Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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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.

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

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.

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