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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.

NO. COA07-770


Filed: 20 May 2008


Yancey County

No. 06 CRS 37

Appeal by defendant from judgment entered 30 January 2007 by
Judge J. Marlene Hyatt in Yancey County Superior Court. Heard in
the Court of Appeals 12 December 2007.

Attorney General Roy Cooper, by Assistant Attorney General
Robert D. Croom, for the State.

Kathleen A. Widelski, for defendant-appellant.


Jesse Lee Hensley (“defendant”) appeals from a judgment
entered upon a jury verdict finding him guilty of possession of a
malt beverage by a person less than twenty-one years of age. We
The State presented the following pertinent evidence: On 7
January 2006, Yancey County Deputy Sheriff Nathan Ball (“Deputy
Ball”) was on routine patrol at approximately 1:30 a.m on Westside
Road. A 1999 Oldsmobile (“the Oldsmobile” or “the vehicle”) pulled
out in front of his vehicle and after traveling approximately two
hundred yards, the Oldsmobile turned right onto Abby Road, a
private road. Deputy Ball checked the license plate number and
discovered the Oldsmobile was registered to defendant. Since Deputy
Ball knew approximately four of the residents on Abby Road and wasconcerned that defendant did not reside on the private road, Deputy
Ball checked defendant’s license plate and discovered the vehicle
was registered to defendant.
After waiting approximately five minutes, Deputy Ball drove
onto Abby Road. When he was nearly at the end of the private road,
he observed the Oldsmobile, traveling between five and ten miles
per hour, pass in front of him and turn. It appeared that
defendant was trying to evade him, so Deputy Ball decided to follow
defendant. The lights from Deputy Ball’s patrol car illuminated
the Oldsmobile. With the aid of the lights, Deputy Ball could see
the driver of the Oldsmobile and identified the driver as the
defendant. After the Oldsmobile passed Deputy Ball’s patrol car,
Deputy Ball turned his patrol car around and continued following
the defendant. When Deputy Ball turned on Westside Road, he
observed defendant traveling at a high rate of speed inside
Wheeler’s Trailer Park (“Wheeler’s”).
Deputy Ball turned into Wheeler’s and discovered the
Oldsmobile parked beside a vacant manufactured home. When Deputy
Ball looked inside the vehicle, defendant was not in the
Oldsmobile, but he discovered open beer bottles and “some type of
wine.” Another vehicle was located near the Oldsmobile that was
occupied by several individuals. One of the occupants was David
Stansberry (“Mr. Stansberry”). After speaking with the occupants,
Deputy Ball walked to Mr. Stansberry’s home.
Deputy Ball knocked on the Stansberrys’ door and Heather
Stansberry (“Heather”), defendant’s cousin, answered. At thattime, Heather lived with her parents. Deputy Ball asked Heather if
he could enter the residence and Heather refused because she did
not have her parents’ consent. Deputy Ball then called for
additional officers to assist him at the Stansberry residence.
After the additional officers arrived, Heather and her parents
allowed the officers to enter their residence.
Upon entering the residence, Deputy Ball discovered defendant
lying on the couch in the living room. Defendant appeared to be
asleep. Defendant stood up when Deputy Ball spoke to him and
Deputy Ball noticed defendant’s red glassy eyes and detected an
odor of alcohol on him. Defendant told Deputy Ball that he was
twenty years old. Based on his observations of defendant, Deputy
Ball formed an opinion that defendant was appreciably impaired from
alcohol, and placed defendant under arrest for driving while
impaired. Deputy Ball also issued defendant a citation for
possession or consumption of a malt beverage by a person less than
twenty-one years of age pursuant to N.C. Gen. Stat. § 18B-302
(2005). After defendant was arrested, a chemical analysis of a
sample of his breath using an Intoxilyzer 5000 showed that he had
an alcohol concentration of .11.
On 18 May 2006, defendant pled not guilty to both offenses in
Yancey County District Court and was found guilty as charged.
Defendant appealed to Superior Court. At trial, defendant
presented the following evidence: Defendant testified, inter alia,
there were five sets of Oldsmobile keys and that the vehicle was a
“community car” for his family. On the day he was arrested, headmitted that he drank a little bit of wine earlier in the day,
then fell asleep on the Stansberrys’ couch at approximately 10:45
p.m. He awoke around 1:00 a.m. when Deputy Ball appeared in the
living room of the Stansberrys’ residence. He claimed he did not
operate the Oldsmobile on Westside Road or Abby Road that evening.
On 30 January 2007, in Yancey County Superior Court, the jury
found defendant not guilty of driving while impaired, but returned
a verdict finding defendant guilty of possession of a malt beverage
while being less than twenty-one years of age. Judge J. Marlene
Hyatt (“Judge Hyatt”) sentenced defendant to a term of forty-five
days in the North Carolina Department of Correction, suspended
defendant’s sentence and placed defendant on supervised probation
for a period of twelve months. Defendant appeals.
On appeal, defendant argues the trial court erred in (I)
denying defendant’s motion to dismiss; (II) instructing the jury
regarding the charge of possession of a malt beverage by a person
less than twenty-one years of age; (III) failing to grant
defendant’s motion to suppress; and (IV) admitting a portion of
Deputy Ball’s testimony in violation of the hearsay rule under the
North Carolina Rules of Evidence.

I. Motion to Dismiss
We first address defendant’s contention that the trial court
erred in denying his motion to dismiss the charge for possession of
a malt beverage by a person less than twenty-one years of age. Our
standard of review on a motion to dismiss for insufficiency of the
evidence is “whether there is substantial evidence (1) of eachessential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant’s being the perpetrator of
such offense. If so, the motion is properly denied.” State v.
, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quotation
omitted). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
All evidence must “be considered in the light most favorable to the
State; the State is entitled to every reasonable intendment and
every reasonable inference to be drawn therefrom; contradictions
and discrepancies are for the jury to resolve and do not warrant
dismissal[.]” State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114,
117 (1980). If the evidence “is sufficient only to raise a
suspicion or conjecture as to either the commission of the offense
or the identity of the defendant as the perpetrator, the motion to
dismiss must be allowed.” State v. Malloy, 309 N.C. 176, 179, 305
S.E.2d 718, 720 (1983).
Pursuant to N.C. Gen. Stat. § 18B-302(b)(1), it is unlawful
for “[a] person less than 21 years old to purchase, to attempt to
purchase, or to possess malt beverages or unfortified wine[.]”
Therefore, for the State to survive a motion to dismiss regarding
the charge for possession of a malt beverage by a person less than
twenty-one years of age, the State must prove the following
elements: (1) that defendant either purchased or possessed a malt
beverage and (2) that defendant was under the age of twenty-one at
the time of possession. Although the citation issued to defendantapparently included a charge of consumption of a malt beverage by
a person less than twenty-one years of age pursuant to N.C. Gen.
Stat. § 18B-302(b)(3), the State did not pursue this issue at
trial. Only the charge of possession was submitted to the jury.
In addition, the citation stated that defendant was charged only
with possession of a malt beverage. Neither wine nor unfortified
wine were included in the citation.
In the instant case, Deputy Ball testified regarding
defendant’s age as follows:
Q: [W]ere you able to determine
[defendant’s] date of birth?
A: Yes, sir.
Q: What was his date of birth?
A: His date of birth is 2-26 of 1985.
Q: So on January 7th of 2006 he would have been twenty
years old?
A: Yes, sir, twenty years of age.

Therefore, there is no dispute the evidence revealed that on
the date of the incident, defendant was under the age of
twenty-one. There also is no dispute that there is no evidence
regarding defendant’s purchase of a malt beverage. As such, the
State must prove defendant possessed a malt beverage.
The State must present evidence that defendant had either
actual or constructive possession of a malt beverage. See State v.
Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985). “Actual
possession requires that a party have physical or personal custody
of the item.” State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d
315, 318 (1998) (citation omitted). However, “in a prosecution for
possession of contraband materials, the prosecution is not required
to prove actual physical possession of the materials. Proof ofconstructive possession is sufficient and that possession need not
always be exclusive.” State v. Perry, 316 N.C. 87, 96, 340 S.E.2d
450, 456 (1986) (citations omitted). Under a theory of
constructive possession, an accused “has possession of the
contraband material within the meaning of the law when he has both
the power and intent to control its disposition or use.” State v.
Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984) (citation and
quotation omitted).
In the case sub judice, Deputy Ball discovered open beer
bottles and “some type of wine” in the Oldsmobile he witnessed
defendant driving. In addition, Deputy Ball testified that when he
observed defendant driving the vehicle, defendant was the only
person inside the vehicle. Defendant testified that the vehicle he
drove on the night of the incident was his vehicle. Thus, we
conclude the State presented substantial evidence to prove
defendant possessed both the beer bottles and the wine found in his
vehicle. However, while the State presented substantial evidence
that defendant possessed the beer bottles and wine discovered in
his vehicle, we now determine whether the State presented
substantial evidence to prove whether the bottles or the wine
defendant possessed contained a malt beverage or could be
considered a malt beverage.
On the date of the incident, under N.C. Gen. Stat. § 18B-101
(9), a “malt beverage” was defined as “beer, lager, malt liquor,
ale, porter, and any other brewed or fermented beverage containing
at least one-half of one percent (0.5%), and not more than fifteenpercent (15%), alcohol by volume.” N.C. Gen. Stat. § 18B-101(9)

(See footnote 1)

At trial, Deputy Ball testified for the State as to the type
of open container he found in defendant’s vehicle:
Q: What type of open containers do you
recall seeing inside the vehicle?
A: There were beer bottles and some type of

The State presented no evidence that there was even any liquid
remaining in the beer bottles, nor any residue of a liquid, and not
even the type of beer indicated by the label, which could give rise
to an inference that the type of beverage in the bottle fits the
legal definition of a “malt beverage.” Furthermore, Deputy Ball
testified that he threw away the beer bottles rather than preserve
the bottles as evidence. In addition, the State presented no
evidence that the wine discovered in defendant’s vehicle came under
the purview of the definition of “malt beverage” as defined in N.C.
Gen. Stat. § 18B-101(9), and defendant was not charged with
possession of unfortified wine.
Although the State presented substantial evidence that
defendant possessed the beer bottles and wine discovered in his
vehicle, the State must also present substantial evidence from
which the jury could find that the beverages defendant possessed,or constructively possessed, were in fact “malt beverages.” The
evidence which supports the State’s case, aside from the mere
existence of “beer bottles,” was Deputy Ball’s observations,
defendant’s admission, and his blood alcohol concentration. Deputy
Ball noticed defendant had “red, glassy eyes,” and he detected an
odor of alcohol. In addition, defendant admitted to Deputy Ball
that he drank a half bottle of red wine earlier in the evening, and
defendant’s blood alcohol concentration level was .11. However,
none of these facts demonstrate one of the three necessary elements
of the charge against defendant, that defendant “had in his
possession a malt beverage,” since wine does not meet the
definition of a “malt beverage.” These facts admittedly
demonstrate that defendant had consumed some type of alcoholic
beverage, but consumption and possession are two different matters.
Although N.C. Gen. Stat. Chapter 18B, Article 1 does not
define the word “consume” or “consumption” in relation to alcoholic
beverages, “it is presumed that the Legislature intended the words
of the statute to be given the meaning which they had in ordinary
speech at the time the statute was enacted.” Transportation
Service v. County of Robeson
, 283 N.C. 494, 500, 196 S.E.2d 770,
774 (1973). “Consume” is defined as “to eat or drink . . . .”
Merriam-Webster’s Collegiate Dictionary 268 (11th ed. 2003).
Certainly, the common meaning of “consumption” as it relates to a
beverage in the context of N.C. Gen. Stat. § 18B-302 is to drink
the beverage. However, defendant was not tried for consumption ofa malt beverage; he was tried only for possession of a malt
We conclude the State did not meet its burden of proving
substantial evidence existed for all three elements of the offense
charged. Scott, 356 N.C. at 595, 573 S.E.2d at 868. Accordingly,
the trial court erred by not granting defendant’s motion to
dismiss. We therefore reverse the judgment. In light of our
holding, we need not address defendant’s remaining assignments of
Judges HUNTER and STROUD concur.

Footnote: 1

N.C. Gen. Stat. § 18B-101(9) subsequently was amended in
2006. See Act of 27 August 2006, ch. 264, sec. 95, 2006 N.C. Sess.
Laws 1324. The North Carolina General Assembly inserted “except
unfortified or fortified wine as defined by this Chapter,” in the
definition of a “malt beverage.” However, since the date of the
incident occurred on 7 January 2006, this addition to the
definition of “malt beverage” is not applicable to this case.

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