{ "id": 1511311, "name": "STATE OF NORTH CAROLINA v. KEITH BUTLER", "name_abbreviation": "State v. Butler", "decision_date": "2002-08-16", "docket_number": "No. 653A01", "first_page": "141", "last_page": "150", "citations": [ { "type": "official", "cite": "356 N.C. 141" } ], "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": "556 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": -1 }, { "cite": "147 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377653 ], "year": 2001, "opinion_index": -1, "case_paths": [ "/nc-app/147/0001-01" ] }, { "cite": "556 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "270-71" }, { "page": "271" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "354 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138558 ], "year": 2001, "pin_cites": [ { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0549-01" ] }, { "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": "346 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "480" } ], "opinion_index": 0 }, { "cite": "317 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777645 ], "year": 1986, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0643-01" ] }, { "cite": "340 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "456" } ], "opinion_index": 0 }, { "cite": "316 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4701428 ], "year": 1986, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0087-01" ] }, { "cite": "526 S.E.2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "462" } ], "opinion_index": 0 }, { "cite": "351 N.C. 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155828 ], "year": 2000, "pin_cites": [ { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0454-01" ] }, { "cite": "368 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "322 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515495 ], "year": 1988, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0349-01" ] }, { "cite": "153 L. Ed. 2d 162", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "553 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "894" } ], "opinion_index": 0 }, { "cite": "354 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138504 ], "year": 2001, "pin_cites": [ { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0268-01" ] }, { "cite": "561 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "256" } ], "opinion_index": 0 }, { "cite": "355 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219909 ], "year": 2002, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0320-01" ] }, { "cite": "556 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "290" } ], "opinion_index": 0 }, { "cite": "354 N.C. 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138326 ], "year": 2001, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0493-01" ] }, { "cite": "548 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "721" } ], "opinion_index": 0 }, { "cite": "353 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135574 ], "year": 2001, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0568-01" ] }, { "cite": "472 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "925" } ], "opinion_index": 0 }, { "cite": "344 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867565 ], "year": 1996, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0065-01" ] }, { "cite": "30 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "25", "parenthetical": "holding that mere suspicions regarding the defendant's conduct failed as a matter of law to link him to illegal substances that were discovered in a place not under his exclusive control" } ], "opinion_index": 1 }, { "cite": "182 Va. 669", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 1973197 ], "year": 1944, "pin_cites": [ { "page": "675-76", "parenthetical": "holding that mere suspicions regarding the defendant's conduct failed as a matter of law to link him to illegal substances that were discovered in a place not under his exclusive control" } ], "opinion_index": 1, "case_paths": [ "/va/182/0669-01" ] }, { "cite": "386 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "190" } ], "opinion_index": 1 }, { "cite": "325 N.C. 693", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488940 ], "year": 1989, "pin_cites": [ { "page": "697" } ], "opinion_index": 1, "case_paths": [ "/nc/325/0693-01" ] }, { "cite": "556 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "271" } ], "opinion_index": 1 }, { "cite": "354 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138558 ], "year": 2001, "pin_cites": [ { "page": "552" } ], "opinion_index": 1, "case_paths": [ "/nc/354/0549-01" ] } ], "analysis": { "cardinality": 964, "char_count": 22202, "ocr_confidence": 0.765, "pagerank": { "raw": 6.154758021520286e-07, "percentile": 0.9563632860448621 }, "sha256": "b6df9251187e30d72bb2bd6c5ec47e019e9c485fd4cd9efb25be55394cb4c2c1", "simhash": "1:a20d745855522cd2", "word_count": 3622 }, "last_updated": "2023-07-14T16:17:54.672071+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. KEITH BUTLER" ], "opinions": [ { "text": "BUTTERFIELD, Justice.\nDefendant Keith Butler was indicted on 7 July 1998 for trafficking in cocaine by transportation of twenty-eight grams or more but less than two hundred grams of cocaine and trafficking in cocaine by possession of twenty-eight grams or more but less than two hundred grams of cocaine. The trial court consolidated the charges for trial, and the jury found defendant guilty of both offenses. Thereupon, the trial court sentenced defendant to two consecutive terms of thirty-five to forty-two months\u2019 imprisonment. From the judgments entered upon his convictions, defendant appealed to the Court of Appeals, assigning error, inter alia, to the trial court\u2019s failure to dismiss the charges for lack of sufficient evidence. The Court of Appeals, in a split decision, affirmed the trial court. Defendant appeals to this Court as of right based on the dissent.\nAt trial, the State presented evidence tending to show the following facts. Detectives D.C. Murphy and K.A. Halsaber, who were assigned to the Interdiction Unit of the Drug Task Force of the Raleigh Police Department, were surveilling the Greyhound Bus terminal on Jones Street on the morning of '20 January 1998. The objective of the Interdiction Unit, according to Murphy\u2019s testimony, was to intercept drugs entering Raleigh from \u201csource\u201d cities, those cities where drugs are known to be prevalent. On this occasion, the officers were watching the passengers of a bus that had just arrived from New York City, a source city, and that had as its final destination Miami Beach, which is also a source city. Defendant exited the bus carrying only a small duffel bag and quickly drew the attention of the officers when he began to behave in a suspicious manner. Murphy testified that defendant stopped when he reached the entrance to the terminal, turned around to look at the officers, paused momentarily, and then proceeded to walk \u201cvery briskly\u201d through the terminal. The officers followed, and as defendant pressed his way to the exit, he looked back several times, making eye contact with the officers. Murphy stated that when defendant reached the exit, he hesitated, glanced back at the officers again, and then hurried through the door.\nChristopher Thomas, a driver for the Checker Cab Company, was parked outside the terminal approximately two feet from the exit. Thomas testified that defendant hopped into the backseat of the cab directly behind the driver\u2019s seat; slammed the door; and yelled, \u201clet\u2019s go, let\u2019s go, let\u2019s go.\u201d Before Thomas could drive off, however, the officers exited the terminal and signaled him not to move. The officers then identified themselves to defendant and asked him to get out of the vehicle with his bag, which was resting on the seat beside him. Murphy described defendant\u2019s demeanor at that time as \u201cvery nervous\u201d and \u201cfidgety.\u201d Further, Murphy noted that defendant was \u201cvery slow\u201d to exit the vehicle and that he bent down and reached toward the driver\u2019s seat prior to opening the door. Murphy testified that he and Halsaber were able to \u201csee just barely the top of [defendant\u2019s] head and part of his shoulder.\u201d Defendant\u2019s hands, according to Murphy, were hidden from the officers\u2019 view. Regarding defendant\u2019s movements, Thomas testified that he felt defendant \u201cstruggling\u201d behind him and \u201cpushing the back of [Thomas\u2019] seat\u201d before opening the door.\nUpon exiting the cab, and without being instructed to do so, defendant walked over to the front doors of the terminal, drawing the officers away from the vehicle. Murphy testified that this was unusual, in that the officers would typically begin such an interview standing right next to the cab so that the subject of the interview could get back into the cab and leave if the officers saw no need for further questioning.\nWhile standing outside the terminal doors, the officers briefly questioned defendant concerning his name, point of origin, and destination. They then asked defendant to accompany them to a private room inside the terminal and, with defendant\u2019s permission, conducted a pat down of his person and a search of his duffel bag. Finding no contraband in defendant\u2019s possession, the officers told defendant he was free to leave, which he did. Rather than attempt to secure another taxicab, however, defendant left the terminal on foot.\nMeanwhile, Thomas picked up another fare, a man Thomas recognized from having previously provided him taxi services. Thomas testified that the man entered the cab through the rear passenger door and occupied the rear passenger seat throughout the trip. Thomas said that he drove the man approximately six or seven blocks to the Wake County Public Safety Building. Additionally, Thomas stated that at no time during the ride did he observe or otherwise detect the man make any movements toward the driver\u2019s side of the cab. After dropping the man at his destination, Thomas returned directly to the bus terminal and did not pick up any other fares along the way. The entire trip, according to Thomas, lasted approximately ten minutes.\nWhen Thomas returned to the terminal, Detective Murphy approached and asked to search his cab. Thomas consented, and Murphy discovered a package under the driver\u2019s seat, wrapped in a white napkin and secured with Scotch tape. The package contained a white powdery substance later identified as cocaine. Murphy asked Thomas when he had last cleaned the cab. Thomas stated that he had cleaned and vacuumed the cab prior to beginning his shift and that defendant was his first fare of the morning. According to Thomas, the cocaine had not been under the driver\u2019s seat when defendant entered the cab.\nShortly thereafter, the officers found defendant walking northbound on Glenwood Avenue, approximately ten to twelve blocks away from the terminal. They arrested defendant, and a search of his person revealed a small sum of money, a pager, and a cell phone.\nBy his sole assignment of error, defendant contends that the Court of Appeals erred in affirming the trial court\u2019s denial of his motion to dismiss the charges of trafficking in cocaine. Defendant argues that the evidence was insufficient to demonstrate beyond a reasonable doubt that he was in either actual or constructive possession of any contraband substance. For the reasons that follow, we must disagree.\nWhen considering a motion to dismiss, the trial court\u2019s inquiry is limited to a determination of \u201cwhether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\u201d State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). To be substantial, the evidence need not be irrefutable or uncontroverted; it need only be such as would satisfy a reasonable mind as being \u201cadequate to support a conclusion.\u201d State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). For purposes of a motion to dismiss, evidence is deemed less than substantial if it raises no more than mere suspicion or conjecture as to the defendant\u2019s guilt. State v. Wilson, 354 N.C. 493, 521, 556 S.E.2d 272, 290 (2001).\nIn ruling on a motion to dismiss, the trial court must examine the evidence in the light most beneficial to the State, drawing all reasonable inferences therefrom in favor of the State\u2019s case. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 256 (2002). \u201cThe trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness\u2019 credibility.\u201d State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001), cert. denied, - U.S. -, 153 L. Ed. 2d 162 (2002). \u201cIf there is substantial evidence \u2014 whether direct, circumstantial, or both \u2014 to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.\u201d State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). This is true, even if the evidence likewise permits a reasonable inference of the defendant\u2019s innocence. State v. Grigsby, 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000).\nWith regard to possession of contraband, this 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 [State v.] Davis, 325 N.C. [693,] 697, 386 S.E.2d [187,] 190 [(1989)]; see also [State v.] Brown, 310 N.C. [563,] 569, 313 S.E.2d [585,] 588-89 [(1984)].\nState v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270-71 (2001).\nIn Ma\u00edias, a majority of this Court concluded that the State\u2019s evidence was sufficient to establish the defendant\u2019s constructive possession of cocaine and that the trial court properly denied the defendant\u2019s motion to dismiss the charge. The evidence showed that while patrolling an apartment complex, two law enforcement officers detected an odor of marijuana emanating from a vehicle in the parking lot. The officers placed the driver under arrest and then instructed the remaining three occupants to get out of the vehicle. During a search of the vehicle, the officers discovered a clear plastic bag that contained marijuana and \u201c \u2018a small piece of tin foil that was kind of balled up.\u2019 \u201d Id. at 551, 556 S.E.2d at 270. Inside the foil was cocaine. The officers found the bag between the seat pads of the right rear seat, where the defendant had been sitting. According to the testimony of the officers, the \u201cdefendant was the only person who could have placed the plastic bag in the space between the seat pads.\u201d Id. While conducting the search, the officers also discovered rolling papers and observed marijuana seeds in the carpeting.\nIn concluding that there were additional incriminating circumstances sufficient to support a finding that the defendant was in constructive possession of the cocaine, the majority relied on the following: (i) that the \u201cdefendant had been in the car approximately twenty minutes,\u201d (ii) that \u201cthere was an odor of marijuana in the car,\u201d (iii) that there were \u201cmarijuana seeds and rolling papers inside the car,\u201d (iv) that the package of narcotics was discovered between the pads of the defendant\u2019s seat, and (v) that there was testimony from an officer that the \u201cdefendant was the only person in the car who could have shoved the package containing the cocaine into the crease of the car seat.\u201d Id. at 552, 556 S.E.2d at 271. The majority held that, in light of this evidence, \u201ca juror could reasonably determine defendant knew drugs were in the car.\u201d Id. (emphasis added).\nThe dissent, however, quarreled with the notion that the evidence supported a reasonable inference that the defendant knew of the presence of the cocaine. Unlike the marijuana, the dissent reasoned, the cocaine was odorless, and there was no conspicuous evidence of its use inside the vehicle. Therefore, the dissent took the position that the only incriminating circumstance tending to support the defendant\u2019s constructive possession of the cocaine was his proximity to where the package was hidden. According to the dissent, this evidence was insufficient to sustain the defendant\u2019s conviction for possession of cocaine.\nIn the case sub judice, the additional incriminating circumstances tending to establish defendant\u2019s constructive possession of the cocaine were plenary. Taken in the light most favorable to the State and drawing all reasonable inferences in favor of the State, the evidence showed that defendant, carrying a single small bag, alighted from a bus that had originated in New York City, a city deemed to be a source for narcotics. Upon seeing the narcotics officers, defendant began to act suspiciously. According to Detective Murphy, defendant paused, made eye contact with the officers, and then proceeded to walk \u201cvery briskly\u201d through the terminal. As he did so, defendant repeatedly glanced back at the officers, who had begun to follow him. When defendant reached the front exit, he paused again to look back at the officers before hurrying into Thomas\u2019 cab, which was parked outside the terminal. Defendant slammed the door and urged Thomas to leave immediately, shouting, \u201clet\u2019s go, let\u2019s go, let\u2019s go.\u201d\nFurther, Murphy testified that defendant appeared \u201cvery nervous\u201d and \u201cfidgety\u201d when the officers approached the cab and asked him to step out with his bag. Murphy stated that defendant was \u201cvery slow\u201d to get out of the cab and that, prior to opening the door, he bent over and reached toward the driver\u2019s seat. While in this position, defendant\u2019s hands were concealed from the officers\u2019 view. Thomas testified that he felt defendant \u201cstruggling\u201d behind him and \u201cpushing the back of [Thomas\u2019] seat.\u201d The package of cocaine was discovered under the driver\u2019s seat approximately twelve minutes later, and according to Thomas, defendant was the only person who had been in a position to place the package in that location.\nThe evidence further tended to show that defendant led the officers away from the vehicle and to the terminal doors in order to be questioned. Additionally, when the officers had finished their questioning and had allowed defendant to leave, he did so on foot. Despite the urgency with which he had previously tried to depart the terminal, defendant made no effort to obtain another cab, even though several available cabs were parked outside the terminal. From this evidence, a juror could reasonably infer that defendant possessed the cocaine when he exited the bus and that he stashed it under the driver\u2019s seat of the cab when the officers approached him for questioning. Thus, we conclude that there were sufficient indicia of defendant\u2019s constructive possession to warrant submission of the trafficking charges to the jury.\nDefendant concedes in his brief that \u201c[his] actions, with no more showing, [were] arguably consistent with being guilty of the crimes with which he was charged.\u201d He contends, however, that additional facts show his actions also to be \u201cconsistent with those of a totally innocent bus passenger.\u201d Specifically, defendant argues that his unusual behavior \u2014 his nervousness and the slow, deliberate manner in which he exited the cab \u2014 can be explained by the fact that he had recently been shot in the buttocks. Although defendant was certainly free to argue this theory to the jury, these additional facts make the State\u2019s evidence no less sufficient to send to the jury. Accordingly, we hold that the trial court properly denied defendant\u2019s motion to dismiss and that the Court of Appeals properly found no error in the trial court\u2019s ruling.\nFor the foregoing reasons, we affirm the decision of the Court of Appeals.\nAFFIRMED.", "type": "majority", "author": "BUTTERFIELD, Justice." }, { "text": "Justice ORR\ndissenting.\nIn State v. Matias, I joined Justice Butterfield\u2019s dissent on the grounds that the evidence was insufficient to support sending the case to the jury based upon \u201cconstructive possession\u201d of the discovered drugs. There, the majority concluded that \u201cdefendant was the only person in the car who could have shoved . . . the cocaine into the crease of the car seat.\u201d 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001).\nThe case before us now fails to meet even the minimal standard established by the majority in Mat\u00edas, and I therefore respectfully dissent and lament Justice Butterfield\u2019s change of view. In this case, there are at least two other individuals who had an equally good, if not better, opportunity to place the drugs under the driver\u2019s seat in the taxi. First, and obviously foremost, was the taxi driver who was in possession and control of the taxi throughout the relevant time frame. The other was the passenger who drove away in the taxi after defendant had exited the vehicle. I note, too, that defendant was in the vehicle for less than a minute, a considerably shorter period than either of the other two occupants, and that he was never alone.\nThe majority places great weight on the \u201csuspicious\u201d facts surrounding defendant\u2019s arrival from New York City, e.g., his nervousness and the like. While those circumstances may serve to demonstrate that the stop and subsequent search were reasonable police actions, they do not satisfy the evidentiary criteria necessary to establish constructive drug possession which, in the absence of a showing of exclusive control, requires the State to produce other incriminating evidence tying a defendant to the discovered contraband. See State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989). Heretofore, this Court has not addressed whether suspicious conduct that may justify a search may also serve as sufficient \u201cother incriminating evidence\u201d for purposes of establishing constructive possession of drugs in situations where a suspect had neither an ownership interest in the premises nor exclusive control of such premises. However, other courts have considered suspicious conduct in the context of constructive possession, with the most compelling case being decided by the Virginia Supreme Court: Powers v. Commonwealth, 182 Va. 669, 675-76, 30 S.E.2d 22, 25 (1944) (holding that mere suspicions regarding the defendant\u2019s conduct failed as a matter of law to link him to illegal substances that were discovered in a place not under his exclusive control). Thus, in step with the Virginia Supreme Court\u2019s well-reasoned view, I would hold that defendant\u2019s purported suspicious conduct, without more, proves insufficient as support for an inference of constructive possession. As a result, I would additionally conclude that such evidence is inadequate as a matter of law for purposes of validating defendant\u2019s convictions for offenses involving possession of the illegal drugs found in the taxi.\nThe mere finding of the [contraband] upon the premises occupied by [the accused] and another created no presumption of law that [the accused] was in the possession of it.... There was no positive evidence of the possession of it by him. The circumstances were suspicious, to say the least; but circumstances of suspicion, no matter how grave or strong, are not proof of guilt sufficient to support a verdict of guilty. The actual commission of the crime by the accused must be shown by evidence beyond a reasonable doubt to sustain his conviction.\nFinally, while the majority makes much of defendant\u2019s movements getting in and out of the taxi, it pays little heed at all to a plausible explanation for defendant\u2019s apparent physical struggles: shortly before the incident in question, defendant had been the victim of a robbery, during which he was shot in the buttocks. It is also of some interest to note that the undercover agents did not ask the taxi driver to allow them to inspect the car at the time they detained defendant, opting instead to permit the taxi to pick up another fare and leave the scene. Couple these circumstances with the fact that no other drugs, or even drug residue, were found on defendant, and this case appears even weaker than the one mounted against the defendant in Mat\u00edas. I therefore must disagree with the majority.", "type": "dissent", "author": "Justice ORR" } ], "attorneys": [ "Roy Cooper; Attorney General, by Claud R. Whitener, III, Assistant Attorney General, for the State.", "John T. Hall for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEITH BUTLER\nNo. 653A01\n(Filed 16 August 2002)\nDrugs\u2014 trafficking in cocaine \u2014 sufficiency of evidence \u2014 constructive possession\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charges of trafficking in cocaine based on plenary evidence of additional incriminating circumstances tending to establish defendant\u2019s constructive possession of cocaine found in a taxi under the driver\u2019s seat approximately twelve minutes after defendant exited the taxi, including the facts that: (1) defendant, carrying a single small bag, got off a bus that had originated in a city deemed to be a source for narcotics; (2) upon seeing narcotic officers defendant began to act suspicious by walking very briskly through the bus terminal after making eye contact with the officers, defendant repeatedly glanced back at the officers who had begun to follow him, and defendant again paused to look back at the officers before hurrying into a taxi cab parked outside the terminal; (3) defendant urged the cab driver to leave immediately, and defendant appeared nervous and fidgety when the officers approached the cab to ask defendant to step out with his bag; (4) the cab driver testified that he felt defendant struggling and pushing the back of the cab driver\u2019s seat, and the driver testified that defendant was the only person who had been in a position to place the package in that location; and (5) defendant led the officers away from the vehicle and to the terminal doors in order to be questioned, and defendant made no effort to obtain another cab despite the urgency with which he had previously tried to depart the terminal.\nJustice Orr dissenting.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 147 N.C. App. 1, 556 S.E.2d 304 (2001), finding no error in judgments entered 29 October 1998 by Jones (Abraham Penn), J., in Superior Court, Wake County. The case was calendared for argument in the Supreme Court 17 April 2002, but was determined on the briefs without oral argument upon defendant\u2019s motion for the Court to decide the case pursuant to N.C. R. App. P. 30(f)(1).\nRoy Cooper; Attorney General, by Claud R. Whitener, III, Assistant Attorney General, for the State.\nJohn T. Hall for defendant-appellant." }, "file_name": "0141-01", "first_page_order": 191, "last_page_order": 200 }