{ "id": 9249601, "name": "STATE OF NORTH CAROLINA v. IVORY JOE TISDALE", "name_abbreviation": "State v. Tisdale", "decision_date": "2002-10-01", "docket_number": "No. COA01-1339", "first_page": "294", "last_page": "299", "citations": [ { "type": "official", "cite": "153 N.C. App. 294" } ], "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": "216 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "473" } ], "opinion_index": 0 }, { "cite": "26 N.C. App. 464", "category": "reporters:state", "reporter": "N.C. 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IVORY JOE TISDALE" ], "opinions": [ { "text": "THOMAS, Judge.\nDefendant, Ivory Joe Tisdale, was convicted of possession of cocaine and being an habitual felon. He was sentenced to a term of 132 to 168 months imprisonment and now appeals.\nDefendant argues the trial court erred in denying his motion to dismiss the possession of cocaine charge for insufficiency of the evidence. For the reasons discussed herein, we find no error.\nThe State\u2019s evidence tended to show that on or about 11 March 2000, Officer M.P. O\u2019Hal of the Greensboro Police Department stopped his patrol car at a stop light just behind a white Mitsubishi Eclipse operated by defendant. When the light turned green, defendant quickly accelerated through the intersection. O\u2019Hal paced the vehicle and determined it was traveling 60 miles per hour in a 35 mile per hour speed zone. He pulled defendant over for speeding. Defendant was alone and the vehicle he was driving was a rental car registered to Harold Leak.\nDefendant was asked by O\u2019Hal to produce a driver\u2019s license and vehicle registration, to which defendant responded, \u201cNo, I do not have one.\u201d While O\u2019Hal and defendant were discussing the license and registration, O\u2019Hal looked inside the vehicle and noticed in plain view a small baggie containing two \u201coff-white rocklike substance[s].\u201d The baggie was located in the cutout near the handle on the driver\u2019s side door.\nO\u2019Hal then asked defendant to get out of the vehicle and placed him under arrest for not having a driver\u2019s license. O\u2019Hal testified that defendant was \u201csweating profusely,\u201d which the officer attributed to nervousness engendered by the stop. After placing defendant in the patrol car, Officer O\u2019Hal searched defendant\u2019s vehicle. He found another small baggie under the driver\u2019s seat which contained \u201cthe same type of off-white rocklike substance.\u201d Field tests on the substances in the two baggies produced a positive reaction for cocaine. Later analysis by the State Bureau of Investigation confirmed that the baggies contained a total of .39 grams of cocaine.\nO\u2019Hal testified that he observed defendant for the better part of two hours. Based on his observations, O\u2019Hal stated defendant \u201cwas impaired under some substance.\u201d However, on cross examination, O\u2019Hal stated he did not believe defendant was \u201cappreciably impaired [or] unfit to drive.\u201d Accordingly, he did not charge defendant with driving while impaired. O\u2019Hal further testified that he smelled a mild odor of alcohol on defendant.\nDefendant presented the testimony of Harold Leak, who stated that he leased the vehicle in February 2000 to use on the weekends, and for April King, a female friend, to use during the week. Prior to defendant gaining possession of the car, Leak had taken it to the car-wash, where he allowed Jeff Cosby, an admitted homeless crack cocaine addict, to wash it. Leak did not notice any cocaine in the driver\u2019s side door when he left the carwash, but he testified that Cosby told him a couple of days later that Cosby had dropped some \u201cdope\u201d in the car. After getting the car washed, Leak returned it to April King, who subsequently loaned it to defendant.\nCosby testified that he washed the car for Leak in March 2000, and in the course of vacuuming the inside of the car, he dropped some cocaine and \u201cput some on the door handle.\u201d\nIn his assignment of error, defendant argues the trial court erred in denying his motion to dismiss at the close of all the evidence. He contends the State presented insufficient evidence of actual or constructive possession. 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). If substantial evidence exists, whether direct, circumstantial, or both, supporting a finding that the offense charged was committed by the defendant, the case must be left for the jury. State v. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989). If the trial court determines that a reasonable inference of the defendant\u2019s guilt may be drawn from the evidence, it must deny the defendant\u2019s motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant\u2019s innocence. State v. Grigsby, 351 N.C. 454, 456-57, 526 S.E.2d 460, 462 (2000).\n\u201cA defendant has possession of a controlled substance when he has both the power and intent to control its disposition or use.\u201d State v. Hunter, 107 N.C. App. 402, 408, 420 S.E.2d 700, 705 (1992), overruled on other grounds, State v. Pipkins, 337 N.C. 431, 446 S.E.2d 360 (1994). With regard to the possession of controlled substances, the Supreme Court recently set forth the applicable law as follows:\n\u201c[I]n a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials.\u201d State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). Proof of nonexclusive, constructive possession is sufficient. Id. Constructive possession exists when the defendant, \u201cwhile not having actual possession, . . . has the intent and capability to maintain control and dominion over\u201d the narcotics. State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). \u201cWhere such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.\u201d State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). \u201cHowever, unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred.\u201d Davis, 325 N.C. at 697, 386 S.E.2d at 190; see also Brown, 310 N.C. at 569, 313 S.E.2d at 588-89.\nState v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 (2001).\n\u201cAn inference of constructive possession can . . . arise from evidence which tends to show that a defendant was the custodian of the vehicle where the controlled substance was found.\u201d State v. Dow, 70 N.C. App. 82, 85, 318 S.E.2d 883, 886 (1984). In fact, this Court has consistently held that \u201c[t]he driver of a borrowed car, like the owner of the car, has the power to control the contents of the car.\u201d State v. Glaze, 24 N.C. App. 60, 64, 210 S.E.2d 124, 127 (1974); see also Dow, 70 N.C. App. at 85, 883 S.E.2d at 886; State v. Wolfe, 26 N.C. App. 464, 467, 216 S.E.2d 470, 473 (1975). Thus, where contraband material is found in a vehicle under the control of an accused, even though the accused is the borrower of the vehicle, \u201cthis fact is sufficient to give rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury.\u201d Glaze, 24 N.C. App. at 64, 310 S.E.2d at 127 (emphasis added). This inference is rebuttable and if the accused offers' evidence rebutting the inference, the State must show other incriminating circumstances before constructive possession may be inferred. See Matias, 354 N.C. at 552, 556 S.E.2d at 270-71.\nHere, although the evidence shows defendant had control of the vehicle when stopped by O\u2019Hal, defendant\u2019s control was not exclusive. The vehicle was a rental car registered in another person\u2019s name. The car had recently been used by at least two individuals on a regular basis and an admitted crack cocaine addict testified he had recently dropped cocaine in the car while washing it. Therefore, the critical issue is whether the evidence discloses other incriminating circumstances sufficient for the jury to find defendant had constructive possession of the cocaine. When the evidence is examined in the light most favorable to the State, we find such additional incriminating circumstances do exist and conclude the trial court properly denied defendant\u2019s motion to dismiss.\nJust before defendant was pulled over, he had accelerated from 0 to 60 miles per hour in a 35 mile per hour speed zone with a police officer directly behind him. The officer noticed the cocaine in plain view in the car door handle on the driver\u2019s side of the vehicle, well within reach of defendant. While talking with the officer, defendant was \u201csweating profusely\u201d and was nervous. In the officer\u2019s opinion, defendant \u201cwas under the influence of something[,]\u201d although the officer did not consider defendant to be so impaired that he could not drive. A subsequent search of the vehicle uncovered more cocaine located under the driver\u2019s seat. This second baggie of cocaine was also well within defendant\u2019s reach. Although Cosby, an admitted cocaine addict, testified he placed or dropped cocaine in the car while cleaning it, Leak testified he did not notice any cocaine in the vehicle following the cleaning. Taken in the light most favorable to the State, this evidence supports a reasonable inference that defendant was aware of the presence of cocaine in the vehicle and had the power and intent to control its disposition.\nDefendant was free to argue to the jury that Cosby had placed the cocaine in the vehicle and that the cocaine did not belong to defendant. However, that argument does not make the State\u2019s evidence of other incriminating circumstances any less sufficient to survive a motion to dismiss. Accordingly, we hold that the trial court did not commit error.\nNo error.\nJudges MARTIN and TYSON concur.", "type": "majority", "author": "THOMAS, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State.", "Donald E. Gillespie, Jr. for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. IVORY JOE TISDALE\nNo. COA01-1339\n(Filed 1 October 2002)\nDrugs\u2014 constructive possession \u2014 rented car\nThe trial court did not err by denying defendant\u2019s motion to dismiss a cocaine possession charge where defendant was driving a rental car registered in another person\u2019s name; the car had been used by at least two individuals on a regular basis; an admitted cocaine addict testified that he had recently dropped cocaine in the car while washing it; defendant had accelerated from 0 to 60 m.p.h. in a 35 m.p.h. zone with an officer directly behind him; after the stop, the officer noticed cocaine in plain view in the driver\u2019s side door handle, well within defendant\u2019s reach; defendant was sweating profusely and was nervous; the officer thought that defendant was under the influence of something; and more cocaine was found under the driver\u2019s seat, also well within defendant\u2019s reach. The evidence supports a reasonable inference that defendant was aware of the presence of cocaine in the vehicle and had the power and intent to control its disposition. Defendant was free to argue that the cocaine did not belong to him.\nAppeal by defendant from judgment entered 18 January 2001 by Judge James C. Spencer, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 15 August 2002.\nAttorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State.\nDonald E. Gillespie, Jr. for defendant-appellant." }, "file_name": "0294-01", "first_page_order": 324, "last_page_order": 329 }