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 -