dissenting.
In my opinion, the trial court erred in finding that the evidence in this case was sufficient to the extent that reasonable minds might infer guilt.
“Mere proximity to persons or locations with drugs about them is usually insufficient, in the absence of other incriminating circumstances, to convict for possession.” State v. Balsom, 17 N.C. App. 655, 659, 195 S.E.2d 125 (1973). In State v. Weems, 31 N.C. App. 569, 230 S.E.2d 193 (1976), this court found that mere presence for a brief period was not enough.
*245Moreover, while one may be convicted of constructive or actual possession of a controlled substance, State v. DiNunno, 67 N.C. App. 316, 313 S.E.2d 3, rev. denied, 311 N.C. 307, 317 S.E.2d 683 (1984), the power and the intent to control the contraband are two essential elements in proving constructive possession. State v. Davis, 20 N.C. App. 191, 201 S.E.2d 61 (1973), cert. denied, 284 N.C. 618, 202 S.E.2d 274 (1974). Hence, the defendant’s awareness of the contraband must be established. State v. Weems, 31 N.C. App. at 571, 230 S.E.2d at 194 (1976).
It is clear that no evidence was produced to directly link Jackson to the contraband. The contraband was concealed in the pocket of Allison and there was no evidence to show that Jackson was aware that Allison had cocaine on his person. At best, the evidence in this case established only that the defendant was present at the scene of a crime and in close proximity to the contraband. It was error to deny the defendant’s motion to dismiss the trafficking in cocaine by possession charge.
Nor do I believe that the “incriminating circumstances surrounding Allison’s mode of transportation during the negotiations and the actual drug transaction” presented sufficient evidence to permit the inference that the defendant was present merely to ensure the safety of the cocaine. Even viewing the evidence in a light most favorable to the state, the evidence merely establishes that Allison met with the undercover agent on two occasions without the defendant and on his third visit with the agent, the defendant gave Allison a ride in his car. And while the majority makes much of the presence of firearms, these firearms (one of which was unloaded) were locked in the trunk of defendant’s car at the time of the transaction. This evidence was not sufficient to withstand defendant’s motion to dismiss the charge of trafficking in cocaine by transportation.
Finally, regarding the conspiracy charge, in State v. Lipford, 81 N.C. App. 464, 344 S.E.2d 307 (1986), this court defined criminal conspiracy as that which exists when two or more persons agree to commit an unlawful act, or a lawful act in an unlawful manner.
In the case at hand, the state presented no evidence that there was such an agreement between Allison and Jackson to traf-fick in cocaine. In his conversations with the undercover agent, Allison made no mention of Jackson’s name. Allison conducted the entire drug transaction without any evidence of assistance or agree-*246meat on the part of the defendant. The trial court erred in denying defendant’s motion to dismiss the conspiracy to traffick in cocaine charge.
In sum, the evidence showed only that Jackson was in bad company; it was not, in my opinion, sufficient to convict him of trafficking in cocaine by possession, trafficking in cocaine by transporting, or conspiracy to traffick in cocaine.
For the aforementioned reasons, I respectfully dissent.