{ "id": 5305492, "name": "STATE OF NORTH CAROLINA v. ALPHONZA THORPE", "name_abbreviation": "State v. Thorpe", "decision_date": "1990-04-05", "docket_number": "No. 267PA89", "first_page": "451", "last_page": "456", "citations": [ { "type": "official", "cite": "326 N.C. 451" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "380 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": -1 }, { "cite": "94 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527013 ], "year": 1989, "opinion_index": -1, "case_paths": [ "/nc-app/94/0270-01" ] }, { "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": "346 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "480" }, { "page": "479" } ], "opinion_index": 0 }, { "cite": "317 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777645 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "648" }, { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0643-01" ] }, { "cite": "326 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723074, 4720521, 4722669, 4720571, 4719966 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0174-04", "/nc/313/0174-02", "/nc/313/0174-01", "/nc/313/0174-05", "/nc/313/0174-03" ] }, { "cite": "323 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "41" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525840 ], "year": 1984, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0521-01" ] }, { "cite": "183 S.E.2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "279 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569274 ], "year": 1971, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0406-01" ] }, { "cite": "298 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "375" } ], "opinion_index": 0 }, { "cite": "307 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562705 ], "year": 1983, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0452-01" ] }, { "cite": "187 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "714" }, { "page": "714" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "12-13" }, { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "313 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "589", "parenthetical": "quoting State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972)" } ], "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "569", "parenthetical": "quoting State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972)" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] }, { "cite": "66 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "668" } ], "opinion_index": 0 }, { "cite": "234 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619852 ], "year": 1951, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0168-01" ] }, { "cite": "223 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "363-64" } ], "opinion_index": 0 }, { "cite": "289 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570811 ], "year": 1976, "pin_cites": [ { "page": "498-99" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0488-01" ] }, { "cite": "326 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "28" }, { "page": "28" }, { "page": "28" }, { "page": "28" } ], "opinion_index": 0 }, { "cite": "313 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725335 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "129" }, { "page": "129" }, { "page": "130" }, { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0122-01" ] }, { "cite": "380 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "782" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527013 ], "year": 1989, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0270-01" ] }, { "cite": "380 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 1 }, { "cite": "94 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527013 ], "year": 1989, "opinion_index": 1, "case_paths": [ "/nc-app/94/0270-01" ] } ], "analysis": { "cardinality": 639, "char_count": 13470, "ocr_confidence": 0.728, "pagerank": { "raw": 2.2256211941009885e-07, "percentile": 0.7781368720724644 }, "sha256": "b6738f2ee7c29958b9f67004cd9924fe9dc19e5ab0a80526ca4993a542cdbaa0", "simhash": "1:331cf0372e8b2059", "word_count": 2259 }, "last_updated": "2023-07-14T18:38:26.587833+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ALPHONZA THORPE" ], "opinions": [ { "text": "WHICHARD, Justice.\nThe jury returned verdicts finding defendant guilty of two counts of knowingly maintaining a building used for keeping or selling the controlled substance dilaudid, a misdemeanor; two charges of possession with intent to sell or deliver the controlled substance dilaudid, a felony; and two charges of the felonious sale of that controlled substance. The trial court sentenced defendant to a total of sixteen years imprisonment.\nThe Court of Appeals affirmed the misdemeanor convictions, but a majority held that the trial court had erred in denying defendant\u2019s motion for nonsuit on the felony charges. Chief Judge Hedrick dissented, concluding that the evidence was sufficient to take the felony charges to the jury. State v. Thorpe, 94 N.C. App. 270, 279, 380 S.E.2d 777, 782 (1989). The State appealed as a matter of right. N.C.G.S. \u00a7 7A-30(2) (1989).\nOur assessment of the evidence implicating defendant in the felonies charged, considered as a whole and taken in the light most favorable to the State, establishes that the evidence was sufficient to take those charges to the jury. We thus reverse.\nTestimony by witnesses for the State tended to show the following: On 9 April 1986, an undercover agent for the State Bureau of Investigation stopped the van she was driving in the vicinity of Doris\u2019 Game Room, a poolroom and bar at the corner of North Roxboro and Corporation Streets in Durham. Defendant was standing on the corner with a man later identified as Charles Henry Thomas. The agent had seen defendant standing on the corner with Thomas a month earlier, when she had purchased a single dilaudid tablet from Thomas from her van window. The agent rolled down her window; defendant approached, greeted her, and asked what she needed. She responded that she wanted to get some \u201cfours,\u201d a street name for dilaudid. The agent testified that defendant then said, \u201cWell, go on inside.\u201d When she said she could not, he reassured her, saying, \u201cGo on inside. It\u2019s my store. It\u2019s okay.\u201d The agent and her companion entered Doris\u2019 Game Room. Thomas was sitting in front of the bar. The agent approached Thomas and reiterated her request. Thomas stepped behind the bar, took two pills from a tin foil packet, and placed them on the bar counter. The agent took the pills and handed Thomas $100. When she left the poolroom, the agent saw defendant still standing on the street corner and thanked him. He acknowledged her thanks.\nThat afternoon the agent returned to the game room. She saw Thomas in a chair by the bar and asked to buy what she had bought in the morning. When she asked Thomas where the owner was, he told her nobody was there who owned the place.\nOn 16 April 1986, the agent returned a fourth time to the corner of North Roxboro and Corporation Streets. She and her companion saw defendant on the corner. Defendant approached the pair, greeted the agent, and asked what she wanted. The agent told defendant that they wanted to buy some \u201cfours,\u201d but that she was uncomfortable being in the store and its neighborhood because she was white. Defendant responded, \u201cWell, come on inside.\u201d He accompanied the two agents to the door, but did not enter. There were seven other people, including defendant\u2019s wife, in the game room at the time. Defendant subsequently entered and asked the agent if she had gotten her \u201cfours.\u201d She responded that she had not \u2014 that she was waiting for him. Defendant motioned towards Thomas, who was standing at the bar, and told the agent to go over to him for the \u201cfours.\u201d As she approached, Thomas went behind the bar and again pulled out a packet containing pills. He gave her two, and she paid for them.\nAs the agents left, they saw defendant outside on the corner once again. He came up to the agents and asked if they had gotten \u201cit.\u201d The first agent replied that she had, but said that she was afraid of being seen around the store and of being around people she did not know. She told defendant she preferred to deal with only one person. Defendant replied that she could get the pills from him.\nA federal parole officer testified that she knew Doris Burnette Thorpe, who is not legally married to defendant but considers herself his wife. The officer testified that Ms. Thorpe told her that defendant had provided the capital for the game room by selling his Cadillac. A Durham vice squad investigator testified that he was familiar with Doris\u2019 Game Room and that he had known it as long as defendant had owned it. Another federal parole officer testified that he once asked defendant why defendant was seen so frequently in front of Doris\u2019 Game Room, and defendant replied that he owned the establishment. A third parole officer testified that he had known defendant and the game room since 1982 and that he had seen defendant there alone around the pool tables and behind the bar. On one occasion when the officer attempted to enter the game room, it was locked, and defendant had unlocked the door and let the officer in.\nThe elements that the State must prove to establish possession of narcotics with the intent to sell or deliver are \u201c(1) defendant\u2019s possession of the drug, and (2) defendant\u2019s intention to \u2018sell or deliver\u2019 the drug.\u201d State v. Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985). In the context of the controlled substance statutes, \u201c \u2018[d]eliver\u2019... means the actualf,] constructive, or attempted transfer from one person to another of a controlled substance.\u201d N.C.G.S. \u00a7 90-87(7) (1985); see State v. Creason, 313 N.C. at 129, 326 S.E.2d at 28. When sale and delivery are part of the same transaction, they may be charged as a single offense, State v. Dietz, 289 N.C. 488, 498-99, 223 S.E.2d 357, 363-64 (1976), and this Court has noted that \u201c[w]ithin the intent of the legislature, the terms are synonymous, the gist of the offense being possession with the intent to transfer the contraband.\u201d State v. Creason, 313 N.C. at 130, 326 S.E.2d at 28. Thus \u201csale\u201d of a controlled substance is, like the statutory definition of \u201cdeliver,\u201d an actual, constructive, or attempted transfer of that substance, but one \u201cfor a specified price payable in money.\u201d State v. Creason, 313 N.C. at 129, 326 S.E.2d at 28.\nPossession, like delivery, may be either actual or constructive: \u201cAn accused has possession of [contraband] . . . when he has both the power and the intent to control its disposition or use.\u201d State v. Fuqua, 234 N.C. 168, 170, 66 S.E.2d 667, 668 (1951). Where direct evidence of power and intent to control are absent, however, these manifestations of actual possession must be inferred from the circumstances.\nWhere 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. [T]he State may overcome a motion to dismiss or motion for judgment as of nonsuit by presenting evidence which places the accused \u2018within such close juxtaposition to the narcotic drugs as to justify the jury in concluding that the same was in his possession.\u2019\nState v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984) (quoting State v. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972)). See also State v. Williams, 307 N.C. 452, 455, 298 S.E.2d 372, 375 (1983); State v. Allen, 279 N.C. 406, 410, 183 S.E.2d 680, 683 (1971). Constructive possession has been found when the contraband was on the property in which the defendant had some exclusive possessory interest and there was evidence of his or her presence on the property, e.g., State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (defendant in own home near drugs); and it has been found where possession is not exclusive but defendant exercises sole or joint physical custody, e.g., State v. Brown, 310 N.C. 563, 313 S.E.2d 585 (defendant had key and was seen repeatedly at apartment where contraband was found). See State v. Baize, 71 N.C. App. 521, 529, 323 S.E.2d 36, 41 (1984), cert. denied, 313 N.C. 174, 326 S.E.2d 34 (1985).\n\u201cAs with other questions of intent, proof of constructive possession usually involves proof by circumstantial evidence.\u201d State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). Circumstantial evidence is evidence that is applied indirectly \u201cby means of circumstances from which the existence of the principal fact may reasonably be deduced or inferred.\u201d 1 Brandis on North Carolina Evidence 3d \u00a7 76 (1988). The principle that circumstantial evidence may support proof of facts through inference or deduction is the same principle underlying constructive possession and transfer: from circumstances indicating the power and intent to control contraband, its possession with intent to transfer and the transfer itself may be inferred. Whether the evidence of constructive possession or transfer is direct, circumstantial, or both, the trial court, in ruling on the motion for nonsuit, must consider \u201cevidence favorable to the State . . . as a whole in determining its sufficiency.\u201d State v. Beaver, 317 N.C. at 648, 346 S.E.2d at 479 (quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).\nWe hold that, considered as a whole, as required, the circumstantial evidence of defendant\u2019s power and intent to control the sale of dilaudid on both dates listed in the indictments was sufficient to support an inference of both his possession with an intent to sell or deliver that controlled substance and his participation in the transfer transactions themselves. First, constructive possession can be reasonably inferred from the fact of ownership of premises where contraband is found. Such ownership is strong evidence of control and \u201cgives 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. at 12, 187 S.E.2d at 714. There was ample evidence that defendant was the owner of Doris\u2019 Game Room, where both sales transactions took place. This evidence of control was bolstered by the exercise of physical custody evinced by defendant\u2019s letting one parole officer into Doris\u2019 Game Room with his key and by another officer\u2019s observing defendant alone in the game room or behind its bar on more than one occasion. The inference of knowledge and possession by virtue of ownership, and custody of the game room was buttressed on both occasions cited in the indictments by defendant\u2019s presence either on the premises or nearby.\nSecond, defendant\u2019s participation in the sale of dilaudid could be deduced from testimony that he had directed the agent to enter the store on April 9th and to \u201ccome on inside\u201d on April 16th. This, combined with his knowledge of the aim of her errand, contributed strongly to the totality of circumstances indicating his participation in the sale of the dilaudid. This inference was further supported by an apparent principal-agent relationship with Thomas: on April 16th, defendant motioned towards Thomas when he told the agent to go to him for her \u201cfours,\u201d and on both occasions specified in the indictments Thomas went behind the bar for the dilaudid tablets, a location where typically only employees, or employers, are permitted.\nThe evidence of defendant\u2019s constructive possession and sale of the contraband, considered as a whole, thus was sufficient to support the trial court\u2019s denial of defendant\u2019s motion for nonsuit, and the trial court did not err in so ruling. Accordingly, the decision of the Court of Appeals is\nReversed.", "type": "majority", "author": "WHICHARD, Justice." }, { "text": "Justice MITCHELL\ndissenting.\nFor the reasons fully set forth by Judge Orr in the opinion for the majority in the Court of Appeals, 94 N.C. App. 270, 380 S.E.2d 777 (1989), I dissent.", "type": "dissent", "author": "Justice MITCHELL" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by James P. Erwin, Jr., Special Deputy Attorney General, for the State-appellant.", "Loflin & Loflin, by Thomas F. Loflin III, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALPHONZA THORPE\nNo. 267PA89\n(Filed 5 April 1990)\nNarcotics \u00a7 4.3 (NCI3d)\u2014 possession with intent to sell \u2014 felonious sale \u2014 circumstantial evidence \u2014 sufficient\nThe evidence was sufficient to take charges of possession with intent to sell and deliver the controlled substance dilaudid and felonious sale of that controlled substance to the jury where there was ample evidence that defendant was the owner of the game room where both sales transactions took place; the evidence of control was bolstered by the exercise of physical custody; the inference of knowledge and possession by virtue of ownership and custody of the game room was buttressed by defendant\u2019s presence either on the premises or nearby; defendant\u2019s participation in the sale could be deduced from testimony that he had directed an undercover agent to enter his store on one occasion and to \u201ccome on inside\u201d on another; and the inference of defendant\u2019s participation was further supported by an apparent principal-agent relationship with the man from whom the undercover agent purchased the drugs.\nAm Jur 2d, Drugs, Narcotics, and Poisons \u00a7 47.\nJustice MITCHELL dissenting.\nAPPEAL of right by the State pursuant to N.C.G.S. \u00a7 7A-30(2) from a decision of a divided panel of the Court of Appeals, reported at 94 N.C. App. 270, 380 S.E.2d 777 (1989), finding no error in part and reversing in part judgments of imprisonment entered by Lee,