An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-201
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 19 August 2014


STATE OF NORTH CAROLINA

      v.                                        Nash County
                                                Nos. 11CRS003612
RICKY LASHON NEIL,                                   11CRS051708, 051710
     Defendant.


      On writ of certiorari to review judgment entered                        on or

about 6 September 2012 by Judge Walter H. Godwin Jr. in Nash

County Superior Court.          Heard in the Court of Appeals 11 August

2014.

      Attorney General Roy A. Cooper III, by Assistant Attorney
      General Amanda P. Little, for the State.

      David L. Neal for defendant-appellant.


      STROUD, Judge.


      On 6 September 2012           a jury convicted Ricky Lashon Neil

(“defendant”) of possession of drug paraphernalia, misdemeanor

possession of marijuana, and possession with intent to sell and

deliver    cocaine.       Defendant      also    entered    a   guilty    plea    to

attaining    the    status    of   a   habitual    felon.       The   trial   court

consolidated defendant’s convictions into a single judgment and
                                        -2-
sentenced him as an habitual felon to a term of 88 to 115 months

in prison.      Defendant failed to give notice of appeal from the

judgment entered against him.             By order entered on 21 October

2013,   this    Court     granted     defendant’s   petition   for    writ   of

certiorari to review the judgment.

     At trial, the State’s evidence tended to show that on 31

March 2011, Officer Ala Alzer witnessed defendant sell crack

cocaine to a confidential informant on the sidewalk in front of

an apartment located at 138 Boyd Court in Rocky Mount, North

Carolina.      The sale was completed as part of a controlled buy

organized by police.           Officer Alzer obtained a warrant to search

the apartment, and the search was executed the next day.

     During the search of the apartment, officers found powder

cocaine, crack cocaine, and marijuana.                Officers located the

cocaine next to some razor blades in a dresser in the master

bedroom.       On   top   of    the   dresser,   officers   found   marijuana,

defendant’s wallet containing his ID card, and a box of sandwich

bags.   Additionally, officers found $750 in cash under the bed

in the master bedroom, including the exact bills used by the

confidential informant to purchase cocaine.             Officers found more

marijuana in a kitchen cabinet and on a table in the living

room.
                                              -3-
       Prior to the officer’s execution of the search warrant,

defendant had left the apartment complex in his car.                               Officers

stopped      defendant      approximately             three     blocks   away    from    the

complex      and   returned       him    to     the    parking     lot   outside    of   the

apartment      while       they    searched           the   apartment.          Defendant’s

girlfriend, Danielle Crump, and her small child were the only

people present in the apartment during the search.                               After the

discovery of the cocaine and marijuana, Sergeant Mike Whitley

spoke with defendant and informed him that he was under arrest.

Defendant informed Sergeant Whitley that “you got it all,” “the

hard and the powdered that was in the swing door and the weed

that   was    on     top   of     the   dresser.”           Defendant    also    chastised

himself for leaving the cocaine where it could be found, telling

Sergeant Whitley, “I needed to move my s-h-i-t.”

       At    trial    defendant         twice    made       a   motion   to   dismiss    the

charges against him based on insufficient evidence.                              The trial

court denied the motion both times.

       Defendant now argues the trial court erred in denying his

motion to dismiss the charge of possession with intent to sell

or deliver cocaine.               Defendant contends the State’s evidence

that he had the power or intent to control the cocaine was

insufficient to send the charge to the jury.                        We disagree.
                                            -4-
      “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, 148 L.Ed. 2d 150 (2000).                          “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).

      “The offense of possession with intent to sell or deliver

has     the   following       three       elements:          (1)   possession      of    a

substance; (2) the substance must be a controlled substance; (3)

there    must    be   intent        to    sell    or   distribute       the    controlled

substance.”      State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d

897, 901 (2001); see also N.C. Gen. Stat. § 90-95(a)(1) (2013).
                                     -5-
“To prove that a defendant possessed contraband materials, the

State must prove beyond a reasonable doubt that the defendant

had either actual or constructive possession of the materials.”

State v. Loftis, 185 N.C. App. 190, 197, 649 S.E.2d 1, 6 (2007),

disc. review denied, 362 N.C. 241, 660 S.E.2d 494 (2008).

           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.
           Constructive possession, on the other hand,
           exists when the defendant, while not having
           actual   possession,  has   the   intent   and
           capability to maintain control and dominion
           over the [contraband].    When the defendant
           does not have exclusive possession of the
           location where the [contraband was] found,
           the State must make a showing of other
           incriminating circumstances in order to
           establish constructive possession.

State v. Boyd, 177 N.C. App. 165, 175, 628 S.E.2d 796, 805

(2006)    (citations,    quotation    marks,    and     ellipses     omitted).

“Where      sufficient      incriminating        circumstances         exist,

constructive   possession    of   the      contraband    materials    may   be

inferred even where possession of the premises is nonexclusive.”

State v. Kraus, 147 N.C. App. 766, 770, 557 S.E.2d 144, 147

(2001).

    Defendant did not have actual possession of the cocaine;

the State was thus required to show constructive possession.
                                           -6-
Additionally, defendant did not have exclusive possession of the

apartment in which the cocaine was found, and the State was

required to show other incriminating circumstances in order to

establish defendant’s constructive possession of the cocaine.

      Here, the day before the search, Officer Alzer observed

defendant leave the apartment at 138 Boyd Court and sell crack

cocaine to a confidential informant on the sidewalk immediately

in front of the apartment.               Defendant’s wallet was found in the

master bedroom on top of the dresser containing the cocaine, and

the money with which the confidential informant bought cocaine

was   found    in   a     box    under     the    bed   in    the     master    bedroom.

Moreover,     defendant         admitted    that    the      cocaine    found    by   the

officers      was   all    the     cocaine       that   would    be    found    in    the

apartment, and his statements confirmed both the location and

types of cocaine discovered.

      We conclude that this evidence, considered in the light

most favorable to the State, clearly incriminates defendant and

that an inference of constructive possession was appropriate in

this case.      Accordingly, we hold the trial court did not err in

denying defendant’s motion to dismiss the charge of possession

with intent to sell or deliver cocaine.

      NO ERROR.
                         -7-
Judges BRYANT and HUNTER, JR., Robert N. concur.

Report per Rule 30(e).
