State v. Forbes

410 S.E.2d 83, 104 N.C. App. 507, 1991 N.C. App. LEXIS 1074
CourtCourt of Appeals of North Carolina
DecidedNovember 19, 1991
Docket913SC47
StatusPublished
Cited by5 cases

This text of 410 S.E.2d 83 (State v. Forbes) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Forbes, 410 S.E.2d 83, 104 N.C. App. 507, 1991 N.C. App. LEXIS 1074 (N.C. Ct. App. 1991).

Opinions

WYNN, Judge.

These are criminal cases involving constructive possession of cocaine in which the defendants were charged and tried jointly. [509]*509The State’s evidence tended to show that shortly after midnight on February 9, 1990, nine police officers went to a trailer home located at Lot 39, River Road Estates in Pitt County. The officers announced their presence and heard the sounds of people running throughout the trailer and of toilets flushing, from both ends of the trailer. When the officers kicked in the front and back doors and moved through the trailer, they found defendant Vines in the front bedroom and her sixteen-year-old son, defendant Forbes, in the bathroom in the back of the trailer.

During the search of the trailer, the officers found white crystals (later identified as cocaine) floating in the water of the toilet next to the front bedroom where Vines was found. The officers also found a pawn ticket with the Vines’ name and address listed as Lot 39, River Road Estates, and a purse containing $3,790.00 in cash and Vines’ driver’s license. The State’s evidence also tended to show that a witness, Sharon Swinnely (“Swinnely”), placed Vines at the trailer throughout the day of the raid and testified that together, she and Vines, smoked a deadly form of crystallized cocaine commonly referred to as “crack.” In addition, Swinnely testified that she bought “crack” from the defendant on the day of the raid.

Defendant Vines testified that she lived with her sister in Farmville and, contrary to the State’s evidence, she stated that she never lived at the trailer. She testified that she had just arrived, on the day of the raid, from Maryland. Vines also asserted' that the money that was found belonged to her sister who brought it so the defendant could make bail.

With regard to the defendant Forbes, the police officers testified that they found four bags of a white substance scattered along the hallway, in the vicinity of the door of the bathroom. The officers testified that they entered the bathroom to find Forbes sitting on a toilet, and it was apparent that he had used the bathroom. The officers found $546.00 lying in the sink next to the toilet.

The State also presented testimonial evidence from Swinnely who stated that when Forbes heard the' police announce their presence, he ran from the living room toward the back of the trailer; that the owner of the trailer, Walter Speight, then threw Forbes a pill bottle and “told him to get rid of it”; and that she had seen Forbes with “crack” several times before the raid and had bought “crack” from him in the past.

[510]*510Defendant Forbes presented evidence that he had come to North Carolina to visit his mother on the day before the raid. On the day of the raid, February 9, 1990, he had visited Walter Speight’s trailer to play video games. Later in the evening, he went to the bathroom and while there, he heard a commotion coming from the front of the trailer and suddenly the police entered the bathroom. He testified that he had never used drugs and that he had never sold drugs.

Defendant Vines was charged with four counts: possession of cocaine with intent to sell or deliver; possession of marijuana with intent to sell or deliver; knowingly and intentionally maintaining a dwelling for the purpose of keeping controlled substances; and possession of drug paraphernalia. Vines was found guilty on all charges except the possession of marijuana with intent to sell or deliver of which she was convicted of the lesser charge of marijuana possession. She appeals from the judgment entered on 17 July 1990, sentencing her to eleven years imprisonment.

Defendant Forbes was charged with possession with intent to sell or deliver cocaine and was found guilty as charged. He appeals from a judgment entered on 17 July 1990, sentencing him to three years imprisonment.

Each defendant assigns as error the denial of their respective motions to dismiss. For the reasons set forth herein, we find no error as to defendant Vines’ appeal; however, we find reversible error in the case of defendant Forbes.

I. Defendant Vines’ Appeal

The sole issue on appeal is whether the evidence was sufficient to convict the defendant based on the theory of constructive possession. The defendant contended that the trial court erred in denying her motion to dismiss made at the close of the State’s case in chief and renewed at the close of all the evidence. We disagree.

In ruling upon a motion to dismiss, the trial court must examine the evidence “in the light most favorable to the State, and the State is entitled to every reasonable inference which can be drawn from the evidence presented; all contradictions and discrepancies are resolved in the State’s favor.” State v. Morris, 102 N.C. App. 541, 544, 402 S.E.2d 845, 847 (1991). “If there is substantial evidence — whether direct, or circumstantial, or both — to support a finding that the offense charged has been committed and that [511]*511the defendant committed it, a case for the jury is made and nonsuit should be denied. Id. (citing State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975)). “ ‘Substantial evidence’ is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Autry, 101 N.C. App. 245, 251, 399 S.E.2d 357, 361 (1991) (citing State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981)).

The law of North Carolina is clear with regard to the issue of constructive possession. “Constructive possession of a substance applies where the defendant ‘has both the power and the intent to control its disposition or use.’ ” Id. at 251, 399 S.E.2d at 361-62 (citing State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)). If, as in the case at bar, the defendant does not have exclusive control over the premises, constructive possession cannot be shown without other incriminating circumstances. Autry, 101 N.C. App. at 253, 399 S.E.2d at 362 (1991).

Since the State in this case did not show that the defendant had exclusive possession of the trailer home that was searched, the focal issue becomes whether evidence was brought to light during the trial that established other incriminating circumstances. See State v. Morris, 102 N.C. App. 541, 402 S.E.2d 845 (1991) (constructive possession inferred from the facts that defendant conversed with an individual engaged in a drug transaction, pointed in the direction of drugs and ran from the police); State v. Autry, 101 N.C. App. 245, 399 S.E.2d 357 (1991) (incriminating evidence found where defendant was arrested standing in kitchen near a table where his jacket and cocaine were found); State v. Davis, 325 N.C. 693, 386 S.E.2d 187 (1989) (incriminating evidence included a prescription bottle and mobile home registration papers naming the defendant as owner); State v. McLaurin, 320 N.C.

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State v. Forbes
410 S.E.2d 83 (Court of Appeals of North Carolina, 1991)

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Bluebook (online)
410 S.E.2d 83, 104 N.C. App. 507, 1991 N.C. App. LEXIS 1074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-forbes-ncctapp-1991.