in the Court of Appeals 20 April 2017.
by defendant from judgment entered 13 April 2016 by Judge
Paul C. Ridgeway in Wake County, No. 15 CRS 224056 Superior
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Mary L. Lucasse, for the State.
Law Office, by Craig M. Cooley, for defendant-appellant.
Ben Yisrael ("Defendant") appeals from a judgment
entered upon a jury's verdict finding him guilty of
possession with intent to sell or deliver marijuana. We find
Police Officer Dennis Brandenburg was employed as the school
resource officer at Enloe Magnet High School. On 30 October
2015 at approximately 10:00 a.m., Officer Brandenburg
observed a white Chevrolet Impala vehicle pull into the front
entrance of the school and illegally park in the fire lane.
Officer Brandenburg recognized the vehicle as belonging to
Malik Jones ("Jones"), a former Enloe student, who
had previously been banned from the school's grounds for
Brandenburg believed Jones was driving the vehicle. He pulled
in behind the vehicle and activated the blue lights on his
marked patrol car. Officer Brandenburg approached the car and
intended to ask Jones why he was illegally present on school
property after being banned. When he reached the driver's
side, Officer Brandenburg saw Defendant was the driver and
was alone in the car. Officer Brandenburg did not recognize
Defendant. Defendant, who was twenty years old, told Officer
Brandenburg that he did not possess a driver's license,
but presented an identification card.
trial, Jones testified he had allowed Defendant to borrow his
car the night before so that Defendant could "go
out." Jones had allowed Defendant to borrow his car on
four or five prior occasions.
speaking with Defendant, Officer Brandenburg noticed a strong
odor of marijuana emanating from inside the vehicle. The odor
of marijuana prompted Officer Brandenburg to detain Defendant
and search both him and the car.
Brandenburg recovered $1, 504.00 in cash and a small
"dime bag" of marijuana from inside Defendant's
pockets. The officer explained a "dime bag" is
normally a gram of marijuana. The "dime bag" of
marijuana was packaged in a cut corner of a plastic bag,
which, according to Officer Brandenburg, is how a "dime
bag" is normally sold. A small amount of marijuana is
placed into each corner of a "baggie, " and the
corners are tied off and cut.
Brandenburg also found two larger bags of marijuana in the
center console of the Impala. Subsequent analysis of the
three bags of marijuana determined that the weight of the
"dime bag" was 0.69 grams, and the weight of the
two larger bags was 4.62 grams and 5.57 grams.
Brandenburg recovered no empty baggies or scales from inside
the car or from Defendant. Jones' driver's license
was also found in the center console. Officer Brandenburg
also recovered a loaded .40-caliber Glock handgun in the
glove compartment, which was later determined to have been
stolen. Jones testified at Defendant's trial and denied
he owned the drugs or the stolen and loaded handgun found
inside his car.
was indicted and tried upon charges of felonious possession
with intent to sell or deliver marijuana and felonious
possession of a weapon on educational property. Prior to
trial, Defendant conceded he possessed the two bags of
marijuana recovered from the center console of the vehicle.
When questioned by the trial court during a Harbison
hearing, Defendant stated he understood and agreed with
defense counsel's decision to concede this fact before
the jury. See State v. Harbison, 315 N.C.
175, 337 S.E.2d 504 (1985), cert. denied, 476 U.S.
1123, 90 L.Ed.2d 672 (1986). In his initial brief before this
Court, Defendant argued insufficient evidence was presented
that he constructively possessed the marijuana recovered from
the center console. Defendant subsequently filed a reply
brief and expressly withdrew this argument due to the
stipulation he had entered at the Harbison hearing.
jury returned a verdict of not guilty on the charge of
possession of a weapon on educational property, but found
Defendant guilty of possession with intent to sell or deliver
marijuana. The trial court sentenced Defendant to a suspended
term of six to seventeen months' imprisonment and placed
him on supervised probation for twenty-four months. Defendant
lies in this Court from final judgment of the superior court
entered upon the jury's verdict pursuant to N.C. Gen.
Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2015).
Possession with Intent to Sell or Deliver Marijuana
argues the trial court erred by denying his motion to
dismiss. Defendant asserts the State failed to present
sufficient evidence of his intent to sell or deliver
marijuana and the evidence shows the marijuana in
Defendant's possession was for personal use. We disagree.
Standard of Review
Court reviews the trial court's denial of a motion to
dismiss de novo." State v. Smith, 186
N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). "Upon
defendant's motion for dismissal, the question for the
Court is whether there is substantial evidence (1) of each
essential 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. Fritsch, 351 N.C.
373, 378, 526 S.E.2d 451, 455 (citation and quotation marks
omitted), cert. denied, 531 U.S. 890, 148 L.Ed.2d
150 (2000). "In making its determination, the trial
court must consider all evidence admitted, whether competent
or incompetent, in the light most favorable to the
State, giving the State the benefit of every reasonable
inference and resolving any contradictions in its
favor." State v. Rose, 339 N.C. 172, 192, 451
S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135,
132 L.Ed.2d 818 (1995) (emphasis supplied).
Evidence of Defendant's Intent to Sell or Deliver
offense of possession with intent to sell or deliver has the
following three elements: (1) possession of a substance; (2)
the substance must be a controlled substance; (3) there must
be intent to sell or distribute the controlled
substance." State v. Carr, 145 N.C.App. 335,
341, 549 S.E.2d 897, 901 (2001) (citing N.C. Gen. Stat.
While intent [to sell or deliver] may be shown by direct
evidence, it is often proven by circumstantial evidence from
which it may be inferred. [T]he intent to sell or [deliver]
may be inferred from (1) the packaging, labeling, and storage
of the controlled substance, (2) the defendant's
activities, (3) the quantity found, and (4) the presence of
cash or drug paraphernalia. Although quantity of the
controlled substance alone may suffice to support the
inference of an intent to transfer, sell, or deliver, it must
be a substantial amount.
State v. Wilkins, 208 N.C.App. 729, 731, 703 S.E.2d
807, 809-10 (2010) (citations and internal quotation marks
numerous occasions, this Court has applied these four and
other related factors to determine whether the evidence was
sufficient to permit the jury to infer the defendant
possessed a controlled substance with the intent to sell or
deliver and overcome the defendant's motion to dismiss.
Quantity of Illegal Drugs
cases, the amount of the controlled substance recovered,
standing alone, is sufficient to allow the jury to find the
defendant possessed the requisite intent to sell or deliver.
See, e.g., State v. Morgan, 329
N.C. 654, 660, 406 S.E.2d 833, 836 (1991) (one ounce or 28.3
grams of cocaine "was sufficient evidence to support the
inference that defendant intended to deliver or sell the
cocaine"); cf. State v. Wiggins, 33 N.C.App.
291, 294-95, 235 S.E.2d 265, 268 (evidence insufficient to
support an inference the defendant intended to sell or
deliver where 215.5 grams of marijuana was seized without
evidence of any packaging paraphernalia related to rolling or
weighing), cert. denied, 293 N.C. 592, 241 S.E.2d
total of 10.88 grams of marijuana was recovered from
Defendant's person and inside the vehicle's console.
The two baggies inside the console contained a total of 10.19
grams, while the "dime bag" recovered from inside
Defendant's pocket contained .69 grams of marijuana. The
amount of marijuana found on Defendant's person and
inside the vehicle's console might not be sufficient,
standing alone, to support an inference that Defendant
intended to sell or deliver marijuana. See Wilkins,
208 N.C.App. at 731-32, 703 S.E.2d at 810 (Because the
quantity of marijuana "alone is insufficient to prove
that defendant had the intent to sell or deliver[, ] . . . we
must examine the other evidence presented in the light most
favorable to the State."). Defendant's admitted
possession, together with other surrounding circumstances and
evidence recovered, were sufficient to overcome
Defendant's motion to dismiss and permit the jury to
infer Defendant had the intent to sell or deliver marijuana.
Packaging of Illegal Drugs
10.88 grams of marijuana was packaged in three plastic bags.
The two bags recovered from the center console contained a
similar amount of marijuana (4.62 and 5.57 grams), and were
considerably larger than the "dime bag" found upon
Defendant's person. Officer Brandenburg testified one
gram of marijuana, or a "dime bag, " has a street
value of twenty to twenty-five dollars.
dissenting opinion cites the testimony of Officer
Brandenburg, and discusses the "quality" of
marijuana contained in the two bags found in the center
console. Officer Brandenburg testified:
They were in larger bags, and if memory serves me right, they
were more of what I would consider remnant marijuana, from
where - if you were to bag up the dime bags, this would be
the remnant stuff that didn't have as many buds and stuff
in it as the regular marijuana, or the sellable marijuana.
Brandenburg also testified the marijuana in the two larger
bags "would typically need to be divided up into smaller
bags to be sold."
dissenting opinion concludes the clear implication of Officer
Brandenburg's testimony was that the "remnant
marijuana" he found in the console was "not of a
quality typically offered for sale." The equal or
stronger implication of Officer Brandenburg's testimony
is that Defendant possessed marijuana for sale. Marijuana
that is not "sellable" is unlikely to be
"useable." It seems that an individual who
purchases marijuana from a dealer solely for personal use
would have no reason to possess the remnant or
"unsellable" marijuana. The presence of two larger
bags of marijuana containing "remnant" marijuana
suggests the bags had been obtained in bulk and partially
picked through for packaging "regular" or
"sellable" marijuana. Defendant also possessed a
dime bag of marijuana, which is how Officer Brandenburg
testified that marijuana is packaged to sell. The packaging
and possession of both the "sellable" and
"unsellable" marijuana is evidence which raises an
inference and from which the jury could determine Defendant
had the intent to sell marijuana.
Large Quantity of Unsourced Cash
the amount and packaging of the marijuana arguably might
raise an issue whether Defendant possessed for personal use
or the intent to sell or deliver, these factors are for the
jury to decide and are not solely determinative of whether
the charge was properly submitted to the jury. The
uncontroverted evidence also shows Defendant, twenty years
old, was carrying a large amount of cash ($1, 504.00) on his
person and was on the grounds of a high school while
possessing illegal drugs. The cash found upon Defendant was
also presented as evidence for the jury to view, and the
prosecutor stated during his closing argument that the
denominations of the cash consisted of ten, twenty, and
one-hundred dollar bills.
presence of cash is another factor that case precedents
require us to consider to determine whether possession of
illegal drugs with the intent to sell or deliver may be
inferred. Id. at 731, 703 S.E.2d at 809-10; see
also State v. Alston, 91 N.C.App. 707, 711, 373 S.E.2d
306, 310 (1988) (holding the large amount of cash on the
defendant's person supported an inference that the
defendant had the intent to sell or deliver the 4.27 grams of
cocaine packaged in twenty separate envelopes).
Stolen and Loaded Handgun
stolen and loaded handgun was also recovered from inside the
glove compartment of the vehicle. Jones denied any connection
to the handgun. While the presence or possession of a firearm
is not specifically listed as a Wilkins factor to
determine intent to sell or deliver a controlled substance,
see Wilkins, 208 N.C.App. at 731, 703 S.E.2d at
809-10, this Court has specifically recognized: "As a
practical matter, firearms are frequently involved for
protection in the illegal drug trade." State v.
Smith, 99 N.C.App. 67, 72, 392 S.E.2d 642, 645 (1990),
cert. denied, 328 N.C. 96, 402 S.E.2d 824 (1991).
dissenting opinion does not recognize the presence of the
stolen and loaded firearm in the glove compartment of the
vehicle Defendant was driving as relevant to our
consideration of whether Defendant's intent can be
inferred, and views the packaging of the marijuana and cash
recovered from Defendant as the only pertinent factors.
Neither the Supreme Court of North Carolina nor this Court
has ever recognized the factors set forth in Wilkins
Court has specifically determined "the presence of a gun
was relevant to the possession [of cocaine with intent to
manufacture, sell, or deliver] and trafficking charges."
State v. Boyd, 177 N.C.App. 165');">177 N.C.App. 165, 171, 628 S.E.2d
796, 802 (2006); see also State v. Willis, 125
N.C.App. 537, 543, 481 S.E.2d 407, 411 (1997) (recognizing
the "common-sense association of drugs and guns").
numerous occasions our federal courts have also recognized
the nexus between the presence or use of a firearm and the
intent to sell or deliver controlled substances. See,
e.g., United States v. White, 969 F.2d 681, 684 (8th
Cir. 1992) ("Because a gun is 'generally considered
a tool of the trade for drug dealers, [it] is also evidence
of intent to distribute.'" (quoting United
States v. Schubel, 912 F.2d 952, 956 (8th Cir. 1990)));
United States v. Rush, 890 F.2d 45, 49-52 (7th Cir.
1989) (A loaded firearm found in a car defendant was
approaching when arrested was relevant to show possession of
heroin with intent to distribute, because the weapon was a
"tool of the trade, " and was an "essential
part of the crime of possession with intent to
distribute."); United States v. Dunn, 846 F.2d
761, 764 (D.C. Cir. 1988) (A loaded firearm found on the
couch near the defendant was a "tool of the narcotic
trade, " and supported inference of intent to distribute
where defendant constructively possessed drugs recovered from
inside the house.).
presence of a stolen and loaded handgun, a "tool of the
trade for drug dealers, " inside the vehicle and readily
accessible to Defendant, is certainly relevant to and is
another factor the court should consider in determining
whether Defendant had the intent to sell or deliver an
illegal substance. White, 969 F.2d at 684;
Boyd, 177 N.C.App. at 171, 628 S.E.2d at 802. The
registered owner of the vehicle testified neither the drugs
nor the stolen and loaded firearm belonged to him.
our precedents, the dissenting opinion does not consider the
additional presence of the stolen and loaded firearm as an
intent factor and cites this Court's decision in
Wilkins to vote to reverse the jury's verdict.
In Wilkins, the defendant possessed 1.89 grams of
marijuana, contained within three separate "tied
off" bags. Wilkins, 208 N.C.App. at 730, 703
S.E.2d at 809. The defendant also carried $1, 264.00 in cash.
Id. The defendant testified that he had purchased
the marijuana for personal use. Id. He further
testified that approximately $1, 000.00 of the cash recovered