dissenting.
In State v. Miller, 363 N.C. 96, 678 S.E.2d 592 (2009), I joined the dissent because I agreed that the State had failed to present sufficient evidence of the defendant’s constructive possession of cocaine. Here I see even less. Accordingly, I respectfully dissent.
*98“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.” Miller, id. at 99, 678 S.E.2d at 594 (citation omitted). As in Miller, defendant here did not have exclusive control over the place in which the contraband was found, and the case turns on whether the State presented sufficient evidence of “other incriminating circumstances.”
In Miller the majority concluded that the defendant constructively possessed cocaine that was located near him in a bedroom. As noted by Justice Timmons-Goodson in her dissenting opinion, there were only two “other incriminating circumstances” that led the majority to find constructive possession: “(1) defendant’s proximity to the cocaine; and (2) the presence of defendant’s birth certificate and identification card on top of a television stand.” Id. at 111, 678 S.E.2d at 601 (Timmons-Goodson, J., dissenting). Here, by contrast, defendant was not present when the contraband was found by the police.
The majority cites to State v. Baxter, 285 N.C. 735, 208 S.E.2d 696 (1974), and State v. Allen, 279 N.C. 406, 183 S.E.2d 680 (1971), for the proposition that a defendant need not be present to establish constructive possession, even when a defendant is not in exclusive control of the location of the contraband. These cases also support the proposition that we require more when the defendant is not present. “A person is in constructive possession of a thing when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing.” State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986) (citation omitted). In my view, the State has failed to make that showing here.
In Baxter this Court found constructive possession of contraband by a defendant husband who lived in a house with his wife and no one else. 285 N.C. at 737, 208 S.E.2d at 697. There, even though defendant was not present at the time of the search, the contraband was found under male clothing and in a man’s jacket. Id. In addition, evidence showed that the defendant was living at the house. Id. In Allen we found sufficient evidence of other incriminating circumstances when a defendant was not present because the defendant’s government I.D. card was found where the contraband was found, the utilities for the house were in the defendant’s name, and a third party identified and connected defendant to the drugs. 279 N.C. at 412, 183 S.E.2d at 684.
*99Here we have no similar indicia of control or dominion over the premises or the contraband. First, the State was not able to establish that defendant was even living at the house at the time of the search. Evidence showed that the house belonged to defendant’s mother. While the officer testified that he recalled seeing defendant at the house before and after the search, he could not state with specificity when that occurred. Other evidence showed that other men had lived at the house at other times. The police did find some papers with defendant’s name (or alias) on them, which is consistent with defendant having been in the house at some point, but not much more. They found a cable bill with his name on it, along with a partial paystub, some photos of defendant, and cards apparently addressed to defendant. The majority finds constructive possession based on these personal papers. However, ho government-issued I.D. was found. Defendant was not known to reside at the house. The utilities were not listed in defendant’s name. And no third party tied defendant to the drugs or firearm. Even if the papers found here can give rise to an inference that defendant had been present in the house, I see nothing to suggest that he exercised control or dominion over the premises or contraband at the time of the search.
As in Miller, I conclude the evidence here points only to a mere suspicion of defendant’s guilt.
If the evidence “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, the motion for nonsuit should be allowed. . . . This is true even though the suspicion so aroused by the evidence is strong.”
State v. LeDuc, 306 N.C. 62, 75, 291 S.E.2d 607, 615 (1982) (alteration in the original) (citation omitted), overruled in part on other grounds by State v. Childress, 321 N.C. 226, 231-32, 362 S.E.2d 263, 267 (1987). When a defendant is not present at the seizure of the contraband, I would require, as we have stated in the past, other incriminating circumstances to establish that the defendant had “the intent and capability to maintain control and dominion over” the contraband. See Beaver, 317 N.C. at 648, 346 S.E.2d at 480. Therefore, I respectfully dissent.
Justice TIMMONS-GOODSON joins in this dissenting opinion.