Opinion
No. COA10-784
Filed 4 January 2011 This case not for publication
Appeal by defendant from judgment entered 5 March 2010 by Judge Richard W. Stone in Rockingham County Superior Court. Heard in the Court of Appeals 20 December 2010.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Shawn C. Troxler, for the State. Sue Genrich Berry for defendant-appellant.
Rockingham County No. 08 CRS 50735.
Brian Wendell Rhodes, Jr. ("defendant") appeals from the trial court's judgment entered upon a jury's verdict convicting him of possession with intent to manufacture, sell or deliver cocaine and of possession of drug paraphernalia. For the reasons set forth below, we hold no error.
On 2 March 2010, defendant was charged by way of bill of information with the offenses of possession with intent to manufacture, sell or deliver cocaine, and possession of drug paraphernalia. The case was tried at the 3 March 2010 Criminal Session of Rockingham County Superior Court.
The facts relevant to defendant's appeal are as follows: On 6 February 2008, Lieutenant David Frizzell of the Reidsville Police Department ("Lieutenant Frizzell") went to 1001 Fawn Circle in Reidsville, North Carolina, to execute a search warrant. The subjects of the search warrant were the defendant and his father, Brian Rhodes, Sr. ("Rhodes"). Officers knocked on the door and announced their presence and then used a battering ram to open the locked door. Defendant, who Lieutenant Frizzell described as argumentative, was ordered to the floor and restrained with handcuffs. Officers then began searching the residence for narcotics.
Sergeant Jimmy Hutchens of the Reidsville Police Department ("Sergeant Hutchens") assisted with the execution of the search warrant. Sergeant Hutchens testified that during the search, while defendant was restrained, he noticed that defendant was having difficulty breathing. Defendant asked Sergeant Hutchens for his medication, and Sergeant Hutchens asked defendant where he kept the medication. Defendant told Sergeant Hutchens that "it was in his bedroom, which was to the left at the top of the stairs." Sergeant Hutchens relayed the information to Lieutenant Frizzell, who retrieved defendant's medication from on top of a dresser in the bedroom and threw it downstairs to Sergeant Hutchens. Sergeant Hutchens then gave the medication to defendant.
After retrieving defendant's medication, Coumadin, Lieutenant Frizzell searched the room in which he found defendant's medication. Officer Woody Hutchens ("Officer Hutchens") of the Reidsville Police Department assisted him with the search. Officer Hutchens located "a shoebox in the top of the closet with a white, powdery substance in it, as well as a green vegetable, leafy substance." Officer Hutchens also found a black bag inside the shoebox that had a large bag of white powder, a strainer, scales, and cash. Officer Hutchens next searched the dresser from where Lieutenant Frizzell had retrieved defendant's medication. Officer Hutchens found defendant's identification on the dresser. Defendant's identification had been issued three months earlier, and it listed defendant's address as 1001 Fawn Circle in Reidsville, North Carolina. Finally, inside the dresser, Officer Hutchens found "a black box with a small bag that appeared to be crack rocks in it."
Defendant was convicted as charged. The trial court sentenced defendant to a term of six to eight months imprisonment, but suspended defendant's sentence and placed him on supervised probation for thirty months. Defendant appeals.
Defendant's sole argument on appeal is that the trial court erred by denying his motion to dismiss. Defendant contends that there was no evidence that he either actually or constructively possessed the cocaine or drug paraphernalia. Defendant argues that the contraband was not found on his person or in the room in which he was located. Furthermore, defendant notes that the residence in which the contraband was discovered did not belong to him, and he contends there was no evidence that he lived there. Accordingly, defendant argues that the State's evidence amounted only to mere suspicion or conjecture that he possessed the contraband. We disagree.
In order to survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense and that defendant was the perpetrator of the charged offense. 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)). 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)). "The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility." State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 256 (citations omitted), cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002).
Defendant contends that the trial court should have granted his motion to dismiss because there was insufficient evidence that he possessed either the cocaine or the drug paraphernalia. To survive defendant's motion to dismiss, the State was required to present substantial evidence that defendant had either actual or constructive possession of the contraband. See Cross, 345 N.C. at 716-17, 483 S.E.2d at 434; State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985). "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) (citation omitted). "A defendant constructively possesses contraband when he or she has `the intent and capability to maintain control and dominion over' it." State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (quoting State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)).
However, "[u]nless a defendant has exclusive possession of the place where the contraband is found, the State must show other incriminating circumstances sufficient for the jury to find a defendant had constructive possession." Id. (citing State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001)).
Here, there was no evidence presented that defendant actually possessed the contraband. Furthermore, it is uncontroverted that defendant did not have exclusive control over the bedroom in which the contraband was discovered. Nonetheless, we conclude the State presented sufficient evidence of other incriminating circumstances to support the jury's determination that defendant had constructive possession of the cocaine and drug paraphernalia.
During the search of the residence, defendant began having difficulty breathing. Defendant testified that he had blood clots in his lungs and was taking prescription medication, Coumadin, a blood thinner. Defendant testified that he kept only one or two bottles of medication at any one time, and his mother testified that it was important that defendant keep his medication with him. When defendant began having difficulty breathing, he requested that the officers bring him his Coumadin. When asked where the medication could be located, defendant directed officers to "his bedroom," which he described as being the room "to the left at the top of the stairs." Officers found defendant's medication on the same dresser where the rocks of crack cocaine were later found. Additionally, defendant's identification, which had been issued only three months prior, was found on the dresser. The address listed on the identification was the same address as listed on the search warrant.
Defendant asserts that there was no evidence that he continued to live in his parent's residence. Defendant further contends that "it is not unusual for a young adult to use his parent's address as a permanent address or for that young adult to have been living with a parent at the time the identification was obtained three months earlier." Defendant additionally claims that, due to his serious medical conditions, it was reasonable for him to keep a bottle of his medication at his parent's home in his childhood bedroom. However, these contentions go to the weight of the evidence, not its sufficiency, and were matters for the jury's consideration. See State v. Sokolowski, 351 N.C. 137, 143, 522 S.E.2d 65, 69 (1999). Viewing the evidence in the light most favorable to the State, we hold that a jury rationally could conclude that defendant constructively possessed the cocaine and drug paraphernalia. Accordingly, we hold no error with respect to the trial court's denial of defendant's motion to dismiss.
No Error.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).
Judge Jackson concurred prior to December 31, 2010.