State v. Matias

HUNTER, Judge,

dissenting.

In its opinion, I believe the majority has lost sight of the fact that the defendant in this case was convicted of possession of cocaine. The majority agrees that State v. Weems, 31 N.C. App. 569, 230 S.E.2d 193 (1976) controls, requiring “additional incriminating circumstances” to be shown aside from “the mere presence of the defendant in an automobile containing drugs . . . .” However, the majority purports to have found the necessary “additional incriminating circumstances” in the fact that both arresting officers “detected an odor of marijuana emanating from the vehicle ....” Thus, the majority opines that:

This evidence is sufficient to give rise to a reasonable inference that someone in the vehicle was, or had quite recently been, smoking marijuana when the vehicle arrived at the apartment complex, that the occupants of the vehicle had been passing marijuana around in the vehicle, and that defendant was, in fact, aware of the presence of marijuana in the vehicle.

(Emphasis added.) I cannot agree, and therefore I respectfully dissent.

Looking to the officers’ testimonies of the arrest: Officer Qualls stated that he “detected a moderate odor of what he believed to be marijuana,” as the vehicle drove past his patrol car. (Emphasis added.) Then Officer Epps stated he smelled a slight odor of mari*451juana as he approached the vehicle to inspect it. It is of specific importance that neither officer testified they detected the smell of marijuana emanating from either the person or clothing of any of the passengers of the vehicle — including defendant. More importantly, as cocaine powder has no smell, neither officer detected the smell of the hidden cocaine. Thus, the majority’s opinion that the State was entitled to the inference that defendant must have “kn[own] of the pres-encé of the cocaine in the car and had the power and intent to control its disposition or use,” is not supported by the evidence.

With this in mind, I can agree that the “evidence is sufficient to give rise to a reasonable inference that someone . . . had quite recently been[] smoking marijuana” in the vehicle. However, I cannot and do not agree that that inference points to the defendant. In fact, I do not believe that inference can be attached to any passenger in the vehicle. Consequently, I do not believe or agree that there can be any inference drawn from the evidence to sustain a finding “that the occupants of the vehicle had been passing marijuana around in the vehicle.”

If the majority is correct that Weems controls, and I believe that it does, then without a showing of some distinction between the present case and Weems, the present defendant’s conviction should be reversed. In comparing the two fact patterns and giving the State the benefit of every reasonable inference, we see that as in Weems, (1) the present defendant neither owned nor controlled the vehicle; (2) drugs were in several areas of the vehicles (here, marijuana seeds found throughout); (3) the drugs seized were concealed from view; (4) the defendant was not found behaving strangely nor did he indicate in any way that he was aware of the drugs’ presence in the vehicle; (5) no drugs or drug paraphernalia were found on defendant’s person; and (6) there was no evidence of any circumstance indicating the defendant knew or could have known of the cocaine’s presence— regardless of whether the smell of marijuana should have alerted him to the presence of marijuana. Consequently, the only thing distinguishing Weems from the case at bar is that in Weems, “the officers had personal knowledge [of] how long Defendant[-Weems] had been in the car because of personal observation.” However, in the present case, defendant’s evidence that he had only been in the car a few minutes before the officers stopped them, went uncontradicted by the State, making the possibility very great that someone other than defendant placed the hidden cocaine between the back seats before defendant ever got into the vehicle. Yet, the majority chooses to rely *452on “Officer Epps[’] testifmony] that in his opinion defendant was the only occupant of the vehicle who could have placed the plastic bag in the location where it was found [between the back seats].” Moreover, although the majority states the marijuana and cocaine were “found in the area of the car occupied solely by defendant^ that defendant was the only occupant who exited the vehicle from the right rear passenger seat,” the majority and the State both acknowledge that defendant was not the only passenger in the back seat of the car. (Emphasis added.) I am unconvinced, agreeing with defendant that this Court has an obligation to “consider Defendant’s evidence which rebuts the inference of guilt when it is not inconsistent with the State’s evidence.”

Our courts have long held that the evidence to convict a defendant must be more than a scintilla, raising mere suspicion:

“It is sometimes difficult to distinguish between evidence sufficient to carry a case to the jury, and a mere scintilla, which only raises a suspicion or possibility of the fact in issue. The general rule is that, if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.”

State v. Brooks, 136 N.C. App. 124, 129, 523 S.E.2d 704, 708 (1999), disc. review denied, 351 N.C. 475, 523 S.E.2d 704 (2000) (emphasis added) (quoting State v. Johnson, 199 N.C. 429, 431, 154 S.E. 730, 731 (1930)). Further, it has long been established law that:

Necessarily, power and intent to control the contraband material can exist only when one is aware of its presence. . . . “However, mere proximity to persons or locations with drugs about them is usually insufficient, in the absence of other incriminating circumstances, to convict for possession.” Annot., 91 A.L.R. 2d 810, 811 (1963)_

Weems, 31 N.C. App. 569, 571, 230 S.E.2d 193, 194 (emphasis added).

Regarding the case at bar, in the record before this Court there is no evidence of any circumstance indicating that defendant knew of the presence of the cocaine hidden in the vehicle, and for which he was charged with possession. The fact that defendant exited the vehicle from the right rear passenger seat — the same side of the car in which the cocaine was found — raises no more of an inference defend*453ant knew of the presence of the cocaine than it raised as to the other occupant of the rear passenger seat who could also have hidden the drugs there without defendant’s knowledge. Most importantly, even if defendant had smelled the marijuana before he got into the vehicle, without smelling the cocaine, he still cannot be held to know cocaine was present in the vehicle. Without awareness of the cocaine’s presence, there can be no intent to control. Id. Thus, taken in the light most favorable to the State, I do not agree that the evidence is sufficient to show that defendant had the “power and intent to control” the cocaine found in the vehicle. Id. at 571, 230 S.E.2d at 194. To hold otherwise places innocent persons, riding in a vehicle where cocaine has been hidden, at risk of being charged and convicted of possession of cocaine when there is no evidence of their having knowledge of the cocaine.

Here, as in Weems, the evidence only raises a mere suspicion or possibility that defendant knew of the presence of the cocaine. Because I cannot distinguish the present case from this Court’s holding in Weems, I am bound by the precedent of that case and vote to reverse the trial court’s judgment.