{ "id": 11078955, "name": "STATE OF NORTH CAROLINA v. GERALD ANDRAIN WHEELER", "name_abbreviation": "State v. Wheeler", "decision_date": "2000-05-16", "docket_number": "No. COA99-457", "first_page": "163", "last_page": "166", "citations": [ { "type": "official", "cite": "138 N.C. App. 163" } ], "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": "57 F.3d 516", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7412081 ], "year": 1995, "pin_cites": [ { "page": "524-25", "parenthetical": "when defendant inspected cocaine provided by an undercover police officer but did not agree to purchase the cocaine, defendant did not have the ability to control the cocaine and, therefore, did not possess the cocaine" } ], "opinion_index": 0, "case_paths": [ "/f3d/57/0516-01" ] }, { "cite": "403 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542019, 2537764, 2544871, 2542283, 2540473 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0575-04", "/nc/328/0575-05", "/nc/328/0575-01", "/nc/328/0575-03", "/nc/328/0575-02" ] }, { "cite": "398 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "901", "parenthetical": "party who placed his finger in cocaine and touched this substance to his lip did not have the power and intent to control the substance" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527259 ], "year": 1990, "pin_cites": [ { "page": "65", "parenthetical": "party who placed his finger in cocaine and touched this substance to his lip did not have the power and intent to control the substance" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0059-01" ] }, { "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": "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" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(h)(3)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(h)(3)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 431, "char_count": 7789, "ocr_confidence": 0.78, "pagerank": { "raw": 7.644984601418473e-08, "percentile": 0.4516035490872248 }, "sha256": "91b73eef2fb3aa73032d69fa82f888ff6e429ded7bf06d0a66d0285880cbaa77", "simhash": "1:260bb8679e394b4a", "word_count": 1279 }, "last_updated": "2023-07-14T15:09:36.911228+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge WALKER concurs with a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. GERALD ANDRAIN WHEELER" ], "opinions": [ { "text": "GREENE, Judge.\nGerald Andrain Wheeler (Defendant) appeals a jury verdict finding him guilty of trafficking in cocaine by possession of 400 grams or more of cocaine pursuant to N.C. Gen. Stat. \u00a7 90-95(h)(3).\nThe State\u2019s evidence at trial tended to show that on 9 October 1997, Sidney J. Lackey (Officer Lackey), an officer with the Vice and Narcotics Unit of the Charlotte-Mecklenburg Police Department, made arrangements with an informant to sell a kilo of cocaine for $20,000.00. Officer Lackey was scheduled to meet the informant at Wayne\u2019s Supermarket on North Graham Street. At approximately 5:00 p.m., Officer Lackey drove into the supermarket parking lot and saw the informant\u2019s vehicle parked in the lot. The informant and a man named Ronald Higgs (Higgs) were sitting in the front seat of the vehicle and Defendant was sitting in the back seat. After approaching the vehicle, Officer Lackey opened its door, sat down in the back seat, and asked the occupants if \u201cthey were ready to deal.\u201d Officer Lackey testified that he heard Defendant answer \u201c \u2018yes,\u2019 \u201d and then Officer Lackey exited informant\u2019s vehicle and returned to his vehicle to get a kilo of cocaine which had been prepared by the Charlotte-Mecklenburg Police Department Crime Laboratory.\nOfficer Lackey put the package, which was wrapped in duct tape, under his shirt and went back to the informant\u2019s vehicle. After sitting down on the back seat next to Defendant, Officer Lackey handed the package to Defendant and asked him if he had a knife to use in opening the package. Defendant stated he did not have a knife and handed the package to Higgs, who was in the front seat. The informant started driving the vehicle around the block while Higgs opened the package with a can opener. Higgs tested the cocaine contained inside the package by tasting it. During this time, Officer Lackey asked Defendant where the money was located. Defendant pulled the money, which was packaged in two large sandwich bags, out of a bag sitting between his legs. After Higgs tested the cocaine, he told Officer Lackey they did not want the cocaine because the quality was not good and gave the package back to Officer Lackey. Officer Lackey stated he had more cocaine in his vehicle and that he would get the other package.\nAfter leaving the informant\u2019s vehicle with the cocaine, Officer Lackey radioed the \u201ctake down\u201d team to stop the informant\u2019s vehicle and detain the occupants. Police officers searched the vehicle and found the can opener which was used to open the package of cocaine and $20,000.00 in cash. Tony A. Aldridge, a chemist with the Charlotte-Mecklenburg Police Department Crime Laboratory, testified the package used in the \u201csting operation\u201d contained 1,303.36 grams of cocaine.\nAt the close of the State\u2019s evidence, Defendant made a motion to dismiss the charges against him on the ground the evidence did not show Defendant possessed the cocaine, and the trial court denied the motion. Defendant did not present any evidence at trial.\nThe dispositive issue is whether the record contains substantial evidence Defendant possessed the cocaine used in the \u201csting operation.\u201d\nDefendant argues the record does not contain substantial evidence Defendant possessed the cocaine, and we agree.\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 amotion 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 the defendant \u201cpossessefd]\u201d cocaine. N.C.G.S. \u00a7 90-95(h)(3) (1999). A defendant possesses cocaine within the meaning of section 90-95 when \u201che has both the power and intent to control its disposition or use.\u201d State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).\nIn this case, the evidence shows Officer Lackey sat down next to Defendant in the back seat of the informant\u2019s vehicle and handed Defendant a package containing cocaine. Defendant then gave the package to Higgs, who was sitting in the front seat, and Higgs opened the package. After Higgs tested the cocaine by tasting it, he handed the package to Officer Lackey and stated they did not want to purchase the cocaine because the quality was not good. This evidence, viewed in the light most favorable to the State, shows Defendant and Higgs handled the cocaine for the sole purpose of inspecting it and after inspection they made a determination not to purchase the cocaine. Defendant\u2019s handling of the cocaine for inspection purposes does not constitute possession within the meaning of section 90-95(h)(3), as he did not have the power and intent to control its disposition or use. See State v. Moose, 101 N.C. App. 59, 65, 398 S.E.2d 898, 901 (1990) (party who placed his finger in cocaine and touched this substance to his lip did not have the power and intent to control the substance), disc. review denied, 328 N.C. 575, 403 S.E.2d 519 (1991); United States v. Kitchen, 57 F.3d 516, 524-25 (7th Cir. 1995) (when defendant inspected cocaine provided by an undercover police officer but did not agree to purchase the cocaine, defendant did not have the ability to control the cocaine and, therefore, did not possess the cocaine). Accordingly, the trial court\u2019s denial of Defendant\u2019s motion to dismiss the charge of trafficking in cocaine is reversed.\nReversed.\nJudge TIMMONS-GOODSON concurs.\nJudge WALKER concurs with a separate opinion.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Walker\nconcurring.\nI concur in the majority opinion but write separately regarding the differentiation of inspection and possession. The evidence here indicates that after Officer Lackey sat down next to defendant in the back seat of the informant\u2019s vehicle, Officer Lackey handed the package of cocaine to defendant and asked if he had a knife to open the package. This comment by Officer Lackey indicates that he anticipated defendant\u2019s inspection of the cocaine and did not intend to relinquish control over the cocaine. Therefore, Officer Lackey, not defendant, had the power and intent to control the cocaine\u2019s disposition. Thus, the trial court erred in denying defendant\u2019s motion to dismiss since there was insufficient evidence that he possessed the cocaine under N.C. Gen. Stat. \u00a7 90-95(h)(3).", "type": "concurrence", "author": "Judge Walker" } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Gayl M. Manthei, for the State.", "Public Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GERALD ANDRAIN WHEELER\nNo. COA99-457\n(Filed 16 May 2000)\nDrugs\u2014 trafficking in cocaine \u2014 possession\u2014sufficiency of evidence\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of trafficking in cocaine, based on the State\u2019s failure to prove defendant possessed the cocaine during a sting operation, because defendant\u2019s handling of the cocaine for the sole purpose of inspection before he decided not to buy it did not constitute possession within the meaning of N.C.G.S. \u00a7 90-95(h)(3), as defendant did not have the power and intent to control its disposition or use.\nJudge Walker concurring.\nAppeal by defendant from judgment dated 4 November 1998 by Judge W. Erwin Spainhour in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 February 2000.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Gayl M. Manthei, for the State.\nPublic Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant." }, "file_name": "0163-01", "first_page_order": 193, "last_page_order": 196 }