Opinion
No. COA11–1041.
2012-04-17
STATE of North Carolina v. Rochone FINNELL.
Attorney General Roy Cooper, by Assistant Attorney General Melody R. Hairston, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.
Appeal by defendant from judgment entered 13 May 2011 by Judge Elaine M. Bushfan in Orange County Superior Court. Heard in the Court of Appeals 26 March 2011. Attorney General Roy Cooper, by Assistant Attorney General Melody R. Hairston, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Defendant appeals from a judgment upon his conviction for trafficking in cocaine by transport, trafficking in cocaine by possession, and misdemeanor possession of marijuana. We find no error.
Evidence at trial establishes the following factual background. In the early morning hours of 4 June 2010, law enforcement officers were dispatched to the Durham Tech campus in Hillsborough. Defendant, a female companion, and a small child had approached the school's public safety department asking for a taxi, and the public safety officer called 911 out of concern for the child's welfare. The public safety officer noticed that defendant was carrying a duffel bag, but the bag had changed hands a few times. Law enforcement officers arrived and spoke to the individuals. The officers confirmed that defendant, his female companion, and the child were the same individuals who had had exited a Greyhound bus near Hillsborough earlier that night after getting into an altercation with other passengers.
Defendant was placed in handcuffs and frisked, and he advised the officers that he had marijuana in his pocket. The marijuana was wrapped in a plastic bag with white athletic-style tape around it. Officers also found three bus tickets, a cell phone, and $400 in cash on defendant.
Defendant's female companion was sitting on a bench with the duffel bag next to her. The officers opened the duffel bag and discovered a plastic bag which was wrapped in clothing. Like the marijuana found on defendant, the plastic bag was wrapped in white athletic-style tape. An officer cut the package open and discovered what he believed to be crack cocaine. As the officers were removing the plastic bag from the duffel bag, defendant stated, “That's not what ya'll think it is. That's for the child.” The duffel bag also contained men's, women's, and children's clothing. The substance in the plastic bag was later confirmed to contain 746.4 grams of crack cocaine.
The State Bureau of Investigation (“SBI”) compared DNA from defendant with DNA found on the white tape on the package containing the marijuana and with DNA found on the package containing the crack cocaine. An analyst testified that defendant could not be excluded as a contributor to the mixture of DNA found on the package containing the crack cocaine.
On 13 May 2011, a jury found defendant guilty of the three charges. The trial court sentenced defendant to a consolidated term of 175 to 219 months imprisonment. Defendant appeals.
Defendant raises only one argument on appeal. He contends that the trial court erred by denying his motion to dismiss the drug trafficking charges at the close of the evidence. When reviewing a motion to dismiss, we view “the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert. denied,546 U.S. 830, 163 L.Ed.2d 79 (2005). A trial court may properly deny a motion to dismiss where “substantial evidence exists to support each essential element of the crime charged.” Id. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
Defendant argues that the evidence was insufficient to show he knowingly possessed the cocaine. “Trafficking in cocaine by possession and trafficking in cocaine by transportation ... require the State to prove that the substance was knowingly possessed and transported.” State v. Baldwin, 161 N.C.App. 382, 391, 588 S.E.2d 497, 504 (2003). The State may prove possession of a controlled substance through either actual or constructive possession. “Actual possession requires that a party have physical or personal custody of the item.” State v. Alston, 131 N.C.App. 514, 519, 508 S.E.2d 315, 318 (1998). “When the defendant does not have actual possession, but has the power and intent to control the use or disposition of the substance, he is said to have constructive possession.” Baldwin, 161 N.C.App. at 391, 588 S.E.2d at 504–05.
Here, defendant did not have exclusive possession of the duffel bag in which the cocaine was found. Therefore, the State must show other incriminating circumstances before constructive possession may be inferred. We have recently indicated:
Incriminating circumstances relevant to constructive possession include evidence that defendant: (1) owned other items found in proximity to the contraband; (2) was the only person who could have placed the contraband in the position where it was found; (3) acted nervously in the presence of law enforcement; (4) resided in, had some control of, or regularly visited the premises where the contraband was found; (5) was near contraband in plain view; or (6) possessed a large amount of cash.
State v. Alston, 193 N.C.App. 712, 716, 668 S.E.2d 383, 386 (2008) (internal quotation marks and citation omitted), aff'd per curiam, 363 N.C. 367, 677 S.E.2d 455 (2009). “Evidence of conduct by the defendant indicating knowledge of the controlled substance or fear of discovery is also sufficient to permit a jury to find constructive possession.” Id. “Our determination of whether the State presented sufficient evidence of incriminating circumstances depends on the totality of the circumstances in each case. No single factor controls, but ordinarily the questions will be for the jury.” Id. at 716,668 S.E.2d at 386–87 (internal quotation marks and citation omitted).
After reviewing the evidence in the record in the light most favorable to the State, we conclude the State presented sufficient evidence of incriminating circumstances for the jury to infer that defendant constructively possessed the cocaine found in the duffel bag. Although the duffel bag was sitting next to defendant's female companion on a bench, defendant had been seen carrying the bag earlier in the night and the bag contained men's clothing. This evidence indicates that defendant owned other items found in proximity to the contraband and had some control over the duffel bag. Furthermore, as the officers removed the package from the duffel bag, defendant stated, “[t]hat's not what ya'll think it is. That's for the child.” From this statement, one can infer that defendant had knowledge of the controlled substance or feared its discovery by law enforcement. Lastly, an SBI analyst testified that defendant could not be excluded as a contributor to the mixture of DNA found on the package containing the crack cocaine. Based on the foregoing, we find no error in the trial court's denial of defendant's motion to dismiss the drug trafficking charges.
No error. Judges BRYANT and GEER concur.
Report per Rule 30(e).