An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-824
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 18 March 2014


STATE OF NORTH CAROLINA

      v.                                      Mecklenburg County
                                              No. 10 CRS 205883
MICHAEL RASHAWN CROWDER



      Appeal by defendant from judgment entered 26 February 2013

by Judge C. Thomas Edwards in Mecklenburg County Superior Court.

Heard in the Court of Appeals 7 January 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Melissa L. Trippe, for the State.

      Marilyn G. Ozer for defendant.


      HUNTER, Robert C., Judge.


      Defendant     Michael     Crowder     appeals     the    judgment    entered

after a jury convicted him of first degree murder on the basis

of   felony     murder.     After    careful     review,      because   the   State

failed     to     present      substantial       evidence       that     defendant

constructively possessed or attempted to possess the marijuana

found in the victim’s van, we reverse the trial court’s order
                                      -2-
denying   defendant’s    motion     to   dismiss   and   vacate   defendant’s

conviction for felony murder.

                                   Background

    The State’s evidence presented at trial tended to establish

the following: Defendant and Aaron Shawn Wood (“Mr. Wood”) knew

each other while they were residents at McLeod Center, a halfway

house.    After Mr. Wood left the halfway house, sometime in late

2006 or early 2007, he started a trucking company with Rickie

Hooper (“Mr. Hooper”).        On 6 March 2007, Mr. Wood and Mr. Hooper

drove to Columbia, South Carolina to pick up one of their trucks

that had broken down.         During the trip, Mr. Wood told Mr. Hooper

that he was stressed about money.               However, Mr. Wood told Mr.

Hooper that a “guy from the halfway house” owed him money and

that Mr. Wood was meeting with this “guy” the next day.                     Mr.

Wood claimed that after this meeting, their “money problems”

would be solved.

    The    next   day,   on    7   March,   Mr.    Hooper   called   Mr.   Wood

several times to discuss loads coming in later in the week.

Finally, around six that evening, Mr. Wood answered his phone.

Mr. Hooper testified, over objection, that he heard two voices

in the background; Mr. Hooper claimed that Mr. Wood told him

that one of the guys in the background was “Travis” from the
                                         -3-
halfway house.          Mr. Wood then told Mr. Hooper that he would call

him back, but Mr. Wood never did.

      Sheldon Wood, Mr. Wood’s brother, (“Sheldon”) testified at

trial that Mr. Wood was involved in drug dealing.                       On the day

Mr. Wood was killed, Mr. Wood called Sheldon and asked him to

ride with him to meet “a halfway dude.”                    Sheldon was working

that day, so he was unable to go with him.

      On 7 March 2007, George Young (“Mr. Young”) and his family

were eating dinner at their residence on Greenview Place.                       After

he heard three or four gunshots, he got up and looked out the

window.        Mr. Young testified that he saw two men in a maroon van

and one man outside the van.             The passenger in the van was later

identified as defendant.               Investigators later determined that

the owner of the van was Mr. Wood’s fiancée.                   The man outside of

the     van,     whom    Mr.   Young    described     as   tall   and    slim    and

recognized from the neighborhood, was shooting into the van’s

driver’s side window.           Mr. Young claimed he heard three to four

more shots.        Mr. Young observed the passenger in the van bending

over as if he was picking something up.                The driver of the van,

later     identified      as   Mr.   Wood,   was   slumped     over.     After   the

shooting stopped, Mr. Young stepped out onto his front porch and

saw   a   burgundy       BMW   drive   past.       Defendant    was    driving   the
                                         -4-
vehicle and the tall, slim shooter was sitting in the passenger

seat.    Mr. Wood died from multiple gunshot wounds.

       Later evidence and eyewitness testimony would indicate that

the shooter was Travis Cunningham (“Mr. Cunningham”).                   Prior to

trial, the State made a motion in limine to preclude defendant

from introducing evidence at trial that Mr. Cunningham was not

charged in connection with this crime.               The trial court deferred

ruling on the State’s motion until it heard evidence; however,

during the presentation of the State’s evidence, the trial court

ruled that defendant could ask anything about the investigation

that    tended   to    show    Mr.    Cunningham    was    the   shooter   except

defendant    was      not   allowed     to   ask   about   the   fact   that    Mr.

Cunningham was not charged in relation to this crime.

       In Mr. Wood’s van, investigators collected five bricks of

marijuana weighing around 500 grams each, or approximately one

pound, and two broken bricks of marijuana weighing about 200

grams    each.        In    addition,    investigators     found   a    brick   of

marijuana lying on the ground outside the van near the passenger

door.    A fingerprint analyst for the State testified that only

one of the bricks of marijuana had defendant’s fingerprint on

it.     Additionally, Mr. Cunningham’s fingerprint was found on a

different brick of marijuana.                No other fingerprints found on
                                            -5-
the    marijuana        bricks        were         identified              as      defendant’s.

Investigators were able to determine that a phone found in Mr.

Wood’s van was registered to defendant.

      Susan     Sarvis,    a       homicide    detective           with         the    Charlotte-

Mecklenburg     Police     Department,         (“Detective            Sarvis”)          testified

that DNA found on a cigarette butt outside the van belonged to

Mr.   Cunningham.         Detective      Sarvis          stated       at    trial        that    Mr.

Cunningham was dating defendant’s sister.

      Defendant did not present any evidence at trial.

      The trial court instructed the jury on felony murder, with

the underlying felony being that defendant, either by himself or

acting in concert with another, committed or attempted to commit

felony possession of marijuana with the use of a deadly weapon.

On 26 February 2013, the jury found defendant guilty of felony

murder.         The     trial       court      sentenced           defendant             to     life

imprisonment without parole.                  Defendant timely appealed.

                                       Arguments

      Defendant       first     argues      that         the   trial        court       erred     in

denying   his    motion       to    dismiss        the    charge      of        felony    murder.

Specifically,      defendant         contends        that       the        State       failed     to

present   sufficient          evidence        of     the       underlying             offense    of

possession    or      attempted      possession           of   a   felonious           amount     of
                                             -6-
marijuana.       Since     the    State’s          evidence      of   the     alleged      drug

transaction only rose to the level of suspicion and conjecture,

there     was   insufficient          evidence       to    support       the       underlying

felony, and the trial court should have granted his motion to

dismiss.     We agree.

      “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, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150

(2000)    (internal      quotation          marks    omitted).           “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).

However, if the State’s evidence “is sufficient only to raise a
                                              -7-
suspicion       or    conjecture    as       to   either      the   commission     of    the

offense or the identity of the defendant as the perpetrator, the

motion     to    dismiss     must       be    allowed[,] . . .          even    [if]     the

suspicion aroused by the evidence is strong.”                          State v. Malloy,

309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).

       “First-degree        murder       by       reason      of    felony     murder        is

committed when a victim is killed during the perpetration or

attempted       perpetration       of    certain         enumerated     felonies       or     a

felony committed or attempted with the use of a deadly weapon.”

State v. Gibbs, 335 N.C. 1, 51, 436 S.E.2d 321, 350 (1993),

cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994).                                 Here,

the   State     submitted     possession          or     attempted    possession        of    a

felonious amount of marijuana as the underlying felony offense.

See State v. Herring, 176 N.C. App. 395, 400, 626 S.E.2d 742,

746 (2006) (noting that trafficking or attempted trafficking in

cocaine may serve as the underlying felony in a felony murder

charge when a defendant, either by himself or acting in concert,

uses a deadly weapon).             Defendant contends that the State failed

to    present        sufficient    evidence         to    support     the    elements        of

possession      or     attempted    possession           of   a    felonious   amount        of

marijuana; thus, the trial court erred in denying his motion to

dismiss.
                                     -8-
       Our Supreme Court has noted that:

             In    a   prosecution    for    possession   of
             contraband materials, the prosecution is not
             required to prove actual physical possession
             of the materials.      Proof of nonexclusive,
             constructive     possession   is    sufficient.
             Constructive possession exists when the
             defendant,     while    not    having    actual
             possession, has the intent and capability to
             maintain control and dominion over the
             narcotics.    Where such materials are found
             on the premises under the control of an
             accused, this fact, in and of itself, gives
             rise to an inference of knowledge and
             possession which may be sufficient to carry
             the case to the jury on a charge of unlawful
             possession.    However, unless the person has
             exclusive possession of the place where the
             narcotics are found, the State must show
             other   incriminating    circumstances   before
             constructive possession may be inferred.

State   v.   Matias,   354   N.C.   549,   552,   556   S.E.2d   269,   270-71

(2001) (internal citations and quotation marks omitted).                      In

this case, the fact that defendant did not actually possess the

marijuana in Mr. Wood’s van is not in dispute.             As a result, the

only    basis   for    the   possession     charge      would    be   under   a

constructive possession theory.            However, the mere fact that

defendant was in the van where marijuana was found does not, by

itself, establish constructive possession, State v. Weems, 31

N.C. App. 569, 571, 230 S.E.2d 193, 194 (1976); the State must

provide other “incriminating circumstances,” Matias, 354 N.C. at
                                         -9-
552, 556 S.E.2d         at 270-71,      to survive defendant’s motion to

dismiss.

      Here, while it is undisputed that defendant was sitting in

a van containing approximately seven pounds of marijuana when

Mr. Wood was shot, defendant was not the only person in the van

or near the van and, consequently, he did not have exclusive

control    of   the     van.      Therefore,    the     State   was    required   to

provide    additional          incriminating      circumstances        establishing

constructive possession.            “[C]onstructive possession depends on

the   totality     of   circumstances      in   each     case,”   so    that   “[n]o

single factor controls.” State v. James, 81 N.C. App. 91, 93,

344 S.E.2d 77, 79 (1986).

      Based on the evidence presented at trial, the State has

failed to do so.         The State presented no evidence that defendant

and Mr. Wood had dealt drugs to each other in the past; in fact,

there was no evidence at trial that defendant was even involved

in this drug transaction or that a drug transaction was even

taking place at the time Mr. Wood was killed.                     The only person

with whom Mr. Wood identified that he would be meeting was Mr.

Cunningham, but the State provided no details as to whether that

meeting    would   involve       the   transfer    of   drugs.        Additionally,

while the State’s evidence tended to show that defendant and Mr.
                                     -10-
Cunningham left the scene of the crime together in defendant’s

car, that fact, by itself, has no bearing on whether defendant

possessed or attempted to possess the marijuana, the underlying

felony.      While   it   seems   that   this   evidence   would   support   a

theory that defendant and Mr. Cunningham acted in concert to rob

or assault Mr. Wood, the State did not proceed on this theory at

trial.    Furthermore, while it is undisputed that one of the

bricks of marijuana had defendant’s fingerprint on it, that was

the only physical piece of evidence linking defendant to the

marijuana.    Given that numerous other fingerprints were found on

the marijuana but only one was from defendant, this evidence is

inadequate to establish that defendant maintained any degree of

dominion or control over the marijuana.           Additionally, the State

did not introduce any evidence establishing that the marijuana

was in close proximity to defendant in the van or that it was in

a place only accessible to defendant.              Finally, there was no

evidence that defendant was either using the drugs in the van or

that defendant had spent any substantial amount of time in the

van prior to the shooting.

    Moreover, the State failed to present sufficient evidence

that defendant possessed or attempted to possess the marijuana

while acting in concert with Mr. Cunningham.           “To act in concert
                                            -11-
means to act together, in harmony or in conjunction one with

another pursuant to a common plan or purpose.”                        State v. Joyner,

297 N.C. 349, 356, 255 S.E.2d 390, 395 (1979).                         However, “[t]he

acting      in    concert      theory      is    not      generally    applicable     to

possession offenses, as it tends to become confused with other

theories of guilt.”            State v. Diaz, 155 N.C. App. 307, 314, 575

S.E.2d 523, 528 (2002).              However, when the theory is used, our

Court      has    noted    that,    while       “a   defendant     need   not   do   any

particular act constituting some part of the crime[,]” he must

be present at the scene of the crime and act together with

another who does the acts necessary to constitute the crime

pursuant to a common plan or purpose to commit the crime.”                           Id.

Consequently, here, the State would be required to show that

defendant was present at the scene of the crime and that Mr.

Cunningham committed some act necessary to constitute possession

or attempted possession or the marijuana.                         Again, since there

was   no    evidence       that    Mr.     Cunningham      actually     possessed    the

marijuana,        the     State    would    have     to    show   he    constructively

possessed the marijuana while defendant was present.

      Even       under    an   acting      in   concert     theory,    the   State   has

failed to produce sufficient evidence that defendant acted in

concert with Mr. Cunningham to possess or attempt to possess the
                                          -12-
marijuana.         Mr.    Cunningham     was     never    in     the    van     where    the

marijuana was found.             The State provided no evidence of a joint

plan     between    Mr.    Cunningham         and   defendant          to     possess     the

marijuana.         In    fact,    besides      being     the    shooter,        the     State

provided no evidence as to what exactly Mr. Cunningham’s role

was in a possible drug transaction with Mr. Wood.                               As stated

above, while it appears that the State could have proceeded

under the theory that defendant and Mr. Cunningham acted in

concert to either rob or assault Mr. Wood, the State based the

felony murder charge solely on the underlying felony offense of

possession or attempted possession of marijuana.                            While a single

fingerprint of Mr. Cunningham’s was found on one of the bricks

of   marijuana,     it    is     the   sole    piece   of      evidence       linking    Mr.

Cunningham to the marijuana and, without more, is insufficient

to establish that he was constructively possessing the marijuana

at the time he shot and killed Mr. Wood.

       Even in totality and taken in a light most favorable to the

State, the evidence was insufficient to support the underlying

offense of possession or attempted possession of a felonious

amount     of   marijuana        based    on     the     theory        of     constructive

possession, either with defendant acting by himself or acting in

concert with Mr. Cunningham.                  In contrast, the evidence only
                                             -13-
rises to a level of suspicion and conjecture that Mr. Wood was

killed while defendant was possessing or attempting to possess

the marijuana in the van.                Accordingly, since we have concluded

that    the     State’s       evidence       was    insufficient         to   support      the

commission of the underlying felony, the judgment on defendant’s

conviction for felony murder based on that underlying felony

must be vacated.          See generally, State v. Ledford, 315 N.C. 599,

606, 340 S.E.2d 309, 314 (1986) (“If the evidence presented at

trial     was    insufficient           to    support       a        conviction    of     [the

underlying       felony],        the    judgment       of       conviction        of    first-

degree felony murder based on that underlying felony cannot be

sustained.”); State v. Bates, 309 N.C. 528, 535, 308 S.E.2d 258,

263 (1983) (“Because there was insufficient evidence to support

the     commission       of     the     underlying      felony,           there    is    also

insufficient          evidence    to     support      defendant’s          conviction       of

felony    murder.”).            Since    defendant’s            conviction      for     felony

murder has been vacated, it is not necessary to address his

remaining arguments on appeal.

                                        Conclusion

       Based     on    the    foregoing       reasons,          we    reverse     the    order

denying defendant’s motion to dismiss based on insufficiency of
                                  -14-
the   evidence    and   vacate   defendant’s   conviction   for   felony

murder.



      REVERSED.

      Judges McGEE and ELMORE concur.

      Report per Rule 30(e).
