methamphetamine in small baggies, marijuana, and paraphernalia consistent with selling drugs. Defendant was also noncompliant during the search and arrest, struggling with officers and attempting to flee. At trial, the state admitted certain text messages obtained from defendant’s cellphone, ranging from October 2018 to February 2019, as evidence of prior bad acts; defendant objected under Rule of Evidence 404(b) but the trial court denied his motion.

For issue (1), the Court of Appeals first found Rule 404(b) did not bar admission of the texts, as “knowledge was at issue during trial, [and] the challenged evidence is relevant as it corroborated the [s]tate’s contention that the substance defendant possessed was indeed marijuana and not legal hemp.” Slip Op. at 9. The court then determined under Rule 403 that the trial court performed a sufficient analysis of the evidence and did not commit an abuse of discretion when admitting the texts.

Under issue (2), the court found error with one of defendant’s convictions, maintaining a dwelling resorted to by persons using methamphetamine under G.S. 90-108(a)(7), as the state did not offer sufficient evidence to show any other person actually used defendant’s residence for consuming methamphetamine. The court noted that “the [s]tate failed to establish that anyone outside of defendant, used defendant’s home to consume controlled substances . . . [d]efendant cannot ‘resort’ to his own residence.” Id. at 18. The court rejected defendant’s arguments with respect to his other controlled substance convictions, and arrested judgment instead of remanding the matter as defendant’s convictions were consolidated and he received the lowest possible sentence in the mitigated range.

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.

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 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. 

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 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.

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 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 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.

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.

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). 

In this Davidson County case, defendant appealed his conviction for possession of a controlled substance, arguing error in (1) denying his motion to suppress the evidence obtained from a search of his vehicle, and (2) denying his motion to dismiss for insufficient evidence that he knowingly possessed cocaine. The Court of Appeals found no error. 

In July of 2019, defendant was driving with two passengers when he was pulled over for failing to yield. After the officers had returned ID cards to defendant and his passengers, one officer asked for permission to search the vehicle. Defendant told the officer that he was on probation and had to allow the search. The officers discovered cocaine and drug paraphernalia during a search of the vehicle. Before trial, defendant filed a motion to suppress, which was denied. Defendant failed to object during trial when the State admitted evidence obtained through the search.  

Taking up (1), the Court of Appeals noted the standard of review was plain error as defendant did not object to the admission of evidence during the trial. Here, the search of the vehicle occurred after the traffic stop had concluded. Because defendant was on probation, he is presumed to “have given consent to a search where an officer has reasonable suspicion of a crime.” Slip Op. at 5. The trial court did not provide justification in writing, but in open court stated that she concluded the officer “had reasonable suspicion to conduct the search.” Id. at 6. The court noted that, although the trial court did not consider defendant freely giving consent in the absence of reasonable suspicion, “there was sufficient evidence from which the trial court could have found as fact at trial that Defendant voluntarily consented to the search had Defendant objected when the evidence was offered by the State.” Id. at 7. As a result, defendant could not show plain error from the failure to suppress. 

Dispensing with (2), the court noted that the State presented “evidence of other incriminating circumstances, including the placement of the cocaine in the driver’s door, as well as the Defendant’s nervous behavior,” to support the inference that defendant constructively possessed the cocaine. Id. at 8.

Judge Arrowood concurred by separate opinion, writing to address the analysis of the trial court related to the officer’s reasonable suspicion to extend the stop and conduct a search. 

In this Haywood County case, three defendants appealed their judgments for various drug-related offenses, arguing error in (1) joining their cases for trial, (2) admission of certain testimony, (3) denying their motions to dismiss. The Court of Appeals found no error. 

In October of 2018, the Haywood County Sheriff's Office executed a search warrant on three apartments, finding heroin and cocaine along with drug paraphernalia. The three defendants were found together in one of the apartments, along with drugs and a large amount of cash. The defendants came to trial in August of 2021, and the State moved to join the cases for trial; the trial court allowed this motion over their objections. 

For (1), the court noted that G.S. 15A-926 permits joinder in the discretion of the trial court, with the primary consideration being the fair trial for each defendant. Here, no confessions or affirmative defenses were offered by any defendant, and “[b]ecause there were no antagonistic or conflicting defenses that would deprive Defendants of a fair trial,” the court found no error in joining the cases. Slip Op. at 8. 

Looking to (2), the court explained that one defendant objected to the testimony by an officer referencing several complaints about a black car driven by the defendant. The court noted that the officer’s testimony was not hearsay under Rule of Evidence 801, as it was not being offered to prove the truth of the matter asserted. Instead, the officer’s testimony explained his subsequent actions in observing the black car, which led to conducting surveillance on the apartments. 

Finally, in (3), the court found that two of the defendants had constructive possession of the drugs sufficient to support their convictions for possession despite not having exclusive possession of the apartments, as sufficient evidence of incriminating circumstances linked the defendants to the drugs and paraphernalia. The court noted this constructive possession, along with a rental application for one of the apartments, supported the finding of a conspiracy between the defendants to traffic the drugs. As a result, the trial court did commit error by denying the defendants’ motions to dismiss. 

In this Cleveland County case, defendant appealed his convictions for trafficking methamphetamine, arguing that his motion to dismiss should have been granted as he was not physically present when his travel companion was found in possession of the contraband. The Court of Appeals affirmed the denial of defendant’s motion to dismiss. 

In February of 2020, an associate of defendant was arrested for possession of drugs and chose to assist police with their investigation of defendant in return for leniency. Defendant had asked the associate for assistance in bringing drugs from Georgia to North Carolina, and the police assisted the associate in developing a plan where they would drive together to pick up drugs for sale in North Carolina. The plan would conclude with the pair being pulled over as they re-entered the state. However, as the pair returned from Atlanta with the drugs, they became tired, and defendant called a female friend to assist them with driving from South Carolina to their destination in North Carolina. The female friend arrived with another woman, and the pair split up, leaving defendant’s associate in the car with the contraband and one woman, and defendant in a different car with the other woman. They were both pulled over when they passed into North Carolina, traveling three to five miles apart. At trial, defense counsel moved to dismiss the charges at the close of state’s evidence and again at the close of all evidence, but both motions were denied.

The Court of Appeals first explained that a person may be charged with a crime in North Carolina even if part of the crime occurred elsewhere, as long as at least one of the essential acts forming the crime occurred in North Carolina, and the person “has not been placed in jeopardy for the identical offense in another state.” Slip Op. at 5, quoting G.S. 15A-134. The court then moved to defendant’s arguments that he did not possess or transport the drugs while in North Carolina so he could not be charged with trafficking by possession or trafficking by transportation. 

Although defendant did not have actual possession of the drugs in North Carolina, the court noted that the “knowing possession” element of trafficking by possession could also be shown by proving that “the defendant acted in concert with another to commit the crime.” Slip Op. at 6, quoting State v. Reid, 151 N.C. App. 420, 428 (2002). Along with the evidence in the current case showing the defendant acted in concert with his associate, the trafficking charge required showing that defendant was present when the offense occurred. Here, after exploring the applicable case law, the court found that defendant was “constructively present” because, although “parties in the present case were a few miles away from each other, they were not so far away that defendant could not render aid or encouragement [to his associate].” Id. at 11. 

Moving to the trafficking by transportation charge, the court noted that “[a]s with trafficking by possession, ‘trafficking by transport can be proved by an acting in concert theory.’” Id. at 13, quoting State v. Ambriz, 880 S.E.2d 449, 459 (N.C. App. 2022). The court explained that “[f]or the same reasons we hold that defendant’s motion to dismiss the trafficking by possession charge was properly denied, we also hold that the motion to dismiss the trafficking by transportation charge was properly denied.” Id. 

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 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.

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.

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.

(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.  

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.

(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.

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.

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 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 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 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 of constructive possession of cocaine for purposes of charges of trafficking by possession, possession with intent, and possession of paraphernalia.

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 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.

(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.

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.

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.

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.

(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) 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.