State v. Wirt, ___ N.C. App. ___, 822 S.E.2d 668 (Dec. 18, 2018)

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.