{ "id": 11094843, "name": "STATE OF NORTH CAROLINA v. MICHAEL TARVIS JACKSON", "name_abbreviation": "State v. Jackson", "decision_date": "2000-04-18", "docket_number": "No. COA99-608", "first_page": "570", "last_page": "575", "citations": [ { "type": "official", "cite": "137 N.C. App. 570" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "187 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "97", "parenthetical": "\"accused's flight from a crime shortly after its commission is admissible as evidence of guilt\"" } ], "opinion_index": 0 }, { "cite": "280 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573255 ], "year": 1972, "pin_cites": [ { "page": "672", "parenthetical": "\"accused's flight from a crime shortly after its commission is admissible as evidence of guilt\"" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0665-01" ] }, { "cite": "231 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "842", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "291 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558733 ], "year": 1977, "pin_cites": [ { "page": "494", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0480-01" ] }, { "cite": "133 L. Ed. 2d 872", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "516 U.S. 1129", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 328608, 328291, 324260, 327492, 326437, 325380, 325616, 325522, 328084, 324441, 327099, 322908, 325693, 324766, 327647 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/516/1129-06", "/us/516/1129-07", "/us/516/1129-05", "/us/516/1129-14", "/us/516/1129-09", "/us/516/1129-03", "/us/516/1129-15", "/us/516/1129-12", "/us/516/1129-01", "/us/516/1129-10", "/us/516/1129-13", "/us/516/1129-04", "/us/516/1129-08", "/us/516/1129-11", "/us/516/1129-02" ] }, { "cite": "459 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "729" } ], "opinion_index": 0 }, { "cite": "340 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790147 ], "year": 1995, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0573-01" ] }, { "cite": "381 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519499 ], "year": 1989, "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0072-01" ] }, { "cite": "366 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566467, 2568453, 2572653, 2570776, 2570206 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0746-01", "/nc/321/0746-04", "/nc/321/0746-05", "/nc/321/0746-02", "/nc/321/0746-03" ] }, { "cite": "187 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "361 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "401", "parenthetical": "quoting State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358541 ], "year": 1987, "pin_cites": [ { "page": "455", "parenthetical": "quoting State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0448-01" ] }, { "cite": "446 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551528 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0431-01" ] }, { "cite": "398 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "675" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527334 ], "year": 1990, "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0119-01" ] }, { "cite": "505 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 675", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11469961 ], "year": 1998, "pin_cites": [ { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0675-01" ] }, { "cite": "393 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "327 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496850 ], "year": 1990, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0162-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "year": 1990, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] } ], "analysis": { "cardinality": 554, "char_count": 11382, "ocr_confidence": 0.771, "pagerank": { "raw": 8.890499086797522e-08, "percentile": 0.49968588902287353 }, "sha256": "8b2dc57e61d4a00f286e9644faf99c737cd0fb51172306b4787712835ee04af2", "simhash": "1:77497475746f17cb", "word_count": 1850 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and TIMMONS-GOODSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL TARVIS JACKSON" ], "opinions": [ { "text": "GREENE, Judge.\nMichael Tarvis Jackson (Defendant) appeals jury verdicts finding him guilty of trafficking in cocaine and possession of drug paraphernalia.\nThe State presented evidence at trial that on 12 December 1997 at 4:30 p.m., David W. Powell (Powell), an officer with the Charlotte Police Department, went to a motel room in Charlotte, North Carolina to execute a search warrant for drugs and weapons. Powell was accompanied by several other officers, and when the officers arrived at the motel they saw a man later identified as Antonio Gaskins (Gaskins) standing in front of the motel room. After Gaskins looked in the direction of the officers, he ran into the motel room. The officers then executed the warrant by announcing themselves and breaking in the door of the motel room. The officers discovered Defendant, Gaskins, and Jemina Bryant (Bryant) in the room. After securing these three occupants, the officers searched the room. They found a clear plastic baggy and digital scales on a night stand beside the bed. They also found two bags in the tank of the toilet in the bathroom, and the Charlotte-Mecklenburg Crime Lab later determined one of these bags contained 28.96 grams of cocaine and the other contained 178.56 grams of cocaine. Finally, the officers found $800.00 cash and a small bag in Defendant\u2019s front pants\u2019 pocket, and the Charlotte-Mecklenburg Crime Lab later determined the bag contained 2.22 grams of cocaine.\nAt the close of the State\u2019s evidence, Defendant made a motion to dismiss the charges of trafficking in cocaine and possession of drug paraphernalia for insufficiency of evidence and the trial court denied the motion.\nBryant then testified on behalf of Defendant that Defendant was her boyfriend and she was staying with him in a motel room on 12 December 1997. She testified Gaskins allowed her and Defendant to stay in the room, and Gaskins would occasionally \u201ccheckup on the room.\u201d Gaskins came to the room at 4:30 p.m. on 12 December 1997 and he brought digital scales with him, which he placed on a dresser. Bryant stated the parties then ate pizza in the motel room and, after a few minutes, Gaskins began to walk out the door of the motel room. Gaskins was halfway out the door when he said \u201c \u2018Oh, there go the police,\u2019 \u201d and \u201cran back into the bathroom.\u201d Approximately thirty seconds later the police entered the motel room. Bryant then heard the lid being lifted off of the toilet tank in the bathroom.\nDefendant testified that on 12 December 1997 Gaskins entered the motel room where Defendant and Bryant had been staying for approximately one and one-half days, and Gaskins had a set of scales in his possession. Gaskins later began to leave the room; however, after he had walked approximately two feet outside of the room he said \u201c \u2018Police\u2019 \u201d and \u201cmarched back into the door.\u201d Gaskins then \u201cran to the bathroom, and [Defendant] watched him, and he unzipped his top jacket pocket.\u201d Defendant observed Gaskins \u201clift the back lid of the toilet up and sit it right there on the round part that you have a seat on, and... drop [a bag containing a white substance] down in the water.\u201d Gaskins then placed the lid back onto the toilet.\nFollowing Defendant\u2019s testimony, the State called Gaskins as a rebuttal witness. Gaskins testified he went to a motel room on 12 December 1997 because Defendant had invited him there to watch a basketball game on television, and he had not been to the motel room prior to that day. Gaskins stated he did not bring scales with him to the motel room, and he did not enter the bathroom while in the motel room.\nAt the close of evidence, Defendant renewed his motion to dismiss the charges of trafficking in cocaine and possession of drug paraphernalia for insufficiency of evidence, and the trial court denied the motion.\nDuring the charge conference, Defendant requested a jury instruction stating:\n\u201cDefendant contends . . . Gaskins fled. Evidence of flight may be considered by you together with all other facts and circumstances in this case in determining whether the combined circumstances amount to an admission or show a consciousness of guilt.\u201d\nThe trial court denied Defendant\u2019s request for this instruction.\nThe issues are whether: (I) the record contains substantial evidence Defendant constructively possessed the cocaine found in the bathroom; (II) Defendant was entitled to a jury instruction stating Gaskins\u2019 alleged flight may be considered by the jury as evidence of consciousness of guilt; and (III) this Court has authority to \u201cpreserve]] for a hearing in Superior Court\u201d Defendant\u2019s claim of ineffective assistance of counsel.\nI\nDefendant argues the record does not contain substantial evidence Defendant constructively possessed the cocaine found in the bathroom, and his motion to dismiss for insufficiency of evidence, therefore, should have been granted. We disagree.\nA motion to dismiss is properly denied if \u201cthere is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.\u201d State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). \u201cWhen ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence.\u201d State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).\nTo obtain a conviction for trafficking in cocaine, the State must prove: \u201c1) possession of cocaine and 2) that the amount possessed was 28 grams or more.\u201d State v. Mebane, 101 N.C. App. 119, 123, 398 S.E.2d 672, 675 (1990), overruled on other grounds, State v. Pipkins, 337 N.C. 431, 446 S.E.2d 360 (1994); N.C.G.S. \u00a7 90-95(h)(3) (1999). Possession may be actual or constructive, and a defendant constructively possesses a substance when \u201c \u2018he has both the power and intent to control its disposition or use.\u2019 \u201d State v. Leonard, 87 N.C. App. 448, 455, 361 S.E.2d 397, 401 (1987) (quoting State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)), appeal dismissed and disc. review denied, 321 N.C. 746, 366 S.E.2d 867 (1988). Constructive possession may be inferred when a defendant has exclusive control over the premises where a substance is found. State v. Givens, 95 N.C. App. 72, 76, 381 S.E.2d 869, 871 (1989). When a defendant has nonexclusive control over a premises, however, constructive possession may only be inferred when other incriminating circumstances exist to show Defendant had the power and intent to control the substance. Id.\nIn this case, the evidence shows Defendant, Gaskins, and Bryant were in the motel room when law enforcement officers entered the room and found cocaine. Defendant, therefore, had nonexclusive possession of the motel room. Law enforcement officers, however, found $800.00 cash and 2.22 grams of cocaine in the pocket of Defendant\u2019s pants. Based on these other incriminating circumstances, a reasonable person could infer Defendant had the power and intent to control the cocaine found in the bathroom, and, therefore, constructively possessed the cocaine. Accordingly, the trial court properly denied Defendant\u2019s motion to dismiss for insufficiency of evidence.\nII\nDefendant argues he was entitled to a jury instruction stating Gaskins\u2019 alleged flight may be considered to show consciousness of guilt. We disagree.\n\u201c[W]hen a defendant requests an instruction which is supported by the evidence and is a correct statement of the law, the trial court must give the instruction, at least in substance.\u201d State v. Garner, 340 N.C. 573, 594, 459 S.E.2d 718, 729 (1995), cert. denied, 516 U.S. 1129, 133 L. Ed. 2d 872 (1996). An instruction on flight is properly given to show consciousness of guilt when the record contains evidence \u201creasonably supporting the theory that defendant fled after commission of the crime charged.\u201d State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977) (emphasis added); N.C.P.I., Crim. 104.35. The sole rationale for instructing a jury on flight is that a defendant\u2019s flight from the scene of a crime for which he has been charged may be some evidence the defendant committed the crime. See State v. Self, 280 N.C. 665, 672, 187 S.E.2d 93, 97 (1972) (\u201caccused\u2019s flight from a crime shortly after its commission is admissible as evidence of guilt\u201d). An instruction on flight is therefore sui generis to the flight of a defendant, and does not apply to any alleged flight of a witness. Accordingly, Defendant was not entitled to a jury instruction regarding Gaskins\u2019 alleged flight.\nIll\nDefendant does not argue in his brief to this Court that he received ineffective assistance of counsel; rather, he argues his claim of ineffective assistance of counsel \u201cshould be preserved for a hearing in Superior Court.\u201d The issue of whether Defendant received ineffective assistance of counsel, therefore, is not properly before this Court. N.C.R. App. P. 28(a). Additionally, this Court has no authority to \u201cpreserve [] for a hearing in Superior Court\u201d Defendant\u2019s ineffective assistance of counsel claim.\nDefendant did not argue in his brief to this Court his additional assignments of error, and, therefore, they are deemed abandoned. N.C.R. App. P. 28(b)(5).\nNo error.\nJudges WALKER and TIMMONS-GOODSON concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Clinton G. Hicks, for the State.", "Haakon Thorsenfor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL TARVIS JACKSON\nNo. COA99-608\n(Filed 18 April 2000)\n1. Drugs\u2014 trafficking in cocaine \u2014 constructive possession\u2014 sufficiency of evidence\nThe trial court did not err in a trafficking in cocaine and possession of drug paraphernalia case by denying defendant\u2019s motion to dismiss based on insufficient evidence to show defendant constructively possessed the cocaine found in the bathroom because even though defendant had nonexclusive possession of the motel room, other incriminating circumstances exist to show defendant had the power and intent to control the substance, including evidence that police officers found $800 cash and 2.22 grams of cocaine in defendant\u2019s pants pocket.\n2. Criminal Law\u2014 requested instruction \u2014 flight\u2014applies only to defendant\nThe trial court did not err in a trafficking in cocaine and possession of drug paraphernalia case by denying defendant\u2019s request for a jury instruction that another person\u2019s flight may be considered to show consciousness of guilt because an instruction on flight applies to the flight of defendant and does not apply to any alleged flight of a witness.\n3. Appeal and Error\u2014 preservation of issues \u2014 constitutional issue \u2014 no authority to preserve claim\nAlthough defendant contends his claim of ineffective assistance of counsel should be preserved for a hearing in superior court, the issue of whether defendant received ineffective assistance of counsel is not properly before the Court under N.C. R. App. R 28(a), and the Court of Appeals has no authority to preserve this claim for a hearing in superior court.\nAppeal by defendant from judgment dated 2 December 1998 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 March 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General Clinton G. Hicks, for the State.\nHaakon Thorsenfor defendant-appellant." }, "file_name": "0570-01", "first_page_order": 602, "last_page_order": 607 }