An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-522 NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
STATE OF NORTH CAROLINA
v. Iredell County No. 11 CRS 53453 JERRY D. REMBERT
Appeal by defendant from judgments entered 6 September 2013
by Judge Gary M. Gavenus in Iredell County Superior Court.
Heard in the Court of Appeals 8 October 2014.
Attorney General Roy Cooper, by Assistant Attorney General Richard A. Graham, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender John F. Carella, for defendant-appellant.
BRYANT, Judge.
Because the prosecution provided insufficient evidence of
defendant’s possession of the crystal methamphetamine found in
the trunk of the vehicle he was driving, we reverse the trial
court’s denial of defendant’s motion to dismiss and remand with
instructions for the trial court to vacate the convictions. -2- On 2 April 2012, an Iredell County grand jury indicted
defendant Jerry D. Rembert on two counts of trafficking in
methamphetamine: one count of possessing more than 28 but less
than 200 grams of methamphetamine; and one count of transporting
more than 28 but less than 200 grams of methamphetamine. The
matter came on for trial on 3 September 2013 during the criminal
session of superior court, the Honorable Gary Gavenus, Judge
presiding.
The evidence presented tended to show that on 24 May 2011,
Sergeant Gary Simpson was employed and on duty with the Iredell
County Sheriff’s Office and assigned to the Interstate Criminal
Enforcement Team. At 12:50 p.m., Sergeant Simpson observed a
grey 2011 Chevrolet Impala with Ohio plates traveling north on
I-77. Because the vehicle was traveling above the 70 mph speed
limit, Sergeant Simpson conducted a traffic stop. On the
roadside, Sergeant Simpson approached the vehicle and observed
two occupants. Upon request, defendant, who was driving,
provided his identification and the rental agreement for the
vehicle but acknowledged that he did not have a driver’s
license. Sergeant Simpson asked defendant to step out of the
vehicle, at which point he frisked defendant and asked him to
sit in the front passenger seat of the patrol car while Sergeant -3- Simpson searched for outstanding warrants. Sergeant Simpson
testified that defendant was cooperative but was becoming overly
stressed as the traffic stop progressed. When asked, defendant
stated that he was coming from his aunt’s home in Hickory and
that he had been in North Carolina for two days. Sergeant
Simpson also spoke with the vehicle passenger, Grady Finley, who
stated that the two had been in North Carolina overnight.
Ultimately, Sergeant Simpson returned defendant’s identification
and the vehicle rental agreement and informed defendant that
only a warning citation would be issued and that defendant was
free to leave. As defendant exited the vehicle, Sergeant
Simpson asked another question: was defendant in possession of
anything illegal, such as narcotics. Defendant said no and
volunteered consent to search the vehicle. Sergeant Simpson
asked Grady to step out of the vehicle and explained that he was
about to conduct a search. Grady was sweating and appeared
nervous. When he exited the vehicle, Sergeant Simpson observed
that the front zipper of Grady’s pants was open. “Through my
training and experience, I felt like that he had hidden some
type of contraband in his underwear . . . .” Upon conducting a
pat-down of Grady, Sergeant Simpson discovered a small bag of
marijuana. Grady and defendant were asked to stand by the -4- patrol car. In the vehicle’s trunk, Sergeant Simpson observed a
black fanny pack. In the fanny pack, Sergeant Simpson found one
ounce of crystal methamphetamine and $2,700.00 in various
denominations.
At the close of the State’s evidence and again at the close
of all evidence, defendant made a motion to dismiss the two
trafficking charges based on the prosecution’s failure to
establish possession or constructive possession of the drugs
found in the vehicle’s trunk. Defendant’s motions were denied.
The jury found defendant guilty of both counts of trafficking in
methamphetamine. In accordance with the jury verdict, the trial
court entered judgment on both of defendant’s trafficking
convictions and sentenced defendant to two terms of 70 to 84
months imprisonment, to be served consecutively. Defendant
appeals.
___________________________________
On appeal, defendant argues that the trial court erred in
denying his motion to dismiss because the State failed to
present substantial evidence that he possessed the fanny pack
found in the trunk of the rental car. Specifically, defendant
argues that his motion should have been granted because the
State failed to establish his constructive possession of the -5- fanny pack found in the trunk of the rental car he was driving.
We agree.
of all of the evidence, defendant moved to dismiss the charges
against him. In response, the prosecution argued that
the driver of a vehicle is in control of that vehicle for the purposes of possession of the contents therein . . . . [and] that constructive possession can be inferred when there is evidence that a Defendant had the power to control the vehicle where [the] controlled substance was found[.]
In support of its argument, the prosecution cited State v.
Baublitz, 172 N.C. App. 801, 616 S.E.2d 615 (2005), in which
this Court found sufficient incriminating circumstances to
support a reasonable inference of the defendant’s constructive
possession of “crack” cocaine: the cocaine was discovered
between the defendant’s seat and the center console of the
vehicle the defendant was driving; and law enforcement officers
found additional suspicious packaging material between the
defendant’s feet on the vehicle's floorboard. Id. at 810, 616
S.E.2d at 622.
“When ruling on a defendant's motion to dismiss, the trial
court must determine whether there is substantial evidence (1)
of each essential element of the offense charged, and (2) that -6- the defendant is the perpetrator of the offense.” State v.
Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citations
omitted). “Substantial evidence is relevant evidence that a
reasonable mind would find adequate to support a conclusion.”
State v. Mobley, 206 N.C. App. 285, 291, 696 S.E.2d 862, 866
(2010) (citation omitted). “If, viewed in the light most
favorable to the State, the evidence is such that a jury could
reasonably infer that defendant is guilty, the motion must be
denied.” State v. Woodard, 210 N.C. App. 725, 730, 709 S.E.2d
430, 434 (2011) (citation and quotations omitted). “We review
denial of a motion to dismiss criminal charges de novo . . . .”
Mobley, 206 N.C. App. at 291, 696 S.E.2d at 866 (citation
omitted).
“Possession of a controlled substance may be actual or
Free access — add to your briefcase to read the full text and ask questions with AI
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. COA14-522 NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
STATE OF NORTH CAROLINA
v. Iredell County No. 11 CRS 53453 JERRY D. REMBERT
Appeal by defendant from judgments entered 6 September 2013
by Judge Gary M. Gavenus in Iredell County Superior Court.
Heard in the Court of Appeals 8 October 2014.
Attorney General Roy Cooper, by Assistant Attorney General Richard A. Graham, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender John F. Carella, for defendant-appellant.
BRYANT, Judge.
Because the prosecution provided insufficient evidence of
defendant’s possession of the crystal methamphetamine found in
the trunk of the vehicle he was driving, we reverse the trial
court’s denial of defendant’s motion to dismiss and remand with
instructions for the trial court to vacate the convictions. -2- On 2 April 2012, an Iredell County grand jury indicted
defendant Jerry D. Rembert on two counts of trafficking in
methamphetamine: one count of possessing more than 28 but less
than 200 grams of methamphetamine; and one count of transporting
more than 28 but less than 200 grams of methamphetamine. The
matter came on for trial on 3 September 2013 during the criminal
session of superior court, the Honorable Gary Gavenus, Judge
presiding.
The evidence presented tended to show that on 24 May 2011,
Sergeant Gary Simpson was employed and on duty with the Iredell
County Sheriff’s Office and assigned to the Interstate Criminal
Enforcement Team. At 12:50 p.m., Sergeant Simpson observed a
grey 2011 Chevrolet Impala with Ohio plates traveling north on
I-77. Because the vehicle was traveling above the 70 mph speed
limit, Sergeant Simpson conducted a traffic stop. On the
roadside, Sergeant Simpson approached the vehicle and observed
two occupants. Upon request, defendant, who was driving,
provided his identification and the rental agreement for the
vehicle but acknowledged that he did not have a driver’s
license. Sergeant Simpson asked defendant to step out of the
vehicle, at which point he frisked defendant and asked him to
sit in the front passenger seat of the patrol car while Sergeant -3- Simpson searched for outstanding warrants. Sergeant Simpson
testified that defendant was cooperative but was becoming overly
stressed as the traffic stop progressed. When asked, defendant
stated that he was coming from his aunt’s home in Hickory and
that he had been in North Carolina for two days. Sergeant
Simpson also spoke with the vehicle passenger, Grady Finley, who
stated that the two had been in North Carolina overnight.
Ultimately, Sergeant Simpson returned defendant’s identification
and the vehicle rental agreement and informed defendant that
only a warning citation would be issued and that defendant was
free to leave. As defendant exited the vehicle, Sergeant
Simpson asked another question: was defendant in possession of
anything illegal, such as narcotics. Defendant said no and
volunteered consent to search the vehicle. Sergeant Simpson
asked Grady to step out of the vehicle and explained that he was
about to conduct a search. Grady was sweating and appeared
nervous. When he exited the vehicle, Sergeant Simpson observed
that the front zipper of Grady’s pants was open. “Through my
training and experience, I felt like that he had hidden some
type of contraband in his underwear . . . .” Upon conducting a
pat-down of Grady, Sergeant Simpson discovered a small bag of
marijuana. Grady and defendant were asked to stand by the -4- patrol car. In the vehicle’s trunk, Sergeant Simpson observed a
black fanny pack. In the fanny pack, Sergeant Simpson found one
ounce of crystal methamphetamine and $2,700.00 in various
denominations.
At the close of the State’s evidence and again at the close
of all evidence, defendant made a motion to dismiss the two
trafficking charges based on the prosecution’s failure to
establish possession or constructive possession of the drugs
found in the vehicle’s trunk. Defendant’s motions were denied.
The jury found defendant guilty of both counts of trafficking in
methamphetamine. In accordance with the jury verdict, the trial
court entered judgment on both of defendant’s trafficking
convictions and sentenced defendant to two terms of 70 to 84
months imprisonment, to be served consecutively. Defendant
appeals.
___________________________________
On appeal, defendant argues that the trial court erred in
denying his motion to dismiss because the State failed to
present substantial evidence that he possessed the fanny pack
found in the trunk of the rental car. Specifically, defendant
argues that his motion should have been granted because the
State failed to establish his constructive possession of the -5- fanny pack found in the trunk of the rental car he was driving.
We agree.
of all of the evidence, defendant moved to dismiss the charges
against him. In response, the prosecution argued that
the driver of a vehicle is in control of that vehicle for the purposes of possession of the contents therein . . . . [and] that constructive possession can be inferred when there is evidence that a Defendant had the power to control the vehicle where [the] controlled substance was found[.]
In support of its argument, the prosecution cited State v.
Baublitz, 172 N.C. App. 801, 616 S.E.2d 615 (2005), in which
this Court found sufficient incriminating circumstances to
support a reasonable inference of the defendant’s constructive
possession of “crack” cocaine: the cocaine was discovered
between the defendant’s seat and the center console of the
vehicle the defendant was driving; and law enforcement officers
found additional suspicious packaging material between the
defendant’s feet on the vehicle's floorboard. Id. at 810, 616
S.E.2d at 622.
“When ruling on a defendant's motion to dismiss, the trial
court must determine whether there is substantial evidence (1)
of each essential element of the offense charged, and (2) that -6- the defendant is the perpetrator of the offense.” State v.
Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citations
omitted). “Substantial evidence is relevant evidence that a
reasonable mind would find adequate to support a conclusion.”
State v. Mobley, 206 N.C. App. 285, 291, 696 S.E.2d 862, 866
(2010) (citation omitted). “If, viewed in the light most
favorable to the State, the evidence is such that a jury could
reasonably infer that defendant is guilty, the motion must be
denied.” State v. Woodard, 210 N.C. App. 725, 730, 709 S.E.2d
430, 434 (2011) (citation and quotations omitted). “We review
denial of a motion to dismiss criminal charges de novo . . . .”
Mobley, 206 N.C. App. at 291, 696 S.E.2d at 866 (citation
omitted).
“Possession of a controlled substance may be actual or
constructive. 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.” State v. Ferguson, 204 N.C.
App. 451, 459, 694 S.E.2d 470, 477 (2010) (citation and
quotations omitted).
A defendant constructively possesses contraband when he or she has the intent and capability to maintain control and dominion over it. The defendant may have the power to -7- control either alone or jointly with others. Unless 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.
State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009)
(citations and quotations omitted). “Our cases addressing
constructive possession have tended to turn on the specific
facts presented. . . . Constructive possession depends on the
totality of circumstances in each case, so that no single factor
controls.” Ferguson, 204 N.C. App. at 460, 694 S.E.2d at 477
(citations and quotations omitted). “[T]he question is
ordinarily one for the jury.” State v. Hudson, 206 N.C. App.
482, 490, 696 S.E.2d 577, 583 (2010) (citation omitted). “[T]he
mere presence of the defendant in an automobile in which illicit
drugs are found does not, without more, constitute sufficient
proof of his possession of such drugs.” Ferguson, 204 N.C. App.
at 460, 694 S.E.2d at 477 (citation and quotations omitted).
“Examples of [other] incriminating circumstances include a
defendant's nervousness or suspicious activity in the presence
of law enforcement.” Hudson, 206 N.C. App. at 490, 696 S.E.2d
at 583 (citations omitted) (finding sufficient incriminating
circumstances existed where a suspect displayed suspicious -8- behavior when he exited his truck with his back to the officer
and hands up after being pulled over for a minor traffic offense
and the officer later testified that the suspect’s hands were
shaking when he handed over his information, his carotid artery
was pulsating out of his neck, and he was sweating despite the
forty-degree weather).
Here, defendant was not in exclusive possession of the
vehicle; therefore, the prosecution was required to establish
“other incriminating circumstances sufficient for the jury to
find a defendant had constructive possession.” Miller, 363 N.C.
at 99, 678 S.E.2d at 594 (citation omitted).
When viewed in the light most favorable to the State, the
evidence provides that defendant was cooperative with the
officer’s requests but became “overly stressed” as the traffic
stop progressed. However, was no evidence presented describing
objective indicators of defendant’s stress. Defendant stated
that he had been in North Carolina two days, while the passenger
stated they had been in North Carolina overnight. Neither
defendant nor Grady’s name was on the vehicle rental agreement.
After reviewing the record, we hold that based on the
totality of the circumstances, the prosecution failed to present
sufficient evidence of defendant’s active or constructive -9- possession of the crystal methamphetamine found in the trunk of
the vehicle. See id. As such, there was insufficient evidence
before the trial court to survive a motion to dismiss the
trafficking charges against defendant, and thus, the trial court
erred in failing to dismiss the charges against defendant.
Therefore, we reverse the trial court’s denial of defendant’s
motion to dismiss and remand this matter to the trial court with
instructions to vacate defendant’s convictions.
Reversed.
Judges ELMORE and ERVIN concur.
Report per Rule 30(e).