STATE v. DALEUS

STROUD, Judge.

Defendant Jean Rony Daleus appeals from judgments entered upon jury verdicts finding him guilty of trafficking in cocaine by possession, trafficking in cocaine by transportation and conspiring to traffic in cocaine. Defendant contends that the trial court erred by: (1) failing to dismiss all the charges against defendant on the basis of insufficient evidence of possession, and (2) admitting evidence that defendant failed to appear as required by his pre-trial release order and was arrested three years later in another state. After careful review of the record, however, we conclude that defendant received a fair trial, free of reversible error, as to all three charges.

I. Background

On 19 September 2001, defendant was riding in the front passenger seat of a 2001 Mercury Sable, rented in the name of Daphnee Beaubrun. The only other person in the vehicle was the driver, Leonel Constant. The vehicle was pulled over for speeding at 6:55 p.m. that evening by Cumberland County Deputy Sheriff Mark Hart. Deputy Hart noticed that both the driver and defendant were extremely nervous and the vehicle reeked of air freshener, so he requested consent to search the vehicle. Constant, the driver, consented to the search. During the search, Deputy Hart found $3,360 in cash in the glove compartment. He also saw a Burger King bag in the floor at defendant's feet. A search of the bag revealed a receipt for two sandwiches, two fries, and two drinks, which was dated 12:15 p.m. the same day. The bag also contained empty sandwich wrappers, cold french fries, and a sock filled with 159.4 grams of powder cocaine. Both defendant and Constant were arrested.

On 26 February 2002, the Cumberland County Grand Jury indicted defendant of trafficking in cocaine by possession, trafficking in cocaine by transportation and conspiring to traffic in cocaine. Defendant was released on bond and ordered to appear on 5 June 2002. Defendant failed to appear, and an order was issued for his arrest. He was stopped for a traffic violation in West Virginia on 29 December 2005 and served with the order for his arrest. Defendant was extradited to North Carolina, where he was tried before a jury in Cumberland County Superior Court from 1 to 2August 2006, Judge Franklin F. Lanier presiding. Defendant was found guilty on all three charges. Thereafter, the trial court sentenced defendant to three consecutive sentences of 35 to 42 months. Defendant appeals.

II. Discussion

A. Motion to Dismiss

Defendant contends that the trial court erred in failing to dismiss all charges because the State presented insufficient evidence that defendant possessed the cocaine found at his feet. We disagree.

When ruling on a motion to dismiss for insufficiency of the evidence, the trial court must consider evidence in the light most favorable to the State, drawing all reasonable inferences in its favor. State v. McCullers, 341 N.C. 19, 28-29, 460 S.E.2d 163, 168 (1995). Whether evidence is sufficient is determined by demonstrating that "substantial evidence exists as to each essential element of the offense charged and of the defendant being the perpetrator of that offense." State v. Glover, 156 N.C. App. 139, 142, 575 S.E.2d 835, 837 (2003).

"Proof of nonexclusive, constructive possession is sufficient" to survive a motion to dismiss for insufficient evidence of possession of controlled substances or contraband. State v. Tisdale, 153 N.C. App. 294, 297, 569 S.E.2d 680, 682 (2002) (citation and quotation omitted). "Evidence of constructive possession is sufficient to support a conviction if it would allow a reasonable mind to conclude that defendant had the intent andcapability to exercise control and dominion over the drugs." State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 73 (1996).

"[C]onstructive possession depends on the totality of circumstances in each case." State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986). "[T]he mere presence of the defendant in an automobile containing drugs does not, without additional incriminating circumstances, constitute sufficient proof of drug possession." Carr, 122 N.C. App. at 372, 470 S.E.2d at 73. However, "a showing by the State of other incriminating circumstances . . . permit[s] an inference of constructive possession." Id. For example, evidence that

cocaine [was] found in the area of the car occupied solely by defendant . . .[;] that defendant had conversed with . . . a known drug user, who earlier in the evening was charged with possession of a crack cocaine pipe; that defendant was the only passenger who left the vehicle by the passenger side; and that defendant attempted to give the arresting officer a fictitious name when questioned[,]

id. at 373, 470 S.E.2d at 73, has been held by this Court to be evidence of constructive possession sufficient to survive a motion to dismiss, id. Additionally, being "very nervous" when approached by law enforcement is an incriminating circumstance, State v. Butler, 356 N.C. 141, 147-48, 567 S.E.2d 137, 141 (2002), as is the defendant's possession of a large amount of cash. State v. Neal, 109 N.C. App. 684, 687, 428 S.E.2d 287, 290 (1993).

In the case sub judice, the cocaine was found in an area of the vehicle solely occupied by defendant. Defendant was very nervous when approached by law enforcement. The glove compartment, an area within defendant's reach, contained a large amount of cash, $3,360. Additionally, the bag in which the cocaine was found contained the remains of two meals. Under our precedents, the totality of the circumstances in this case, viewing the evidence in the light most favorable to the State, is sufficient to support a finding of constructive possession of cocaine sufficient to survive the motion to dismiss. Defendant's assignment of error is therefore overruled.

B. Evidence of Failure to Appear

Defendant contends that the trial court erred when it admitted evidence that he failed to appear for trial on these charges in 2002. However, this Court has previously held that there was "no abuse of discretion in the trial court's admitting evidence of defendant's failure to appear for trial. One reasonable view of this evidence is that defendant, by failing to appear for trial, attempted to avoid prosecution for the offenses charged." State v. Williamson, 122 N.C. App. 229, 232, 468 S.E.2d 840, 843, cert. denied, 344 N.C. 637, 477 S.E.2d 54 (1996). This assignment of error is without merit.

III. Conclusion

Defendant has failed to show that the trial court erred during his trial for trafficking in cocaine by possession, trafficking in cocaine by transportation and conspiring to traffic in cocaine. Accordingly, we conclude that defendant received a fair trial, free of reversible error.

No error.

Judges ELMORE and STEELMAN concur.

Report per Rule 30(e).