North Carolina Lawyers Weekly
State v. Dulin (Lawyers Weekly No. 011-195-16, 21 pp.) (Donna Stroud, J.) Appealed from Forsyth County Superior Court (A. Moses Massey, J.) N.C. App.
Holding: The state proved that defendant had constructive possession of a house in which drug paraphernalia was found, but not of a boat (located 70 feet behind the house) in which marijuana was found, based on the following incriminating circumstances: (1) defendant spent hours at the house on the day of the search, either inside it or in the front yard washing a black truck; (2) the defendant admitted to the police that he had a “blunt” in the truck, which was parked in front of the house, and the police found marijuana in the truck’s console; (3) inside the house, police found marijuana behind a photograph of defendant; and (4) several people visited the house while defendant was there, including a man who shook hands with defendant as if they were passing an item back and forth.
We find no error in defendant’s conviction of possession of the drug paraphernalia found inside the house. We vacate defendant’s conviction of possession with intent to sell or deliver the marijuana found in the boat. We remand for re-sentencing.
Although the evidence tends to show that defendant shared the house with at least one other individual, considering the totality of the circumstances, a reasonable inference may be drawn that defendant had the power to control the use and disposition of the drug paraphernalia since it was located in a common area of his residence.
However, the state produced no evidence linking defendant to the marijuana found in the boat other than the evidence that the boat was present in the yard.
As best we can tell from the testimony, police officers Shuskey and Honaker observed defendant driving through the right side of the yard, disappearing behind the house, and then driving back to the front, but there is no evidence that defendant stopped at the boat or hid anything in the boat, and the officers testified that defendant was aware of their presence at that point. In addition, the boat was uncovered, and police did not check to whom the boat was registered.
The house had multiple bedrooms, and Officer Honaker testified that he had observed another man working on a white truck in the carport of the house, so the boat may have belonged to someone else residing in the home.
The “other incriminating circumstances” as noted above are simply too weak to connect defendant to the marijuana found in the boat so far from the house. Therefore, the state failed to present sufficient evidence of defendant’s constructive possession of the marijuana found in the boat, and the trial court erred in denying defendant’s motion to dismiss the charge of possession of marijuana with intent to sell or deliver.
No error in part, reversed in part, and remanded.
