State v. Wilkins
703 S.E.2d 807, 2010 N.C. App. LEXIS 2378, 208 N.C. App. 729 (2010)
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Rule of Law:
The possession of a very small quantity of a controlled substance, even when packaged for individual sale and accompanied by a large amount of cash, is insufficient to establish the element of intent to sell or deliver when the totality of the circumstances does not rise above mere suspicion and is equally consistent with personal use.
Facts:
- On January 17, 2008, Officer T.J. Bunt stopped a Ford Crown Victoria driven by Kendrick Wilkins, mistakenly believing the driver was Rico Battle, a person with outstanding warrants.
- Upon identifying the driver as Wilkins and discovering he also had outstanding warrants, Officer Bunt arrested him.
- A search of Wilkins' person incident to the arrest revealed a small plastic bag in his pocket containing three smaller, 'tied off' bags of marijuana.
- The total weight of the marijuana was determined to be 1.89 grams.
- The search also uncovered $1,264.00 in cash in Wilkins' possession.
- At trial, Wilkins testified that he had purchased the marijuana for his personal use.
- Wilkins also testified that the cash was from his mother for a bond and a cashed check, which he carried because he was 'on the run' and a bail bondsman would not accept a check.
Procedural Posture:
- The State charged Kendrick Wilkins with felonious possession of marijuana with intent to sell or deliver (PWISD).
- At trial, Wilkins moved to dismiss the PWISD charge for insufficient evidence, but the trial court denied the motion.
- A jury found Wilkins guilty of PWISD.
- The trial court entered judgment, sentencing Wilkins to a suspended sentence of 6 to 8 months and 36 months of supervised probation.
- Wilkins (appellant) appealed the judgment to the North Carolina Court of Appeals.
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Issue:
Does the possession of 1.89 grams of marijuana packaged in three separate bags, combined with $1,264.00 in cash, constitute substantial evidence of intent to sell or deliver a controlled substance?
Opinions:
Majority - Hunter, Robert C., Judge
No, this evidence does not constitute substantial evidence of intent to sell or deliver a controlled substance. To prove intent to sell or deliver, the State must present substantial evidence, which is more than mere suspicion or conjecture. The court analyzes several factors, including quantity, packaging, and the presence of cash. Here, the quantity of marijuana (1.89 grams) is too small to infer intent on its own. While the marijuana was divided into three small bags, it is just as likely that Wilkins, as a consumer, purchased the drugs already packaged in that manner. Finally, while the presence of a large amount of cash is a relevant factor, it is insufficient on its own to prove intent, especially when the other factors are weak. Viewing the evidence cumulatively, it indicates Wilkins was a drug user, not a drug seller, and therefore the evidence is insufficient to support a conviction for possession with intent to sell or deliver.
Analysis:
This decision clarifies the evidentiary threshold for proving 'intent to sell or deliver' in North Carolina drug cases, particularly where the quantity of the controlled substance is small. It reinforces that courts must evaluate the totality of the circumstances and that the presence of multiple indicia of drug dealing, such as packaging and cash, may not be sufficient to overcome the inference of personal use when the amount of drugs is minimal. The ruling provides a key precedent for defense arguments that evidence equally consistent with personal use cannot, without more, sustain a felony conviction for PWISD, pushing prosecutors to present stronger, more direct evidence of distribution.
