Opinion
No. 07-825.
Filed April 15, 2008.
Mecklenburg County Nos. 05CRS230024.
Appeal by Defendant from judgment entered 7 March 2007 by Judge Timothy S. Kincaid in Superior Court, Mecklenburg County. Heard in the Court of Appeals 24 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General G. Mark Teague, for the State. Irving Joyner for Defendant-Appellant.
Maurice Coleman (Defendant) appeals a judgment entered upon his conviction for possession with intent to sell or deliver cocaine. We find no error.
Defendant was indicted on 12 December 2005 for possession with intent to sell or deliver cocaine . The State presented evidence at trial which tended to show the following: Officer David Micheaux of the Charlotte-Mecklenburg Police Department was on patrol on 29 June 2005 as a bicycle officer in Charlotte, North Carolina. Officer Micheaux observed Defendant driving a burgundy Chevrolet Caprice at approximately 7:30 p.m. Officer Micheaux knew that a warrant was outstanding for Defendant's arrest for driving while license revoked. Therefore, Officer Micheaux radioed an alert to other officers so that Defendant would be apprehended.
Officer Michael Wallin heard the alert and responded to Officer Micheaux's location. Officer Micheaux pointed out Defendant's vehicle to Officer Wallin. Officer Wallin pulled up behind Defendant's vehicle, conducted a traffic stop, and arrested Defendant. Officer Wallin then searched Defendant for weapons and contraband. During this search, Officer Wallin found a bag in Defendant's back pocket containing 5.1 grams of crack cocaine broken into several pieces. Officer Wallin also found $219.00 in Defendant's right front pocket. Meanwhile, Officer Piotr Ignaczak and Officer Micheaux searched Defendant's car. While searching the front passenger side of the vehicle, they found four individually wrapped bags of marijuana. Officer Ignaczak told Officer Wallin about the marijuana and stated that the marijuana was found next to the vehicle's passenger, April Maxwell (Maxwell). Officer Ignaczak told Officer Wallin, "I guess she's going too," indicating that Maxwell should likewise be arrested. At that point, Defendant stated to the officers that the drugs belonged to him, and that Maxwell had no knowledge of the drugs.
Defendant was convicted of possession with intent to sell or deliver cocaine. The trial court sentenced Defendant to a term of eight months to ten months in prison. Defendant appeals.
Defendant's sole argument on appeal is that the trial court erred by denying his motion to dismiss for insufficiency of the evidence. After careful review of the record, briefs and contentions of the parties, we find no error. To survive a motion to dismiss, the State must present "substantial evidence of each essential element of the offense charged and substantial evidence that the defendant is the perpetrator." State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). "`Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'" Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)).
"The offense of possession with intent to sell or deliver has three elements: (1) possession of a substance; (2) the substance must be a controlled substance; and (3) there must be intent to sell or distribute the controlled substance." State v. Nettles, 170 N.C. App. 100, 105, 612 S.E.2d 172, 175, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005) (citing N.C. Gen. Stat. § 90-95(a)(1) (2003); State v. Fletcher, 92 N.C. App. 50, 55, 373 S.E.2d 681, 685 (1988)). Defendant concedes that he possessed the crack cocaine, but he contends that there was insufficient evidence that he intended to sell or distribute the substance.
"While intent may be shown by direct evidence, it is often proven by circumstantial evidence from which it may be inferred." Id. at 105, 612 S.E.2d at 175-76 (citing State v. Jackson, 145 N.C. App. 86, 90, 550 S.E.2d 225, 229 (2001)). This Court has stated that "[a]lthough `quantity of the controlled substance alone may suffice to support the inference of an intent to transfer, sell, or deliver,' it must be a substantial amount." Id. at 105, 612 S.E.2d at 176 (emphasis added) (quoting State v. Morgan, 329 N.C. 654, 659, 406 S.E.2d 833, 835 (1991)). This Court further stated that "a controlled substance's substantial amount may be determined by comparing the amount possessed to the amount necessary to constitute a trafficking offense." Id. at 106, 612 S.E.2d at 176. "The North Carolina General Statutes provide that in order to be guilty of trafficking cocaine, an individual must possess at least twenty-eight grams or more of cocaine or any derivative thereof." Id. (citing N.C. Gen. Stat. § 90-95(h)(3) (2003)). In Nettles, this Court determined that 1.2 grams of crack cocaine was a "de minimus amount" and it could not be inferred that the defendant possessed an intent to sell or deliver from the amount alone. Id.; see also State v. Battle, 167 N.C. App. 730, 733-34, 606 S.E.2d 418, 420-21 (2005) (holding that 1.9 grams of cocaine was not a substantial enough amount to infer an intent to sell or deliver).
In this case, Defendant possessed 5.1 grams of crack cocaine, more than four times the amount of cocaine possessed by the defendant in Nettles, and more than twice that possessed by the defendant in Battle. Officer Ignaczak testified that the average dose of crack cocaine purchased for personal usage is between 0.05 and 0.1 grams and sells on the street for around ten dollars. Thus, the cocaine in Defendant's possession far exceeded the amount normally consumed in an average single dose. We conclude that this constitutes a substantial amount sufficient to infer intent to sell or deliver, because the amount far exceeded what Defendant would possess for his "`personal consumption.'" Morgan, 329 N.C. at 660,406 S.E.2d at 836 (quoting State v. Williams, 307 N.C. 452, 457, 298 S.E.2d 372, 376 (1983)).
Even assuming arguendo that the amount of cocaine alone was insufficient to infer an intent to sell or deliver, we further conclude there were other incriminating factors from which the jury could infer that Defendant possessed the intent to sell or deliver the cocaine. "Based on North Carolina case law, the intent to sell or distribute may be inferred from (1) the packaging, labeling, and storage of the controlled substance, (2) the defendant's activities, (3) the quantity found, and (4) the presence of cash or drug paraphernalia." Nettles, 170 N.C. App. at 106, 612 S.E.2d at 176.
Here, Officer Wallin testified that the 5.1 grams of crack cocaine were found in a plastic baggie, broken in several pieces. Officer Ignaczak testified that the pieces were of the average size that is sold on the streets. In addition to the crack cocaine, Defendant was found in possession of $219.00. No explanation was given for the amount of cash in his possession. Cf. id. at 107, 612 S.E.2d at 176-77 (the defendant stated that $411.00 found on his person was part of the money he received from his $547.00 dollar social security check). Moreover, in addition to the crack cocaine and currency, four individually wrapped "dime" bags of marijuana were found in Defendant's possession.
When reviewing the sufficiency of the evidence, "[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994) ( citing State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991)). We conclude that when considering the amount of cocaine found, the fact that the crack cocaine was broken into small pieces of the size usually sold on the streets, the amount of currency found in Defendant's possession without any explanation as to where the money came from, as well as the presence of four individually wrapped bags of marijuana, a reasonable jury could conclude that Defendant intended to sell or deliver the cocaine. Accordingly, we find no error.
No error.
Judges STROUD and ARROWOOD concur.
Report per Rule 30(e).