{ "id": 4158331, "name": "STATE OF NORTH CAROLINA v. JESSE LEE HENSLEY", "name_abbreviation": "State v. Hensley", "decision_date": "2008-05-20", "docket_number": "No. COA07-770", "first_page": "600", "last_page": "606", "citations": [ { "type": "official", "cite": "190 N.C. App. 600" } ], "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": "2006 N.C. Sess. Laws 1324", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "196 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "774" } ], "opinion_index": 0 }, { "cite": "283 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559260 ], "year": 1973, "pin_cites": [ { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0494-01" ] }, { "cite": "313 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "589", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "year": 1984, "pin_cites": [ { "page": "569", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] }, { "cite": "340 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "456", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "316 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4701428 ], "year": 1986, "pin_cites": [ { "page": "96", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0087-01" ] }, { "cite": "508 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "318", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11202004 ], "year": 1998, "pin_cites": [ { "page": "519", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0514-01" ] }, { "cite": "333 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "702" } ], "opinion_index": 0 }, { "cite": "314 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4693853 ], "year": 1985, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0401-01" ] }, { "cite": "305 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "720" } ], "opinion_index": 0 }, { "cite": "309 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760004 ], "year": 1983, "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0176-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "573 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "868", "parenthetical": "quotation omitted" }, { "page": "868" } ], "opinion_index": 0 }, { "cite": "356 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511364 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "595", "parenthetical": "quotation omitted" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0591-01" ] } ], "analysis": { "cardinality": 708, "char_count": 15745, "ocr_confidence": 0.745, "pagerank": { "raw": 4.6922169990516086e-08, "percentile": 0.2945380213286566 }, "sha256": "5db867d1340a20c317972f0ad2730e7186735e5c97faa952c95f469fa4e416a4", "simhash": "1:634d74375b866e7b", "word_count": 2578 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JESSE LEE HENSLEY" ], "opinions": [ { "text": "CALABRIA, Judge.\nJesse Lee Hensley (\u201cdefendant\u201d) appeals from a judgment entered upon a jury verdict finding him guilty of possession of a malt beverage by a person less than twenty-one years of age. We reverse.\nThe State presented the following pertinent evidence: On 7 January 2006, Yancey County Deputy Sheriff Nathan Ball (\u201cDeputy Ball\u201d) was on routine patrol at approximately 1:30 a.m on Westside Road. A 1999 Oldsmobile (\u201cthe Oldsmobile\u201d or \u201cthe vehicle\u201d) pulled out in front of his vehicle and after traveling approximately two hundred yards, the Oldsmobile turned right onto Abby Road, a private road. Since Deputy Ball knew approximately four of the residents on Abby Road and was concerned that defendant did not reside on the private road, Deputy Ball checked defendant\u2019s license plate and discovered the vehicle was registered to defendant.\nAfter waiting approximately five minutes, Deputy Ball drove onto Abby Road. When he was nearly at the end of the private road, he observed the Oldsmobile, traveling between five and ten miles per hour, pass in front of him and turn. It appeared that defendant was trying to evade him, so Deputy Ball decided to follow defendant. The lights from Deputy Ball\u2019s patrol car illuminated the Oldsmobile. With the aid of the lights, Deputy Ball could see the driver of the Oldsmobile and identified the driver as the defendant. After the Oldsmobile passed Deputy Ball\u2019s patrol car, Deputy Ball turned his patrol car around and continued following the defendant. When Deputy Ball turned on Westside Road, he observed defendant traveling at a high rate of speed inside Wheeler\u2019s Trailer Park (\u201cWheeler\u2019s\u201d).\nDeputy Ball turned into Wheeler\u2019s and discovered the Oldsmobile parked beside a vacant manufactured home. When Deputy Ball looked inside the vehicle, defendant was not in the Oldsmobile, but he discovered open beer bottles and \u201csome type of wine.\u201d Another vehicle was located near the Oldsmobile that was occupied by several individuals. One of the occupants was David Stansberry (\u201cMr. Stansberry\u201d). After speaking with the occupants, Deputy Ball walked to Mr. Stansberry\u2019s home.\nDeputy Ball knocked on the Stansberrys\u2019 door and Heather Stansberry (\u201cHeather\u201d), defendant\u2019s cousin, answered. At that time, Heather lived with her parents. Deputy Ball asked Heather if he could enter the residence and Heather refused because she did not have her parents\u2019 consent. Deputy Ball then called for additional officers to assist him at the Stansberry residence. After the additional officers arrived, Heather and her parents allowed the officers to enter their residence.\nUpon entering the residence, Deputy Ball discovered defendant lying on the couch in the living room. Defendant appeared to be asleep. Defendant stood up when Deputy Ball spoke to him and Deputy Ball noticed defendant\u2019s red glassy eyes and detected an odor of alcohol on him. Defendant told Deputy Ball that he was twenty years old. Based on his observations of defendant, Deputy Ball formed an opinion that defendant was appreciably impaired from alcohol, and placed defendant under arrest for driving while impaired. Deputy Ball also issued defendant a citation for possession or consumption of a malt beverage by a person less than twenty-one years of age pursuant to N.C. Gen. Stat. \u00a7 18B-302 (2005). After defendant was arrested, a chemical analysis of a sample of his breath using an Intoxilyzer 5000 showed that he had an alcohol concentration of .11.\nOn 18 May 2006, defendant pled not guilty to both offenses in Yancey County District Court and was found guilty as charged. Defendant appealed to Superior Court. At trial, defendant presented the following evidence: Defendant testified, inter alia, there were five sets of Oldsmobile keys and that the vehicle was a \u201ccommunity car\u201d for his family. On the day he was arrested, he admitted that he drank a little bit of wine earlier in the day, then fell asleep on the Stansberrys\u2019 couch at approximately 10:45 p.m. He awoke around 1:00 a.m. when Deputy Ball appeared in the living room of the Stansberrys\u2019 residence. He claimed he did not operate the Oldsmobile on Westside Road or Abby Road that evening.\nOn 30 January 2007, in Yancey County Superior Court, the jury found defendant not guilty of driving while impaired, but returned a verdict finding defendant guilty of possession of a malt beverage while being less than twenty-one years of age. Judge J. Marlene Hyatt (\u201cJudge Hyatt\u201d) sentenced defendant to a term of forty-five days in the North Carolina Department of Correction, suspended defendant\u2019s sentence and placed defendant on supervised probation for a period of twelve months. Defendant appeals.\nOn appeal, defendant argues the trial court erred in (I) denying defendant\u2019s motion to dismiss; (II) instructing the jury regarding the charge of possession of a malt beverage by a person less than twenty-one years of age; (III) failing to grant defendant\u2019s motion to suppress; and (IV) admitting a portion of Deputy Ball\u2019s testimony in violation of the hearsay rule under the North Carolina Rules of Evidence.\nI. Motion to Dismiss\nWe first address defendant\u2019s contention that the trial court erred in denying his motion to dismiss the charge for possession of a malt beverage by a person less than twenty-one years of age. Our standard of review on a motion to dismiss for insufficiency of the evidence is \u201cwhether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u201d State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quotation omitted). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). All evidence must \u201cbe considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal[.]\u201d State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). If the evidence \u201cis sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed.\u201d State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).\nPursuant to N.C. Gen. Stat. \u00a7 18B-302(b)(l), it is unlawful for \u201c[a] person less than 21 years old to purchase, to attempt to purchase, or to possess malt beverages or unfortified wine[.]\u201d Therefore, for the State to survive a motion to dismiss regarding the charge for possession of a malt beverage by a person less than twenty-one years of age, the State must prove the following elements: (1) that defendant either purchased or possessed a malt beverage and (2) that defendant was under the age of twenty-one at the time of possession. Although the citation issued to defendant apparently included a charge of consumption of a malt beverage by a person less than twenty-one years of age pursuant to N.C. Gen. Stat. \u00a7 18B-302(b)(3), the State did not pursue this issue at trial. Only the charge of possession was submitted to the jury. In addition, the citation stated that defendant was charged only with possession of a malt beverage. Neither wine nor unfortified wine were included in the citation.\nIn the instant case, Deputy Ball testified regarding defendant\u2019s age as follows:\nQ: [W]ere you able to determine [defendant\u2019s] date of birth?\nA: Yes, sir.\nQ: What was his date of birth?\nA: His date of birth is 2-26 of 1985.\nQ: So on January 7th of 2006 he would have been twenty years old?\nA: Yes, sir, twenty years of age.\nTherefore, there is no dispute the evidence revealed that on the date of the incident, defendant was under the age of twenty-one. There also is no dispute that there is no evidence regarding defendant\u2019s purchase of a malt beverage. As such, the State must prove defendant possessed a malt beverage.\nThe State must present evidence that defendant had either actual or constructive possession of a malt beverage. See State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985). \u201cActual possession requires that a party have physical or personal custody of the item.\u201d State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (citation omitted). However, \u201cin a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials. Proof of constructive possession is sufficient and that possession need not always be exclusive.\u201d State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986) (citations omitted). Under a theory of constructive possession, an accused \u201chas possession of the contraband material within the meaning of the law when he has both the power and intent to control its disposition or use.\u201d State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984) (citation and quotation omitted).\nIn the case sub judice, Deputy Ball discovered open beer bottles and \u201csome type of wine\u201d in the Oldsmobile he witnessed defendant driving. In addition, Deputy Ball testified that, when he observed defendant driving the vehicle, defendant was the only person inside the vehicle. Defendant testified that the vehicle he drove on the night of the incident was his vehicle. Thus, we conclude the State presented substantial evidence to prove defendant possessed both the beer bottles and the wine found in his vehicle. However, while the State presented substantial evidence that defendant possessed the beer bottles and wine discovered in his vehicle, we now determine whether the State presented substantial evidence to prove whether the bottles or the wine defendant possessed contained a malt beverage or could be considered a malt beverage.\nOn the date of the incident, under N.C. Gen. Stat. \u00a7 18B-101 (9), a \u201cmalt beverage\u201d was defined as \u201cbeer, lager, malt liquor, ale, porter, and any other brewed or fermented beverage containing at least one-half of one percent (0.5%), and not more than fifteen percent (15%), alcohol by volume.\u201d N.C. Gen. Stat. \u00a7 18B-101(9) (2006).\nAt trial, Deputy Ball testified for the State as to the type of open container he found in defendant\u2019s vehicle:\nQ: What type of open containers do you recall seeing inside the vehicle?\nA: There were beer bottles and some type of wine.\nThe State presented no evidence that th\u00e9re was even any liquid remaining in the beer bottles, nor any residue of a liquid, and not even the type of beer indicated by the label, which could give rise to an inference that the type of beverage in the bottle fits the legal definition of a \u201cmalt beverage.\u201d Furthermore, Deputy Ball testified that he threw away the beer bottles rather than preserve the bottles as evidence. In addition, the State presented no evidence that the wine discovered in defendant\u2019s vehicle came under the purview of the definition of \u201cmalt beverage\u201d as defined in N.C. Gen. Stat. \u00a7 18B-101(9), and defendant was not charged with possession of unfortified wine.\nAlthough the State presented substantial evidence that defendant possessed the beer bottles and wine discovered in his vehicle, the State must also present substantial evidence from which the jury could find that the beverages defendant possessed, or constructively possessed, were in fact \u201cmalt beverages.\u201d The evidence which supports the State\u2019s case, aside from the mere existence of \u201cbeer bottles,\u201d was Deputy Ball\u2019s observations, defendant\u2019s admission, and his blood alcohol concentration. Deputy Ball noticed defendant had \u201cred, glassy eyes,\u201d and he detected an odor of alcohol. In addition, defendant admitted to Deputy Ball that he drank a half bottle of red wine earlier in the evening, and defendant\u2019s blood alcohol concentration level was .11. However, none of these facts demonstrate one of the three necessary' elements of the charge against defendant, that defendant \u201chad in his possession a malt beverage,\u201d since wine does not meet the definition of a \u201cmalt beverage.\u201d These facts admittedly demonstrate that defendant had consumed some type of alcoholic beverage, but consumption and possession are two different matters.\nAlthough N.C. Gen. Stat. Ghapter 18B, Article 1 does not define the word \u201cconsume\u201d or \u201cconsumption\u201d in relation to alcoholic beverages, \u201cit is presumed that the Legislature intended the words of the statute to be given the meaning which they had in ordinary speech at the time the statute was enacted.\u201d Transportation Service v. County of Robeson, 283 N.C. 494, 500, 196 S.E.2d 770, 774 (1973). \u201cConsume\u201d is defined as \u201cto eat or drink . . . .\u201d Merriam-Webster\u2019s Collegiate Dictionary 268 (11th ed. 2003). Certainly, the common meaning of \u201cconsumption\u201d as it relates to a beverage in the context of N.C. Gen. Stat. \u00a7 18B-302 is to drink the beverage. However, defendant was not tried for consumption of a malt beverage; he was tried only for possession of a malt beverage.\nWe conclude the State did not meet its burden of proving substantial evidence existed for all three elements of the offense charged. Scott, 356 N.C. at 595, 573 S.E.2d at 868. Accordingly, the trial court erred by not granting defendant\u2019s motion to dismiss. We therefore reverse the judgment. In light of our holding, we need not address defendant\u2019s remaining assignments of error.\nReversed.\nJudges HUNTER and STROUD concur.\n. N.C. Gen. Stat. \u00a7 18B-101(9) subsequently was amended in 2006. See Act of 27 August 2006, ch. 264, sec. 95, 2006 N.C. Sess. Laws 1324. The North Carolina General Assembly inserted \u201cexcept unfortified or fortified wine as defined by this Chapter,\u201d in the definition of a \u201cmalt beverage.\u201d However, since the date of the incident occurred on 7 January 2006, this addition to the definition of \u201cmalt beverage\u201d is not applicable to this case.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Robert D. Croom, for the State.", "Kathleen A. Widelski, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JESSE LEE HENSLEY\nNo. COA07-770\n(Filed 20 May 2008)\nAlcoholic Beverages\u2014 possession of malt beverage by person less than twenty-one years of age \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of possession of a malt beverage by a person less than twenty-one years of age under N.C.G.S. \u00a7 18B-302(b)(l), and the judgment is reversed, because: (1) while the State presented substantial evidence that defendant possessed the beer bottles and wine discovered in his vehicle, the State presented no evidence that there was even any liquid remaining in the beer bottles, nor any residue of a liquid, and not even the type of beer indicated by the label, which could give rise to an inference that the type of beverage in the bottle fits the legal definition of a \u201cmalt beverage;\u201d (2) the deputy testified that he threw away the beer bottles rather than preserve the bottles as evidence; (3) the State presented no evidence that the wine discovered in defendant\u2019s vehicle came under the purview of the definition of \u201cmalt beverage\u201d as defined in N.C.G.S. \u00a7 18B-101(9), and defendant was not charged with possession of unfortified wine; (4) although the facts admittedly demonstrated that defendant had consumed some type of alcoholic beverage, consumption and possession are two different matters; and (5) defendant was not tried for consumption of a malt beverage.\nAppeal by defendant from judgment entered 30 January 2007 by Judge J. Marlene Hyatt in Yancey County Superior Court. Heard in the Court of Appeals 12 December 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Robert D. Croom, for the State.\nKathleen A. Widelski, for defendant-appellant." }, "file_name": "0600-01", "first_page_order": 632, "last_page_order": 638 }