STATE of North Carolina
v.
Karlos Sebastian NEAL, Garnett Taylor.
No. 9226SC26.
Court of Appeals of North Carolina.
April 20, 1993.*289 Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen., Raleigh, Robert G. Webb, for State.
Keith M. Stroud, Charlotte, for defendant-appellant Karlos Sebastian Neal.
James H. Carson, Jr., Charlotte, for defendant-appellant Garnett Taylor.
McCRODDEN, Judge.
Defendants have each filed a brief in which the sole assignment of error is that the trial court erred in its denial of their motions to dismiss the charges of possession of cocaine with intent to sell and deliver cocaine. The question presented on appeal to this Court is whether there was sufficient evidence of constructive possession of cocaine for the court to send the case to the jury. We conclude that there was.
A trial court properly denies a motion to dismiss if there is substantial evidence that the offense was committed and that the defendant committed it. State v. Riddle, 300 N.C. 744, 746, 268 S.E.2d 80, 81 (1980). In determining whether there is evidence sufficient for a case to go to the jury, the court must consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from the evidence. State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971).
Since the defendants did not have actual possession of the cocaine, the State relied upon the doctrine of constructive possession. Under that doctrine, the State is not required to prove actual physical possession of the controlled substance; proof of constructive possession is sufficient and such possession need not be exclusive. State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). Constructive possession exists when a person, while not having actual possession of the controlled substance, has the intent and capability to maintain control and dominion over a controlled substance. State v. Williams, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983). Where a controlled substance is found on premises under the defendant's control, this fact alone may be sufficient to overcome a motion to dismiss and to take the case to the jury. State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). If a defendant does not maintain control of the premises, however, other incriminating circumstances must be established for constructive possession to be inferred. State v. Alston, 91 N.C.App. 707, 710, 373 S.E.2d 306, 309 (1988).
The defendants contend that the evidence does not show that the searched premises were under the control of the defendants, and therefore this Court should find no connection between the defendants and the cocaine. We agree that the State's evidence (men's clothing that might fit defendant Taylor, an envelope found in a dresser drawer and addressed to defendant Neal, and defendant Taylor's tennis shoes retrieved from the bedroom), when viewed in the light most favorable to the State, is insufficient to establish control of the premises by the defendants. We disagree, however, with the defendants' argument that the evidence in this case causes us to be bound by the ruling in State v. James, 81 N.C.App. 91, 344 S.E.2d 77 (1986).
In James, the only evidence linking defendant Roddey, a casual visitor to the searched premises, to the cocaine located in the refrigerator was that he was "sneaking around" in the kitchen with a gun in his hand. Id. at 96, 344 S.E.2d at 81. The Court stated that "[t]he fact that a person is present in a room where drugs are located, nothing else appearing, does not mean that person has constructive possession of the drugs. If possession of the premises is non-exclusive, there must be evidence of other incriminating circumstances to support constructive possession." Id. at 93, 344 S.E.2d at 79 (citation omitted). In the instant case, we find the evidence insufficient to show exclusive possession of the premises by either defendant. As we have *290 noted and as James holds, however, there is an additional inquiry into whether there were incriminating circumstances from which a jury might infer possession.
North Carolina Courts interpreting incriminating circumstances have found many examples of circumstances sufficient to allow a case to go to the jury. Alston, 91 N.C.App. 707, 373 S.E.2d 306 (1988). Three factual situations which have been held sufficient to allow an inference of constructive possession are similar to the evidence in the case at hand. First, the Alston case established that evidence of a defendant's presence in a closed room which contained the controlled substance is sufficient to support an inference of constructive possession. Second, Alston also held a large amount of cash found on the defendant's person at the time of the arrest to be another incriminating circumstance. Third, the case of State v. Harrison, 93 N.C.App. 496, 378 S.E.2d 190 (1989), held that evidence from which a jury might infer that defendant was fleeing from the area where illegal drugs were found is another circumstance supporting an inference of constructive possession. We find the evidence against defendants Neal and Taylor reveals incriminating circumstances that would allow a jury to infer their possession of cocaine. Before the officers entered the apartment they observed a shorter man, later identified as defendant Neal, standing in the bathroom where the cocaine was later discovered. Evidence that defendant Neal ran from the bathroom as the officers entered the apartment supported an inference that defendant Neal was fleeing from the bathroom so that he would not be caught actually possessing the cocaine. This evidence is sufficient to support the trial court's denial of defendant Neal's motion to dismiss and to submit his case to the jury.
Likewise, there was sufficient evidence from which a jury could infer defendant Taylor's constructive possession of cocaine. From outside the apartment the officers observed a taller man, later identified as defendant Taylor, standing in the bathroom from which the officers were to retrieve the cocaine. Moments later, the officers found defendant Taylor in the bathroom, crouched over the toilet, in the process of flushing the toilet. A search of defendant Taylor revealed a large amount of cash, approximately $860.00, in his pockets. The trial court properly allowed the jury to review this evidence and to determine defendant Taylor's guilt.
The trial court correctly denied defendants' motions to dismiss, and we consequently overrule their assignments of error.
No error.
ARNOLD, C.J., and GREENE, J., concur.