An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-522
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 21 October 2014


STATE OF NORTH CAROLINA

      v.                                      Iredell County
                                              No. 11 CRS 53453
JERRY D. REMBERT



      Appeal by defendant from judgments entered 6 September 2013

by   Judge   Gary    M.   Gavenus    in   Iredell    County     Superior    Court.

Heard in the Court of Appeals 8 October 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Richard A. Graham, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender John F. Carella, for defendant-appellant.


      BRYANT, Judge.


      Because the prosecution provided insufficient evidence of

defendant’s possession of the crystal methamphetamine found in

the trunk of the vehicle he was driving, we reverse the trial

court’s denial of defendant’s motion to dismiss and remand with

instructions for the trial court to vacate the convictions.
                                     -2-
      On 2 April     2012, an Iredell County grand jury                    indicted

defendant    Jerry   D.   Rembert   on    two       counts    of    trafficking    in

methamphetamine: one count of possessing more than 28 but less

than 200 grams of methamphetamine; and one count of transporting

more than 28 but less than 200 grams of methamphetamine.                          The

matter came on for trial on 3 September 2013 during the criminal

session of superior court, the Honorable Gary Gavenus, Judge

presiding.

      The evidence presented tended to show that on 24 May 2011,

Sergeant Gary Simpson was employed and on duty with the Iredell

County Sheriff’s Office and assigned to the Interstate Criminal

Enforcement Team.         At 12:50 p.m., Sergeant Simpson observed a

grey 2011 Chevrolet Impala with Ohio plates traveling north on

I-77.     Because the vehicle was traveling above the 70 mph speed

limit,    Sergeant   Simpson    conducted       a    traffic       stop.    On    the

roadside, Sergeant Simpson approached the vehicle and observed

two   occupants.      Upon     request,    defendant,         who    was   driving,

provided his identification and the rental agreement for the

vehicle    but   acknowledged     that    he    did     not    have    a   driver’s

license.     Sergeant Simpson asked defendant to step out of the

vehicle, at which point he frisked defendant and asked him to

sit in the front passenger seat of the patrol car while Sergeant
                                        -3-
Simpson     searched     for    outstanding    warrants.        Sergeant     Simpson

testified that defendant was cooperative but was becoming overly

stressed as the traffic stop progressed.                   When asked, defendant

stated that he was coming from his aunt’s home in Hickory and

that he had been in North Carolina for two days.                            Sergeant

Simpson also spoke with the vehicle passenger, Grady Finley, who

stated    that   the     two    had   been    in   North    Carolina    overnight.

Ultimately, Sergeant Simpson returned defendant’s identification

and the vehicle rental agreement and informed defendant that

only a warning citation would be issued and that defendant was

free   to    leave.       As    defendant     exited    the    vehicle,     Sergeant

Simpson asked another question: was defendant in possession of

anything illegal,        such as narcotics.            Defendant said no and

volunteered consent to search the vehicle.                      Sergeant Simpson

asked Grady to step out of the vehicle and explained that he was

about to conduct a search.               Grady was sweating and appeared

nervous.     When he exited the vehicle, Sergeant Simpson observed

that the front zipper of Grady’s pants was open.                       “Through my

training and experience, I felt like that he had hidden some

type of contraband in his underwear . . . .”                   Upon conducting a

pat-down of Grady, Sergeant Simpson discovered a small bag of

marijuana.       Grady    and    defendant     were    asked   to   stand    by   the
                                         -4-
patrol car.      In the vehicle’s trunk, Sergeant Simpson observed a

black fanny pack.        In the fanny pack, Sergeant Simpson found one

ounce     of   crystal     methamphetamine          and     $2,700.00       in    various

denominations.

    At the close of the State’s evidence and again at the close

of all evidence, defendant made a motion to dismiss the two

trafficking      charges    based       on    the        prosecution’s      failure     to

establish      possession    or   constructive            possession   of    the    drugs

found in the vehicle’s trunk.                Defendant’s motions were denied.

The jury found defendant guilty of both counts of trafficking in

methamphetamine.      In accordance with the jury verdict, the trial

court     entered   judgment      on     both       of     defendant’s      trafficking

convictions and sentenced defendant to two terms of 70 to 84

months    imprisonment,      to    be   served       consecutively.              Defendant

appeals.

                     ___________________________________

    On appeal, defendant argues that the trial court erred in

denying    his    motion    to    dismiss      because       the   State     failed    to

present substantial evidence that he possessed the fanny pack

found in the trunk of the rental car.                      Specifically, defendant

argues that      his motion should have been granted because                          the

State failed to establish his constructive possession of the
                                          -5-
fanny pack found in the trunk of the rental car he was driving.

We agree.

       At the close of the State’s evidence and again at the close

of all of the evidence, defendant moved to dismiss the charges

against him.      In response, the prosecution argued that

            the driver of a vehicle is in control of
            that vehicle for the purposes of possession
            of the contents therein . . . . [and] that
            constructive possession can be inferred when
            there is evidence that a Defendant had the
            power to control the vehicle where [the]
            controlled substance was found[.]

In   support     of   its    argument,    the     prosecution      cited    State    v.

Baublitz, 172 N.C. App. 801, 616 S.E.2d 615 (2005), in which

this    Court     found      sufficient    incriminating          circumstances     to

support a reasonable inference of the defendant’s constructive

possession       of   “crack”     cocaine:       the    cocaine     was    discovered

between    the    defendant’s      seat    and    the   center     console    of    the

vehicle the defendant was driving; and law enforcement officers

found     additional        suspicious    packaging      material      between      the

defendant’s feet on the vehicle's floorboard.                      Id. at 810, 616

S.E.2d at 622.

       “When ruling on a defendant's motion to dismiss, the trial

court must determine whether there is substantial evidence (1)

of each essential element of the offense charged, and (2) that
                                            -6-
the defendant is the perpetrator of the offense.”                               State v.

Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citations

omitted).        “Substantial evidence is relevant evidence that a

reasonable mind would find adequate to support a conclusion.”

State v. Mobley, 206 N.C. App. 285, 291, 696 S.E.2d 862, 866

(2010)    (citation       omitted).         “If,    viewed     in    the      light   most

favorable to the State, the evidence is such that a jury could

reasonably infer that defendant is guilty, the motion must be

denied.”        State v. Woodard, 210 N.C. App. 725, 730, 709 S.E.2d

430, 434 (2011) (citation and quotations omitted).                             “We review

denial of a motion to dismiss criminal charges de novo . . . .”

Mobley,    206    N.C.    App.      at   291,     696   S.E.2d      at   866    (citation

omitted).

       “Possession       of    a   controlled      substance     may     be    actual   or

constructive. 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.”                   State v. Ferguson, 204 N.C.

App.     451,    459,    694       S.E.2d   470,    477    (2010)        (citation      and

quotations omitted).

            A    defendant    constructively   possesses
            contraband when he or she has the intent and
            capability to maintain control and dominion
            over it. The defendant may have the power to
                                       -7-
            control either alone or jointly with others.
            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. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009)

(citations    and    quotations     omitted).          “Our    cases   addressing

constructive      possession    have   tended     to    turn   on   the   specific

facts presented. . . .          Constructive possession depends on the

totality of circumstances in each case, so that no single factor

controls.”     Ferguson, 204 N.C. App. at 460, 694 S.E.2d at 477

(citations     and    quotations       omitted).         “[T]he     question     is

ordinarily one for the jury.”               State v. Hudson, 206 N.C. App.

482, 490, 696 S.E.2d 577, 583 (2010) (citation omitted).                    “[T]he

mere presence of the defendant in an automobile in which illicit

drugs are found does not, without more, constitute sufficient

proof of his possession of such drugs.”                Ferguson, 204 N.C. App.

at 460, 694 S.E.2d at 477 (citation and quotations omitted).

“Examples    of     [other]    incriminating       circumstances       include   a

defendant's nervousness or suspicious activity in the presence

of law enforcement.”          Hudson, 206 N.C. App. at 490, 696 S.E.2d

at   583   (citations    omitted)      (finding    sufficient       incriminating

circumstances       existed    where    a    suspect     displayed     suspicious
                                           -8-
behavior when he exited his truck with his back to the officer

and hands up after being pulled over for a minor traffic offense

and the officer later testified that the suspect’s hands were

shaking when he handed over his information, his carotid artery

was pulsating out of his neck, and he was sweating despite the

forty-degree weather).

    Here,     defendant        was   not   in     exclusive     possession     of   the

vehicle; therefore, the prosecution was required to establish

“other incriminating circumstances sufficient for the jury to

find a defendant had constructive possession.”                    Miller, 363 N.C.

at 99, 678 S.E.2d at 594 (citation omitted).

    When viewed in the light most favorable to the State, the

evidence     provides    that        defendant     was      cooperative    with     the

officer’s requests but became “overly stressed” as the traffic

stop progressed.        However, was no evidence presented describing

objective indicators of defendant’s stress.                      Defendant stated

that he had been in North Carolina two days, while the passenger

stated   they    had    been    in    North      Carolina     overnight.       Neither

defendant nor Grady’s name was on the vehicle rental agreement.

    After     reviewing        the   record,      we   hold    that    based   on   the

totality of the circumstances, the prosecution failed to present

sufficient      evidence       of    defendant’s       active     or    constructive
                                       -9-
possession of the crystal methamphetamine found in the trunk of

the vehicle.     See id.     As such, there was insufficient evidence

before   the   trial    court   to   survive    a   motion   to    dismiss   the

trafficking charges against defendant, and thus, the trial court

erred    in   failing   to   dismiss    the    charges   against    defendant.

Therefore, we reverse the trial court’s denial of defendant’s

motion to dismiss and remand this matter to the trial court with

instructions to vacate defendant’s convictions.

    Reversed.

    Judges ELMORE and ERVIN concur.

    Report per Rule 30(e).
