{ "id": 4174998, "name": "STATE OF NORTH CAROLINA v. McCOY ANTWAN RICHARDSON", "name_abbreviation": "State v. Richardson", "decision_date": "2010-02-16", "docket_number": "No. COA09-621", "first_page": "570", "last_page": "575", "citations": [ { "type": "official", "cite": "202 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": "617 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633691 ], "year": 2005, "pin_cites": [ { "page": "277", "parenthetical": "quotations and citations omitted; alterations in original" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0271-01" ] }, { "cite": "414 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "68", "parenthetical": "holding that a defendant does not have the right to resist a legal investigatory stop and his \"flight from a lawful investigatory stop contributefs] to probable cause that [he] was in violation of... \u00a7 14-223\"" }, { "page": "68" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 550", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524256 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "555", "parenthetical": "holding that a defendant does not have the right to resist a legal investigatory stop and his \"flight from a lawful investigatory stop contributefs] to probable cause that [he] was in violation of... \u00a7 14-223\"" }, { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0550-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-223", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-113.22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "323 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "38, 42" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525840 ], "year": 1984, "pin_cites": [ { "page": "523, 531" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0521-01" ] }, { "cite": "678 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "595", "parenthetical": "citations omitted" }, { "page": "594" } ], "opinion_index": 0 }, { "cite": "363 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150522 ], "year": 2009, "pin_cites": [ { "page": "99", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0096-01" ] }, { "cite": "359 N.C. 800", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3795437 ], "year": 2005, "pin_cites": [ { "page": "809-10", "parenthetical": "quotations and citations omitted; alterations in original" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0800-01" ] }, { "cite": "549 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "901", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437432 ], "year": 2001, "pin_cites": [ { "page": "341", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0335-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "430 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "918", "parenthetical": "quotations and citation omitted" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "334 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529175 ], "year": 1993, "pin_cites": [ { "page": "75", "parenthetical": "quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0067-01" ] } ], "analysis": { "cardinality": 636, "char_count": 14181, "ocr_confidence": 0.751, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1368685973583788 }, "sha256": "92f4420d633bed9ff4244abdd84adf138f373096036e6262981925081d6e4b42", "simhash": "1:034ee98ba2ee0075", "word_count": 2276 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and HUNTER, JR., Robert N., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. McCOY ANTWAN RICHARDSON" ], "opinions": [ { "text": "ELMORE, Judge.\nOn 17 January 2008, a jury found McCoy Antwan Richardson (defendant) guilty of possession with intent to distribute cocaine, resisting a public officer, and possession of drug paraphernalia. He received a sentence of nine to eleven months\u2019 imprisonment for possession with intent to distribute cocaine, sixty days\u2019 imprisonment for resisting a public officer, and 120 days\u2019 imprisonment for possession of drug paraphernalia. For the reasons set forth below, we vacate all three convictions.\nBackground\nOn 28 February 2008, at approximately 5:20 p.m., the Greenville Police Department executed a search warrant for 508-A Contentnea Street. Greenville Police Officer Dennis Grimsley approached the front of the residence and yelled, \u201cpolice, search warrant.\u201d Some other officers went to the back of the residence to prevent people from leaving the house through the back door. Officer Grimsley then pushed the front door open and saw a man and woman in the front room. He also saw several men running out the back door. Officer Grimsley followed them out the back door and noticed four men on the ground, all of whom had been detained by officers. Defendant was one of those men and he had a sum of money in his hands. Officer Grimsley handcuffed defendant and put the cash in defendant\u2019s pocket. Officer Grimsley patted down defendant, but found no weapons or contraband; he did find additional cash in defendant\u2019s pocket. The cash from defendant\u2019s hand and pocket totaled $1,060.00. Officer Grimsley also found a plastic baggy containing a 9.4-gram crack rock on the ground near defendant. The baggy was located about two feet from defendant\u2019s feet. The other men who had been detained were the same distance from defendant.\nOfficer Grimsley continued his search inside the house and found a \u201cset of black digital scales, a small amount of suspected marijuana,\u201d and \u201can open box of sandwich bags which were similar to\u201d the bag containing the crack rock. These items were found in a side room in the house. Officer Grimsley also found a \u201cglassine\u201d pipe in the lower left cabinet of the kitchen.\nBefore executing the search warrant, police had observed defendant \u201cin the area of 508-A Contentnea Street\u201d at least five, but no more than ten times. Officer Grimsley had observed defendant \u201c[g]oing in and out of the house, standing on the front porch, standing in the yard.\u201d However, the officers did not specify a particular time span during which they saw defendant at the house; the officers had patrolled that neighborhood for years.\nThe house was rented by Benny Bullock, Jr., and defendant lived at a different address in the same neighborhood. There was no evidence that defendant lived at the house on Contentnea street.\nArguments\nDefendant first argues that the trial court erred by denying his motion to dismiss the charge of possession with intent to distribute cocaine. We agree. A motion to dismiss should be denied if there is substantial evidence \u201c(1) of each essential element of the offense charged . . ., and (2) of defendant\u2019s being the perpetrator of such offense.\u201d State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (quotations and citation omitted). When reviewing a motion to dismiss based on insufficiency of the evidence, we \u201cview the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.\u201d Id. (citations omitted).\nSection 90-95 of our General Statutes provides, in relevant part, that it is \u201cunlawful for any person ... [t]o manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance[.]\u201d N.C. Gen. Stat. \u00a7 90-95(a)(l) (2009). \u201cThe offense of possession with intent to sell or deliver has the following three elements: (1) possession of a substance; (2) the substance must be a controlled substance; (3) there must be intent to sell or distribute the controlled substance.\u201d State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001) (citations omitted). Here, the second element is not at issue: it is undisputed that the substance in the baggy was crack cocaine, a controlled substance. However, defendant argues that the State presented insufficient evidence of possession.\nIn a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials. Proof of nonexclusive, constructive possession is sufficient. Constructive possession exists when the defendant, while not having actual possession, . . . has the intent and capability to maintain control and dominion over the narcotics.\n* * Hi\nWhere [contraband is] 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. However, 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.\nState v. McNeil, 359 N.C. 800, 809-10, 617 S.E.2d 271, 277 (2005) (quotations and citations omitted; alterations in original). Here, it is undisputed that defendant did not have actual physical possession of the crack, did not reside in any way at 508-A Contentnea Street, and did not have exclusive control of 508-A Contentnea Street when the police executed the search warrant. Therefore, we must determine whether the State showed \u201cother incriminating circumstances.\u201d\nThe State put forth, as \u201cother incriminating circumstances,\u201d defendant\u2019s proximity to the baggy of crack, his previous visits to the house, and defendant\u2019s own home in the same neighborhood. Our Supreme Court recently observed that \u201c[o]ur cases addressing constructive possession have tended to turn on the specific facts presented.\u201d State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 595 (2009) (citations omitted). In Miller, the Court reviewed a number of constructive possession cases and concluded that \u201ctwo factors frequently considered are the defendant\u2019s proximity to the contraband and indicia of the defendant\u2019s control over the place where the contraband is found.\u201d Id. at 100, 678 S.E.2d at 594. The Court found sufficient evidence of both where the defendant was found sitting on the same end of a bed from which cocaine was recovered, a bag containing the defendant\u2019s birth certificate and state-issued identification card were found in that bedroom, and the bedroom was in a home in which two of his children lived with their mother. Id.\nHere, there was no indicia of defendant\u2019s control over the place where the contraband was found. He was not listed as a renter, none of the utilities were in his name, no documents with defendant\u2019s name on them were located there, none of defendant\u2019s family members lived there, and there was no evidence that he slept there or otherwise lived there. The State points to State v. Baize to support its contention that defendant\u2019s residence in the same neighborhood and previous visits to 508-A Contentnea Street, along with his proximity to the drugs after being detained by the police in the backyard, are a sufficient basis for constructive possession. We cannot agree. In Baize, this Court held that the State had presented sufficient evidence of constructive possession when a witness personally observed the defendant produce a plastic bag of cocaine and then hand it to another person, from whom the plastic bag was eventually recovered. State v. Baize, 71 N.C. App. 521, 523, 531, 323 S.E.2d 36, 38, 42 (1984). The scenario in Baize is too dissimilar from the scenario at hand to be instructive. We cannot find any authority that would support a finding of constructive possession given the factual scenario before us. Accordingly, we hold that the trial court erred by denying defendant\u2019s motion to dismiss and we vacate that conviction.\nDefendant next argues that the trial court erred by denying his motion to dismiss the charge of possession of drug paraphernalia because the State presented insufficient evidence of possession. We agree.\nGeneral statute section 90-113.22 provides, in relevant part:\nIt is unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain, or conceal a controlled substance which it would be unlawful to possess, or to inject, ingest, inhale, or otherwise introduce into the body a controlled substance which it would be unlawful to possess.\nN.C. Gen. Stat. \u00a7 90-113.22(a) (2009). The police recovered the following drug paraphernalia from the house: glassine pipe, digital scales, and plastic sandwich bags. Again, the State progressed under a theory of constructive possession and, again, we cannot find that there was sufficient evidence of defendant\u2019s possession of any of the drug paraphernalia. Defendant was first identified in the backyard, although it could be reasonably inferred that he ran out of the house into the backyard through the kitchen. However, the glassine pipe was found in a lower cabinet in the kitchen and no other evidence connected the pipe to defendant. In addition, no evidence connected defendant to the room in which the scales and plastic sandwich bags were found. The connection between defendant and these objects is even more tenuous than the connection between defendant and the baggy of crack, which we found insufficient to withstand a motion to dismiss. Accordingly, we hold that the trial court erred by denying defendant\u2019s motion to dismiss the charge of possession of drug paraphernalia and we vacate that conviction.\nDefendant next argues that the trial court erred by denying his motion to dismiss the charge of resisting an officer. We agree. General Statute section 14-223 provides, \u201cIf any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.\u201d N.C. Gen. Stat. \u00a7 14-223 (2009). The State asserts that defendant\u2019s flight after Officer Grimsley announced, \u201cpolice, search warrant,\u201d at the front door is sufficient evidence of resisting an officer. Every appellate opinion interpreting \u00a7 14-223 implicates only the constitutional prohibition of unreasonable seizures of the person, generally in the context of an arrest or investigatory stop. See, e.g., State v. Swift, 105 N.C. App. 550, 555, 414 S.E.2d 65, 68 (1992) (holding that a defendant does not have the right to resist a legal investigatory stop and his \u201cflight from a lawful investigatory stop contributefs] to probable cause that [he] was in violation of... \u00a7 14-223\u201d) (citation omitted). Here, though, the police officers were at the house to execute a search warrant, not an arrest warrant, and Officer Grimsley was not making an investigatory stop when he announced \u201cpolice, search warrant\u201d at the front door. We find no authority for the State\u2019s presumption that a person whose property is not the subject of a search warrant may not peacefully leave the premises after the police knock and announce if the police have not asked him to stay. Defendant\u2019s flight rightly suggests that some criminal activity was afoot, but, as we observed in Swift, \u201cthe Biblical provision that \u2018[t]he wicked flee when no man pursueth,\u2019 Proverbs 28:1, does not have the force of law. The innocent may flee if frightened enough.\u201d Swift, 105 N.C. App. at 554, 414 S.E.2d at 68. Accordingly, we hold that the trial court erred by denying defendant\u2019s motion to dismiss the charge of resisting an officer for insufficiency of the evidence and we vacate that conviction.\nHaving vacated all of defendant\u2019s convictions, it is unnecessary for us to address defendant\u2019s final argument.\nVacated.\nJudges STEELMAN and HUNTER, JR., Robert N., concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper.; by Associate Attorney General Eryn E. Linkous, for the State.", "Greene & Wilson, RA., by Thomas Reston Wilson, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. McCOY ANTWAN RICHARDSON\nNo. COA09-621\n(Filed 16 February 2010)\n1. Drugs\u2014 crack cocaine \u2014 constructive possession \u2014 evidence not sufficient\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of possession with intent to distribute cocaine where a baggy of crack cocaine was found near defendant\u2019s feet when he was detained after running out the back door of a house which officers had approached to serve a search warrant. Defendant did not have physical possession of the crack cocaine and there was no indicia of defendant\u2019s control of the place where the contraband was found. Defendant\u2019s residence in the same neighborhood, previous visits to the same house, and his proximity to the drugs after being detained were not a sufficient basis for constructive possession.\n2. Drugs\u2014 paraphernalia \u2014 constructive possession \u2014 evidence not sufficient\nThe trial court erred by denying defendant\u2019s motion to dismiss a charge of possession of drug paraphernalia under a theory of constructive possession where the paraphernalia was found in the kitchen of a house and defendant was found in the backyard. Although it could be inferred that defendant had run through the kitchen into the backyard, the connection was tenuous.\n3. Arrest\u2014 resisting an officer \u2014 running from search\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of resisting an officer where defendant ran from the back of a house when an officer announced \u201cpolice, search warrant\u201d at the front door. There is no authority for the State\u2019s presumption that a person whose property is not the subject of a search warrant may not peacefully leave the premises after the police knock and announce if the police have not asked him to stay.\nAppeal by defendant from judgments entered 17 October 2008 by Judge Thomas D. Haigwood in Pitt County Superior Court. Heard in the Court of Appeals 4 November 2009.\nAttorney General Roy Cooper.; by Associate Attorney General Eryn E. Linkous, for the State.\nGreene & Wilson, RA., by Thomas Reston Wilson, for defendant." }, "file_name": "0570-01", "first_page_order": 598, "last_page_order": 603 }