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IN THE SUPREME COURT OF NORTH CAROLINA
No. 456A11
STATE OF NORTH CAROLINA
v.
SAMARIO ANTWAIN BRADSHAW
14 JUNE 2012
Appeal pursuant to N.C.G.S. § 7A-30(2) from the unpublished decision of a
divided panel of the Court of Appeals, ___ N.C. App. ___, 716 S.E.2d 440 (2011),
affirming judgments entered on  1 April  2010 by Judge Joseph N. Crosswhite in
Superior Court, Cabarrus County.   Heard in the Supreme Court on 13 March 2012.
Roy  Cooper,  Attorney  General,  by  Stanley  G.  Abrams,  Assistant  Attorney
General, for the State.
James N. Freeman, Jr. for defendant-appellant.
MARTIN, Justice.
This appeal presents the question of whether the Court of Appeals properly
affirmed the trial court’s denial of defendant’s motion to dismiss the charges of
trafficking  in  cocaine  by  possession  and  possession  of  a  firearm  by  a  felon  for
insufficiency of the evidence.   Because the State presented sufficient evidence to
support  the  jury’s  determination  that  defendant  constructively  possessed  the
cocaine and rifle found in a bedroom—which also contained photographs, a Father’s




STATE V. BRADSHAW
Opinion of the Court
Day  card,  a  cable bill,  a  cable  installation  receipt,  and  a  pay  stub,  all  linking
defendant to the contraband—we affirm the Court of Appeals.
In June  2007, Detectives Patrick Tierney and Brian Kelly of the Concord
Police Department began investigating drug activity in the Silver Hill community
because  of  numerous  complaints  from  residents  living  in  the  area.     Their
investigation led them to 487 Pharr Drive, a three-bedroom residence surrounded
by a six-foot-high privacy fence containing several pit bull terriers.   Two individuals
had reported purchasing drugs from a male at this address.   In response, on  19
June  2007,  Detective  Kelly  applied  for  and  obtained  a  warrant  to  search  the
residence.   No person was named in the warrant, though it did authorize officers to
seize indicia of domain found in the residence.
The officers executed the warrant on 19 June 2007, using a S.W.A.T. team
because of the increased risk posed by the pit bulls and because firearms had been
previously  recovered  in  and  around  the  property.     Several  individuals  were
apprehended in and around the yard as officers approached the residence.   Upon
entering the locked home, however, the officers found it unoccupied.   During the
course  of their  search,  officers  found crack cocaine,  powder  cocaine, marijuana,
three handguns, a rifle, bullets, digital scales, and a lockbox containing $1,560.00 in
cash, all scattered throughout the property.
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STATE V. BRADSHAW
Opinion of the Court
Defendant, Samario Antwain Bradshaw, was charged with possession of the
items located in the left front bedroom of the residence.1    In that bedroom the
officers found sixty-eight grams of cocaine in ―cookie‖ form, one hundred fourteen
grams of compressed powder cocaine, one-half of a gram of powder cocaine, and five
rocks of crack cocaine.    In total, the bedroom contained  182.5 grams of cocaine,
excluding the relatively small weight of the five crack rocks.   Some of the cocaine
was found in plain view, while the remainder was found in a chest of drawers
containing men’s clothing.   A .22 caliber long rifle also was found in a closet in the
same bedroom.   In addition to the cocaine and the firearm, officers found numerous
items indicating that the bedroom belonged to defendant.   Specifically, the officers
found a Time Warner Cable receipt for installation of service, dated 30 March 2007,
listing  the  name  ―Mario  Bradshaw‖  and  the  address  487  Pharr  Drive;  a  Time
Warner Cable bill due on 19 May  2007 with the same name and address as the
receipt; a paystub listing the name ―Samario Bradshaw‖; an envelope addressed to
―BI‖ at  487 Pharr Drive; a Father’s Day card; a gift card addressed to  ―BI‖ and
―Daddy‖; and at least two photographs of defendant, one dated 15 April 2007 and
another dated  13 May  2007.    Pursuant to a  13 September  2007 arrest warrant,
defendant was arrested on 17 October 2007 on a nearby street.
1 Defendant was also charged with Maintaining a Dwelling Place to Keep/Store a
controlled substance.   Defendant was acquitted of this charge, and it is not relevant to this
appeal.
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STATE V. BRADSHAW
Opinion of the Court
At trial, Detective Tierney testified that ―BI‖ was an alias used by defendant.
He also testified that defendant often shortened his name to  ―Mario.‖   Detective
Tierney  had  seen  defendant  at  the  Pharr  Drive  residence  before  and  after  the
search.   Two other males, defendant’s brother and defendant’s mother’s boyfriend,
were known to have lived in the residence previously, though neither of them had
been there for over a year as a result of being imprisoned from 2006 to 2008 on
separate convictions.    According to Detective Tierney, the room looked  ―lived in‖
and, because of their value, the drugs could not have been left by the other males
before they went to prison.    The State also presented evidence, through a Time
Warner Cable employee, showing that the name on the cable account at 487 Pharr
Drive was Mario Bradshaw, the Social Security number on the account matched
defendant’s, and the account was disconnected on 25 October 2007.   The employee
further testified that it was normal practice for Time Warner Cable employees to
verify a customer’s identity when dealing face to face, though he admitted that the
method used could vary in each case.   Finally, the State introduced evidence that
defendant had previously pled guilty to felony sale of cocaine in 1998.
On 1 April 2010, defendant was convicted by a jury of possession of a firearm
by a felon and trafficking in cocaine by possession.   He was sentenced to an active
term of thirty-five to  forty-two  months  for trafficking  in cocaine,  followed by  a
suspended sentence of twenty to twenty-four months for possession of the firearm.
The Court of Appeals majority found no error in defendant’s convictions.   State v.
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STATE V. BRADSHAW
Opinion of the Court
Bradshaw, ___ N.C. App. ___, 716 S.E.2d 440, 2011 N.C. App. LEXIS 2196 (2011)
(unpublished).
The sole issue before this Court is whether the trial court erred in denying
defendant’s motion to dismiss the charges of possession of a firearm by a felon and
trafficking in cocaine by possession.   Defendant contends that the State’s evidence
was insufficient to support the charges and therefore the charges should not have
been submitted to the jury.   We disagree.
The standard of review for a motion to dismiss for insufficient evidence is
well  settled.                                                                             ―[T]he  trial  court  must  consider  the  evidence  in  the  light  most
favorable to the State, drawing all reasonable inferences in the State’s favor.‖   State
v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594 (2009) (citing State v. McCullers, 341
N.C. 19, 28-29, 460 S.E.2d 163, 168 (1995).   All evidence, competent or incompetent,
must be considered.   State v. Allen, 279 N.C. 406, 407, 183 S.E.2d 680, 681 (1971).
―Any contradictions or conflicts in the evidence are resolved in favor of the State,
and evidence unfavorable to the State is not considered.‖   Miller, 363 N.C. at 98,
678 S.E.2d at 594 (citations omitted).   In its analysis, the trial court must determine
―whether there is substantial evidence (1) of each essential element of the offense
charged and (2) that defendant is the perpetrator of the offense.‖   State v. Lynch,
327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990) (citing State v. Mercer, 317 N.C. 87,
96, 343 S.E.2d 885, 890 (1986)).                                                           ―Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.‖   Id. (citation
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STATE V. BRADSHAW
Opinion of the Court
and internal quotations marks omitted).                                                        ―When the evidence raises no more than a
suspicion of guilt, a motion to dismiss should be granted.‖   Miller, 363 N.C. at 99,
678 S.E.2d at 594 (citation omitted).                                                          ―However, so long as the evidence supports a
reasonable inference of the defendant’s guilt, a motion to dismiss is properly denied
even though the evidence also permits a reasonable inference of the defendant’s
innocence.‖   Id. (citation and internal quotation marks omitted); see also State v.
Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002) (stating that the evidence
need not ―rule out every hypothesis of innocence‖ (citations and quotations marks
omitted)).                                                                                     ―The test for sufficiency of the evidence is the same whether the evidence
is  direct,  circumstantial  or  both.‖    Lynch,  327  N.C.  at  216,  393  S.E.2d  at  814
(citation omitted).
Both of defendant’s convictions involve the issue of possession.   Because the
firearm and drugs alleged to belong to defendant were found in the same bedroom,
we may analyze both charges concurrently.   To convict defendant of possession of a
firearm by a felon the state must prove that (1) defendant was previously convicted
of a felony and (2) subsequently possessed a firearm.   N.C.G.S. § 14-415.1(a) (2011).
To  convict  defendant  of  trafficking  in  cocaine,  the  State  must  prove  that  he
―possesse[d] 28 grams or more of cocaine.‖   Id.  § 90-95(h)(3)  (2011).   The State’s
undisputed evidence shows that defendant was previously convicted of a felony, that
a firearm was found in the bedroom closet, and that more than twenty-eight grams
of cocaine were found in the bedroom.    As a result, the only remaining issue is
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STATE V. BRADSHAW
Opinion of the Court
whether the State’s evidence supports an inference that defendant possessed the
firearm and cocaine.
It is well established that possession may be actual or constructive.   State v.
Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986).   Here, the State proceeded on the
theory that defendant constructively possessed the firearm and cocaine.
A defendant constructively possesses contraband when he
or she has ―the intent and capability to maintain control
and dominion over‖ it.   State v. Beaver, 317 N.C. 643, 648,
346 S.E.2d 476, 480 (1986).   The defendant may have the
power to control either alone or jointly with others.   State
v. Fuqua, 234 N.C. 168, 170-71, 66 S.E.2d 667, 668 (1951).
Unless a defendant has exclusive possession of the place
where the contraband is found, the State must show other
incriminating circumstances sufficient for the jury to find
a defendant had constructive possession.   State v. Matias,
354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001).
Miller,  363 N.C. at  99,  678 S.E.2d at  594.    The State concedes that defendant’s
control  of  the  bedroom  in  which  the  cocaine  and  firearm  were  found  was
nonexclusive.   Therefore, to have the charges submitted to a jury, the State must
have introduced evidence of other incriminating circumstances sufficient to support
a  reasonable  inference  that  defendant  constructively  possessed  the  contraband
found in the room.   See id.   This inquiry is necessarily fact specific; each case will
―turn on the specific facts presented,‖ and no two cases will be exactly alike.   Id.
―[T]his  Court                                                                             [has]  considered  a  broad  range  of  other  incriminating
circumstances‖ to determine whether an inference of constructive possession was
appropriate when a defendant exercised nonexclusive control of contraband.   State
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STATE V. BRADSHAW
Opinion of the Court
v. McNeil, 359 N.C. 800, 812, 617 S.E.2d 271, 279 (2005).   Two of the most common
factors  are                                                                                 ―the  defendant’s  proximity  to  the  contraband  and  indicia  of  the
defendant’s control over the place where the contraband is found.‖   Miller, 363 N.C.
at 100, 678 S.E.2d at 595.
While  the  defendant’s  proximity  to  the  contraband  is  one  factor  to  be
considered, this Court has found adequate evidence of constructive possession when
a defendant was absent at the time of the search.   For example, in State v. Baxter,
285 N.C. 735, 208 S.E.2d 696 (1974), the defendant was absent during a search of
an apartment in which the defendant and his wife had lived alone for about three
years.   Id. at 736, 208 S.E.2d at 697.   In the apartment’s bedroom, officers found
marijuana in a dresser drawer containing men’s and women’s clothing and in the
pocket of a man’s coat hanging in a closet.   Id. at 736-37, 208 S.E.2d at 697.   Officers
had not seen the defendant at the apartment during the preceding week.   Id. at 736,
208 S.E.2d at 697.   Though the defendant’s wife was the only person present at the
time of the search,  this Court held that there was sufficient evidence  that the
defendant, who resided at the apartment with his wife, constructively possessed the
contraband.   Id. at 737-38, 208 S.E.2d at 697-98.   Similarly, in State v. Allen we
again found sufficient evidence of constructive possession when the defendant was
absent at the time of the search.                                                            279 N.C. at 408, 412, 183 S.E.2d at 682, 684-85.
There, officers found heroin in a bedroom containing an Army identification card
and personal papers with the defendant’s name on them.    Id. at  408,  412,  183
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STATE V. BRADSHAW
Opinion of the Court
S.E.2d at 682, 684.   In addition, the house’s utilities were in the defendant’s name
and a witness testified that the defendant had  told him where the heroin was
located.   Id.   In that case, this Court found sufficient evidence to support a jury’s
finding that the defendant exercised dominion and control over the contraband,
even though he was absent and three other individuals were present at the time of
the search, and therefore upheld the trial court’s denial of the defendant’s motion
for nonsuit.   Id. at 408, 412, 183 S.E.2d at 682, 684-85.
In contrast, this Court has found insufficient evidence to withstand a motion
to  dismiss  when  the  State  failed  to  show                                              ―other  incriminating  circumstances
linking‖ the defendant to the contraband.   State v. McLaurin, 320 N.C. 143, 147,
357 S.E.2d 636, 638-39 (1987).   In McLaurin, officers found contraband scattered
throughout a residence, which officers had seen two adult males enter and leave
shortly before the search.   Id. at 144-45, 357 S.E.2d at 637.   The female defendant
gave the address of the residence as her own, and officers found an identification
card bearing her name.   Id. at 145, 357 S.E.2d at 637.   While the defendant clearly
exercised control over the residence, her control was nonexclusive.   Id. at 146, 357
S.E.2d  at  638.    The  Court  held  that,  ―because  there  was  no  evidence  of  other
incriminating  circumstances  linking  her  to                                               [the  contraband],  her  control  was
insufficiently substantial to support a conclusion of her possession of the seized
paraphernalia.‖   Id. at 147, 357 S.E.2d at 638.   In other words, no evidence linked
the defendant to the contraband, which any of the residence’s occupants could have
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STATE V. BRADSHAW
Opinion of the Court
possessed separately and exclusively from her.   This Court also determined that the
evidence in State v. Finney, 290 N.C. 755, 228 S.E.2d 433 (1976), did not sufficiently
link the defendant to the contraband in question.   In Finney, the evidence showed
that the defendant had sublet his apartment and had not been present there for at
least the previous forty-four days.   Id. at 759-60, 228 S.E.2d at 435-36.   Another
man  was  living  in  the  residence  at  the  time  of  the  search,  and  only  bedroom
contained a bed.   Id. at 755-56, 228 S.E.2d at 433-34.   The other bedroom appeared
to be abandoned, containing a number of items but no bed, and, in fact, the man
who was living at the residence on that date arrived with a key during the search.
Id.  at  756,  759,  228 S.E.2d at  434,  435.    The other man  testified  that  all  the
contraband belonged to him, not to the defendant.   Id. at 756, 759, 228 S.E.2d at
434, 436.   This Court found the evidence insufficient to support the charge against
the defendant because ―[a]ll the State has shown is that defendant Finney was in
the apartment some 44 days before the search and that his name appeared on the
lease at the time of the search.‖    Id. at  760,  228 S.E.2d at  436.    Thus, without
evidence sufficiently linking a defendant to the contraband, a motion to dismiss
should be granted.
Here, because defendant was absent at the time of the search, the State was
required to present evidence of his nonexclusive control of the premises where the
contraband was found, as well as evidence of other incriminating circumstances
linking  him  to  the  contraband.     The  State  introduced  substantial  evidence
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STATE V. BRADSHAW
Opinion of the Court
indicating that defendant lived in the bedroom at  487 Pharr Drive in which the
cocaine and firearm were found and that he exercised dominion and control over the
contraband found therein.   The bedroom contained a receipt dated 30 March 2007
from Time Warner Cable for installation, listing defendant’s name and the address
of the residence.   There also was a bill from Time Warner Cable, with defendant’s
name and the address of the residence on it, due on 19 May 2007, just one month
before the  19 June  2007 search.    Defendant’s name and Social Security number
were listed on the account.   Those services were disconnected on 25 October 2007,
shortly  after  defendant  was  arrested.     Officers  also  found  a  paystub  with
defendant’s name on it.   In addition, the bedroom contained an envelope addressed
to  ―BI,‖ a known alias for defendant, with a Father’s Day card and a gift card
addressed to ―BI‖ and ―Daddy.‖   Significantly, in 2007 Father’s Day fell on June 17,
just two days before the search warrant was executed.   In the bedroom, officers also
found two recent photographs of defendant.    Detective Tierney testified that the
room looked lived in and contained men’s clothing,   but the two other males known
to have lived at the residence had been in prison for over a year.   Detective Tierney
also testified that he had seen defendant at the residence, his mother’s house, both
before and after the search.   The cocaine was found throughout this bedroom—in
plain view and in a chest of drawers containing men’s clothing.   The firearm was
found in a closet in the bedroom.    When defendant finally was arrested several
months later, he was approximately fifty to one hundred yards from the residence
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STATE V. BRADSHAW
Opinion of the Court
and had cocaine in his possession.   As in Baxter and Allen, all this evidence, when
viewed in the light most favorable to the State, supports a reasonable inference that
defendant exercised dominion and control over the left front bedroom at 487 Pharr
Drive and the 182.5 grams of cocaine and firearm found therein.
Rather than merely raising a suspicion that defendant could have possessed
the contraband, the State’s evidence allowed the jury to reasonably infer a link
between defendant and the contraband.   Whereas evidence showing a defendant’s
presence ―some 44 days before the search‖ is insufficient, Finney, 290 N.C. at 760,
228 S.E.2d at 436, evidence placing the defendant in the left front bedroom within
two  days  of  the  search  provides  a  sufficient  link  between  defendant  and  the
contraband to survive a motion to dismiss.   Unlike in Finney, in which another man
was currently living in the residence and only one bedroom contained a bed, the
defendant here had been seen at the residence—his mother’s house—before and
after the search, and the other males with apparently unrestricted access to the
residence were in prison.   In a similar manner, this case is unlike McLaurin, in
which two adult males had entered and left the residence shortly before the search
and there was no evidence linking the female defendant to the contraband, which
was found throughout the residence.                                                       320 N.C. at  144-46,  357 S.E.2d at  637-38.
Instead, defendant here was charged only with the items found in the left front
bedroom, the contents of which indicated that he alone resided there.
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STATE V. BRADSHAW
Opinion of the Court
Because  there  was  sufficient  evidence  for  the  trier  of  fact  to  reach  a
reasonable  inference  that  defendant  constructively  possessed  the  cocaine  and
firearm, the motion to dismiss was properly denied and the ultimate question of
defendant’s guilt or innocence became one for the jury.   The jury, in fact, drew that
reasonable inference.
For the foregoing reasons, we affirm the decision of the Court of Appeals.
AFFIRMED.
No. 456A11 - State v. Bradshaw
Justice HUDSON dissenting.
In State v. Miller, 363 N.C. 96, 678 S.E.2d 592 (2009), I joined the dissent
because I agreed that the State had failed to present sufficient evidence of the
defendant’s constructive possession of cocaine.   Here I see even less.   Accordingly, I
respectfully dissent.
―Unless  a  defendant  has  exclusive  possession  of  the  place  where  the
contraband  is  found,  the  State  must  show  other  incriminating  circumstances
sufficient for the jury to find a defendant had constructive possession.‖   Miller, id. at
99, 678 S.E.2d at 594 (citation omitted).   As in Miller, defendant here did not have
exclusive control over the place in which the contraband was found, and the case
turns on whether the State presented sufficient evidence of  ―other incriminating
circumstances.‖
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STATE V. BRADSHAW
HUDSON, J., dissenting
In Miller the majority concluded that the defendant constructively possessed
cocaine that was located near him in a bedroom.   As noted by Justice Timmons-
Goodson  in  her  dissenting  opinion,  there  were  only  two                            ―other  incriminating
circumstances‖ that led the majority to find constructive possession: ―(1) defendant’s
proximity to the cocaine; and (2) the presence of defendant’s birth certificate and
identification card on top of a television stand.‖    Id. at  111,  678 S.E.2d at  601
(Timmons-Goodson, J., dissenting).   Here, by contrast, defendant was not present
when the contraband was found by the police.
The majority cites to State v. Baxter, 285 N.C. 735, 208 S.E.2d 696 (1974),
and State v. Allen, 279 N.C. 406, 183 S.E.2d 680 (1971), for the proposition that a
defendant need not be present to establish constructive possession, even when a
defendant is not in exclusive control of the location of the contraband.   These cases
also  support  the  proposition  that  we  require  more  when  the  defendant  is  not
present.                                                                                  ―A person is in constructive possession of a thing when, while not having
actual  possession,  he  has  the  intent  and  capability  to  maintain  control  and
dominion over that thing.‖   State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480
(1986) (citation omitted).   In my view, the State has failed to make that showing
here.
In  Baxter  this  Court  found  constructive  possession  of  contraband  by  a
defendant husband who lived in a house with his wife and no one else.   285 N.C. at
737, 208 S.E.2d at 697.   There, even though defendant was not present at the time
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STATE V. BRADSHAW
HUDSON, J., dissenting
of the search, the contraband was found under male clothing and in a man’s jacket.
Id.   In addition, evidence showed that the defendant was living at the house.   Id.   In
Allen we found sufficient evidence of other incriminating circumstances when a
defendant was not present because the defendant’s government I.D. card was found
where the contraband was found, the utilities for the house were in the defendant’s
name, and a third party identified and connected defendant to the drugs.                    279 N.C.
at 412, 183 S.E.2d at 684.
Here we have no similar indicia of control or dominion over the premises or
the contraband.   First, the State was not able to establish that defendant was even
living at the house at the time of the search.    Evidence showed that the house
belonged to defendant’s mother.   While the officer testified that he recalled seeing
defendant  at  the  house  before  and  after  the  search,  he  could  not  state  with
specificity when that occurred.   Other evidence showed that other men had lived at
the house at other times.   The police did find some papers with defendant’s name
(or alias) on them, which is consistent with defendant having been in the house at
some point, but not much more.   They found a cable bill with his name on it, along
with a partial paystub, some photos of defendant, and cards apparently addressed
to defendant.   The majority finds constructive possession based on these personal
papers.   However, no government-issued I.D. was found.   Defendant was not known
to reside at the house.   The utilities were not listed in defendant’s name.   And no
third party tied defendant to the drugs or firearm.   Even if the papers found here
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STATE V. BRADSHAW
HUDSON, J., dissenting
can give rise to an inference that defendant had been present in the house, I see
nothing  to  suggest  that  he  exercised  control  or  dominion  over  the  premises  or
contraband at the time of the search.
As in Miller, I conclude the evidence here points only to a mere suspicion of
defendant’s guilt.
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 of it, the
motion for nonsuit should be allowed.  .  .                                                 . This is true
even though the suspicion so aroused by the evidence is
strong.‖
State v.  LeDuc,  306 N.C.  62,  75,  291  S.E.2d  607,  615  (1982)  (alteration in the
original) (citation omitted), overruled in part on other grounds by State v. Childress,
321 N.C. 226, 231-32, 362 S.E.2d 263, 267 (1987).   When a defendant is not present
at the seizure of the contraband, I would require, as we have stated in the past,
other incriminating circumstances to establish that the defendant had ―the intent
and capability to maintain control and dominion over‖ the contraband.   See Beaver,
317 N.C. at 648, 346 S.E.2d at 480.   Therefore, I respectfully dissent.
Justice TIMMONS-GOODSON joins in this dissenting opinion.
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