              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA15-547

                                 Filed: 7 June 2016

Forsyth County, Nos. 12CRS050313, 12CRS050315

STATE OF NORTH CAROLINA

             v.

RICHARD DULIN, III, Defendant.


      Appeal by defendant from judgments entered on or about 11 September 2014

by Judge A. Moses Massey in Superior Court, Forsyth County. Heard in the Court of

Appeals on 21 October 2015.


      Attorney General Roy A. Cooper III, by Special Deputy Attorney General Karen
      A. Blum, for the State.

      Kimberly P. Hoppin for defendant-appellant.


      STROUD, Judge.


      Richard Dulin, III (“defendant”) appeals from judgments entered upon jury

verdicts finding him guilty of possession with the intent to sell or deliver marijuana

and possession of drug paraphernalia. Defendant contends that the trial court erred

in denying his motion to dismiss. We find no error in part, vacate in part, and

remand.

                                 I.       Background
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                                  Opinion of the Court



      Around noon on 10 January 2012, Officers Shuskey and Honaker began

watching a house in Winston-Salem. At 12:01 p.m., the officers observed a man

working on a white truck in the carport of the house. Officer Honaker noted that at

some point, the white truck left the house, but he did not record whether the man left

the house. Between 12:01 p.m. and 1:38 p.m., several people traveled to and from the

house, by either car, moped, bicycle, or on foot, each spending only a few minutes at

the house. At 1:39 p.m., defendant left the house driving a black truck. During

defendant’s absence, there was no activity at the house, other than a man who briefly

walked in front of it. At 3:02 p.m., defendant returned in the black truck and parked

it in front of the house. At 3:09 p.m., a man on a bicycle arrived and approached

defendant in front of the house. The two men shook hands “as if they were passing

an item back and forth.”

      A few minutes later, another man walked by the police officers and noticed

their presence. He walked over to defendant and pointed out their location to him.

Defendant immediately began using his cell phone. Defendant then got in the truck,

drove it behind the house, and then returned a minute later, parking it in front of the

house again. Defendant began washing the truck while the man who had informed

him of the officers’ location began raking leaves in the yard.

      Officers Shuskey and Honaker, along with other police officers, detained

defendant and the other man while they were working in the front yard and began



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searching for drugs. Defendant admitted to one of the police officers that he had a

“blunt” in the black truck. Officer Shuskey searched the black truck that defendant

had been driving and washing and found a small bag of marijuana in the console.

Another police officer searched one of the house’s multiple bedrooms and found

marijuana located in a picture frame behind a photograph of defendant. The police

officer also found a feminine deodorant bar in the bedroom.

      Officer Barker searched a different room of the house which appeared to be a

common living area as it had a television, couch, bookcases, and other “general

furniture items[.]” There, he found a marijuana grinder, a digital scale with residue

on it, $400 in cash tucked between books on a bookshelf, packaging material, plastic

bags, and some clear glass jars which had a green leafy residue and smelled of

unburnt marijuana. Officer Barker testified that the digital scale was in plain view

and that the marijuana grinder was on the bookshelf where he found the cash.

      Another police officer searched the kitchen and found an off-white powdery

substance splattered in a microwave and on razor blades lying on the kitchen counter.

At trial, Amanda Battin, a forensic scientist, testified that there was cocaine residue

on one of the razor blades. In their search, the police officers also found a piece of

mail addressed to defendant at the house’s address, as well as a photograph of

defendant and another person.




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      Sergeant McDonald searched a part of the yard, to the right of the house, where

Officers Shuskey and Honaker had observed defendant driving the truck. There, he

found an uncovered “flat-bottom style fishing boat” on a trailer that was located in an

open, unfenced area roughly seventy feet from the side of the house. He also observed

a “freestanding swing” somewhere between the house and the boat. In plain view

under the boat’s steering console, he found four or five individually packaged bags of

marijuana, all contained within a large foil package. At trial, Officer Honaker opined

that this marijuana was packaged for sale, and Ms. Battin testified that the total

amount of marijuana recovered during the search was more than one half of an ounce.

Officers Shuskey and Honaker did not testify that they observed defendant near the

boat, nor did they testify that they heard defendant leave the truck when he was out

of their view or do anything that would indicate that he may have hidden the

marijuana in the boat. The police did not check to whom the boat was registered.

      On or about 4 June 2012, a grand jury indicted defendant for possession with

intent to sell or deliver marijuana, felony possession of cocaine, and possession of

drug paraphernalia. See N.C. Gen. Stat. §§ 90-95(a)(1), (3), -113.22 (2011). At trial,

defendant moved to dismiss at the close of the State’s evidence and at the close of all

the evidence, and the trial court denied both motions. On or about 10 September

2014, a jury found defendant guilty of possession with intent to sell or deliver

marijuana and possession of drug paraphernalia and not guilty of possession of



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cocaine.   On or about 11 September 2014, the trial court entered consecutive

sentences of six to 17 months of imprisonment for the offense of possession with intent

to sell or deliver marijuana and 120 days of imprisonment for the offense of possession

of drug paraphernalia. The trial court suspended the two sentences and placed

defendant on 36 months of supervised probation, which included an active term of

120 days of imprisonment as a condition of special probation. Defendant gave notice

of appeal in open court.

                               II.      Motion to Dismiss

      Defendant solely contends that the trial court erred in denying his motion to

dismiss because insufficient evidence established that he actually or constructively

possessed drug paraphernalia or marijuana with intent to sell or deliver.

A.    Standard of Review

                    Evidence is sufficient to sustain a conviction
                    when, viewed in the light most favorable to
                    the State and giving the State every
                    reasonable inference therefrom, there is
                    substantial evidence to support a jury finding
                    of each essential element of the offense
                    charged, and of defendant’s being the
                    perpetrator of such offense.
                    Evidence is substantial if it is relevant and adequate
             to convince a reasonable mind to accept a conclusion. In
             considering a motion to dismiss, the trial court does not
             weigh the evidence, consider evidence unfavorable to the
             State, or determine any witness’ credibility. Evidence is
             not substantial if it is sufficient only to raise a suspicion or
             conjecture as to either the commission of the offense or the
             identity of the defendant as the perpetrator of it, and the


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             motion to dismiss should be allowed even though the
             suspicion so aroused by the evidence is strong. This Court
             reviews the denial of a motion to dismiss for insufficient
             evidence de novo.

State v. Robledo, 193 N.C. App. 521, 524-25, 668 S.E.2d 91, 94 (2008) (citations,

quotation marks, brackets, and ellipses omitted). “In deciding whether the trial

court’s denial of [a] defendant’s motion to dismiss violated [the] defendant’s due

process rights, this Court must determine whether ‘any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’ ” State v.

Penland, 343 N.C. 634, 648, 472 S.E.2d 734, 741 (1996) (quoting Jackson v. Virginia,

443 U.S. 307, 319, 61 L. Ed. 2d 560, 573 (1979)), cert. denied, 519 U.S. 1098, 136 L.

Ed. 2d 725 (1997).

B.    Possession of Drug Paraphernalia

             A person is in “possession” of a controlled substance within
             the meaning of G.S. 90-95 if they have the power and intent
             to control it; possession need not be actual. The State is
             not required to prove that the defendant owned the
             controlled substance . . . or that defendant was the only
             person with access to it.
                   . . . Where control of the premises is nonexclusive,
             however, constructive possession may not be inferred
             without other incriminating circumstances.

State v. Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987) (citations and

quotation marks omitted).

                   Incriminating     circumstances    relevant        to
             constructive possession
                   include evidence that defendant: (1) owned


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                     other items found in proximity to the
                     contraband; (2) was the only person who could
                     have placed the contraband in the position
                     where it was found; (3) acted nervously in the
                     presence of law enforcement; (4) resided in,
                     had some control of, or regularly visited the
                     premises where the contraband was found; (5)
                     was near contraband in plain view; or (6)
                     possessed a large amount of cash.
              Evidence of conduct by the defendant indicating knowledge
              of the controlled substance or fear of discovery is also
              sufficient to permit a jury to find constructive possession.
              Our determination of whether the State presented
              sufficient evidence of incriminating circumstances depends
              on the totality of the circumstances in each case. No single
              factor controls, but ordinarily the questions will be for the
              jury.

State v. Alston, 193 N.C. App. 712, 716, 668 S.E.2d 383, 386-87 (2008) (citations,

quotation marks, and emphasis omitted), aff’d per curiam, 363 N.C. 367, 677 S.E.2d

455 (2009).

      In Rich, the defendant argued that insufficient evidence established that she

possessed cocaine, which the police had found in the bedroom of a house. Rich, 87

N.C. App. at 382, 361 S.E.2d at 323. The State proffered evidence that

              defendant was seen on the premises the evening before [the
              search], that on the night of her arrest she was cooking
              dinner at the house when the agents arrived, that women’s
              casual clothes and undergarments were found in the
              bedroom [where the cocaine was found], and that mail
              addressed to defendant, including an insurance policy
              listing the house as her residence, was found in the house.

Id. This Court held that this evidence was sufficient to show that the defendant had



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nonexclusive control of the premises. Id. This Court held that the State also proffered

evidence of “other incriminating circumstances” by establishing “more than [the]

defendant’s mere residence in the house.” Id. at 382-83, 361 S.E.2d at 323. The

State’s “evidence showed that [the] defendant was present on the premises when the

cocaine was found, that women’s clothes and undergarments were in the room and in

the dresser where the cocaine was found, and that letters with [the] defendant’s name

on them were also found in the room.” Id. at 382, 361 S.E.2d at 323.

      Here, the State established defendant’s nonexclusive control of the house by

introducing the following evidence: (1) defendant spent hours at the house on the day

of the search, either inside it or in the front yard washing the black truck; (2) the

police found a piece of mail addressed to defendant at the house’s address; (3) the

police found photographs of defendant inside the house; and (4) several people visited

the house while defendant was present, but no one visited the house while defendant

was absent, other than a man who briefly walked in front of it. See id.

      Officer Barker found the drug paraphernalia in a room in “the southern part

of the house” which appeared to be a common living area as it had a television, couch,

bookcases, and other “general furniture items[.]” In describing this room, Officer

Barker did not mention a bed or anything akin to bedroom furniture. But later Officer

Barker testified that he found the drug paraphernalia in “the southern bedroom[.]”

The jury could have reasonably inferred that defendant and any other residents



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treated this room as a common living area even though it may have been constructed

as a bedroom. Officer Barker also testified that the digital scale was in plain view

and that the marijuana grinder was on the bookshelf where he found the cash.

Viewing the evidence in the light most favorable to the State and giving the State

every reasonable inference therefrom, we hold that the evidence supports an

inference that the police found the drug paraphernalia in plain view in a common

living area where defendant, as a resident of the house, exercised nonexclusive

control. See Robledo, 193 N.C. App. at 524-25, 668 S.E.2d at 94.

      In addition, the following evidence constitutes “other incriminating

circumstances” which prove “more than defendant’s mere residence in the house”: (1)

defendant spent hours at the house on the day of the search, either inside it or in the

front yard washing the black truck; (2) the defendant admitted to the police that he

had a “blunt” in the black truck, which was parked in front of the house, and the

police found marijuana in the black truck’s console; (3) the police found marijuana in

the house behind a photograph of defendant; and (4) several people visited the house

while defendant was there, including a man who shook hands with defendant “as if

they were passing an item back and forth.” See Rich, 87 N.C. App. at 382-83, 361

S.E.2d at 323 (holding that evidence which showed that the “defendant was present

on the premises when the cocaine was found,” along with other evidence, constituted

evidence of “other incriminating circumstances”). We find most significant the fact



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that the police found marijuana in a picture frame behind a photograph of defendant.1

We conclude that

               [a]lthough the evidence tends to show that defendant
               shared the house with at least one other individual,
               considering the totality of the circumstances, a reasonable
               inference may be drawn that defendant had the power to
               control the use and disposition of the [drug paraphernalia]
               since it was located in a common area of his residence.

See State v. Baldwin, 161 N.C. App. 382, 392, 588 S.E.2d 497, 505 (2003) (emphasis

added); Alston, 193 N.C. App. at 716, 668 S.E.2d at 386-87 (“Our determination of

whether the State presented sufficient evidence of incriminating circumstances

depends on the totality of the circumstances in each case.” (citation and quotation

marks omitted)).

       Defendant argues that the fact that the police found marijuana behind a

photograph of himself “suggests as much that someone else residing in the home had

a picture of [defendant] as it did that [defendant] would have had a framed picture of

himself by his bed.” Defendant also points to the fact that a police officer found a

feminine deodorant bar in that bedroom. But in reviewing a motion to dismiss, we

view the evidence “in the light most favorable to the State” and give the State “every

reasonable inference therefrom[.]” See Robledo, 193 N.C. App. at 524, 668 S.E.2d at

94 (citation omitted). We hold that the jury could have reasonably inferred from the


       1 We note that it appears from the record that defendant was not indicted for simple possession
of marijuana, and the State did not proffer evidence of the amount of this marijuana although it almost
certainly was not large given its location.

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evidence as a whole that defendant had nonexclusive control of the house. See id.

      Defendant also argues that while the evidence might have been sufficient to

support defendant’s control over the black truck and therefore over the marijuana

found in the truck’s console, there was insufficient evidence “establishing his

exclusive control over the home[.]” But in order to establish constructive possession,

the State need not prove exclusive control; it is sufficient to prove nonexclusive control

plus other incriminating circumstances. See Rich, 87 N.C. App. at 382-83, 361 S.E.2d

at 323. As discussed above, we hold that the State proffered evidence of defendant’s

nonexclusive control of the house plus other incriminating circumstances.

      Defendant relies on State v. McLaurin, 320 N.C. 143, 357 S.E.2d 636 (1987).

But McLaurin is distinguishable.       There, the State proffered evidence that the

defendant lived at a house with other individuals, where the police had found drug

paraphernalia, but the State presented no additional evidence relating to the

defendant. McLaurin, 320 N.C. at 146, 357 S.E.2d at 638. Our Supreme Court held

that “because [the] defendant’s control over the premises in which the [drug]

paraphernalia were found was nonexclusive, and because there was no evidence of

other incriminating circumstances linking her to those items, her control was

insufficiently substantial to support a conclusion of her possession of the seized

paraphernalia.” Id. at 147, 357 S.E.2d at 638 (emphasis added).

      In contrast, here, the State proffered evidence of “other incriminating



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circumstances” linking defendant to the drug paraphernalia found in plain view in a

common living area of the house: (1) defendant spent hours at the house on the day

of the search, either inside it or in the front yard washing the black truck; (2) the

defendant admitted to the police that he had a “blunt” in the black truck, which was

parked in front of the house, and the police found marijuana in the black truck’s

console; (3) the police found marijuana in the house behind a photograph of

defendant; and (4) several people visited the house while defendant was there,

including a man who shook hands with defendant “as if they were passing an item

back and forth.” See Rich, 87 N.C. App. at 382-83, 361 S.E.2d at 323. Following Rich,

we hold that the State proffered sufficient evidence to establish defendant’s

constructive possession of the drug paraphernalia seized from the house. See id.

Accordingly, we hold that the trial court did not err in denying defendant’s motion to

dismiss with respect to the charge of possession of drug paraphernalia.

C.    Possession of Marijuana with Intent to Sell or Deliver

      Defendant next argues that the trial court erred in denying his motion to

dismiss with respect to the charge of possession of marijuana with intent to sell or

deliver, because the State failed to proffer sufficient evidence linking him to the

marijuana found in the uncovered fishing boat.

      The State produced no evidence linking defendant to the marijuana found in

the boat other than the evidence that the boat was present in the yard. Sergeant



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                                        Opinion of the Court



McDonald testified that the boat was located roughly seventy feet from the side of the

house and within the “curtilage” of the house. It is not clear why he used this term,

but it is possible that the search warrant for the house also authorized a search of the

curtilage so he described the boat as being within the curtilage and thus within the

scope of the search warrant.2 “Curtilage” is a term of art which is normally used in

cases raising Fourth Amendment issues from a search and seizure without a warrant

in an area near a defendant’s residence. In that context, our Supreme Court has

noted:

               The curtilage is the area immediately surrounding and
               associated with the home. In a non-Fourth Amendment
               case, we have said “the curtilage of the home will ordinarily
               be construed to include at least the yard around the
               dwelling house as well as the area occupied by barns, cribs,
               and other outbuildings.” State v. Frizzelle, 243 N.C. 49, 51,
               89 S.E.2d 725, 726 (1955) (citations omitted). The curtilage
               does enjoy some measure of Fourth Amendment protection,
               . . . because it is intimately linked to the home, both
               physically and psychologically[.] As such, it serves as the
               buffer between the intimate activities of the home and the
               prying eyes of the outside world. But, law enforcement is
               not required to turn a blind eye to contraband or otherwise
               incriminating materials left out in the open on the
               curtilage.    Neither is law enforcement absolutely
               prohibited from crossing the curtilage and approaching the
               home, based on our society’s recognition that the knocker
               on the front door is treated as an invitation or license to
               attempt an entry, justifying ingress to the home by

         2
         The search warrant is not in our record and defendant has not raised any argument regarding
the scope of the search conducted under the search warrant, and we express no opinion upon that
issue. We discuss the use of the term “curtilage” only because it was used in the evidence and because
the State relies upon this term in its argument that the boat was within defendant’s area of
constructive possession.

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             solicitors, hawkers and peddlers[.]
                     As a buffer, the curtilage protects privacy interests
             and prevents unreasonable searches on the curtilage.

State v. Grice, 367 N.C. 753, 759-60, 767 S.E.2d 312, 317-18 (citations, quotation

marks, and ellipsis omitted), cert. denied, ___ U.S. ___, 192 L. Ed. 2d 882 (2015). “The

curtilage is the area to which extends the intimate activity associated with the

sanctity of a man’s home and the privacies of life, and therefore has been considered

part of [the] home itself for Fourth Amendment purposes.” State v. Smith, ___ N.C.

App. ___, ___, 783 S.E.2d 504, 511 (No. COA 15-305) (Mar. 1, 2016) (brackets omitted)

(quoting Oliver v. United States, 466 U.S. 170, 180, 80 L. Ed. 2d 214, 225 (1984)).

             The protection afforded to curtilage under the privacy
             interest of [the] Fourth Amendment is determined by
             looking at four factors: “[(1)] the proximity of the area
             claimed to be curtilage to the home, [(2)] whether the area
             is included within an enclosure surrounding the home, [(3)]
             the nature of the uses to which the area is put, and [(4)] the
             steps taken by the resident to protect the area from
             observation by people passing by.”

Id. at ___ n.2, ___ S.E.2d at 511 n.2 (quoting United States v. Dunn, 480 U.S. 294,

301, 94 L. Ed. 2d 326, 334-35 (1987)).

      In Grice, police officers who approached the door of the defendant’s home for a

“knock and talk” noticed some plants growing in containers in an unfenced area about

fifteen yards from the residence. 367 N.C. at 754-55, 767 S.E.2d at 314-15. The

officers recognized the plants as marijuana, seized them, and later arrested the

defendant. Id. at 755, 767 S.E.2d at 315. The defendant argued that evidence of the


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plants should have been suppressed because the officers’ warrantless search and

seizure of the plants violated the Fourth Amendment, as the plants were within the

curtilage of his home and thus were protected. Id. at 757-59, 767 S.E.2d at 316-17.

Our Supreme Court rejected this argument, concluding “that the unfenced portion of

the property fifteen yards from the home and bordering a wood line is closer in kind

to an open field than it is to the paradigmatic curtilage which protects ‘the privacies

of life’ inside the home.” Id. at 760, 767 S.E.2d at 318 (quoting Oliver, 466 U.S. at

180, 80 L. Ed. 2d at 225).

      Sergeant McDonald’s testimony characterizing the boat as within the

“curtilage” of the house does not make it so. His testimony in this regard is more of

a legal conclusion than a factual description of the premises, and we note that on

appeal, the State makes no argument in support of his conclusion. The facts in

evidence cannot support his conclusion that the boat was actually within the

curtilage. The evidence showed that the boat was out in the open, in an unfenced

area of the yard about seventy feet from the home. There was no evidence that this

area of the yard was in any way “intimately linked to the home,” either “physically

[or] psychologically[.]” See id. at 759, 767 S.E.2d at 317 (quoting California v. Ciraolo,

476 U.S. 207, 212-13, 90 L. Ed. 2d 210, 216 (1986)). In fact, the boat was farther from

defendant’s home than the marijuana plants were from the home of the defendant in

Grice and was also located in an open, unfenced area. See id. at 754-55, 767 S.E.2d



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at 314-15. In addition, all four Dunn factors militate against a conclusion that the

boat was within the house’s curtilage. See Dunn, 480 U.S. at 301, 94 L. Ed. 2d at 334-

35. Thus, the boat was not in an area “intimately” associated with the home and

could not be connected to defendant simply based upon its location in the yard. See

Grice, 367 N.C. at 759, 767 S.E.2d at 317 (citation omitted).

       Nor was there any evidence to show that defendant had any ownership interest

in or possession of the boat, even assuming that it was in his yard.                      Sergeant

McDonald testified that the boat was located in a part of the yard which defendant

had driven through when driving the truck behind the house, as observed by Officers

Shuskey and Honaker. But Officers Shuskey and Honaker did not testify that they

observed defendant near the boat, nor did they testify that they heard defendant

leave the truck when he was out of their view or do anything that would indicate that

he may have hidden the marijuana in the boat.                   As best we can tell from the

testimony, Officers Shuskey and Honaker observed defendant driving through the

right side of the yard, disappearing behind the house, and then driving back to the

front, but there is no evidence that defendant stopped at the boat or hid anything in

the boat, and the officers testified that he was aware of their presence at that point.3

In addition, the police did not check to whom the boat was registered, and Sergeant


       3  Using a map, Officer Shuskey clarified the two locations from which he and Officer Honaker
observed defendant, but we do not have this map in the record on appeal. Nevertheless, we have
carefully reviewed their testimony and have given the State the benefit of every reasonable inference
based upon their descriptions. See Robledo, 193 N.C. App. at 524-25, 668 S.E.2d at 94.

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McDonald testified that the boat was uncovered. The house had multiple bedrooms,

and Officer Honaker testified that at 12:01 p.m., he had observed another man

working on a white truck in the carport of the house, so the boat may have belonged

to someone else residing in the home. But there was no evidence regarding the

ownership or use of the boat or of any items found within the boat which could have

connected it to defendant or anyone else. And even if the boat had been within the

curtilage, it still does not automatically follow that defendant had actual or

constructive possession of every item within the curtilage, just as the fact that if an

item is found in a house where a defendant and other people live does not mean that

the defendant automatically had actual or constructive possession of that item.

      The “other incriminating circumstances” as noted above are not particularly

strong, even for the drug paraphernalia, and are simply too weak to connect

defendant to the marijuana found in the boat so far from the house.               Those

circumstances were, as noted above, that (1) defendant spent hours at the house on

the day of the search, either inside it or in the front yard washing the black truck; (2)

the defendant admitted to the police that he had a “blunt” in the black truck, which

was parked in front of the house, and the police found marijuana in the black truck’s

console; (3) the police found marijuana in the house behind a photograph of

defendant; and (4) several people visited the house while defendant was there,




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including a man who shook hands with defendant “as if they were passing an item

back and forth.” See Rich, 87 N.C. App. at 382-83, 361 S.E.2d at 323.

      These circumstances generally tend to show that defendant did reside in the

house, but most significant is the fact that the police found marijuana in a picture

frame behind a photograph of defendant. As noted above, defendant argues that it is

unlikely that a person would display a photograph of himself and that he would hide

his own marijuana behind it, but a jury could certainly infer that defendant himself

did this. See Robledo, 193 N.C. App. at 524, 668 S.E.2d at 94. That fact thus provides

some evidence of other incriminating circumstances linking defendant to the drug

paraphernalia found in the house, but it cannot connect defendant to something found

in an open boat in the yard so far from the house. We therefore hold that the State

failed to present sufficient evidence of defendant’s constructive possession of the

marijuana found in the boat. See McLaurin, 320 N.C. at 147, 357 S.E.2d at 638

(“[B]ecause [the] defendant’s control over the premises in which the paraphernalia

were found was nonexclusive, and because there was no evidence of other

incriminating circumstances linking her to those items, her control was insufficiently

substantial to support a conclusion of her possession of the seized paraphernalia.”

(emphasis added)). In other words, the State’s evidence was insufficient to convince

any rational juror beyond a reasonable doubt that defendant constructively possessed

the marijuana found in the boat. See Penland, 343 N.C. at 648, 472 S.E.2d at 741 (In



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reviewing a motion to dismiss, we “must determine whether ‘any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’ ”

(emphasis added and emphasis omitted) (quoting Jackson, 443 U.S. at 319, 61 L. Ed.

2d at 573)); State v. Marshall, 94 N.C. App. 20, 29, 33-34, 380 S.E.2d 360, 365-66, 368

(noting that the trial court excluded evidence that the police had found marijuana in

a car parked within the curtilage of the defendant’s house, which was registered to a

woman living at the house with the defendant, “because the State failed to link its

possession or control to the defendant”), appeal dismissed and disc. review denied,

325 N.C. 275, 384 S.E.2d 526 (1989).

      Officer Honaker opined that the marijuana found in the boat was packaged for

sale and Ms. Battin testified that the total amount of marijuana recovered was more

than one half of an ounce. But excluding the marijuana found in the boat, the State

did not proffer sufficient evidence to convince any rational juror beyond a reasonable

doubt that defendant had actual or constructive possession of the marijuana or

committed all the elements of the offense of possession of marijuana with intent to

sell or deliver. See id.; State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901

(2001) (“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.”);

N.C. Gen. Stat. § 90-95(a)(1). On appeal, the State directs us to no other evidence to



                                          - 19 -
                                     STATE V. DULIN

                                    Opinion of the Court



support defendant’s conviction for possession of marijuana with intent to sell or

deliver. Accordingly, we hold that the trial court erred in denying defendant’s motion

to dismiss with respect to the charge of possession of marijuana with intent to sell or

deliver and thus vacate that conviction. See Robledo, 193 N.C. App. at 525, 668

S.E.2d at 94.

      Although the trial court did not consolidate defendant’s convictions in

sentencing, we remand the case for resentencing out of an abundance of caution. We

note that in sentencing defendant for the possession of drug paraphernalia conviction,

the trial court found that a longer period of probation was necessary than that which

is specified in N.C. Gen. Stat. § 15A-1343.2(d) (2013), although we cannot discern if

the other conviction influenced the trial court’s determination. It is also possible that

the conviction of possession of marijuana with intent to sell or deliver had no effect

upon the sentencing for the conviction of possession of drug paraphernalia, and if so,

the trial court need not revise the sentence on remand. Accordingly, we remand the

case to the trial court for resentencing in light of this opinion.

                                   III.    Conclusion

      For the foregoing reasons, we hold that the trial court did not err in denying

defendant’s motion to dismiss with respect to the charge of possession of drug

paraphernalia but that it did err in denying defendant’s motion to dismiss with

respect to the charge of possession of marijuana with intent to sell or deliver.



                                           - 20 -
                                   STATE V. DULIN

                                 Opinion of the Court



Accordingly, we hold that that the trial court committed no error in convicting

defendant of possession of drug paraphernalia, vacate defendant’s conviction for

possession of marijuana with intent to sell or deliver, and remand for resentencing.

      NO ERROR IN PART, VACATED IN PART and REMANDED.

      Judges STEPHENS and DAVIS concur.




                                        - 21 -
