State v. Yisrael

804 S.E.2d 742, 255 N.C. App. 184, 2017 WL 3480551, 2017 N.C. App. LEXIS 673
CourtCourt of Appeals of North Carolina
DecidedAugust 15, 2017
DocketCOA16-873
StatusPublished
Cited by11 cases

This text of 804 S.E.2d 742 (State v. Yisrael) 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. Yisrael, 804 S.E.2d 742, 255 N.C. App. 184, 2017 WL 3480551, 2017 N.C. App. LEXIS 673 (N.C. Ct. App. 2017).

Opinions

TYSON, Judge.

*185Asaiah Ben Yisrael ("Defendant") appeals from a judgment entered upon a jury's verdict finding him guilty of possession with intent to sell or deliver marijuana. We find no error.

I. Background

Raleigh Police Officer Dennis Brandenburg was employed as the school resource officer at Enloe Magnet High School. On 30 October 2015 at approximately 10:00 a.m., Officer Brandenburg observed a white Chevrolet Impala vehicle pull into the front entrance of the school and illegally park in the fire lane. Officer Brandenburg recognized the vehicle as belonging to Malik Jones ("Jones"), a former Enloe student, who had previously been banned from the school's grounds for marijuana possession.

Officer Brandenburg believed Jones was driving the vehicle. He pulled in behind the vehicle and activated the blue lights on his marked patrol car. Officer Brandenburg approached the car and intended to *186ask Jones why he was illegally present on school property after being banned. When he reached the driver's side, Officer Brandenburg saw Defendant was the driver and was alone in the car. Officer Brandenburg did not recognize Defendant. Defendant, who was twenty years old, told Officer Brandenburg that he did not possess a driver's license, but presented an identification card.

At trial, Jones testified he had allowed Defendant to borrow his car the night before so that Defendant could "go out." Jones had allowed Defendant to borrow his car on four or five prior occasions.

While speaking with Defendant, Officer Brandenburg noticed a strong odor of marijuana emanating from inside the vehicle. The odor of marijuana prompted Officer Brandenburg to detain Defendant and search both him and the car.

Officer Brandenburg recovered $1,504.00 in cash and a small "dime bag" of marijuana from inside Defendant's pockets. The officer explained a "dime bag" is normally a gram of marijuana. The "dime bag" of marijuana was packaged in a cut corner of a plastic bag, which, according to Officer Brandenburg, is how a "dime bag" is normally sold. A small amount of marijuana is placed into each corner of a "baggie," and the corners are tied off and cut.

Officer Brandenburg also found two larger bags of marijuana in the center console of the Impala. Subsequent analysis of the three bags of marijuana determined that the weight of the "dime bag" was 0.69 grams, and the weight of the two larger bags was 4.62 grams and 5.57 grams.

Officer Brandenburg recovered no empty baggies or scales from inside the car or from Defendant. Jones' driver's license was also found in the center console. Officer Brandenburg also recovered a loaded .40-caliber Glock handgun in the glove compartment, which was later determined to have been stolen. Jones testified at Defendant's trial and denied he owned the drugs or the stolen and loaded handgun found inside his car.

Defendant was indicted and tried upon charges of felonious possession with intent to sell or deliver marijuana and felonious possession of a weapon on educational property. Prior to trial, Defendant conceded he possessed the two bags of marijuana recovered from the center console of the vehicle. When questioned by the trial court during a Harbison hearing, Defendant stated he understood and agreed with defense counsel's decision to concede this fact before the jury. See State v. Harbison , 315 N.C. 175, 337 S.E.2d 504 (1985), cert. denied , *187476 U.S. 1123, 106 S.Ct. 1992, 90 L.Ed.2d 672 (1986). In his initial brief before this Court, Defendant argued insufficient evidence was presented that he constructively possessed the marijuana recovered from the center console. Defendant subsequently filed a reply brief and expressly withdrew this argument due to the stipulation he had entered at the Harbison hearing.

The jury returned a verdict of not guilty on the charge of possession of a weapon on educational property, but found Defendant *744guilty of possession with intent to sell or deliver marijuana. The trial court sentenced Defendant to a suspended term of six to seventeen months' imprisonment and placed him on supervised probation for twenty-four months. Defendant appeals.

II. Jurisdiction

Jurisdiction lies in this Court from final judgment of the superior court entered upon the jury's verdict pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2015).

III. Possession with Intent to Sell or Deliver Marijuana

Defendant argues the trial court erred by denying his motion to dismiss. Defendant asserts the State failed to present sufficient evidence of his intent to sell or deliver marijuana and the evidence shows the marijuana in Defendant's possession was for personal use. We disagree.

A. Standard of Review

"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, 121 S.Ct. 213, 148 L.Ed. 2d 150 (2000).

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Cite This Page — Counsel Stack

Bluebook (online)
804 S.E.2d 742, 255 N.C. App. 184, 2017 WL 3480551, 2017 N.C. App. LEXIS 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-yisrael-ncctapp-2017.