STATE OF NORTH CAROLINA v. WALTER ANTHONY ALSTON, JR.
18 November 2008
Drugs–constructive possession–sufficiency of evidence
The State presented sufficient evidence that defendant constructively possessed the
requisite amount of cocaine for a trafficking charge where defendant was the drug supplier for
the renter of a house (Hughes), Hughes usually did not keep his cocaine in the house, defendant
had sold cocaine from the entertainment room (where the drugs in issue were found) earlier in
the day, and officers found defendant’s gun in the entertainment room. Defendant’s statement
that he owned a lesser amount of cocaine in another room but not the cocaine in the
entertainment room was not binding on the State.
Judge Elmore dissenting.
Appeal by defendant from judgment entered 8 August 2007 by
Judge R. Stuart Albright in Guilford County Superior Court.
in the Court of Appeals 10 September 2008.
Attorney General Roy Cooper, by Special Deputy
General Kathryn Jones Cooper, for the State.
Duncan B. McCormick, for defendant-appellant.
Walter Anthony Alston, Jr. (“defendant”) appeals a judgment
entered upon a jury verdict finding him guilty of trafficking in
cocaine by possessing more than twenty-eight grams but less than
two hundred grams of cocaine.
We find no error.
From 28 November 2006 until 1 February 2007, Guilford County
Sheriff’s officers (“the officers”) investigated drug activity at
300 Regan Street, Greensboro, North Carolina (“the home”).
February 2007, the officers executed a search warrant at the home,
using a battering ram to enter the home.
The home was occupied by
-2five people: Jimmy Wayne Knight (“Knight”), Yvonne Bio (“Bio”),
Justin Hughes (“Hughes”), defendant, and Ruth Reyes (“Reyes”).
Knight owned the home and rented it to Hughes.
Hughes and defendant to sell cocaine from the home and accepted one
third of the proceeds from the sales.
When the officers came into
the home, defendant ran down a hallway and crashed into a locked
An officer observed defendant make a throwing motion
toward the living room, but did not see anything leave defendant’s
hand. The defendant retreated and was arrested in the living room.
Knight and Bio were detained in the kitchen.
in the entertainment room.
Hughes was detained
Defendant and Reyes were detained in
the living room.
The officers found 7.3 grams of cocaine in the living room and
32.8 grams of cocaine in the entertainment room.1
The cocaine in
the entertainment room was found in varying amounts around the
Officers found 12.3 grams on the floor, 11.3 grams on a
shelf near the VCR, 7.5 grams on the floor near the nightstand, 0.3
grams on the floor near one of the doors, 0.1 grams on the floor,
and 1.3 grams on top of a bureau.
In addition to the cocaine,
Specifically, they found a loaded .38 revolver, a laser pointer,
two-hundred seventy dollars in cash, a razor blade and a metal
measuring cup, which appeared to be used to cook crack cocaine.
State Bureau of Investigation Special Agent Shane Moore
testified the cocaine found in the living room weighed 6.5 grams
and the cocaine found in the entertainment room weighed 30.6 grams.
The parties do not dispute that more than twenty-eight grams of
cocaine were found in the entertainment room.
-3The revolver belonged to the defendant and the cash belonged to
acknowledged that he owned the cocaine found in the living room.
possessing more than twenty-eight grams but less than two hundred
grams of cocaine and possession with the intent to sell or deliver
cocaine. Defendant was also charged with possession with intent to
sell and deliver marijuana and possession of a firearm by a felon.
Defendant pled guilty to the charges of possession of a firearm
and possession with intent to sell and deliver marijuana.
was held on 2 August 2007 before the Honorable Stuart Albright of
Guilford County Superior Court.
Defendant moved to dismiss the
charge of trafficking by possession at the close of the State’s
The trial court denied the motion.
The jury returned a
possession and guilty of possession with intent to sell and deliver
The trial court consolidated the charges and sentenced
defendant to serve a minimum term of thirty-five months to a
maximum term of forty-two months in the North Carolina Department
of Correction. Subsequently, the trial court imposed a consecutive
active sentence of thirteen to sixteen months for possession of a
firearm by a felon.
Defendant appeals the trial court’s denial of
the motion to dismiss the charge of trafficking in cocaine by
I. Standard of Review
-4“In ruling upon a motion to dismiss, the trial court must
examine the evidence in the light most favorable to the [S]tate,
giving the [S]tate the benefit of all reasonable inferences which
may be drawn from the evidence.”
State v. Autry, 101 N.C. App.
245, 251, 399 S.E.2d 357, 361 (1991) (citations omitted). A motion
to dismiss is properly denied where the State presents substantial
evidence of each element of the crime charged and that defendant is
the perpetrator of the offense.
State v. Lynch, 327 N.C. 210, 215,
393 S.E.2d 811, 814 (1990). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585,
“Circumstantial evidence may withstand a motion to
dismiss and support a conviction even when the evidence does not
rule out every hypothesis of innocence.”
State v. Stone, 323 N.C.
447, 452, 373 S.E.2d 430, 433 (1988).
Defendant argues the trial court should have dismissed the
trafficking in cocaine charge because the State failed to prove he
possessed more than twenty-eight grams of cocaine.
contends the State presented insufficient evidence of possession
under either a constructive possession or acting in concert theory.
Since we conclude that the State presented sufficient evidence to
support the charge under a constructive possession theory, we do
not need to address defendant’s argument that the State did not
present substantial evidence under an acting in concert theory.
State v. Garcia, 111 N.C. App. 636, 639-40, 433 S.E.2d 187, 189
-5(1993) (to prove possession of a controlled substance, the State
must prove actual possession, constructive possession, or acting in
concert with another to commit a crime).
In order to support a charge of trafficking cocaine, the State
must prove that defendant (1) knowingly possessed cocaine and (2)
that the amount possessed was twenty-eight grams or more. State v.
Jackson, 137 N.C. App. 570, 573, 529 S.E.2d 253, 256 (2000).
“knowingly possessed” element of the offense of trafficking by
possession may be established by showing that: (1) defendant had
actual possession; (2) defendant had constructive possession; or
(3) defendant acted in concert with another to commit the crime.
State v. Diaz, 155 N.C. App. 307, 313, 575 S.E.2d 523, 528 (2002);
State v. Reid, 151 N.C. App. 420, 428, 566 S.E.2d 186, 192 (2002).
A person has actual possession of a controlled substance if it is
on his person, he is aware of its presence, and, either by himself
or together with others, he has the power and intent to control its
disposition or use.
Reid, 151 N.C. App. at 428-29, 566 S.E.2d 192.
“Constructive possession [of a controlled substance] occurs when a
person lacks actual physical possession, but nonetheless has the
intent and power to maintain control over the disposition and use
of the [controlled] substance.”
State v. Wilder, 124 N.C. App.
(concluding sufficient evidence for jury to infer possession where
officer observed defendant throw an object in the bushes and
officers recovered a bag of cocaine from that location). “[U]nless
-6narcotics are found, the State must show other incriminating
circumstances before constructive possession may be inferred.”
State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989)
In the case sub judice, since defendant did not have exclusive
sufficient evidence of incriminating circumstances in order to
allow the jury to infer defendant constructively possessed the
cocaine found in the entertainment room.
include evidence that defendant: (1) owned
other items found in proximity to the
contraband; (2) was the only person who could
have placed the contraband in the position
where it was found; (3) acted nervously in the
presence of law enforcement; (4) resided in,
had some control of, or regularly visited the
premises where the contraband was found; (5)
was near contraband in plain view; or (6)
possessed a large amount of cash.
State v. Miller, 191 N.C. App. 124, 127, 661 S.E.2d 770, 773 (2008)
internal citations omitted).
Evidence of conduct by the defendant
discovery is also sufficient to permit a jury to find constructive
State v. Turner, 168 N.C. App. 152, 156, 607 S.E.2d
19, 22-23 (2005). Our determination of whether the State presented
sufficient evidence of incriminating circumstances depends on “the
totality of the circumstances in each case.
No single factor
controls, but ordinarily the questions will be for the jury.”
-7State v. McBride, 173 N.C. App. 101, 106, 618 S.E.2d 754, 758
(2005) (citations and internal quotations omitted).
In Miller, this Court held an inference of constructive
possession was not supported by substantial evidence where the only
evidence linking defendant to the cocaine was his proximity to the
cocaine and his birth certificate found in the same room as the
Miller, 191 N.C. App. at 127, 661 S.E.2d at 773.
in State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001),
proximity to the contraband plus testimony that defendant was the
only person likely to have placed it in the location found were
Viewing the evidence in the light most favorable to the State
and giving it the benefit of all inferences raised, we conclude the
State presented sufficient evidence of incriminating circumstances
for the jury to infer defendant constructively possessed the
cocaine found in the entertainment room.
In particular, the State
presented evidence tending to show defendant regularly visited and
sold drugs from 300 Regan Street, defendant was present in the
defendant sold crack cocaine to Reyes in the entertainment room
earlier that evening, Hughes usually did not keep more than one
gram of cocaine on his person and kept his cocaine buried in the
yard, the defendant was Hughes’ drug supplier, and defendant’s gun
was found in the entertainment room.
Accordingly, we find no
evidence that defendant told the officers he owned the cocaine in
the living room but not the cocaine in the entertainment room, the
State is bound by that statement.
See State v. Carter, 254 N.C.
475, 479, 119 S.E.2d 461, 464 (1961) (State is bound by exculpatory
statements by defendant introduced into evidence which are not
contradicted or shown to be false by other facts or circumstances
in evidence). We disagree. The State also presented evidence from
which the jury could infer that defendant possessed the cocaine in
the entertainment room: defendant was Hughes’ drug supplier, that
Hughes usually did not keep his cocaine in the house, defendant
sold cocaine from the entertainment room earlier that day, and
officers found defendant’s gun in the entertainment room.
Judge TYSON concurs.
Judge ELMORE dissents by separate opinion.
ELMORE, Judge, dissenting.
I do not believe that the State established defendant’s
constructive possession of the cocaine in the entertainment room by
presenting additional incriminating circumstances sufficient to
deny defendant’s motion to dismiss.
Therefore, I respectfully
Simply put, there were too many other people with an interest
in the cocaine to properly infer that defendant had constructive
-9defendant in the house at the time of the “bust.”
four people, Hughes, was also a drug dealer.
One of those
A second person,
Knight, received payment in kind from both defendant and Hughes for
allowing them to use his house to sell drugs.
The other two
people, Bio and Reyes, were both drug users who were in the house
Knight’s arrangement with defendant suggests that Knight, rather
than defendant, was the owner of at least some of the cocaine in
defendant, would have had the intent and power to maintain control
over his portion of the cocaine’s use and disposition.
these factors, I disagree with the majority’s conclusion that the
State proved that defendant had constructive possession of the
cocaine found in the entertainment room, and therefore would hold
that the State failed to establish that he knowingly possessed
twenty-eight grams or more of cocaine.
Accordingly, I would hold that the trial court erred by
denying defendant’s motion to dismiss and would vacate defendant’s
conviction for trafficking in cocaine by possessing more than
twenty-eight grams but less than two hundred grams of cocaine.