State v. Neil

• Court: Court of Appeals of North Carolina
• Decided: August 19, 2014
• Docket: 14-201
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 -2- 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. -3- 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. -4- “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). -5- “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. -6- 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. -7- Judges BRYANT and HUNTER, JR., Robert N. concur.

Report per Rule 30(e).