State v. Neil ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-201
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
STATE OF NORTH CAROLINA
v. Nash County
Nos. 11CRS003612
RICKY LASHON NEIL, 11CRS051708, 051710
Defendant.
On writ of certiorari to review judgment entered on or
about 6 September 2012 by Judge Walter H. Godwin Jr. in Nash
County Superior Court. Heard in the Court of Appeals 11 August
2014.
Attorney General Roy A. Cooper III, by Assistant Attorney
General Amanda P. Little, for the State.
David L. Neal for defendant-appellant.
STROUD, Judge.
On 6 September 2012 a jury convicted Ricky Lashon Neil
(“defendant”) of possession of drug paraphernalia, misdemeanor
possession of marijuana, and possession with intent to sell and
deliver cocaine. Defendant also entered a guilty plea to
attaining the status of a habitual felon. The trial court
consolidated defendant’s convictions into a single judgment and
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sentenced him as an habitual felon to a term of 88 to 115 months
in prison. Defendant failed to give notice of appeal from the
judgment entered against him. By order entered on 21 October
2013, this Court granted defendant’s petition for writ of
certiorari to review the judgment.
At trial, the State’s evidence tended to show that on 31
March 2011, Officer Ala Alzer witnessed defendant sell crack
cocaine to a confidential informant on the sidewalk in front of
an apartment located at 138 Boyd Court in Rocky Mount, North
Carolina. The sale was completed as part of a controlled buy
organized by police. Officer Alzer obtained a warrant to search
the apartment, and the search was executed the next day.
During the search of the apartment, officers found powder
cocaine, crack cocaine, and marijuana. Officers located the
cocaine next to some razor blades in a dresser in the master
bedroom. On top of the dresser, officers found marijuana,
defendant’s wallet containing his ID card, and a box of sandwich
bags. Additionally, officers found $750 in cash under the bed
in the master bedroom, including the exact bills used by the
confidential informant to purchase cocaine. Officers found more
marijuana in a kitchen cabinet and on a table in the living
room.
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Prior to the officer’s execution of the search warrant,
defendant had left the apartment complex in his car. Officers
stopped defendant approximately three blocks away from the
complex and returned him to the parking lot outside of the
apartment while they searched the apartment. Defendant’s
girlfriend, Danielle Crump, and her small child were the only
people present in the apartment during the search. After the
discovery of the cocaine and marijuana, Sergeant Mike Whitley
spoke with defendant and informed him that he was under arrest.
Defendant informed Sergeant Whitley that “you got it all,” “the
hard and the powdered that was in the swing door and the weed
that was on top of the dresser.” Defendant also chastised
himself for leaving the cocaine where it could be found, telling
Sergeant Whitley, “I needed to move my s-h-i-t.”
At trial defendant twice made a motion to dismiss the
charges against him based on insufficient evidence. The trial
court denied the motion both times.
Defendant now argues the trial court erred in denying his
motion to dismiss the charge of possession with intent to sell
or deliver cocaine. Defendant contends the State’s evidence
that he had the power or intent to control the cocaine was
insufficient to send the charge to the jury. We disagree.
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“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007). “Upon defendant’s motion for dismissal,
the question for the Court is whether there is substantial
evidence (1) of each essential element of the offense charged,
or of a lesser offense included therein, and (2) of defendant’s
being the perpetrator of such offense. If so, the motion is
properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526
S.E.2d 451, 455 (citation and quotation marks omitted), cert.
denied, 531 U.S. 890, 148 L.Ed. 2d 150 (2000). “In making its
determination, the trial court must consider all evidence
admitted, whether competent or incompetent, in the light most
favorable to the State, giving the State the benefit of every
reasonable inference and resolving any contradictions in its
favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994), cert. denied, 515 U.S. 1135, 132 L.Ed. 2d 818 (1995).
“The offense of possession with intent to sell or deliver
has the following three elements: (1) possession of a
substance; (2) the substance must be a controlled substance; (3)
there must be intent to sell or distribute the controlled
substance.” State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d
897, 901 (2001); see also N.C. Gen. Stat. § 90-95(a)(1) (2013).
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“To prove that a defendant possessed contraband materials, the
State must prove beyond a reasonable doubt that the defendant
had either actual or constructive possession of the materials.”
State v. Loftis, 185 N.C. App. 190, 197, 649 S.E.2d 1, 6 (2007),
disc. review denied, 362 N.C. 241, 660 S.E.2d 494 (2008).
A person has actual possession of a
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 or use.
Constructive possession, on the other hand,
exists when the defendant, while not having
actual possession, has the intent and
capability to maintain control and dominion
over the [contraband]. When the defendant
does not have exclusive possession of the
location where the [contraband was] found,
the State must make a showing of other
incriminating circumstances in order to
establish constructive possession.
State v. Boyd, 177 N.C. App. 165, 175, 628 S.E.2d 796, 805
(2006) (citations, quotation marks, and ellipses omitted).
“Where sufficient incriminating circumstances exist,
constructive possession of the contraband materials may be
inferred even where possession of the premises is nonexclusive.”
State v. Kraus, 147 N.C. App. 766, 770, 557 S.E.2d 144, 147
(2001).
Defendant did not have actual possession of the cocaine;
the State was thus required to show constructive possession.
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Additionally, defendant did not have exclusive possession of the
apartment in which the cocaine was found, and the State was
required to show other incriminating circumstances in order to
establish defendant’s constructive possession of the cocaine.
Here, the day before the search, Officer Alzer observed
defendant leave the apartment at 138 Boyd Court and sell crack
cocaine to a confidential informant on the sidewalk immediately
in front of the apartment. Defendant’s wallet was found in the
master bedroom on top of the dresser containing the cocaine, and
the money with which the confidential informant bought cocaine
was found in a box under the bed in the master bedroom.
Moreover, defendant admitted that the cocaine found by the
officers was all the cocaine that would be found in the
apartment, and his statements confirmed both the location and
types of cocaine discovered.
We conclude that this evidence, considered in the light
most favorable to the State, clearly incriminates defendant and
that an inference of constructive possession was appropriate in
this case. Accordingly, we hold the trial court did not err in
denying defendant’s motion to dismiss the charge of possession
with intent to sell or deliver cocaine.
NO ERROR.
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Judges BRYANT and HUNTER, JR., Robert N. concur.
Report per Rule 30(e).