State v. Miller

In this case, we consider whether the evidence presented at defendant’s trial for possession of a controlled substance was sufficient to support a finding of guilt based upon the theory of constructive possession. When the evidence showed, among other things, that defendant was found within touching distance of the crack cocaine in question and defendant’s identity documents were in the same room, we conclude that the evidence was sufficient to support the jury’s verdict. Accordingly, we reverse the opinion of the Court of Appeals.

At trial, the State presented evidence that on 8 December 2005, Winston-Salem Police Detective R.J. Paul obtained a search warrant for the residence at 1924 Dacian Street after citizen complaints and resulting surveillance revealed heavy vehicle and pedestrian traffic in the area. Later that day, a Winston-Salem Police Special Enforcement Team entered the residence, commanding everyone to get on the floor. The officers found several individuals in the living room. Defendant, who was sitting on the corner of a bed in an adjoining room, slid to the floor as officers entered. While he was on the floor, defendant’s head lay between one to four feet from the bedroom door. Another individual in the bedroom remained seated in a chair about eight feet from the door.

Detective Paul entered the bedroom and recovered a small white rocklike substance from the end of the bed where defendant had been sitting.1 In addition, Detective Paul recovered a plastic bag containing several small white rocks from behind the open bedroom door, about two feet from where defendant had been lying on the floor. Later testing revealed that all the material recovered from the bedroom was crack cocaine weighing a total of 1.3 grams. Defendant’s birth certificate and state-issued identification card were found on a television stand in the bedroom, along with several small plastic jewelry bags. *98An officer testified that cocaine is normally packaged in some type of plastic bag and that plastic jewelry bags are sometimes used.

Two of defendant’s children lived at 1924 Dacian with their mother, Alicia Johnson. Testifying on behalf of defendant, Johnson stated that defendant did not live in the house and was there at the time of the search because he was preparing to pick up the children from school. She further testified that the furnishings in the bedroom where defendant was sitting when the police entered belonged to her and that the crack cocaine found in the room with defendant also was hers. However, she had not been at the residence when police exe-. cuted the search warrant.

Defendant was tried for possessing cocaine with the intent to sell and deliver, in violation of N.C.G.S. § 90-95(a)(l); maintaining a place to keep a controlled substance, in violation of N.C.G.S. § 90-108(a)(7); and attaining the status of habitual felon, as defined in N.C.G.S. § 14-7.1. At the close of the State’s evidence, the trial court allowed defendant’s motion to dismiss the charge of maintaining a place to keep a controlled substance, but denied defendant’s motion to dismiss the possession charge. After defendant presented evidence, the court denied his renewed motion to dismiss the possession charge. The jury found defendant guilty of simple possession of cocaine and attaining habitual felon status, and the trial court sentenced him to 107 to 138 months imprisonment.

Defendant appealed. In a divided opinion, the Court of Appeals reversed, applying a totality of the circumstances test to find that the evidence was insufficient to support a conclusion that defendant constructively possessed the cocaine. Miller, - N.C. App. at -, 661 S.E.2d at 773. The dissenting judge contended that the evidence was sufficient to support defendant’s conviction. Id. at -, 661 S.E.2d at 774-75 (lyson, J., dissenting). The State appealed as of right on the basis of the dissent.

When ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State’s favor. State v. McCullers, 341 N.C. 19, 28-29, 460 S.E.2d 163, 168 (1995). Any contradictions or conflicts in the evidence are resolved in favor of the State, State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983), and evidence unfavorable to the State is not considered, State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894, cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). The trial court must decide “ ‘only *99whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.’ ” State v. Turnage, 362 N.C. 491, 493, 666 S.E.2d 753, 755 (2008) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)). “ ‘Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.’ ” Id. (quoting Crawford, 344 N.C. at 73, 472 S.E.2d at 925). When the evidence raises no more than a suspicion of guilt, a motion to dismiss should be granted. State v. Lee, 348 N.C. 474, 488-89, 501 S.E.2d 334, 343 (1998). However, so long as the evidence supports a reasonable inference of the defendant’s guilt, a motion to dismiss is properly denied even though the evidence also “permits a reasonable inference of the defendant’s innocence.” State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 140 (2002).

The State prosecuted defendant upon the theory that he constructively possessed crack cocaine. A defendant constructively possesses contraband when he or she has “the intent and capability to maintain control and dominion over” it. State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). The defendant may have the power to control either alone or jointly with others. State v. Fuqua, 234 N.C. 168, 170-71, 66 S.E.2d 667, 668 (1951). 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. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001).

Our cases addressing constructive possession have tended to turn on the specific facts presented. See, e.g., Butler, 356 N.C. at 143-44, 147-48, 567 S.E.2d at 138-39, 141 (finding constructive possession when the defendant acted suspiciously upon alighting from a bus; hurried to a taxicab and yelled “let’s go” three times; fidgeted and ducked down in the taxicab once in the back seat, then exited the taxicab at the instruction of police officers and walked back to the bus terminal without being told to do so, drawing officers away from the taxicab; and drugs were recovered from under the driver’s seat of the taxicab approximately ten minutes later when the cab returned from giving another customer a ride); Matias, 354 N.C. at 550-52, 556 S.E.2d at 270-71 (finding constructive possession when officers, after smelling marijuana emanating from a passing automobile occupied by the defendant and three others, recovered marijuana and cocaine stuffed between the seat pad and back pad where the defendant had been seated, and an officer testified the defendant was the only occu*100pant who could have placed the package there); State v. Brown, 310 N.C. 563, 569-70, 313 S.E.2d 585, 588-89 (1984) (finding sufficient other incriminating circumstances when cocaine and other drug packaging paraphernalia were found on a table beside which the defendant was standing when the officers entered the apartment, the defendant had been observed at the apartment multiple times, possessed a key to the apartment, and had over. $1,700 in cash in his pockets); State v. Baxter, 285 N.C. 735, 736-38, 208 S.E.2d 696, 697-98 (1974) (finding constructive possession when the defendant was absent from the apartment when police arrived but a search of the bedroom that the defendant and his wife occupied yielded men’s clothing and marijuana in a dresser drawer, with additional marijuana found in the pocket of a man’s coat in the bedroom closet); State v. Allen, 279 N.C. 406, 408, 412, 183 S.E.2d 680, 682, 684-85 (1971) (finding constructive possession when, even though the defendant was absent from the apartment at the time of a search, heroin was found in the bedroom and kitchen; the defendant’s identification and other personal papers were in the bedroom, public utilities for the premises were listed in the defendant’s name; and a witness testified that the defendant had provided heroin to him for resale). These and other cases demonstrate that two factors frequently considered are the defendant’s proximity to the contraband and indicia of the defendant’s control over the place where the contraband is found.

Here, police found defendant in a bedroom of the home where two of his children lived with their mother. When first seen, defendant was sitting on the same end of the bed where cocaine was recovered. Once defendant slid to the floor, he was within reach of the package of cocaine recovered from the floor behind the bedroom door. Defendant’s birth certificate and state-issued identification card were found on top of a television stand in that bedroom. The only other individual in the room was not near any of the cocaine. Even though defendant did not have exclusive possession of the premises, these incriminating circumstances permit a reasonable inference that defendant had the intent and capability to exercise control and dominion over cocaine in that room.

The Court of Appeals majority found this evidence insufficient, relying in part on the absence of evidence that defendant appeared nervous or made any observed motion to hide anything. - N.C. App. at -, 661 S.E.2d at 773. However, proper application of the standard of review focuses our analysis on the evidence that the State did present in these highly fact-specific cases, not on evidence that a *101reviewing court thinks the State should have presented. In other words, absence of evidence is not evidence of absence. Viewing the evidence admitted here in the light most favorable to the State, we hold that sufficient evidence was presented from which a reasonable mind could conclude that defendant constructively possessed cocaine. Accordingly, the trial court properly denied defendant’s motion to dismiss. The decision of the Court of Appeals is reversed.

REVERSED.