Opinion
No. COA10-1328
Filed 21 June 2011 This case not for publication
Appeal by defendant from judgment entered 26 March 2010 by Judge Nathaniel J. Poovey in Catawba County Superior Court. Heard in the Court of Appeals 22 March 2011.
Attorney General Roy Cooper, by Catherine F. Jordan, Assistant Attorney General, for the State. Randolph and Fischer, by J. Clark Fischer, for Defendant.
Catawba County File No. 09 CRS 51087.
Defendant Nicholas Ismael Mitchell appeals from a judgment imposing a probationary sentence upon Defendant based upon his conviction for possession of cocaine. On appeal, Defendant challenges the sufficiency of the evidence to support his conviction. After careful consideration of Defendant's challenge to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant's challenge to the trial court's judgment lacks merit and that he is not entitled to any relief on appeal.
I. Factual Background A. Substantive Facts
At approximately 1:30 p.m. on 12 February 2009, Officer Michael Crisp of the Hickory Police Department turned into the parking lot of Golden King's Market. ( T12-13) At that time, Officer Crisp observed Defendant and another person engaged in a hand-to-hand transaction. ( T14) When Officer Crisp observed this hand-to-hand transaction, the two individuals were standing in close proximity to each other, with one of them "ha[ving] his hand outreached . . . [and] the other one . . . reaching in with his hand." ( T14-15)
Once the two individuals became aware of Officer Crisp's presence, Defendant walked toward Golden King's Market while the other person began walking in the opposite direction toward a nearby street. ( T15) As he made his way across the parking lot, Defendant had his left hand cupped and his right hand open. ( T16) At that point, Officer Crisp called out to Defendant. ( T17) Defendant ignored Officer Crisp and continued walking toward the store. ( T17).
Officer Crisp followed Defendant to Golden King's Market at a distance of about fifteen to twenty feet. ( T18) As Defendant entered the store, he made a motion with his left hand and discarded an item into a plastic trash can. ( T19-20) At the time that Defendant and Officer Crisp entered Golden King's Market, the only other person in the store was a clerk. ( T20) Officer Crisp looked inside the trash can and saw a plastic bag containing what appeared to be several rocks of crack cocaine directly on top of some crushed cardboard boxes. ( T20) According to former Special Agent Jay Pentacuda of the State Bureau of Investigation, the material in the plastic bag consisted of .37 grams of cocaine base. ( T100)
B. Procedural History
On 12 February 2009, a Warrant for Arrest charging Defendant with possession of cocaine was issued. ( R3) On 8 September 2009, the Catawba County grand jury returned a bill of indictment charging Defendant with possession of cocaine. ( R4) The charge against Defendant came on for trial at the 25 March 2010 criminal session of the Catawba County Superior Court before the trial court and a jury. On 26 March 2010, the jury returned a verdict convicting Defendant as charged. ( R9) At the ensuing sentencing hearing, the trial court determined that Defendant had accumulated two prior record points and should be sentenced as a Level II offender. ( R10-11) Based upon these determinations, the trial court sentenced Defendant to a minimum term of six months and a maximum term of eight months imprisonment in the custody of the North Carolina Department of Correction. However, the trial court suspended Defendant's sentence and placed Defendant on supervised probation for a period of thirty months subject to the usual terms and conditions of probation and the conditions that he pay restitution, attorney's fees, the community service fee, and the costs; submit to warrantless searches for stolen goods, controlled substances, and contraband; not use, possess, or control any illegal drug or controlled substance without a valid prescription; supply a breath or urine sample for drug and alcohol testing purposes upon request; perform 72 hours of community service within the first one hundred days of the probationary period; obtain a substance abuse evaluation and comply with any treatment recommendations; and not go on or about the property of Golden King's Market. ( R12-13) Defendant noted an appeal to this Court from the trial court's judgment. ( R13)
II. Legal Analysis A. Standard of Review
On appeal, Defendant challenges the denial of his motion to dismiss the possession of cocaine charge that had been lodged against him on the grounds that the evidence was not sufficient to support his conviction. In ruling on a motion to dismiss, the court must "examine the evidence in the light most advantageous to the State and give the State the benefit of every reasonable inference from that evidence." State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001) (citations omitted), overruled on other grounds in State v. Allen, 359 N.C. 425, 437, 615 S.E.2d 256, 265 (2005). To defeat a motion to dismiss, the State must present substantial evidence tending to show (1) the existence of each essential element of the offense charged and (2) the defendant's identity as the perpetrator of the offense. State v. Steele, ___ N.C. App. ___, ___, 689 S.E.2d 155, 158 (2010) (citing State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002)). "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." Id. (citing Scott, 356 N.C. at 597, 573 S.E.2d at 869). A trial judge may deny a dismissal motion even though the evidence does not rule out every possible hypothesis of innocence. State v. Hagans, 177 N.C. App. 17, 29, 628 S.E.2d 776, 784 (2006) (citations omitted).
B. Legal Analysis
According to N.C. Gen. Stat. § 90-95(a)(3), "it is unlawful for any person . . . [t]o possess a controlled substance." "The elements of felony possession are (1) defendant (2) knowingly possesses (3) cocaine." State v. Burnette, 158 N.C. App. 716, 720, 582 S.E.2d 339, 342 (2003). "Possession of a controlled substance may be actual or constructive." Steele, ___ N.C. App. at ___, 689 S.E.2d at 158. "A person has actual possession of a controlled substance if it is on his person, he is aware of its presence, and, either by himself or together with others, he has the power and intent to control its disposition." State v. Alston, 193 N.C. App. 712, 715, 668 S.E.2d 383, 386 (2008), aff'd, 363 N.C. 367, 677 S.E.2d 455 (2009). Constructive possession, on the other hand, "`occurs when a person lacks actual physical possession, but nonetheless has the intent and power to maintain control over the disposition and use of the substance.'" State v. Acolatse, 158 N.C. App. 485, 488, 581 S.E.2d 807, 810 (2003) (quoting State v. Wilder, 124 N.C. App. 136, 139-40, 476 S.E.2d 394, 397 (1996)). The record contains ample evidence tending to show that Defendant actually possessed cocaine.
At trial, Officer Crisp testified that he saw Defendant and another individual engaged in a hand-to-hand transaction in the parking lot of Golden King's Market. After the two individuals noticed Officer Crisp and began walking in opposite directions, Officer Crisp observed that Defendant's left hand was cupped while his right hand was open. Officer Crisp testified that, at the time Defendant entered the Golden King's Market, he used his left hand to throw an item into a trash can. When he entered the store, Officer Crisp saw a plastic bag containing what appeared to be several rocks of crack cocaine in the trash can on top of several crushed cardboard boxes. This evidence is more than sufficient to permit a reasonable juror to find that Defendant had cocaine in his left hand as he walked across the parking lot, providing ample justification for the trial court's decision to deny Defendant's dismissal motion.
In seeking to persuade us to reach a contrary result, Defendant argues that there was no necessary connection between Defendant and the bag of crack cocaine found in the trash can. According to Defendant, any number of store patrons and employees had as much, if not more, ability to put the plastic bag into the trash can than Defendant. Moreover, in arguing that the evidence was insufficient, Defendant points to the fact that no witness corroborated Officer Crisp's claim to have seen Defendant throw an item into the trash can, the fact that the store clerk did not testify at Defendant's trial, the fact that Defendant did not ever admit having possessed the cocaine found in the plastic bag, the fact that no drug paraphernalia or cash was seized from Defendant's person, the fact that drug activity occurred at Golden King's Market with some regularity, the fact that no fingerprints were lifted from the plastic bag, and the fact that Golden King's Market did not have an operational surveillance video camera. However, Defendant's argument is more properly understood as a challenge to the weight that should be given to the State's evidence rather than as a challenge to its sufficiency. See State v. McDonald, 312 N.C. 264, 274, 321 S.E.2d 849, 855 (1984) (stating that "[a]ny potentially weak links in the chain of custody relate only to the weight to be given this evidence by the jury") (citing State v. Montgomery, 291 N.C. 91, 103, 229 S.E.2d 572, 580 (1976)).
Although Defendant argues that the present case resembles State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983), in which the Supreme Court held that the evidence was insufficient to support the defendant's conviction for possession of stolen firearms, we are not persuaded by Defendant's contention. The essential issue before the Supreme Court in Malloy was whether the defendant possessed certain stolen firearms located in the trunk of a car parked next to the location at which the defendant was working on another automobile. Id. at 177, 305 S.E.2d 719. In Malloy, the Supreme Court held that, since the only evidence linking the defendant to the stolen goods was his physical proximity to them, the record did not contain sufficient evidence to establish that he actually or constructively possessed the stolen firearms. Id. at 179-80, 305 S.E.2d at 720-21. The record developed at trial in this case contains considerable evidence of Defendant's guilt in addition to his mere proximity to the plastic bag found in the garbage, such as the evidence that Defendant was cupping his left hand as he walked across the parking lot, that Defendant threw an item into the trash can using his left hand, and that a plastic bag containing several rocks of crack cocaine was found at the top of the trash can when Officer Crisp arrived. As a result, Malloy is readily distinguishable from this case.
In addition, Defendant cites State v. Hamilton, 145 N.C. App. 152, 549 S.E.2d 233 (2001), in support of his challenge to the sufficiency of the evidence to support his cocaine possession conviction. In Hamilton, this Court concluded that the record did not contain sufficient evidence to permit a determination as to whether the defendant or his girlfriend possessed the cocaine found in his girlfriend's apartment. Id. at 157-58, 549 S.E.2d at 234-35. Hamilton, as our opinion clearly reflects, was a constructive rather than an actual possession case. This case is readily distinguishable from Hamilton because, as we have already noted in discussing Malloy, the present record contains sufficient evidence to permit a finding that Defendant actually possessed cocaine. Thus, contrary to Defendant's argument, Hamilton has little relevance to the proper disposition of this case.
The testimony of Officer Crisp clearly permitted the jury to infer that Defendant had the plastic bag containing the cocaine rocks in his left hand as he walked across the parking lot prior to entering Golden King's Market. Such evidence more than suffices to support Defendant's conviction for cocaine possession. Wilder, 124 N.C. App. at 139-40, 476 S.E.2d at 397 (holding that the record contained sufficient evidence to support a finding that the defendant possessed cocaine when an officer observed the defendant throw an object into some bushes and the defendant's neighbor found a bag resembling the object described by the officer in those bushes at a point about ten feet from the defendant's former location). As a result, the record clearly contains sufficient evidence to permit a rational juror to find that Defendant actually possessed the crack cocaine found in the trash can at the Golden King's Market, a fact that precluded the trial court from allowing his dismissal motion.
III. Conclusion
Thus, for the reasons set forth above, we conclude that the trial court correctly denied Defendant's dismissal motion. As a result, we find no error in the proceedings leading to the entry of the trial court's judgment.
NO ERROR.
Judges ROBERT C. HUNTER and STEPHENS concur.
Report per Rule 30(e).