                             NO. COA13-1092

                   NORTH CAROLINA COURT OF APPEALS

                      Filed:   16 September 2014

STATE OF NORTH CAROLINA

    v.                                Jackson County
                                      Nos. 11 CRS 51412, 51413
BILLY RAY DAVIS



    Appeal by defendant from judgments entered 30 May 2013 by

Judge J. Thomas Davis in Jackson County Superior Court.            Heard

in the Court of Appeals 23 April 2014.


    Attorney General Roy Cooper, by Special            Deputy   Attorney
    General June S. Ferrell, for the State.

    David L. Neal for defendant.


    McCULLOUGH, Judge.


    Billy    Ray   Davis   (“defendant”)     appeals   from     judgments

entered upon his convictions for trafficking in methamphetamine

by possession, trafficking in methamphetamine by          manufacture,

conspiring   to    traffic     in   methamphetamine,     manufacturing

methamphetamine, possession of an immediate precursor chemical

to methamphetamine, and possession of drug paraphernalia.            For

the following reasons, we find no error.

                             I. Background
                                              -2-
       On 14 December 2011, a Jackson County grand jury indicted

defendant      on    charges      of        trafficking      in   methamphetamine        by

possession,         trafficking        in     methamphetamine       by    manufacture,

conspiring      to     traffic         in     methamphetamine       by    manufacture,

manufacturing         methamphetamine,              possession    of     an     immediate

precursor chemical to methamphetamine, and possession of drug

paraphernalia.         Defendant’s case then came on for jury trial in

Jackson County Superior Court on 28 May 2013, the Honorable J.

Thomas Davis, Judge presiding.

       The evidence offered during the presentation of the State’s

case tended to show the following:                     On 29 July 2011, Jim Henry,

a senior K-9 deputy sheriff with the Jackson County Sheriff’s

Office,   responded       to    an     alert     of    possible    drug       activity   by

subjects in a small gray Dodge pickup with a white camper cover

in the Greens Creek area off the south side of Highway 441.

Dep.   Henry    located        the     vehicle        upon   arrival     to    the   area,

observed that no one was around, and proceeded down a trail at

the rear of the vehicle leading into the woods along the creek.

Dep. Henry recalled that the vegetation on the trail was crushed

down as if someone had recently walked over it.

       Approximately 20 to 30 yards down the trail, Dep. Henry

heard two individuals talking and crawled to a position where he
                                           -3-
could see what was going on.                From his position on the bank,

Dep. Henry observed a male and a female, later identified as

defendant and Keisha Maki, on a grassy area in the middle of the

creek   near   a     blanket      that   was     covered   with    bags   and     other

various     items.      From      his    position    on    the    bank,   Dep.    Henry

observed Maki use tongs to lower a bottle into the creek.                            At

that time, defendant instructed Maki to “[p]ut the glasses over

[her] eyes, [because she didn’t] want that stuff in [her] eyes.”

Maki then removed the bottle from the creek and the bottle began

smoking.

      After observing defendant and Maki for approximately ten

minutes, Dep. Henry retreated up the trail to call his superior

officer and Lee Tritt, a Special Agent with the State Bureau of

Investigation.        Special Agent Tritt arrived shortly thereafter

and   met   Dep.     Henry   on    the    trial.      He    and    Dep.   Henry    then

proceeded back down the trail to the area overlooking the creek

to observe what was going on.

      Dep. Henry and Special Agent Tritt observed defendant and

Maki for approximately thirty minutes before Maki noticed them

and alerted defendant.              During this time, defendant and Maki

were moving back and forth around the site where the blanket was

laid out.      Dep. Henry recalled that they were moving bottles
                                         -4-
back and forth.          Special Agent Tritt testified that he became

curious    about    a    bottle     sitting    near    the    edge     of    the    creek

because it was obvious that it did not have a liquid like Coke

or Sprite in it, but rather some type of solid substance.

       Approximately       thirty     minutes    after       Special       Agent    Tritt

arrived, Maki entered the creek and noticed they were being

watched.      At that point, Maki motioned for defendant to come

over to her and alerted him of Dep. Henry and Special Agent

Tritt’s presence.          Dep. Henry and Special Agent Tritt then came

down    the   bank      toward      defendant     and    Maki        and     identified

themselves as law enforcement.                At that instant, Maki, who had

backed out of the creek with defendant,                      hurriedly moved the

bottle sitting at the edge of the creek into the creek near a

concrete bridge support.             The bottle immediately began to react

with the water and started to smoke.

       Special     Agent     Tritt     was     aware    that     the        smoke    from

methamphetamine         production     was     corrosive      and     dangerous       and

removed Maki from the smoky area while Dep. Henry apprehended

defendant.       Both defendant and Maki were taken into custody.

Dep. Henry recalled that as he took defendant into custody,

defendant stated several times that “[i]t wasn’t me, I was at
                                          -5-
Food Lion, I wasn’t making dope[,]” indicating he was aware what

was going on.

      After defendant and Maki were in custody, law enforcement

secured the area.       Among the items recovered were the following:

a   handbag   that    was   found    to     contain     a   syringe    and    a   white

substance wrapped in a coffee filter, a duffle bag in which a

clear   two   liter    bottle       containing      white      and    pink   granular

material, gray metal pieces, and a clear liquid was found, empty

boxes and blister packs of pseudoephedrine, a blister pack still

containing    pseudoephedrine,         an       empty   pack    of     AA    Energizer

lithium batteries, a AA Energizer lithium battery that someone

had cut the top off of and removed the lithium, iodized salt,

sodium hydroxide, drain opener, funnels, tubing, coffee filters,

syringes, and various items of clothing.                       The plastic bottle

Maki placed into the creek was also recovered.                       There was white

and pink granular material in the burned bottle.

      Testing of the white substance found wrapped in the coffee

filter inside the handbag revealed the substance to be .8 grams

of methamphetamine.         Testing of the clear liquid removed from

the bottle found inside the duffle bag revealed the liquid,

weighing 73.6 grams, contained methamphetamine.
                                           -6-
      At    trial,      officers      testified     about    the    methamphetamine

production process and explained that the remnants of packaging

of   four    out       of    five    ingredients    –    drain     cleaner,    sodium

hydroxide,       lithium      batteries,    and    pseudoephedrine      -     used   to

manufacture methamphetamine using the “shake and bake” or “one

pot” method were recovered at the scene, as well as many of the

items   used      to    manufacture      methamphetamine.           Testimony    also

explained that lithium metal is water reactive and can ignite

when it is exposed to moisture.              From the totality of everything

found, Special Agent Michael Piwowar, a forensic scientist with

the North Carolina State Crime Lab, “confirmed that it was a

methamphetamine one pot reaction going on.”

      At the close of the State’s evidence, defendant moved to

dismiss all charges.              Defendant focused his argument in support

of   dismissal     on       the   trafficking     charges,   arguing    the    entire

weight of the liquid recovered could not be considered because

it   was    at     an       intermediate    stage       in   the    methamphetamine

production process.               After clarifying that the pseudoephedrine

had already been converted to methamphetamine in the mixture and

it was just a matter of extracting the methamphetamine from the

liquid, the trial court denied defendant’s motion to dismiss the

charges.
                                         -7-
      Defendant did not call any witnesses in his defense, but

submitted three exhibits that were admitted without objection.

Defendant then renewed his motion to dismiss all charges, which

the trial court denied.

      On   30   May    2013,       the    jury     returned      verdicts     finding

defendant guilty on all charges.                 The trial court consolidated

defendant’s     convictions        between     two    judgments      and    sentenced

defendant to consecutive terms totaling 153 months to 193 months

imprisonment.     Defendant was further ordered to pay costs, fees,

restitution,    and    a    $50,000      fine.       Defendant     gave    notice    of

appeal in open court.

                                II. Discussion

                               Motion to Dismiss

      In the first issue raised on appeal, defendant contends the

trial court erred in denying his motion to dismiss the charges

for   insufficiency    of     the    evidence      made   at   the   close    of    the

State’s evidence and renewed at the close of all the evidence.

Specifically,     defendant         contends      that    absent     an    acting    in

concert    instruction       the     State       failed   to     offer     sufficient

evidence   that   he       manufactured      or    possessed       methamphetamine.

Defendant also contends the State failed to offer sufficient

evidence of a conspiracy.
                                          -8-
          “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 (quoting State v. Barnes, 334 N.C. 67, 75, 430

S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed.

2d 150 (2000).          “Substantial evidence is such relevant evidence

as    a    reasonable      mind   might   accept   as     adequate    to    support   a

conclusion.”         State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d

164, 169 (1980).

          “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).

               Circumstantial evidence may withstand a
               motion to dismiss and support a conviction
                                        -9-
            even when the evidence does not rule out
            every hypothesis of innocence.        If the
            evidence presented is circumstantial, the
            court must consider whether a reasonable
            inference of defendant’s guilt may be drawn
            from the circumstances.      Once the court
            decides that a reasonable inference of
            defendant’s guilt may be drawn from the
            circumstances, then it is for the jury to
            decide whether the facts, taken singly or in
            combination,    satisfy   [it]    beyond   a
            reasonable doubt that the defendant is
            actually guilty.

Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation, quotation

marks, and emphasis omitted).

                              Manufacturing Charges

    Defendant first argues there was insufficient evidence to

support    the    manufacturing       methamphetamine    and   trafficking      in

methamphetamine by manufacture charges.

    Crucial       to    defendant’s    argument,   the   sufficiency      of    the

evidence to support defendant’s conviction must be reviewed with

respect to the theory of guilt presented to the jury.                   See State

v. Sullivan, 216 N.C. App. 495, 503, 717 S.E.2d 581, 586-87

(2011) (citing State v. Smith, 65 N.C. App. 770, 310 S.E.2d 115,

modified and aff'd, 311 N.C. 145, 316 S.E.2d 75 (1984)), disc.

rev. denied, 366 N.C. 229, 726 S.E.2d 839 (2012); Presnell v.

Georgia, 439 U.S. 14, 16, 58 L. Ed. 2d 207, 211 (1978).                  In this

case,     the    jury   was    not    instructed   on    acting   in     concert.

Consequently,      defendant’s       convictions   may   be    upheld    only   if
                                             -10-
there   is    evidence      he    committed           the   offenses.        See     State   v.

McCoy, 79 N.C. App. 273, 274, 339 S.E.2d 419, 420 (1986) (“The

court failed to instruct on acting in concert.                                    Accordingly,

defendant's        conviction         may    be       upheld   only    if     the    evidence

supports a finding that he personally committed each element of

the offense.”).

    At       trial,    testimony           was    presented     about        the    steps    to

produce methamphetamine using a “shake and bake” or “one pot”

method.      Defendant now contends the trial court erred in denying

his motion to dismiss the manufacturing-related charges because

there   was    no     evidence        that       he    performed      any    of     the   steps

identified by law enforcement.                    We disagree.

    As       the    State    points          out,       this   Court        has     previously

addressed whether a defendant’s presence at a place where a

controlled     substance         is    being       manufactured       is     sufficient      to

withstand a motion for dismissal of manufacturing charges.                                   In

State v. Shufford, this Court addressed whether a defendant’s

presence in a house where marijuana was being manufactured was

sufficient     to     withstand        a    motion       for   dismissal.            State   v.

Shufford, 34 N.C. App. 115, 117-18, 237 S.E.2d 481, 483 (1977).

Relying on State v. Adams, 191 N.C. 526, 132 S.E. 281 (1926), a

case involving an illegal whiskey still, this Court in Shufford
                                     -11-
held the defendant’s presence, along with other evidence that

marijuana was being manufactured in the house, was sufficient to

overcome a motion for dismissal.            Shufford, 34 N.C. App. at 118,

237 S.E.2d at 483 (“It has been held that presence at a place

where illegal whiskey is being manufactured, along with other

supporting     evidence,   is   sufficient      to   overcome   a   defendant's

motion   for    nonsuit.”)      Furthermore,     in   Shufford,     this   Court

noted that      in possession cases, “[t]he State may overcome a

motion for a nonsuit by presenting evidence which places the

accused ‘within such close juxtaposition to the narcotic drugs

as to justify the jury in concluding that the same was in his

possession.’”      Id. at 119, 237 S.E.2d at 483 (quoting State v.

Allen, 279 N.C. 406, 411-12, 183 S.E.2d 680, 684 (1971)).                   This

Court then “perceive[d] no reason why the principle of ‘close

juxtaposition’ should not apply to manufacturing of controlled

substances as well as to their possession.”                 Id. at 119, 237

S.E.2d at 483-84.

    In the present case, we            hold     a reasonable inference of

defendant’s guilt can be drawn from defendant’s presence with

Maki at the scene for the duration of the time law enforcement

observed,      approximately    40   minutes,    along   with   the    evidence

recovered from the scene that was consistent with the production
                                          -12-
of methamphetamine, testimony that defendant and Maki were back

and    forth     in    the    area   moving      bottles,     and    testimony     that

defendant gave instructions to Maki to keep the smoke out of her

eyes.          Thus,    the     evidence      was       sufficient    to   withstand

defendant’s motion to dismiss the manufacturing-related charges

and the trial court did not err.

                                Possession Charges

       Defendant next argues there was insufficient evidence to

support    the    trafficking        in   methamphetamine       by   possession     and

possession of drug paraphernalia charges.

       As previously mentioned, law enforcement searched the area

where defendant and Maki were observed subsequent to taking them

into custody.          The search of items found at the scene resulted

in the recovery of .8 grams of methamphetamine, a bottle of a

liquid      weighing         73.6    grams       that     tested     positive      for

methamphetamine,        and    syringes.         Defendant     correctly    contends

that because none of the above items were found on his person,

or    in   any   property      linked     directly       to   him,   the   State   was

required to prove constructive possession.                     Defendant, however,

further contends there was insufficient evidence of constructive

possession.       We disagree.
                                   -13-
      “Constructive possession exists when a person, while not

having actual possession of the controlled substance, has the

intent and capability to maintain control and dominion over a

controlled substance.”        State v. Neal, 109 N.C. App. 684, 686,

428   S.E.2d    287,   289   (1993).      “As     the   terms    ‘intent’     and

‘capability’    suggest,     constructive     possession       depends   on   the

totality   of   circumstances     in   each     case.     No    single    factor

controls, but ordinarily the question will be for the jury.”

State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986).

      In this case, the evidence tended to show that the .8 grams

of methamphetamine      and a syringe were          found in      a camouflage

handbag at the scene.          The handbag also contained a wallet,

cosmetics, a metal spoon, and a Social Security card with Maki’s

name on it.     The 73.6 grams of liquid containing methamphetamine

was in a clear two liter bottle in a closed purple duffle bag

found at the scene.          Various clothing items were also in the

duffle bag.     Both the handbag and the duffle bag were near the

other items recovered on the blanket laid out near the creek in

the area where defendant and Maki were moving back and forth.

      In   arguing     the    evidence      was    insufficient      to       show

constructive possession by defendant, defendant contends there

is nothing indicating defendant had the intent and capability to
                                      -14-
control   the    methamphetamine,       syringes,       or    liquid   containing

methamphetamine because the evidence tends to show that the bags

belonged to Maki.         While we agree that the evidence tends to

show the handbag containing the .8 grams of methamphetamine and

syringe belonged to Maki, there is no evidence that the duffle

bag or other items were Maki’s.                Defendant asserts that the

clothes in      the   purple duffle bag were women’s clothes;               yet,

defendant’s assertion is a mischaracterization of the evidence.

There is no indication in the evidence that the clothes found

with the liquid in the duffle bag were women’s clothes.                         In

fact, when questioned whether there was anything in the purple

duffle bag that would identify who it belonged to, Special Agent

Piwowar simply stated he just found clothes and the bottle.

    Reviewing the totality of the circumstances, we find there

was sufficient evidence of constructive possession to present

the possession-related charges against defendant to the jury.

First, defendant and Maki were the only persons present during

the 40 minutes that law enforcement observed.                      Second, both

defendant and Maki moved freely around the site where all the

belongings   and      items   were   laid    out   on   the   blanket.     It   is

apparent from Special Agent Piwowar’s testimony that among the

items were multiple syringes, not just the syringe found in the
                                         -15-
handbag     with     Maki’s    Social    Security    card.        Moreover,   the

evidence suggests that not all the items of clothing recovered

at the scene belonged to Maki.             Namely, two pairs of shoes were

recovered from the scene in addition to general items such as a

hat and a belt.          While Special Agent Tritt testified that one

pair of the shoes appeared to be women’s shoes, the second pair

was a larger plain white pair.

     Viewing the         totality of the        evidence in the light most

favorable to the State, we hold the evidence was sufficient for

the jury to find that defendant had the capability and intent to

control the items that he was near and moving around.                  Thus, the

trial court did not err in denying defendant’s motion to dismiss

the possession-related charges.

                               Conspiracy Charge

     Defendant’s final argument under the first issue on appeal

is   that    there      was   insufficient      evidence     of   a   conspiracy.

Specifically, defendant contends there was no direct evidence of

an agreement between him and Maki to traffic in methamphetamine

by   manufacture        and    there     was    insufficient      circumstantial

evidence    of     an   agreement   to    support   the    charge.      Defendant

asserts the conspiracy charge was supported only by suspicion

built on conjecture.          Again, we disagree.
                                            -16-
      “In order to prove conspiracy, the State need not prove an

express agreement; evidence tending to show a mutual, implied

understanding will suffice.”                    State v. Morgan, 329 N.C. 654,

658, 406 S.E.2d 833, 835 (1991) (citing State v. Bell, 311 N.C.

131, 141, 316 S.E.2d 611, 617 (1984)).                      As this Court noted in

State v. Jenkins, 167 N.C. App. 696, 699-700, 606 S.E.2d 430,

432-33 (2005), “[a] conspiracy may be shown by circumstantial

evidence, or by a defendant's behavior. Conspiracy may also be

inferred        from     the     conduct    of     the    other       parties    to     the

conspiracy.”       Id. (citations omitted).               Yet, “[w]hile conspiracy

can   be   proved      by      inferences    and    circumstantial         evidence,    it

‘cannot be established by a mere suspicion . . . .’”                            State v.

Benardello, 164 N.C. App. 708, 711, 596 S.E.2d 358, 360 (2004)

(quoting State v. Massey, 76 N.C. App. 660, 662, 334 S.E.2d 71,

72 (1985)).

      Upon review of all the evidence in this case, we hold there

was sufficient evidence to infer an implied agreement between

defendant and Maki.             It is undisputed that defendant was present

and     aware     that      Maki     was    involved      in    the       production    of

methamphetamine.               Moreover,    as     we    already      held,     there   is

sufficient evidence from which a reasonable inference can be

drawn    that     defendant        was   also    involved      in   the    manufacturing
                                        -17-
process.        Where    two   subjects      are    involved    together      in   the

manufacture of methamphetamine and the methamphetamine recovered

is enough to sustain trafficking charges, we hold the evidence

sufficient to infer an implied agreement between the subjects to

traffic in methamphetamine by manufacture and withstand a motion

to dismiss.

     Considering the totality of the evidence in the light most

favorable to the State, we hold there was substantial evidence

supporting the manufacturing, possession, and conspiracy charges

against defendant, even in the absence of an acting in concert

instruction.      As a result, we hold the trial court did not err

in denying defendant’s motion to dismiss.

                               Trafficking Charges

     Based on the 73.6 grams of liquid that tested positive for

methamphetamine, defendant was charged and convicted of three

trafficking      offenses.        Now   in    the    second     issue    on   appeal,

defendant contends that, even if there is sufficient evidence he

was involved in the crimes, there is still insufficient evidence

of   the   amounts      alleged    in     the      indictment    to     sustain    the

trafficking charges.           Specifically, defendant argues the entire

weight     of    a      mixture    containing         methamphetamine         at    an

intermediate stage in the manufacturing process cannot be used
                                           -18-
to   support     trafficking       charges        because   the    mixture    is    not

ingestible,      is    unstable,     and    is    not   ready     for   distribution.

Relying on State v. Willis, 61 N.C. App. 23, 300 S.E.2d 420

(1983) and State v. Perry, 316 N.C. 87, 340 S.E.2d 450 (1986),

as well as non-controlling federal cases, defendant contends it

is inconsistent with the intent of the trafficking statutes to

use the total weight of such mixture to support trafficking

charges.

      “The purpose of the [trafficking statutes] is to prevent

trafficking in controlled substances.”                  Perry, 316 N.C. at 101,

340 S.E.2d at 459.         With that in mind, in Willis and Perry, our

State’s appellate courts recognized that the tough punishment

scheme in the trafficking statutes was justified to deter large

scale distribution of drugs, regardless of the percentage of

controlled substance in the mixture.                    Willis, 61 N.C. App. at

42, 300 S.E.2d at 431, modified and aff’d, 309 N.C. 451, 306

S.E.2d 779 (1983); Perry, 316 N.C. at 101-02, 340 S.E.2d at 459.

While    we     are    sympathetic    to     defendant’s        argument     that   the

methamphetamine recovered in this case was not yet in a usable

form, we find the purpose of the trafficking statutes is still

served     in    the    present    case      where      defendant       admitted    the
                                         -19-
methamphetamine had already been formed in the liquid and it was

only a matter of extracting it from the mixture.

       Moreover,        the    trafficking     statute      does   not   specify    a

certain     type    of    mixture.       In    State   v.    Conway,     this   Court

addressed whether, under a prior version of N.C. Gen. Stat. §

90-95(h)(3b),       “the       entire   weight    of   a    liquid    containing   a

detectable,        but        undetermined,      amount      of     methamphetamine

establishes a [trafficking] violation . . . .”                     State v. Conway,

194 N.C. App. 73, 78, 669 S.E.2d 40, 44 (2008).                          Noting the

“statute [at that time was] silent on whether the weight of a

liquid mixture containing detectable, but undetermined, amounts

of methamphetamine is sufficient to meet the requirements set

forth within the statute to constitute ‘trafficking[,]’” id. at

79, 669 S.E.2d at 44, this Court undertook a statutory analysis

and determined that if the legislature intended to include the

weight of a mixture containing methamphetamine, it would have

done   so   as     it    did   in   other     subsections    of    the   trafficking

statutes.     Id. at 82-85, 669 S.E.2d at 46-47.                   This Court then

held the total weight of the mixture containing methamphetamine

in Conway did not support the trafficking charges and reversed

the defendant’s trafficking convictions.                   Id. at 85, 669 S.E.2d

at 48.
                                    -20-
     However, in 2009 the trafficking in methamphetamine statute

was amended to include the “any mixture” language that Conway

noted was omitted.       N.C. Gen. Stat. § 90-95(h)(3b) now provides

“[a]ny person who sells, manufactures, delivers, transports, or

possesses 28 grams or more of methamphetamine or any mixture

containing such substance        shall be guilty of a felony which

felony shall be known as ‘trafficking in methamphetamine[.]’”

N.C. Gen. Stat. § 90-95(h)(3b) (2013) (emphasis added).                   The

statute   then    sets   forth   different    punishments    based   on   the

amount of methamphetamine or mixture containing methamphetamine.

     Where the statute provides that a defendant is guilty of

trafficking      when    he   manufactures    “any     mixture   containing

[methamphetamine]”        meeting   the      minimum    28   gram    weight

requirement, we hold the trial court did not err in using the

weight of the liquid containing methamphetamine in the present

case.

                              III. Conclusion

     For the reasons discussed, we hold the defendant received a

fair trial free of error.

     No error.

     Judges ELMORE and DAVIS concur.
