              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-845

                                 Filed: 5 April 2016

Madison County, Nos. 12 CRS 50694; 12 CRS 50697–98

STATE OF NORTH CAROLINA

             v.

SCOTTY J. GARRETT, Defendant.


      Appeal by defendant from judgment entered 6 February 2015 by Judge Gary

M. Gavenus in Madison County Superior Court. Heard in the Court of Appeals 16

December 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Ronald D.
      Williams, II, for the State.

      James N. Freeman, Jr. for defendant.


      ELMORE, Judge.


      Scotty J. Garrett (defendant) was found guilty of conspiracy to sell

methamphetamine, possession with intent to sell or deliver methamphetamine, and

possession of drug paraphernalia. On appeal, defendant argues that the trial court

erred in denying his motion to dismiss the charges against him. Because the State

failed to present substantial evidence of constructive possession, we reverse

defendant’s conviction for possession with intent to sell or deliver methamphetamine.
                                 STATE V. GARRETT

                                 Opinion of the Court



We leave defendant’s two remaining convictions undisturbed and remand for

resentencing in 12 CRS 050697.

                                  I. Background

      The State’s evidence at trial tended to show the following: On 23 August 2012,

Captain Coy Phillips of the Madison County Sheriff’s Department arranged for a

controlled drug buy in the town of Marshall. After receiving complaints of drug

activity in the area, Captain Phillips contacted two paid confidential informants to

purchase one gram of methamphetamine from Brian Fisher, an alleged dealer known

by the informants. The sheriff’s department provided the informants with an

undercover vehicle equipped with audio and video surveillance. After meeting with

Captain Phillips and Agent Mark Davis to obtain the “buy money,” the informants

arranged to meet Fisher at his residence.

      Meanwhile, Fisher was making plans to purchase methamphetamine for

himself. Before the informants arrived, Fisher called defendant and asked if he had

any methamphetamine for sale. According to Fisher, defendant said that he had “half

a gram.” At some point thereafter, Fisher called one of the informants for a ride to

defendant’s residence. The informants asked Fisher for a gram in exchange, to which

Fisher responded, “Well, I ain’t got nothing. You’ll have to get it from [defendant]

when we get there.” The informants then picked up Fisher in the undercover vehicle

and proceeded toward defendant’s residence.



                                        -2-
                                  STATE V. GARRETT

                                  Opinion of the Court



      Defendant met Fisher and the informants at the bottom of his driveway, where

Fisher asked defendant for the methamphetamine.           Defendant began fumbling

around in his pockets but said he “didn’t have any,” he was “going to have to go get

some.” At that point, Matthew Adams, a friend of defendant and Fisher, arrived in a

white Ford Explorer and pulled up behind the undercover vehicle in the driveway.

Defendant and Fisher decided to ride with Adams in search of methamphetamine

and rendezvous with the informants later in the night.

      Defendant eventually led Fisher and Adams to a trailer park in Buncombe

County. Fisher testified that when they arrived, he and Adams gave money to

defendant to buy the methamphetamine. Fisher stayed in the car while defendant

went inside the trailer, followed by Adams. Fisher noticed other people going in and

out of the trailer and estimated that there were “probably six or seven people there.”

About ten minutes later, Adams returned to the car with the methamphetamine and

handed it to Fisher, who placed it in his sock. According to the testimony of Chief

Deputy Michael Garrison, however, defendant told him during interrogation that he

never bought methamphetamine that night. Rather, Fisher arranged the deal, Fisher

“was actually the one that did the transaction, he’s actually the one that gave her the

money and she gave him the drugs.”




                                         -3-
                                   STATE V. GARRETT

                                   Opinion of the Court



      On the way back from Buncombe County, Fisher spoke with the informants on

the phone and arranged to sell them some of the methamphetamine at Redmon

Bridge. Fisher testified that

             on the way there [Adams]—me and [Adams] were up front,
             I was driving, I had secured the methamphetamines,
             because well one it was mine, it was my money, and two, I
             wanted to be able to get rid of it because I was in control of
             the vehicle. I had put it in my sock, got it out of my sock.
             Fumbling around trying to drive up Bear Creek wasn’t
             easy. [Adams] held a cigarette cellophane, I dropped a
             little bit in there and I secured it and put it back in my boot,
             in my sock.

When they arrived at the bridge, the informants approached the driver’s side window

and handed Fisher the “buy money” in exchange for the methamphetamine in the

cellophane wrapper. Fisher testified that he then gave some of the “buy money” to

Adams and defendant because “[defendant] was upset about—the best I recall he was

upset because [one of the informants] owed him some money anyway on a prior deal,

and [Adams] was owed because for the use [sic] of the vehicle and all that.”

      Thereafter, the informants called Captain Phillips to confirm their purchase of

the methamphetamine. Captain Phillips simultaneously radioed the patrolman to

intercept the white Explorer. Officers found methamphetamine in Fisher’s sock and

a glass pipe in the rear floorboard where defendant had been sitting.

      On 6 May 2013, defendant was indicted on charges of felonious selling of

methamphetamine, felony conspiracy to sell methamphetamine, possession of drug



                                          -4-
                                    STATE V. GARRETT

                                    Opinion of the Court



paraphernalia, and possession with intent to sell or deliver methamphetamine. A

jury trial was held on 2 February 2015, before the Honorable Gary M. Gavenus in

Madison County Superior Court. At the close of the evidence, defendant moved to

dismiss all charges against him. The trial court denied defendant’s motion, and the

jury   found   defendant   guilty    on   all   charges    except    felonious   selling   of

methamphetamine.

       The trial court sentenced defendant to fourteen to twenty-six months

imprisonment for conspiracy to sell methamphetamine.                Defendant’s two other

convictions, possession with intent to sell or deliver methamphetamine and

possession of drug paraphernalia, were consolidated for judgment, and the trial court

sentenced defendant to eight to nineteen months imprisonment, set to begin at the

expiration of the sentence for conspiracy to sell methamphetamine. Defendant timely

appeals, arguing that the trial court erred in denying his motion to dismiss.

                                     II. Discussion

       “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,



                                           -5-
                                   STATE V. GARRETT

                                   Opinion of the Court



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).

A. Possession with Intent to Sell or Deliver Methamphetamine

      First, defendant argues that the trial court erred in denying his motion to

dismiss the charge of possession with intent to sell or deliver methamphetamine

because the State failed to present substantial evidence of constructive possession.

      To sustain a conviction under N.C. Gen. Stat. § 90-95(a)(1), the State must

prove that the defendant (1) possessed a controlled substance (2) with the intent to

manufacture, sell, or distribute it. N.C. Gen. Stat. § 90-95(a)(1) (2015); State v. Diaz,

155 N.C. App. 307, 319, 575 S.E.2d 523, 531 (2002) (citing State v. Carr, 122 N.C.

App. 369, 372, 470 S.E.2d 70, 72–73 (1996)). “Possession” may be either actual or

constructive. State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998),

superseded in part on other grounds by statute as stated in State v. Gaither, 161 N.C.



                                          -6-
                                  STATE V. GARRETT

                                  Opinion of the Court



App. 96, 103, 587 S.E.2d 505, 510 (2003), disc. review denied, 358 N.C. 157, 593 S.E.2d

83 (2004). A defendant has constructive possession of contraband where, “while not

having actual possession, he has the intent and capability to maintain control and

dominion over” it. State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986)

(citing State v. Williams, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983)). “The

defendant may have the power to control either alone or jointly with others.” State

v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (citing State v. Fuqua, 234 N.C.

168, 170–71, 66 S.E.2d 667, 668 (1951)). To establish constructive possession, it is

not necessary to show that the defendant has exclusive control of the premises where

the contraband is found. State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638

(1987). But unless the defendant has such exclusive control, “the State must show

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 (citing State v.

Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001)).

      Whether sufficient incriminating circumstances exist to support a finding of

constructive possession is a fact-specific inquiry dependent upon the totality of the

circumstances in each case. Id.; State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77,

79 (1986). Although no single factor controls, our courts have considered, inter alia,

the defendant’s (1) proximity to the contraband, Miller, 363 N.C. at 100, 678 S.E.2d

at 595, though mere presence is not enough, State v. Minor, 290 N.C. 68, 75, 224



                                         -7-
                                    STATE V. GARRETT

                                    Opinion of the Court



S.E.2d 180, 185 (1976), (2) ownership or control of the place where the contraband

was found, State v. Wiggins, 185 N.C. App. 376, 385–88, 648 S.E.2d 865, 872–73

(2007), (3) opportunity to dispose of the contraband in the place it was found, State v.

Butler, 356 N.C. 141, 148, 567 S.E.2d 137, 141 (2002), and (4) suspicious or unusual

behavior, id. at 147–48, 567 S.E.2d at 141; State v. Barron, 202 N.C. App. 686, 692,

690 S.E.2d 22, 27 (2010).

        This case does not fit neatly into a typical constructive possession fact pattern,

where the contraband is not found on the defendant’s person but the defendant’s

exclusive control of the area or other “incriminating circumstances” establishes a link

between the defendant and the contraband. The State’s evidence here shows that at

nearly all relevant times, Fisher and Adams were in actual possession of the

methamphetamine. Adams emerged from the trailer with the methamphetamine

and gave it to Fisher in the vehicle. Fisher secured the methamphetamine in his sock

and, with Adams’ help, transferred some of the methamphetamine to the cellophane

wrapper. At the bridge, Fisher handed the methamphetamine to the informants.

And after the traffic stop, police found the remaining methamphetamine in Fisher’s

sock.

        As to defendant, the State’s constructive possession theory relies on

circumstantial evidence surrounding the transaction inside the trailer in Buncombe

County. Fisher testified that defendant led Fisher and Adams to the trailer to



                                           -8-
                                  STATE V. GARRETT

                                  Opinion of the Court



purchase methamphetamine. Although defendant told Chief Deputy Garrison that

Fisher actually arranged the deal and purchased the drugs, Fisher testified that he

stayed in the vehicle while defendant and Adams went inside the trailer. Resolving

this contradiction in favor of the State, the evidence shows that Fisher and Adams

provided the money to purchase the drugs, that defendant entered the trailer with

their money, followed by Adams, that other people were going in and out of the trailer,

and that ten minutes later, Adams returned from the trailer with the

methamphetamine and handed it to Fisher. Even in the light most favorable to the

State, we conclude that no reasonable mind would accept these facts as adequate to

support the conclusion that defendant had both the intent and capability to maintain

control and dominion over the drugs inside the trailer.       Because the possession

element of N.C. Gen. Stat. § 90-95(a)(1) is not supported by substantial evidence, the

trial court erred in denying defendant’s motion to dismiss the charge of possession

with intent to sell or deliver.

B. Conspiracy to Sell Methamphetamine

       Second, defendant argues that the trial court erred in denying his motion to

dismiss the charge of conspiracy to sell methamphetamine based on insufficient

evidence.

       “A criminal conspiracy is an agreement between two or more persons to do an

unlawful act or to do a lawful act in an unlawful way or by unlawful means.” State



                                         -9-
                                  STATE V. GARRETT

                                  Opinion of the Court



v. Bindyke, 288 N.C. 608, 615, 220 S.E.2d 521, 526 (1975) (citing State v. Littlejohn,

264 N.C. 571, 142 S.E.2d 132 (1965)). A conspiracy does not require proof of an

express agreement; rather, “proof of circumstances which point to a mutual implied

understanding to commit the unlawful act is sufficient to prove conspiracy.” State v.

Howell, 169 N.C. App. 741, 748, 611 S.E.2d 200, 205 (2005) (citing State v. Smith, 237

N.C. 1, 16–17, 74 S.E.2d 291, 301–02 (1953)). “The crime is complete when the

agreement is made; no overt act in furtherance of the agreement is required.” Id.

(citing State v. Gallimore, 272 N.C. 528, 532, 158 S.E.2d 505, 508 (1968)).

      Here, there is substantial evidence of an implied understanding among

defendant, Fisher, and Adams to sell methamphetamine to the informants. Captain

Phillips instructed the informants to buy a gram of methamphetamine from Fisher.

Fisher testified that the informants picked him up and drove to defendant’s house,

where Fisher asked defendant for methamphetamine. Defendant said he “didn’t have

any,” but he “could get some.” One of the informants also asked defendant, “How

much can you get me? Can you get me a gram?” Defendant responded, “Yes.”

Eventually, defendant led Fisher and Adams to the trailer park in Buncombe County,

where Fisher and Adams supplied the money to purchase methamphetamine. We

conclude, therefore, that the trial court did not err in denying defendant’s motion to

dismiss the conspiracy charge.

C. Possession of Drug Paraphernalia



                                         - 10 -
                                  STATE V. GARRETT

                                   Opinion of the Court



      Third, defendant argues that the trial court erred in denying his motion to

dismiss the charge of possession of drug paraphernalia based on insufficient evidence.

      Pursuant to N.C. Gen. Stat. § 90-113.22(a) (2015), “[i]t is unlawful for any

person to knowingly use, or to possess with intent to use, drug paraphernalia . . . to

inject, inhale, or otherwise introduce into the body a controlled substance . . . .” The

offense requires proof that the defendant possessed drug paraphernalia and had “the

intent to use the [drug paraphernalia] in connection with the controlled substance.”

State v. Hedgecoe, 106 N.C. App. 157, 164, 415 S.E.2d 777, 781 (1992).

      Although defendant did not have exclusive control over the interior of the car

where the glass pipe was found, the State presented sufficient evidence of other

incriminating circumstances to support a finding of constructive possession. The

arresting officer testified that, when he approached the vehicle, defendant was sitting

in the back seat and did not immediately show his hands at the officer’s request.

Police subsequently searched the vehicle and found a glass pipe on the rear floorboard

of the seat where defendant was sitting.           Defendant admitted that he smoked

methamphetamine out of the pipe with Adams and Fisher while they were in the car.

Furthermore, Fisher testified that the pipe they used belonged to defendant and that

defendant had been carrying it in his pocket. Based on this evidence, we conclude

that the trial court did not err in denying defendant’s motion to dismiss the charge of

possession of drug paraphernalia.



                                          - 11 -
                                 STATE V. GARRETT

                                  Opinion of the Court



                                  III. Conclusion

      The trial court erred in denying defendant’s motion to dismiss the charge of

possession with intent to sell or deliver because there was insufficient evidence that

defendant had constructive possession of the methamphetamine.            We reverse

defendant’s conviction for possession with intent to sell or deliver methamphetamine

in 12 CRS 050698.       We leave defendant’s convictions for conspiracy to sell

methamphetamine in 12 CRS 050694 and possession of drug paraphernalia in 12

CRS 050697 undisturbed. However, because defendant’s convictions for possession

with intent to sell or deliver methamphetamine and possession of drug paraphernalia

were consolidated for judgment and commitment, we must also remand 12 CRS

050697 for new sentencing.

      REVERSED IN PART; NO ERROR IN PART; REMANDED FOR NEW

SENTENCING.

      Judges CALABRIA and ZACHARY concur.




                                         - 12 -
