Defendant Amanda Leigh Rape appeals from the trial courts judgment entered after a jury found her guilty of possession of a Schedule-II controlled substance under N.C. Gen. Stat. § 90-95(a)(3). Defendant contends the trial court erred by denying her motion to dismiss as there was insufficient evidence to support a finding of constructive possession. We hold the trial court did not err.
I. Factual and Procedural Background
On 23 August 2021, Monroe Police Sergeant Adam Craig observed a red Jeep Cherokee in a parking lot with two men lying on the ground beside the vehicle. Sgt. Craig pulled up next to the vehicle to check on the two men and discovered both were asleep.
Sgt. Craig then checked on the two individuals occupying the driver and passenger seats in the vehicle. The vehicle was filled with belongings and blankets covered the windows. The occupant of the drivers seat, Betty King Mills, was “completely unalert” with a used syringe in her hand. Defendant, who appeared to be asleep, was sitting in the passenger seat. Sgt. Craig contacted EMS, requested backup, and attempted to wake up Defendant and Ms. Mills. He was only able to wake Defendant. After waking up, Defendant began stuffing money into a wallet, and Sgt. Craig ordered Defendant to get out of the car while they waited for EMS. Sgt. Craig observed used syringes covering the front and back compartments of the vehicle. In addition to the syringes, Sgt. Craig noticed a bag containing a white powdery substance in an open compartment beneath the passengers side glove box. A forensic scientist later confirmed and testified at trial that the white powdery substance contained fentanyl. The compartment was within arms reach of where Defendant had been sitting.
Sgt. Craig and Officer Todd Haigler searched the vehicle after EMS arrived. During the search, the officers located the bag of fentanyl that was in the open compartment in front of Defendant. In addition to the fentanyl found in the vehicle, the officers collected ten used syringes, another loaded syringe in a box between the seats, several burnt spoons, needles, and Suboxone strips. Officer Haigler also discovered a glass pipe used to smoke methamphetamine, a spoon with brown residue in the passenger-side door, and an empty plastic baggy in between the passenger seat and the console.
On 29 August 2022, Defendant was indicted for possession of fentanyl, a Schedule-II controlled substance, and for possession of drug paraphernalia. Defendants case came on for trial on 6 March 2023 in Union County Superior Court. Defendants counsel moved to dismiss the charges—both at the close of the States evidence, and at the close of all evidence—for insufficient evidence. The trial court denied both motions.
On 13 March 2023, the jury returned a verdict finding Defendant guilty of possession of fentanyl. Defendant gave oral notice of appeal seven days after her trial concluded.
II. Petition for Writ of Certiorari
Defendants notice of appeal failed to comply with the requirements of Rule 4(a) of the North Carolina Rules of Appellate Procedure. Pursuant to Rule 4(a), to appeal from a judgment in a criminal case “(1) [a] party may give oral notice of appeal at the time of trial or of the pretrial hearing, or (2) notice of appeal may be in writing and filed with the clerk of court ․ at any time between the date of the rendition of the judgment or order and the fourteenth day after entry of the judgment or order. State v. Jordan, 242 N.C. App. 464, 468, 776 S.E.2d 515, 518 (2015) (citation and internal quotation marks omitted); see N.C. R. App. P. 4(a). Here, Defendant gave oral notice of appeal seven days after trial. In acknowledgement of this error, Defendant filed a Petition for Writ of Certiorari. Appellate Rule 21(a)(1) allows this Court to review trial court judgments “when the right to prosecute an appeal has been lost by failure to take timely action[.]” N.C. R. App. P. 21(a)(1). Accordingly, this Court is authorized to review Defendants criminal judgment and conviction. Although Defendants notice of appeal was improper, the trial court acknowledged Defendants appeal and appointed appellate counsel to assist her. In our discretion, we grant Defendants petition for writ of certiorari and proceed to address the merits of the case.
III. Standard of Review
We review a trial courts denial of a defendants motion to dismiss de novo. State v. Golder, 374 N.C. 238, 249–50, 839 S.E.2d 782, 790 (2020). To survive a motion to dismiss based on insufficiency of the evidence, the State must present substantial evidence (1) of each essential element of the charged offense and (2) of the defendant being the perpetrator of the offense. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000). “Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.” State v. Winkler, 368 N.C. 572, 574, 780 S.E.2d 824, 826 (2015) (citation and quotation marks omitted).
In ruling on a motion to dismiss, the court must view all evidence “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[.]” Id. (citation and internal marks omitted). “ ‘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. Thomas, 350 N.C. 315, 343, 514 S.E.2d 486, 503 (1990) (quoting State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988)). The standard for a motion to dismiss is the same whether the evidence is direct, circumstantial, or both. Fritsch, 351 N.C. at 378, 526 S.E.2d at 455. “When ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence.” Id. at 379, 526 S.E.2d at 455–56 (citation omitted).
IV. Analysis
Defendant argues the trial court erred by denying her motion to dismiss for insufficient evidence. Specifically, Defendant contends the State failed to present evidence of “incriminating circumstances” sufficient to support a finding of constructive possession.
Under North Carolina law, “it is unlawful for any person to possess a controlled substance.” N.C. Gen. Stat. § 90-95(a)(3) (2023). “ ‘Possession of a controlled substance may be actual or constructive.’ ” State v. Ferguson, 204 N.C. App. 451, 459, 694 S.E.2d 470, 477 (2010) (citation omitted). “A person has actual possession of a 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.” State v. Reid, 151 N.C. App. 420, 428–29, 566 S.E.2d 186, 192 (2002) (citation omitted). Constructive possession of a substance occurs when a person lacks actual possession but has the intent and capability to maintain control and dominion over the substance. Ferguson, 204 N.C. App. at 459, 694 S.E.2d at 477.
To survive a motion to dismiss when a defendant is not in exclusive possession of the place where the substance is found, the State must provide evidence of other incriminating circumstances linking the defendant to the substance. State v. Chekanow, 370 N.C. 488, 496, 809 S.E.2d 546, 552 (2018). “[T]he mere presence of the defendant in an automobile containing drugs does not, without additional incriminating circumstances, constitute sufficient proof of [constructive] drug possession.” State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 73 (1996) (citation omitted). To determine whether sufficient incriminating circumstances exist to support a finding of constructive possession, courts consider:
(1) the defendants ownership and occupation of the property ․
;
(2) the defendants proximity to the contraband;
(3) indicia of the defendants control over the place where the contraband is found;
(4) the defendants suspicious behavior at or near the time of the contrabands discovery; and
(5) other evidence found in the defendants possession that links the defendant to the contraband.
Chekanow, 370 N.C. at 496, 809 S.E.2d at 552. No one factor is controlling. Id. Whether sufficient incriminating circumstances exist is a fact-specific inquiry requiring courts to consider the totality of the circumstances. Id.
Here, Defendant did not have actual possession of the fentanyl and was not in exclusive possession of the place where the contraband was found. Thus, the State was required to present evidence of other incriminating circumstances to support a finding of constructive possession. Id. Defendant argues the States evidence was insufficient.
Defendant contends the contraband could not be attributed to her because Ms. Mills was the driver and owner of the vehicle. Although Defendant did not own the vehicle, the State presented evidence tending to show Defendant was sleeping in the vehicle, living out of the vehicle, and solely occupying the passenger side of the vehicle within arms reach of where the contraband was found.
Moreover, the State introduced evidence that Defendant was asleep in a vehicle with drug paraphernalia, was located next to an active drug user, and was in an area known for drug and criminal activity, all of which support a reasonable inference that Defendant was aware of the presence of drugs inside the vehicle. See State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001) (holding that where there was an odor of marijuana and the presence of drug paraphernalia in a vehicle “a juror could reasonably determine [the] defendant knew drugs were in the car”).
Additionally, Defendant was located in close proximity to the contraband and could easily access and control the open space where it was found. Defendant was the sole occupant of the passenger side, was within arms reach of the contraband, and was the only individual to exit that side of the vehicle. See Carr, 122 N.C. at 373, 470 S.E.2d at 73 (holding that cocaine found in the floorboard of the front passenger side of a vehicle where the defendant had been sitting was sufficient indicia of the defendants control, as he solely occupied that side of the car and was the only individual to exit that side of the vehicle); see also State v. Miller, 363 N.C. 96, 97–98, 678 S.E.2d 592, 593 (2009) (holding that an individuals personal items found in the same area where the contraband was found were a sufficient indicator of control). Despite Defendants contention that the belongings in the vehicle could not be directly attributed to her, an inference could be drawn from facts in the record that she was living inside the vehicle. Thus, it can reasonably be inferred that some of the personal belongings in the car belonged to Defendant.
Further, the State showed that Defendant was the only one capable of exercising control over the fetanyl as Ms. Mills, the owner and other occupant of the vehicle, was “completely unalert” and had no intent or capability to exercise dominion and control over the contraband. However, even if Ms. Mills was not “completely unalert,” Defendant “may have the power to control either alone or jointly with others.” Id. at 99, 678 S.E.2d at 594 (citing State v. Fuqua, 234 N.C. 168, 170–71, 66 S.E.2d 667, 668 (1951)). “[A] defendants opportunity to place contraband in the place where it was found is additional indicia of control.” Chekanow, 370 N.C. at 497, 809 S.E.2d at 553; see Matias, 354 N.C. at 552–53, 556 S.E.2d at 271 (holding that the defendant, one of four passengers in a vehicle, was the only person in the car who could have put the package of cocaine where it was located – the crease of the car seat where he was sitting). Similar to the defendant in Matias, Defendant did not solely occupy the vehicle, but was the only person capable of exercising control over the area where the contraband was found. Cf. Ferguson, 204 N.C. App. at 461–62, 694 S.E.2d at 478 (holding that there was insufficient evidence to support a finding of constructive possession where the defendant was fleeing from a vehicle and could not be linked to the specific area of the car where the contraband was found). Unlike the defendant in Ferguson, here, the officers found Defendant inside the vehicle and within arms reach of the contraband.
Viewing the evidence in the light most favorable to the State, the evidence of Defendants occupation of the vehicle, her proximity to the contraband, and her control over the area where the contraband was found, constitute sufficient incriminating circumstances to support a finding of constructive possession. Accordingly, the trial court did not err by denying Defendants motion to dismiss.
V. Conclusion
We hold the trial court properly denied Defendants motion to dismiss.
NO ERROR.
Report per Rule 30(e).
GRIFFIN, Judge.
Judges TYSON and ZACHARY concur.