State v. Dulin , 247 N.C. App. 799 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-547
Filed: 7 June 2016
Forsyth County, Nos. 12CRS050313, 12CRS050315
STATE OF NORTH CAROLINA
v.
RICHARD DULIN, III, Defendant.
Appeal by defendant from judgments entered on or about 11 September 2014
by Judge A. Moses Massey in Superior Court, Forsyth County. Heard in the Court of
Appeals on 21 October 2015.
Attorney General Roy A. Cooper III, by Special Deputy Attorney General Karen
A. Blum, for the State.
Kimberly P. Hoppin for defendant-appellant.
STROUD, Judge.
Richard Dulin, III (“defendant”) appeals from judgments entered upon jury
verdicts finding him guilty of possession with the intent to sell or deliver marijuana
and possession of drug paraphernalia. Defendant contends that the trial court erred
in denying his motion to dismiss. We find no error in part, vacate in part, and
remand.
I. Background
STATE V. DULIN
Opinion of the Court
Around noon on 10 January 2012, Officers Shuskey and Honaker began
watching a house in Winston-Salem. At 12:01 p.m., the officers observed a man
working on a white truck in the carport of the house. Officer Honaker noted that at
some point, the white truck left the house, but he did not record whether the man left
the house. Between 12:01 p.m. and 1:38 p.m., several people traveled to and from the
house, by either car, moped, bicycle, or on foot, each spending only a few minutes at
the house. At 1:39 p.m., defendant left the house driving a black truck. During
defendant’s absence, there was no activity at the house, other than a man who briefly
walked in front of it. At 3:02 p.m., defendant returned in the black truck and parked
it in front of the house. At 3:09 p.m., a man on a bicycle arrived and approached
defendant in front of the house. The two men shook hands “as if they were passing
an item back and forth.”
A few minutes later, another man walked by the police officers and noticed
their presence. He walked over to defendant and pointed out their location to him.
Defendant immediately began using his cell phone. Defendant then got in the truck,
drove it behind the house, and then returned a minute later, parking it in front of the
house again. Defendant began washing the truck while the man who had informed
him of the officers’ location began raking leaves in the yard.
Officers Shuskey and Honaker, along with other police officers, detained
defendant and the other man while they were working in the front yard and began
-2-
STATE V. DULIN
Opinion of the Court
searching for drugs. Defendant admitted to one of the police officers that he had a
“blunt” in the black truck. Officer Shuskey searched the black truck that defendant
had been driving and washing and found a small bag of marijuana in the console.
Another police officer searched one of the house’s multiple bedrooms and found
marijuana located in a picture frame behind a photograph of defendant. The police
officer also found a feminine deodorant bar in the bedroom.
Officer Barker searched a different room of the house which appeared to be a
common living area as it had a television, couch, bookcases, and other “general
furniture items[.]” There, he found a marijuana grinder, a digital scale with residue
on it, $400 in cash tucked between books on a bookshelf, packaging material, plastic
bags, and some clear glass jars which had a green leafy residue and smelled of
unburnt marijuana. Officer Barker testified that the digital scale was in plain view
and that the marijuana grinder was on the bookshelf where he found the cash.
Another police officer searched the kitchen and found an off-white powdery
substance splattered in a microwave and on razor blades lying on the kitchen counter.
At trial, Amanda Battin, a forensic scientist, testified that there was cocaine residue
on one of the razor blades. In their search, the police officers also found a piece of
mail addressed to defendant at the house’s address, as well as a photograph of
defendant and another person.
-3-
STATE V. DULIN
Opinion of the Court
Sergeant McDonald searched a part of the yard, to the right of the house, where
Officers Shuskey and Honaker had observed defendant driving the truck. There, he
found an uncovered “flat-bottom style fishing boat” on a trailer that was located in an
open, unfenced area roughly seventy feet from the side of the house. He also observed
a “freestanding swing” somewhere between the house and the boat. In plain view
under the boat’s steering console, he found four or five individually packaged bags of
marijuana, all contained within a large foil package. At trial, Officer Honaker opined
that this marijuana was packaged for sale, and Ms. Battin testified that the total
amount of marijuana recovered during the search was more than one half of an ounce.
Officers Shuskey and Honaker did not testify that they observed defendant near the
boat, nor did they testify that they heard defendant leave the truck when he was out
of their view or do anything that would indicate that he may have hidden the
marijuana in the boat. The police did not check to whom the boat was registered.
On or about 4 June 2012, a grand jury indicted defendant for possession with
intent to sell or deliver marijuana, felony possession of cocaine, and possession of
drug paraphernalia. See N.C. Gen. Stat. §§ 90-95(a)(1), (3), -113.22 (2011). At trial,
defendant moved to dismiss at the close of the State’s evidence and at the close of all
the evidence, and the trial court denied both motions. On or about 10 September
2014, a jury found defendant guilty of possession with intent to sell or deliver
marijuana and possession of drug paraphernalia and not guilty of possession of
-4-
STATE V. DULIN
Opinion of the Court
cocaine. On or about 11 September 2014, the trial court entered consecutive
sentences of six to 17 months of imprisonment for the offense of possession with intent
to sell or deliver marijuana and 120 days of imprisonment for the offense of possession
of drug paraphernalia. The trial court suspended the two sentences and placed
defendant on 36 months of supervised probation, which included an active term of
120 days of imprisonment as a condition of special probation. Defendant gave notice
of appeal in open court.
II. Motion to Dismiss
Defendant solely contends that the trial court erred in denying his motion to
dismiss because insufficient evidence established that he actually or constructively
possessed drug paraphernalia or marijuana with intent to sell or deliver.
A. Standard of Review
Evidence is sufficient to sustain a conviction
when, viewed in the light most favorable to
the State and giving the State every
reasonable inference therefrom, there is
substantial evidence to support a jury finding
of each essential element of the offense
charged, and of defendant’s being the
perpetrator of such offense.
Evidence is substantial if it is relevant and adequate
to convince a reasonable mind to accept a conclusion. In
considering a motion to dismiss, the trial court does not
weigh the evidence, consider evidence unfavorable to the
State, or determine any witness’ credibility. Evidence is
not substantial if it is sufficient only to raise a suspicion or
conjecture as to either the commission of the offense or the
identity of the defendant as the perpetrator of it, and the
-5-
STATE V. DULIN
Opinion of the Court
motion to dismiss should be allowed even though the
suspicion so aroused by the evidence is strong. This Court
reviews the denial of a motion to dismiss for insufficient
evidence de novo.
State v. Robledo, 193 N.C. App. 521, 524-25, 668 S.E.2d 91, 94 (2008) (citations,
quotation marks, brackets, and ellipses omitted). “In deciding whether the trial
court’s denial of [a] defendant’s motion to dismiss violated [the] defendant’s due
process rights, this Court must determine whether ‘any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’ ” State v.
Penland, 343 N.C. 634, 648, 472 S.E.2d 734, 741 (1996) (quoting Jackson v. Virginia,
443 U.S. 307, 319, 61 L. Ed. 2d 560, 573 (1979)), cert. denied, 519 U.S. 1098, 136 L.
Ed. 2d 725 (1997).
B. Possession of Drug Paraphernalia
A person is in “possession” of a controlled substance within
the meaning of G.S. 90-95 if they have the power and intent
to control it; possession need not be actual. The State is
not required to prove that the defendant owned the
controlled substance . . . or that defendant was the only
person with access to it.
. . . Where control of the premises is nonexclusive,
however, constructive possession may not be inferred
without other incriminating circumstances.
State v. Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987) (citations and
quotation marks omitted).
Incriminating circumstances relevant to
constructive possession
include evidence that defendant: (1) owned
-6-
STATE V. DULIN
Opinion of the Court
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.
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.
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.
State v. Alston, 193 N.C. App. 712, 716, 668 S.E.2d 383, 386-87 (2008) (citations,
quotation marks, and emphasis omitted), aff’d per curiam, 363 N.C. 367, 677 S.E.2d
455 (2009).
In Rich, the defendant argued that insufficient evidence established that she
possessed cocaine, which the police had found in the bedroom of a house. Rich, 87
N.C. App. at 382, 361 S.E.2d at 323. The State proffered evidence that
defendant was seen on the premises the evening before [the
search], that on the night of her arrest she was cooking
dinner at the house when the agents arrived, that women’s
casual clothes and undergarments were found in the
bedroom [where the cocaine was found], and that mail
addressed to defendant, including an insurance policy
listing the house as her residence, was found in the house.
Id. This Court held that this evidence was sufficient to show that the defendant had
-7-
STATE V. DULIN
Opinion of the Court
nonexclusive control of the premises. Id. This Court held that the State also proffered
evidence of “other incriminating circumstances” by establishing “more than [the]
defendant’s mere residence in the house.” Id. at 382-83, 361 S.E.2d at 323. The
State’s “evidence showed that [the] defendant was present on the premises when the
cocaine was found, that women’s clothes and undergarments were in the room and in
the dresser where the cocaine was found, and that letters with [the] defendant’s name
on them were also found in the room.” Id. at 382, 361 S.E.2d at 323.
Here, the State established defendant’s nonexclusive control of the house by
introducing the following evidence: (1) defendant spent hours at the house on the day
of the search, either inside it or in the front yard washing the black truck; (2) the
police found a piece of mail addressed to defendant at the house’s address; (3) the
police found photographs of defendant inside the house; and (4) several people visited
the house while defendant was present, but no one visited the house while defendant
was absent, other than a man who briefly walked in front of it. See id.
Officer Barker found the drug paraphernalia in a room in “the southern part
of the house” which appeared to be a common living area as it had a television, couch,
bookcases, and other “general furniture items[.]” In describing this room, Officer
Barker did not mention a bed or anything akin to bedroom furniture. But later Officer
Barker testified that he found the drug paraphernalia in “the southern bedroom[.]”
The jury could have reasonably inferred that defendant and any other residents
-8-
STATE V. DULIN
Opinion of the Court
treated this room as a common living area even though it may have been constructed
as a bedroom. Officer Barker also testified that the digital scale was in plain view
and that the marijuana grinder was on the bookshelf where he found the cash.
Viewing the evidence in the light most favorable to the State and giving the State
every reasonable inference therefrom, we hold that the evidence supports an
inference that the police found the drug paraphernalia in plain view in a common
living area where defendant, as a resident of the house, exercised nonexclusive
control. See Robledo, 193 N.C. App. at 524-25, 668 S.E.2d at 94.
In addition, the following evidence constitutes “other incriminating
circumstances” which prove “more than defendant’s mere residence in the house”: (1)
defendant spent hours at the house on the day of the search, either inside it or in the
front yard washing the black truck; (2) the defendant admitted to the police that he
had a “blunt” in the black truck, which was parked in front of the house, and the
police found marijuana in the black truck’s console; (3) the police found marijuana in
the house behind a photograph of defendant; and (4) several people visited the house
while defendant was there, including a man who shook hands with defendant “as if
they were passing an item back and forth.” See Rich, 87 N.C. App. at 382-83, 361
S.E.2d at 323 (holding that evidence which showed that the “defendant was present
on the premises when the cocaine was found,” along with other evidence, constituted
evidence of “other incriminating circumstances”). We find most significant the fact
-9-
STATE V. DULIN
Opinion of the Court
that the police found marijuana in a picture frame behind a photograph of defendant.1
We conclude that
[a]lthough the evidence tends to show that defendant
shared the house with at least one other individual,
considering the totality of the circumstances, a reasonable
inference may be drawn that defendant had the power to
control the use and disposition of the [drug paraphernalia]
since it was located in a common area of his residence.
See State v. Baldwin, 161 N.C. App. 382, 392, 588 S.E.2d 497, 505 (2003) (emphasis
added); Alston, 193 N.C. App. at 716, 668 S.E.2d at 386-87 (“Our determination of
whether the State presented sufficient evidence of incriminating circumstances
depends on the totality of the circumstances in each case.” (citation and quotation
marks omitted)).
Defendant argues that the fact that the police found marijuana behind a
photograph of himself “suggests as much that someone else residing in the home had
a picture of [defendant] as it did that [defendant] would have had a framed picture of
himself by his bed.” Defendant also points to the fact that a police officer found a
feminine deodorant bar in that bedroom. But in reviewing a motion to dismiss, we
view the evidence “in the light most favorable to the State” and give the State “every
reasonable inference therefrom[.]” See Robledo, 193 N.C. App. at 524, 668 S.E.2d at
94 (citation omitted). We hold that the jury could have reasonably inferred from the
1 We note that it appears from the record that defendant was not indicted for simple possession
of marijuana, and the State did not proffer evidence of the amount of this marijuana although it almost
certainly was not large given its location.
- 10 -
STATE V. DULIN
Opinion of the Court
evidence as a whole that defendant had nonexclusive control of the house. See id.
Defendant also argues that while the evidence might have been sufficient to
support defendant’s control over the black truck and therefore over the marijuana
found in the truck’s console, there was insufficient evidence “establishing his
exclusive control over the home[.]” But in order to establish constructive possession,
the State need not prove exclusive control; it is sufficient to prove nonexclusive control
plus other incriminating circumstances. See Rich, 87 N.C. App. at 382-83, 361 S.E.2d
at 323. As discussed above, we hold that the State proffered evidence of defendant’s
nonexclusive control of the house plus other incriminating circumstances.
Defendant relies on State v. McLaurin, 320 N.C. 143, 357 S.E.2d 636 (1987).
But McLaurin is distinguishable. There, the State proffered evidence that the
defendant lived at a house with other individuals, where the police had found drug
paraphernalia, but the State presented no additional evidence relating to the
defendant. McLaurin, 320 N.C. at 146, 357 S.E.2d at 638. Our Supreme Court held
that “because [the] defendant’s control over the premises in which the [drug]
paraphernalia were found was nonexclusive, and because there was no evidence of
other incriminating circumstances linking her to those items, her control was
insufficiently substantial to support a conclusion of her possession of the seized
paraphernalia.” Id. at 147, 357 S.E.2d at 638 (emphasis added).
In contrast, here, the State proffered evidence of “other incriminating
- 11 -
STATE V. DULIN
Opinion of the Court
circumstances” linking defendant to the drug paraphernalia found in plain view in a
common living area of the house: (1) defendant spent hours at the house on the day
of the search, either inside it or in the front yard washing the black truck; (2) the
defendant admitted to the police that he had a “blunt” in the black truck, which was
parked in front of the house, and the police found marijuana in the black truck’s
console; (3) the police found marijuana in the house behind a photograph of
defendant; and (4) several people visited the house while defendant was there,
including a man who shook hands with defendant “as if they were passing an item
back and forth.” See Rich, 87 N.C. App. at 382-83, 361 S.E.2d at 323. Following Rich,
we hold that the State proffered sufficient evidence to establish defendant’s
constructive possession of the drug paraphernalia seized from the house. See id.
Accordingly, we hold that the trial court did not err in denying defendant’s motion to
dismiss with respect to the charge of possession of drug paraphernalia.
C. Possession of Marijuana with Intent to Sell or Deliver
Defendant next argues that the trial court erred in denying his motion to
dismiss with respect to the charge of possession of marijuana with intent to sell or
deliver, because the State failed to proffer sufficient evidence linking him to the
marijuana found in the uncovered fishing boat.
The State produced no evidence linking defendant to the marijuana found in
the boat other than the evidence that the boat was present in the yard. Sergeant
- 12 -
STATE V. DULIN
Opinion of the Court
McDonald testified that the boat was located roughly seventy feet from the side of the
house and within the “curtilage” of the house. It is not clear why he used this term,
but it is possible that the search warrant for the house also authorized a search of the
curtilage so he described the boat as being within the curtilage and thus within the
scope of the search warrant.2 “Curtilage” is a term of art which is normally used in
cases raising Fourth Amendment issues from a search and seizure without a warrant
in an area near a defendant’s residence. In that context, our Supreme Court has
noted:
The curtilage is the area immediately surrounding and
associated with the home. In a non-Fourth Amendment
case, we have said “the curtilage of the home will ordinarily
be construed to include at least the yard around the
dwelling house as well as the area occupied by barns, cribs,
and other outbuildings.” State v. Frizzelle, 243 N.C. 49, 51,
89 S.E.2d 725, 726 (1955) (citations omitted). The curtilage
does enjoy some measure of Fourth Amendment protection,
. . . because it is intimately linked to the home, both
physically and psychologically[.] As such, it serves as the
buffer between the intimate activities of the home and the
prying eyes of the outside world. But, law enforcement is
not required to turn a blind eye to contraband or otherwise
incriminating materials left out in the open on the
curtilage. Neither is law enforcement absolutely
prohibited from crossing the curtilage and approaching the
home, based on our society’s recognition that the knocker
on the front door is treated as an invitation or license to
attempt an entry, justifying ingress to the home by
2
The search warrant is not in our record and defendant has not raised any argument regarding
the scope of the search conducted under the search warrant, and we express no opinion upon that
issue. We discuss the use of the term “curtilage” only because it was used in the evidence and because
the State relies upon this term in its argument that the boat was within defendant’s area of
constructive possession.
- 13 -
STATE V. DULIN
Opinion of the Court
solicitors, hawkers and peddlers[.]
As a buffer, the curtilage protects privacy interests
and prevents unreasonable searches on the curtilage.
State v. Grice, 367 N.C. 753, 759-60, 767 S.E.2d 312, 317-18 (citations, quotation
marks, and ellipsis omitted), cert. denied, ___ U.S. ___, 192 L. Ed. 2d 882 (2015). “The
curtilage is the area to which extends the intimate activity associated with the
sanctity of a man’s home and the privacies of life, and therefore has been considered
part of [the] home itself for Fourth Amendment purposes.” State v. Smith, ___ N.C.
App. ___, ___, 783 S.E.2d 504, 511 (No. COA 15-305) (Mar. 1, 2016) (brackets omitted)
(quoting Oliver v. United States, 466 U.S. 170, 180, 80 L. Ed. 2d 214, 225 (1984)).
The protection afforded to curtilage under the privacy
interest of [the] Fourth Amendment is determined by
looking at four factors: “[(1)] the proximity of the area
claimed to be curtilage to the home, [(2)] whether the area
is included within an enclosure surrounding the home, [(3)]
the nature of the uses to which the area is put, and [(4)] the
steps taken by the resident to protect the area from
observation by people passing by.”
Id. at ___ n.2, ___ S.E.2d at 511 n.2 (quoting United States v. Dunn, 480 U.S. 294,
301, 94 L. Ed. 2d 326, 334-35 (1987)).
In Grice, police officers who approached the door of the defendant’s home for a
“knock and talk” noticed some plants growing in containers in an unfenced area about
fifteen yards from the residence. 367 N.C. at 754-55, 767 S.E.2d at 314-15. The
officers recognized the plants as marijuana, seized them, and later arrested the
defendant. Id. at 755, 767 S.E.2d at 315. The defendant argued that evidence of the
- 14 -
STATE V. DULIN
Opinion of the Court
plants should have been suppressed because the officers’ warrantless search and
seizure of the plants violated the Fourth Amendment, as the plants were within the
curtilage of his home and thus were protected. Id. at 757-59, 767 S.E.2d at 316-17.
Our Supreme Court rejected this argument, concluding “that the unfenced portion of
the property fifteen yards from the home and bordering a wood line is closer in kind
to an open field than it is to the paradigmatic curtilage which protects ‘the privacies
of life’ inside the home.” Id. at 760, 767 S.E.2d at 318 (quoting Oliver, 466 U.S. at
180, 80 L. Ed. 2d at 225).
Sergeant McDonald’s testimony characterizing the boat as within the
“curtilage” of the house does not make it so. His testimony in this regard is more of
a legal conclusion than a factual description of the premises, and we note that on
appeal, the State makes no argument in support of his conclusion. The facts in
evidence cannot support his conclusion that the boat was actually within the
curtilage. The evidence showed that the boat was out in the open, in an unfenced
area of the yard about seventy feet from the home. There was no evidence that this
area of the yard was in any way “intimately linked to the home,” either “physically
[or] psychologically[.]” See id. at 759, 767 S.E.2d at 317 (quoting California v. Ciraolo,
476 U.S. 207, 212-13, 90 L. Ed. 2d 210, 216 (1986)). In fact, the boat was farther from
defendant’s home than the marijuana plants were from the home of the defendant in
Grice and was also located in an open, unfenced area. See id. at 754-55, 767 S.E.2d
- 15 -
STATE V. DULIN
Opinion of the Court
at 314-15. In addition, all four Dunn factors militate against a conclusion that the
boat was within the house’s curtilage. See Dunn, 480 U.S. at 301, 94 L. Ed. 2d at 334-
35. Thus, the boat was not in an area “intimately” associated with the home and
could not be connected to defendant simply based upon its location in the yard. See
Grice, 367 N.C. at 759, 767 S.E.2d at 317 (citation omitted).
Nor was there any evidence to show that defendant had any ownership interest
in or possession of the boat, even assuming that it was in his yard. Sergeant
McDonald testified that the boat was located in a part of the yard which defendant
had driven through when driving the truck behind the house, as observed by Officers
Shuskey and Honaker. But Officers Shuskey and Honaker did not testify that they
observed defendant near the boat, nor did they testify that they heard defendant
leave the truck when he was out of their view or do anything that would indicate that
he may have hidden the marijuana in the boat. As best we can tell from the
testimony, Officers Shuskey and Honaker observed defendant driving through the
right side of the yard, disappearing behind the house, and then driving back to the
front, but there is no evidence that defendant stopped at the boat or hid anything in
the boat, and the officers testified that he was aware of their presence at that point.3
In addition, the police did not check to whom the boat was registered, and Sergeant
3 Using a map, Officer Shuskey clarified the two locations from which he and Officer Honaker
observed defendant, but we do not have this map in the record on appeal. Nevertheless, we have
carefully reviewed their testimony and have given the State the benefit of every reasonable inference
based upon their descriptions. See Robledo, 193 N.C. App. at 524-25, 668 S.E.2d at 94.
- 16 -
STATE V. DULIN
Opinion of the Court
McDonald testified that the boat was uncovered. The house had multiple bedrooms,
and Officer Honaker testified that at 12:01 p.m., he had observed another man
working on a white truck in the carport of the house, so the boat may have belonged
to someone else residing in the home. But there was no evidence regarding the
ownership or use of the boat or of any items found within the boat which could have
connected it to defendant or anyone else. And even if the boat had been within the
curtilage, it still does not automatically follow that defendant had actual or
constructive possession of every item within the curtilage, just as the fact that if an
item is found in a house where a defendant and other people live does not mean that
the defendant automatically had actual or constructive possession of that item.
The “other incriminating circumstances” as noted above are not particularly
strong, even for the drug paraphernalia, and are simply too weak to connect
defendant to the marijuana found in the boat so far from the house. Those
circumstances were, as noted above, that (1) defendant spent hours at the house on
the day of the search, either inside it or in the front yard washing the black truck; (2)
the defendant admitted to the police that he had a “blunt” in the black truck, which
was parked in front of the house, and the police found marijuana in the black truck’s
console; (3) the police found marijuana in the house behind a photograph of
defendant; and (4) several people visited the house while defendant was there,
- 17 -
STATE V. DULIN
Opinion of the Court
including a man who shook hands with defendant “as if they were passing an item
back and forth.” See Rich, 87 N.C. App. at 382-83, 361 S.E.2d at 323.
These circumstances generally tend to show that defendant did reside in the
house, but most significant is the fact that the police found marijuana in a picture
frame behind a photograph of defendant. As noted above, defendant argues that it is
unlikely that a person would display a photograph of himself and that he would hide
his own marijuana behind it, but a jury could certainly infer that defendant himself
did this. See Robledo, 193 N.C. App. at 524, 668 S.E.2d at 94. That fact thus provides
some evidence of other incriminating circumstances linking defendant to the drug
paraphernalia found in the house, but it cannot connect defendant to something found
in an open boat in the yard so far from the house. We therefore hold that the State
failed to present sufficient evidence of defendant’s constructive possession of the
marijuana found in the boat. See McLaurin, 320 N.C. at 147, 357 S.E.2d at 638
(“[B]ecause [the] defendant’s control over the premises in which the paraphernalia
were found was nonexclusive, and because there was no evidence of other
incriminating circumstances linking her to those items, her control was insufficiently
substantial to support a conclusion of her possession of the seized paraphernalia.”
(emphasis added)). In other words, the State’s evidence was insufficient to convince
any rational juror beyond a reasonable doubt that defendant constructively possessed
the marijuana found in the boat. See Penland, 343 N.C. at 648, 472 S.E.2d at 741 (In
- 18 -
STATE V. DULIN
Opinion of the Court
reviewing a motion to dismiss, we “must determine whether ‘any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’ ”
(emphasis added and emphasis omitted) (quoting Jackson, 443 U.S. at 319, 61 L. Ed.
2d at 573)); State v. Marshall, 94 N.C. App. 20, 29, 33-34, 380 S.E.2d 360, 365-66, 368
(noting that the trial court excluded evidence that the police had found marijuana in
a car parked within the curtilage of the defendant’s house, which was registered to a
woman living at the house with the defendant, “because the State failed to link its
possession or control to the defendant”), appeal dismissed and disc. review denied,
325 N.C. 275, 384 S.E.2d 526 (1989).
Officer Honaker opined that the marijuana found in the boat was packaged for
sale and Ms. Battin testified that the total amount of marijuana recovered was more
than one half of an ounce. But excluding the marijuana found in the boat, the State
did not proffer sufficient evidence to convince any rational juror beyond a reasonable
doubt that defendant had actual or constructive possession of the marijuana or
committed all the elements of the offense of possession of marijuana with intent to
sell or deliver. See id.; State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901
(2001) (“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.”);
N.C. Gen. Stat. § 90-95(a)(1). On appeal, the State directs us to no other evidence to
- 19 -
STATE V. DULIN
Opinion of the Court
support defendant’s conviction for possession of marijuana with intent to sell or
deliver. Accordingly, we hold that the trial court erred in denying defendant’s motion
to dismiss with respect to the charge of possession of marijuana with intent to sell or
deliver and thus vacate that conviction. See Robledo, 193 N.C. App. at 525, 668
S.E.2d at 94.
Although the trial court did not consolidate defendant’s convictions in
sentencing, we remand the case for resentencing out of an abundance of caution. We
note that in sentencing defendant for the possession of drug paraphernalia conviction,
the trial court found that a longer period of probation was necessary than that which
is specified in N.C. Gen. Stat. § 15A-1343.2(d) (2013), although we cannot discern if
the other conviction influenced the trial court’s determination. It is also possible that
the conviction of possession of marijuana with intent to sell or deliver had no effect
upon the sentencing for the conviction of possession of drug paraphernalia, and if so,
the trial court need not revise the sentence on remand. Accordingly, we remand the
case to the trial court for resentencing in light of this opinion.
III. Conclusion
For the foregoing reasons, we hold that the trial court did not err in denying
defendant’s motion to dismiss with respect to the charge of possession of drug
paraphernalia but that it did err in denying defendant’s motion to dismiss with
respect to the charge of possession of marijuana with intent to sell or deliver.
- 20 -
STATE V. DULIN
Opinion of the Court
Accordingly, we hold that that the trial court committed no error in convicting
defendant of possession of drug paraphernalia, vacate defendant’s conviction for
possession of marijuana with intent to sell or deliver, and remand for resentencing.
NO ERROR IN PART, VACATED IN PART and REMANDED.
Judges STEPHENS and DAVIS concur.
- 21 -