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[T] State v. Green7/15/2003
t has stated:
"Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence." The evidence needonly permit a reasonable inference of the defendant's guilt of the crime charged in order for that charge to be properly submitted to the jury. Once the court determines that a reasonable inference of the defendant's guilt may be drawn from the circumstances, "it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty." Id. (citations omitted).
Under N.C. Gen. Stat. § 90-95(a)(1) (2001), felonious possession of a controlled substance requires proof of two elements: (1) possession of a controlled substance; and (2) the substance must be knowingly possessed. Defendant contends that the record contains insufficient evidence of possession. If a reasonable inference of defendant's possession can be drawn from the evidence, then the evidence is sufficient to submit the issue of possession to the jury. State v. Welch, 89 N.C. App. 135, 137, 365 S.E.2d 190, 191 (1988) ("Direct evidence of defendant's possession of the heroin was not required; it is sufficient that defendant's possession can reasonably be inferred from the evidence."), disc. review denied, 322 N.C. 485, 370 S.E.2d 235 (1988).
In this case, the jury could have reasonably inferred that defendant possessed cocaine based on the evidence that Officer Dubay saw nothing on the street as he drove up to the fight and parked, that defendant attempted to flee when told he would be patted down, that Officer Dubay patted defendant down near the area where the cocaine was found, that defendant made a throwing motion in the exact direction where the cocaine was later found, and thatno one else was standing near the cocaine's location. See Welch, 89 N.C. App. at 137, 365 S.E.2d at 191 (jury could infer possession from evidence that defendant had an object in a paper sack, that the sack was empty when searched, that defendant had no opportunity to rid himself of the object except while in a phone booth, that drugs in the shape of the object were found in the phone booth a minute after defendant was there, and no one else was seen around the phone booth). Defendant argues that Officer Dubay's failure to see anything leave defendant's hand (while struggling and standing behind defendant in the early morning hours) necessarily means nothing was in defendant's hand. This contention amounts to drawing an inference from the evidence in favor of defendant and not the State, an impermissible approach on a motion to dismiss. It was proper for the trial court to allow the jury to decide whether or not defendant possessed the cocaine.
Second, defendant contends that the prosecutor unconstitutionally manipulated the habitual felon and structured sentencing laws by selecting as the basis for the habitual felon status the three prior offenses carrying the minimum sentencing points, thus maximizing the number of points left available to determine Green's prior record. This approach resulted in defendant's having a prior record level IV for sentencing rather than a level III. This precise argument was made and rejected in Cates, 154 N.C. App. at 739, 573 S.E.2d at 209 . This assignment of error is overruled. Defendant concedes that his remaining arguments have already been rejected by this Court. Since defendant raises these arguments for preservation purposes only, we do not address them.
No error.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
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