Statute

See G.S. 90-95(a)(3), reproduced above.

Elements

A person guilty of this offense(1) knowingly(2) possesses(3) a controlled substance.

Punishment

For a Schedule I substance, the crime is a Class I felony. G.S. 90-95(d)(1). However, if the controlled substance is 3,4-Methylenedioxypyrovalerone (MDPV) and the quantity of the MDPV is 1 gram or less, the crime is a Class 1 misdemeanor. Id.

For a Schedule II, III, or IV substance, the crime is a Class I felony if the amount possessed is

more than 100 tablets, capsules, dosage units, or equivalent quantity; more than four tablets, capsules, or dosage units of hydromorphone; or any amount of methamphetamine, amphetamine, phencyclidine, cocaine, and any salt, isomer, salts of isomers, compound, derivative, or preparation thereof; or cocoa leaves and any salt, isomer, salts of isomers, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances (except decocanized cocoa leaves or any extraction of cocoa leaves which does not contain cocaine or ecgonine).

G.S. 90-95(d)(2); see State v. Jones, 358 N.C. 473 (2004) (possession of cocaine is a felony). Otherwise, possession of a Schedule II, III, or IV substance is a Class 1 misdemeanor. G.S. 90-95(d)(2).

For a Schedule V substance, the crime is a Class 2 misdemeanor. G.S. 90-95(d)(3).

Except as discussed immediately below, for a Schedule VI controlled substance, the offense is a Class 3 misdemeanor for which a sentence of imprisonment must be suspended and the judge may not require that the defendant serve a period of imprisonment as a special condition of probation. G.S. 90-95(d)(4). There are two exceptions to this punishment level for Schedule VI controlled substances. First, if the defendant possessed

more than ½ ounce of marijuana and up to 1½ ounces of marijuana,more than 7 and up to 21 grams of a synthetic cannabinoid or any mixture containing such substance, or more than 1/20 of an ounce and up to 3/20 of an ounce of hashish,

the offense is a Class 1 misdemeanor. Second, if the defendant possessed

more than 1½ ounces of marijuana, more than 21 grams of a synthetic cannabinoid or any mixture containing such substance, ormore than 3/20 of an ounce of hashish or any amount of synthetic tetrahydrocannabinols or tetrahydrocannabinols isolated from marijuana resin,

the offense is a Class I felony. G.S. 90-95(d)(4).

Note that for all misdemeanor controlled substance offenses, several provisions elevate punishment based on the defendant’s prior conviction record. These include:

G.S. 90-95(e)(3): For any person who commits a Class 1 misdemeanor under the N.C. Controlled Substances Act (CSA) with at least one prior conviction (in this state, in any other state, or under federal law) for conduct punishable under the CSA, the offense is a Class I felony. G.S. 90-95(e)(4): For any person who commits a Class 2 misdemeanor with at least one prior conviction (in this state, in any other state, or under federal law) for conduct punishable under the CSA, the offense is a Class 1 misdemeanor. G.S. 90-95(e)(7): For any person who commits an offense under the CSA for which the prescribed punishment requires that any sentence of imprisonment be suspended and who has at least one prior conviction (in this state, in any other state, or under federal law) for conduct punishable under the CSA, the offense is a Class 2 misdemeanor.

For purposes of increasing punishment under G.S. 90-95(e)(3) and (4), previous convictions for offenses must be counted by the number of separate trials at which final convictions were obtained and not by the number of charges at a single trial, G.S. 90-95(e)(6), and no prior conviction used to increase punishment may be used to calculate prior conviction level for the new offense, G.S. 90-95(e)(3) & (4).

Any fact that elevates punishment must be alleged in a charging instrument and proved at trial. See G.S. 15A-928 (pleading and proving prior convictions).

If the defendant is sentenced to an active term that is less than the maximum term that could have been imposed, special probation may be imposed as specified in G.S. 90-95(f).

Notes

Element (1). See the note on Element (1) to “Sale or Delivery of a Controlled Substance,” above. The fact that a controlled substance was found on premises controlled by the defendant permits an inference that the defendant knowingly possessed the substance. State v. Harvey, 281 N.C. 1, 13 (1972). Evidence of track marks on the defendant’s arms was relevant to show prior knowledge. State v. Thomas, 20 N.C. App. 255 (1973). For cases in which the evidence was sufficient to establish knowing possession, see State v. Nunez, ___ N.C. App. ___, 693 S.E.2d 223, 226 (2010) (among other things, the defendant accepted delivery of packages containing drugs that were addressed to a person no longer living at the address); and State v. Robledo, 193 N.C. App. 521, 525–28 (2008) (among other things, the defendant signed for and collected a UPS package containing drugs).

A positive urinalysis for marijuana metabolites is insufficient, without other evidence, to prove that the defendant knowingly possessed marijuana. State v. Harris, 361 N.C. 400 (2007).

Element (2). Possession may be actual or constructive. A defendant has actual possession of contraband if it is on his or her person, the defendant is aware of its presence, and either alone or with others the defendant has the power and intent to control its disposition or use. State v. Loftis, 185 N.C. App. 190 (2007); State v. Reid, 151 N.C. App. 420 (2002).

Constructive possession exists when the defendant, while not having actual possession, has the intent and capability to maintain control and dominion over the contraband. State v. Miller, 363 N.C. 96 (2009); State v. Matias, 354 N.C. 549 (2001). The defendant may have the power to control either alone or jointly with others. Miller, 363 N.C. 96. Exclusive possession by the defendant of the place where an item containing contraband is found, such as a home or a vehicle, ordinarily is sufficient to establish the requisite intent and capability to maintain control and dominion over the contraband required for constructive possession. State v. Butler, 356 N.C. 141 (2002); Matias, 354 N.C. 549. Thus, if drugs are found in a closet in the defendant’s home and the defendant is the sole resident of the home, the evidence of constructive possession is sufficient to take the issue to the jury.

Often, however, contraband is found in a place over which the defendant does not have exclusive possession. For example, drugs may be found in a vehicle driven by one person and carrying several others as passengers. To establish constructive possession, it is not necessary to show that a defendant has exclusive control of the premises. State v. McLaurin, 320 N.C. 143 (1987). However, when the defendant does not have exclusive possession of the place where, or of the item in which, the contraband is found, the State must show other incriminating circumstances to establish sufficient evidence of constructive possession. State v. Miller, 363 N.C. 96 (2009) (other incriminating circumstances shown); Butler, 356 N.C. 141 (same); Matias, 354 N.C. 549 (same); McLaurin, 320 N.C. 143 (insufficient evidence of constructive possession when drug paraphernalia was found in a house over which the defendant had non-exclusive possession and the State offered no incriminating evidence linking her to the paraphernalia).

The determination of whether sufficient incriminating circumstances exist to support a finding of constructive possession is fact-specific. Miller, 363 N.C. 96. The courts consider the totality of the circumstances and no one factor controls, State v. McBride, 173 N.C. App. 101 (2005); the following factors are among those taken into consideration:

The defendant’s proximity or lack of proximity to the contraband. Compare Miller, 363 N.C. 96 (evidence was sufficient to establish constructive possession when, among other things, cocaine was found within the defendant’s reach), with State v. Slaughter, ___ N.C. ___, ___ S.E.2d ___ (Dec. 9, 2011) (for the reasons stated in the dissenting opinion below, the court reversed the court of appeals and held that the evidence was insufficient in part because of the lack of evidence regarding proximity), State v. Barron, 202 N.C. App. 686 (2010) (evidence was insufficient with respect to drugs found at a home in which the defendant did not reside; an officer saw plastic baggies—later determined to contain marijuana and cocaine—on a couch about three feet away from where the defendant was standing at the front door; when executing a search warrant, officers found a crack pipe approximately two-and-one-half feet away from where the defendant had been standing and a push rod (sometimes used to clean or pack crack pipes) and piece of Chore Boy (a brand of scouring pad sometimes used by individuals smoking crack to retain cocaine vapors) approximately ten to twelve feet from where he had been standing), and State v. Autry, 101 N.C. App. 245 (1991) (evidence was insufficient when the defendant was found upstairs in a small hallway or landing in the premises but the drugs were found in an upstairs bedroom, with two other people present). However, mere presence at a location where drugs are found does not create an inference of constructive possession. State v. Slaughter, ___ N.C. ___, ___ S.E.2d ___ (Dec. 9, 2011) (for the reasons stated in the dissenting opinion below, the court reversed the court of appeals and held that the evidence was insufficient to show constructive possession; in the opinion below, the dissenting judge had noted that mere presence in a room where contraband is located does not itself support an inference of constructive possession); State v. Minor, 290 N.C. 68, 75 (1976) (“The most the State has shown is that defendant had been in an area where he could have committed the crimes charged. Beyond that we must sail in a sea of conjecture and surmise. This we are not permitted to do.”); State v. Ferguson, ___ N.C. App. ___, 694 S.E.2d 470 (2010) (mere presence is insufficient); Autry, 101 N.C. App. 245 (same).

Whether or not the defendant owned or occupied the location where, or had control of the item in which, the contraband was found. Compare State v. Terry, ___ N.C. App. ___, 699 S.E.2d 671 (2010) (there was sufficient evidence of constructive possession of drugs found in a house when the defendant lived at and held a possessory interest in the house; he shared the master bedroom where the majority of the marijuana and drug paraphernalia was found; and he demonstrated actual control over the premises by demanding a search warrant), State v. Fortney, 201 N.C. App. 662 (2010) (evidence was sufficient with respect to drugs found in a motorcycle carry bag when, among other things, the defendant borrowed the motorcycle from the owner and was driving it), State v. Wiggins, 185 N.C. App. 376 (2007) (evidence was sufficient when, among other things, cocaine was found in the fender well of a vehicle registered to and driven by the defendant), State v. Loftis, 185 N.C. App. 190 (2007) (evidence was sufficient when, among other things, the defendant was found alone in a shed where contraband was located; the shed door was locked from the inside and the defendant left the premises only after being confronted by the owner), State v. Weakley, 176 N.C. App. 642 (2006) (evidence was sufficient when the defendant leased and resided in a house where controlled substances and drug paraphernalia were found, even though another man also lived there and another person stayed there a couple of nights a week), and State v. Nettles, 170 N.C. App. 100 (2005) (evidence was sufficient with respect to contraband found in a vehicle when, although the vehicle’s title was in another’s name, the defendant had a key to the vehicle, registration forms and an auto insurance policy listed the defendant as owner, and the defendant placed a license plate on the vehicle that was from his previous vehicle), with State v. Finney, 290 N.C. 755 (1976) (evidence was insufficient when, among other things, although the defendant leased an apartment where marijuana was found, he had not been in the apartment for forty-four days, there was evidence that he had sublet it to another person who was living there, and that person admitted sole possession of the marijuana), State v. Minor, 290 N.C. 68 (1976) (evidence was insufficient when the defendant had been a visitor at an abandoned house leased or controlled by a co-defendant; a marijuana field was 100 feet away from the house, obscured by a wooded area, and accessible by several routes; and on the date of the defendant’s arrest, he was a front-seat passenger in a vehicle owned and operated by a co-defendant in which officers found wilted marijuana leaves on the left rear floorboard and a marijuana leaf in the trunk), State v. Barron, 202 N.C. App. 686, (2010) (evidence was insufficient when the defendant did not have exclusive possession of the premises where the drugs were found; the evidence showed only that he was present, with others, in the room where the drugs were found); State v. Ferguson, ___ N.C. App. ___, 694 S.E.2d 470 (2010) (evidence was insufficient when, among other things, the defendant was not the owner or driver of the vehicle in which drugs were found), State v. Richardson, 202 N.C. App. 570 (2010) (evidence was insufficient when, among other things, the defendant did not rent the premises in question and there was no evidence that he slept or lived there), State v. Givens, 95 N.C. App. 72 (1989) (evidence was insufficient when, although there was evidence that the defendant knew there was cocaine inside the premises, others were present when cocaine was found in the building and the defendant did not exercise ownership or possession of the building), and State v. Balsom, 17 N.C. App. 655 (1973) (the mere fact that the defendants were transient visitors at a residence where drugs were found was insufficient to establish constructive possession).

The defendant’s opportunity, or lack thereof, to dispose of or place the contraband in the location where it was found. Compare State v. Butler, 356 N.C. 141 (2002) (evidence was sufficient when, among other things, the defendant was the only person in a position to place a package containing drugs under the driver’s seat of a cab), State v. Matias, 354 N.C. 549 (2001) (evidence was sufficient when, among other things, the defendant was the only person in the car who could have put the cocaine into the crease of the car seat), State v. Sinclair, 191 N.C. App. 485 (2008) (evidence was sufficient when, among other things, contraband was found on the route the defendant took when fleeing), and State v. Loftis, 185 N.C. App. 190 (2007) (evidence was sufficient when, among other things, the defendant was found alone in a shed where contraband later was seized), with State v. Acolatse, 158 N.C. App. 485 (2003) (evidence was insufficient when, among other things, the defendant, while being chased by detectives, made a throwing motion toward some bushes; cocaine was found on the roof of a detached garage but not in the bushes).

Whether or not the defendant’s personal items were found in the same location as the contraband. Compare State v. Miller, 363 N.C. 96 (2009) (evidence was sufficient when, among other things, the defendant’s birth certificate and state-issued identification card were found in the bedroom where cocaine was discovered), State v. Hough, 202 N.C. App. 674 (2010) (evidence was sufficient when, among other things, the defendant’s luggage, mail, and cellular telephone were found at the residence and his car was parked in the driveway), Loftis, 185 N.C. App. 190 (evidence was sufficient when, among other things, investigators found an envelope addressed to the defendant and containing the defendant’s tax document in a shed where contraband was located), and State v. Balsom, 17 N.C. App. 655 (1973) (evidence was sufficient when, among other things, drugs were found in a drawer with a wallet containing the defendant’s identification and in a closet containing his clothes), with State v. Richardson, 202 N.C. App. 570 (2010) (evidence was insufficient when, among other things, no documents bearing the defendant’s name were found in the residence in question), and State v. Moore, 162 N.C. App. 268 (2007) (evidence was insufficient when, among other things, five individuals, including the defendant, were found in or near a mobile home containing drugs; the home was owned by someone else; and officers did not find any documents or other items linking the defendant to the residence).

Whether or not the defendant fled or engaged in other suspicious behavior. Compare State v. Butler, 356 N.C. 141 (2002) (evidence was sufficient when, among other things, after making eye contact with officers, the defendant walked briskly away, repeatedly glancing back at the officers; the defendant hurried into a cab, slammed the door, and urged the driver to leave immediately; the defendant appeared nervous and fidgety when officers approached the cab and asked him to step out with his bag; and the defendant was slow to exit the cab and before exiting, bent over and reached toward the driver’s seat, where cocaine later was discovered), State v. Hudson, ___ N.C. App. ___, 696 S.E.2d 577 (2010) (evidence was sufficient when, among other things, the defendant acted suspiciously when his truck was stopped by an officer; he exited with his back to the officer and his hands up, unusual activity under the circumstances; his hand shook when he handed over information requested by the officer; he was sweating despite cold weather; and an officer could see his carotid artery pulsing), State v. Hough, 202 N.C. App. 674 (2010) (evidence was sufficient when the defendant was found pushing a trash can that contained the bulk of the marijuana seized, acted suspiciously when approached by officers, and ran when an officer attempted to lift the lid of the can), State v. Fortney, 201 N.C. App. 662 (2010) (evidence was sufficient with respect to drugs found in a motorcycle carry bag when, among other things, the defendant evaded an impaired driving checkpoint by turning into a closed business, obscured his motorcycle’s rear reflector, and pushed the motorcycle into the lower portion of the parking lot; the police found the defendant crouched behind two parked cars a few feet away from the motorcycle; and the defendant was evasive when asked about who owned the motorcycle and the license plate was fictitious), State v. Sinclair, 191 N.C. App. 485 (2008) (evidence was sufficient when, among other things, the defendant fled when he learned that officers wanted to search him), and State v. McBride, 173 N.C. App. 101 (2005) (evidence was sufficient when, among other things, the defendant tried to get into a motel room when he saw officers approaching and then scuffled with an officer), with State v. Ferguson, ___ N.C. App. ___, 694 S.E.2d 470 (2010) (evidence was insufficient when, among other things, it did not show that the defendant behaved suspiciously), State v. Barron, 202 N.C. App. 686 (2010) (evidence was insufficient to establish that the defendant possessed items found in a house in which he did not reside; the State had argued in part that the defendant acted suspiciously by standing behind an open front door and by lying about his identity), and State v. Acolatse, 158 N.C. App. 485 (2003) (evidence was insufficient even though the defendant fled from approaching officers).

Whether or not the defendant engaged in drug activity or was impaired by drugs. Compare McBride, 173 N.C. App. 101 (evidence was sufficient when, among other things, officers who responded to a call about drug activity approached the motel in question and observed an apparent drug transaction between the defendant and another person; the transaction occurred outside of the motel room in question; the defendant smelled of crack cocaine and had the characteristics of someone under the influence of the drug), with State v. Balsom, 17 N.C. App. 655 (1973) (evidence was insufficient when, among other things, there was no evidence that the defendants were under the influence or were users of narcotics).

Element (3). See the note on Element (3) to “Sale or Delivery of a Controlled Substance,” above. No minimum amount of a controlled substance is required; possession of residue of crack cocaine in a crack pipe has been held sufficient to support a conviction of possession of cocaine. State v. Williams, 149 N.C. App. 795 (2002).

Attempt or conspiracy. See this note to “Sale or Delivery of a Controlled Substance,” above. The evidence was sufficient to show an attempt to possess cocaine when the defendant intended to possess cocaine, drove to an area known for drug sales, approached people believed to be cocaine dealers, and exchanged money for what the defendant thought was cocaine but in fact was pieces of Brazil nut represented to be rock cocaine. State v. Gunnings, 122 N.C. App. 294, 296 (1996).

Charging issues. See this note to “Sale or Delivery of a Controlled Substance,” above.

Evidence issues. See this note to “Sale or Delivery of a Controlled Substance,” above.

Defenses. G.S. 90-113.1(a) provides that the defendant bears the burden of establishing that an exemption or exception from prosecution applies. See also State v. Beam, 201 N.C. App. 643 (2010) (trafficking by possession case holding that the defendant bears the burden of showing a valid prescription). But see State v. Tuggle, 109 N.C. App. 235, 240–41 (1993) (the State failed to present substantial evidence that the defendant possessed diazepam unlawfully when there was no evidence that the drugs were not issued pursuant to a prescription or that the quantity possessed was larger than amounts normally prescribed).

See also this note to “Sale or Delivery of a Controlled Substance,” above.

Greater and lesser-included offenses. Possession of a controlled substance is not a lesser-included offense of sale of that substance because possession is not necessary for a sale to be made; a defendant may be tried and sentenced for both. State v. Cameron, 283 N.C. 191 (1973). Although the North Carolina Court of Appeals has ruled that possession of a controlled substance is a lesser-included offense of delivery of the substance, State v. Clark, 71 N.C. App. 55 (1984), that opinion has been disapproved of in significant respects, State v. Moore, 327 N.C. 378 (1990).

Possession of a controlled substance is a lesser-included offense of possession with intent to manufacture, sell, or deliver, except as discussed below; a defendant may be sentenced for one or the other, but not both. State v. Aiken, 286 N.C. 202 (1974). Possession of more than ½ ounce of marijuana (Class 1 misdemeanor) or 1½ ounces of marijuana (Class I felony) are not lesser-included offenses of possession with intent to sell or deliver because these possession offenses (unlike simple misdemeanor possession, a Class 3 misdemeanor) require additional proof that the amount possessed was more than ½ ounce or 1½ ounces, as the case may be. This same principle applies to other controlled substances when the classification of the possession offense depends on the amount of the substance possessed. However, if the criminal pleading charging possession with intent to manufacture, sell, or deliver (“Possession of a Controlled Substance with Intent to Manufacture, Sell, or Deliver” is discussed below) alleges the amount possessed, the jury may be instructed on the offenses of felony and misdemeanor possession even though these offenses may not be lesser-included offenses. State v. Perry, 84 N.C. App. 309 (1987).

Multiple convictions and punishments. In order for the State to obtain multiple convictions for possession of a controlled substance, the State must show distinct acts of possession separated in time and space. State v. Moncree, 188 N.C. App. 221, 231 (2008). The defendant could be convicted of only one offense where, on the same day, law enforcement officers found marijuana in the defendant’s automobile and later found marijuana in his shoe; there was no evidence that the defendant possessed the marijuana for two distinct purposes or that the possession was simultaneous. Id. at 231–32. In contrast, a defendant could be separately punished for felonious possession of cocaine sold to police (a large amount of cocaine was sold) and misdemeanor possession of trace amounts of cocaine in vials for personal use found during a search incident to arrest on the same day. State v. Rozier, 69 N.C. App. 38, 54–56 (1984). The court in that case noted that there was no evidence that the defendant filled the vials out of the larger amount or that the defendant had done so and then used the cocaine; there also was no evidence that the defendant intended to sell the residual cocaine. Id. at 55.

A defendant may be convicted and sentenced for both possession of ecstasy and possession of ketamine when both controlled substances are contained in a single pill. State v. Hall, ___ N.C. App. ___, 692 S.E.2d 446, 450–51 (2010).

As a general rule, a person may not be convicted of possession of a controlled substance and posession with intent to manufacture, sell, or deliver that substance. State v. Aiken, 286 N.C. 202 (1974). However, a defendant may, based on the same contraband, be convicted and punished for both felony possession of marijuana (which requires possession of more than 1½ ounces of marijuana, see “Punishment,” above) and felony possession of marijuana with intent to manufacture, sell, or deliver. State v. Springs, 200 N.C. App. 288, 294–95 (2009); State v. Spencer, 192 N.C. App. 143, 149 (2008). “Possession of a Controlled Substance with Intent to Manufacture, Sell, or Deliver” is discussed below. The same principle would apply to other possession offenses that receive elevated punishment because of the quantity of controlled substance possessed.

A person may be convicted and punished for both possession of a controlled substance under G.S. 90-95(a)(3) and trafficking by possessing a controlled substance even though the offenses are based on the same controlled substance. State v. Pipkins, 337 N.C. 431 (1994).

A defendant may be convicted of both possession of cocaine and possession of drug paraphernalia even though the cocaine was found in the drug paraphernalia. State v. Williams, 149 N.C. App. 795 (2002).

No double jeopardy bar to prosecuting drug offense after imposition of drug tax. There is no double jeopardy bar to prosecuting a drug offense after a defendant has been assessed and paid a drug tax under Chapter 105 of the General Statutes. State v. Adams, 132 N.C. App. 819 (1999).

Related Offenses Not in This Chapter

None

Supplement 

Punishment

In the first bulleted list in this section, replace the word “cocoa” with “coca.”

As a result of 2017 legislation, S.L. 2017-115, sec. 11, delete the fourth paragraph of this note and replace it with the following:

Except as discussed immediately below, for a Schedule VI controlled substance, the offense is a Class 3 misdemeanor for which a sentence of imprisonment must be suspended and the judge may not require that the defendant serve a period of imprisonment as a special condition of probation. G.S. 90-95(d)(4). There are two exceptions to this punishment level for Schedule VI controlled substances. First, if the defendant possessed

more than ½ ounce of marijuana and up to 1½ ounces of marijuana ormore than 1∕20 of an ounce and up to 3∕20 of an ounce of hashish,

the offense is a Class 1 misdemeanor. Second, if the defendant possessed

more than 1½ ounces of marijuana,more than 3∕20 of an ounce of hashish, orany quantity of synthetic tetrahydrocannabinols or tetrahydrocannabinols isolated from the resin of marijuana,

the offense is a Class I felony. G.S. 90-95(d)(4).

This note states that for all misdemeanor controlled substance offenses, several provisions—including G.S. 90-95(e)(3)—elevate punishment based on the defendant’s prior conviction record. Because G.S. 90-95(e)(3) operates as sentence enhancement and does not proscribe a separate offense, a misdemeanor enhanced under this provision is not subject to habitual felon status. State v. Howell, ___ N.C. App. ___, 792 S.E.2d 898, 900–01 (2016), review allowed, ___ N.C. ___, 796 S.E.2d 789 (2017).

Notes

Element (1)

A presumption that the defendant has the required guilty knowledge is created when the State makes a prima facie case that the defendant has committed a crime, such as possession of a controlled substance, trafficking by possession, or trafficking by transportation, that lacks a specific intent element. State v. Galaviz-Torres, 368 N.C. 44 (2015). However, when the defendant denies or contests having knowledge of the controlled substance that he or she has been charged with possessing or transporting, the existence of the requisite guilty knowledge becomes an issue of fact that must be decided by the jury. Id.; State v. Coleman, 227 N.C. App. 354, 359–60 (2013) (trafficking by possession case; the trial court committed plain error by failing to instruct on this Element; although the defendant did not testify or present evidence to raise the issue of knowledge as a disputed fact, the State presented evidence that the defendant told a detective that he did not know the container contained heroin; this constituted a contention that the defendant did not know the true identity of what he possessed). For example, when the defendant admits having possession of a box stored in his or her car but denies knowing that the box contained the controlled substance at issue, whether the defendant knowingly possessed the controlled substance is an issue for the jury. Coleman, 227 N.C. App. at 359. By contrast, the defendant’s denial of any knowledge of having possessed any container or controlled substance does not defeat the presumption and likewise does not create an issue on which the jury must be instructed. Galaviz-Torres, 368 N.C. 44 (in this trafficking case the defendant did not deny knowledge of the contents of a gift bag in which the cocaine was found or admit that he possessed a particular substance while denying any knowledge of the substance’s identity; rather, the defendant denied having had any knowledge that the van he was driving contained either the gift bag or cocaine).

For a trafficking and possession with intent case where the evidence was insufficient to establish that the defendant knowingly possessed or transported the controlled substance, see State v. Velazquez-Perez, 233 N.C. App. 585, 588–93 (2014) (drugs were found in secret compartments of a truck driven by the defendant Villalvavo but owned by a passenger, Velazquez-Perez, who hired Villalvavo to drive the truck; while evidence regarding the truck’s log books may have been incriminating as to Velazquez-Perez, it did not apply to Villalvavo, who had not been working for Velazquez-Perez long and had no stake in the company or control over Velazquez-Perez; Villalvavo’s nervousness during the stop did not constitute adequate incriminating circumstances).

Element (2)

For additional cases holding that the evidence was sufficient to establish constructive possession, see State v. Lindsey, 366 N.C. 325 (2012) (reversing 219 N.C. App. 249 (2012) for the reasons stated in the dissenting opinion, which found sufficient evidence of constructive possession where, after the defendant fled from his crashed van, officers found a bag containing marijuana near trash receptacles in the parking lot; detailed evidence concerning the distance of the bag from the defendant’s van, the condition of the bag, and the fact that the van’s passenger window was open supported the inference that the defendant discarded the bag while fleeing); State v. Bradshaw, 366 N.C. 90, 96–97 (2012) (sufficient evidence of constructive possession of drugs and a rifle when those items were found in a bedroom that was not under the defendant’s exclusive control but several documents linked him to the contraband and placed him in the room within two days of when the contraband was found); State v. Davis, 236 N.C. App. 376, 383–84 (2014) (there was sufficient evidence that the defendant constructively possessed methamphetamine found in a duffle bag where, among other things, the defendant and his accomplice were the only people at the scene of the “one pot” outdoor meth lab and for approximately 40 minutes both moved freely about the site where all of the items were laid out on a blanket); State v. Rodelo, 231 N.C. App. 660, 665–66 (2014) (in a trafficking by possession case, there was sufficient evidence of constructive possession where the defendant was found hiding alone in a tractor-trailer where money was secreted; cocaine was found in a car parked, with its doors open, in close proximity to the tractor-trailer; the cash and the cocaine were packaged similarly; wrappings were all over the tractor-trailer and in the open area of a car parked close by; the defendant admitted knowing where the money was hidden; and the entire warehouse where the vehicles were had a chemical smell of cocaine); State v. Torres-Gonzalez, 227 N.C. App. 188, 195 (2013) (sufficient evidence in a trafficking by possession case involving an undercover sale); State v. Hazel, 226 N.C. App. 336, 344 (2013) (sufficient evidence that the defendant constructively possessed heroin found in an apartment that was not owned or rented by him); State v. Chisholm, 225 N.C. App. 592, 597 (2013) (sufficient evidence of constructive possession even though the defendant did not have exclusive possession of the bedroom where the drugs were found); State v. Huerta, 221 N.C. App. 436, 448–49 (2012) (sufficient evidence of constructive possession where the defendant admitted living for three years at the home where the drugs were found; where an illegally purchased pistol, ammunition, and more than $9,000 in cash were in his closet; and where he had more than $2,000 in cash on his person); and State v. Adams, 218 N.C. App. 589, 594–95 (2012) (sufficient evidence of constructive possession where the defendant drove a drug provider to a location that the defendant had arranged for a drug sale, knowing that the provider had the drugs).

For cases where there was insufficient evidence of constructive possession, see State v. Holloway, ___ N.C. App. ___, 793 S.E.2d 766, 772 (2016) (the only evidence tying the defendant to the residence or the contraband was his presence at the residence on the afternoon in question and a single photograph of him found face down in a plastic storage bin in a bedroom of the residence); State v. Dulin, ___ N.C. App. ___, 786 S.E.2d 803, 810–11 (2016) (there was insufficient evidence that the defendant constructively possessed marijuana found in an uncovered fishing boat located in the yard of a home occupied by multiple people, including the defendant; the boat was roughly 70 feet from the house in an unfenced area; there was no evidence that the defendant had any ownership interest in or possession of the boat; and the defendant was never seen near the boat); and State v. Garrett, ___ N.C. App. ___, 783 S.E.2d 780, 784 (2016) (there was insufficient evidence of constructive possession of methamphetamine in a case that arose out of a controlled drug buy where, although the defendant led individuals to a trailer to buy drugs and entered the trailer with their money, the other individuals were the only ones who actually possessed the drugs).

Exceptions (new note)

Before searching a person or his or her premises or vehicle, an officer may ask the person whether a hypodermic needle or other sharp object that may cut or puncture the officer is on the defendant’s person or in the premises or vehicle to be searched. If such an object is present and the person alerts the officer of that fact before the search, the person may not be charged with or prosecuted for possession of drug paraphernalia for the needle or sharp object or for possession of residual amounts of a controlled substance contained in the needle or sharp object. G.S. 90-113.22(c).

Greater and lesser-included offenses

Simple possession is a lesser-included offense of possession of a controlled substance on the premises of a local confinement facility, and a defendant may not be convicted of both when they stem from the same act of possession. State v. Barnes, 229 N.C. App. 556, 568–69 (2013), aff’d, 367 N.C. 453 (2014) (per curiam).

Multiple convictions and punishments

Where the defendant was in possession of a bag containing a mixture of two separate Schedule I controlled substances, two convictions were proper. State v. Williams, ___ N.C. App. ___, 796 S.E.2d 823, 825–26 (2017).

No double jeopardy violation occurs when a defendant is convicted of trafficking in methamphetamine, manufacturing methamphetamine, and possession of methamphetamine based on the same illegal substance. State v. Simpson, 230 N.C. App. 119, 126–27 (2013).

Limited immunity from prosecution (new note)

A 2013 law, S.L. 2013-23, provides limited immunity from prosecution for persons seeking medical assistance for themselves or others in the event of a drug-related overdose. The law enacts G.S. 90-96.2, providing that a person who experiences a drug-related overdose or who seeks medical assistance for someone experiencing a drug-related overdose shall not be prosecuted for

a misdemeanor offense under G.S. 90-95(a)(3) ora felony offense under G.S. 90-95(a)(3) involving less than 1 gram of cocaine or heroin

if the evidence of the crime was obtained as a result of the person seeking medical assistance. G.S. 90-96.2(b), (c). The term “drug-related overdose” means “an acute condition, including mania, hysteria, extreme physical illness, coma, or death resulting from the consumption or use of a controlled substance, or another substance with which a controlled substance was combined, and that a layperson would reasonably believe to be a drug overdose that requires medical assistance.” G.S. 90-96.2(a).

2016 legislation, S.L. 2016-88, sec. 4, enacted G.S. 90-113.27(c), providing limited immunity for employees, volunteers, and participants in authorized needle and hypodermic syringe exchange programs when those persons possess residual amounts of a controlled substance contained in a used needle, hypodermic syringe, or injection supplies obtained from or returned to a program.