¶1dissenting.
¶2No substantial evidence exists to prove that defendant is guilty of trafficking cocaine by actual or constructive possession. The evidence, at best, raises only a suspicion or conjecture that defendant possessed or placed the cocaine in the taxi. The evidence tending to show defendant possessed illegal drugs is insufficient to withstand defendant’s motion to dismiss. I would reverse the trial court’s denial of defendant’s motion.
¶3I. Motion to Dismiss
¶4Defendant argues that the evidence was insufficient as a matter of law to convict him because the State presented no evidence that defendant knew about, placed, or had possession of the cocaine later found in the taxicab. “ ‘An accused’s possession of narcotics may be actual or constructive. He has possession of the contraband material within the meaning of the law when he has both the power and intent to control its disposition or use.’ ” State v. Weems, 31 N.C. App. 569, 570, 230 S.E.2d 193, 194 (1976) (quoting State v. Harvey 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)).
¶5“This Court has held that the mere presence of the defendant in an automobile containing drugs does not, without additional incriminating circumstances, constitute sufficient proof of drug possession.” State v. Matias, 143 N.C. 445, 448, 550 S.E.2d 1, 3 (2001) (citing Weems, 31 N.C. App. at 571, 230 S.E.2d at 194 (1976)).
¶6“Where such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession. Harvey, 281 N.C. at 12, 187 S.E.2d at 714 (emphasis supplied). Here, no inference that the defendant had knowledge and possession should arise. The taxi, where the cocaine was later found, was not under the control of defendant. Thomas, the taxi driver, maintained control of the vehicle where drugs were found, and consented to the search of his vehicle.
¶7“Proving constructive possession where defendant had nonexclusive possession of the place in which the drugs were found requires a showing by the State of other incriminating circumstances which would permit an inference of constructive possession.” State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 73 (1996). Evidence that a defendant places drugs in the crack of a passenger seat of a car is *16sufficient to find the power and intent to control its disposition or use. Matias, 143 N.C. App. at 449, 550 S.E.2d at 4. Because the State cannot prove actual possession, the State must show “other incriminating circumstances” which raise an inference that defendant placed the cocaine under the driver’s seat.
¶8“ ‘It is sometimes difficult to distinguish between evidence sufficient to carry a case to the jury, and a mere scintilla, which only raises a suspicion or possibility of the fact in issue.’ ” State v. Brooks, 136 N.C. App. 124, 129, 523 S.E.2d 704, 708 (1999), disc. review denied, 351 N.C. 475, 543 S.E.2d 496 (2000) (quoting State v. Johnson, 199 N.C. 429, 154 S.E. 730 (1930)). “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) (quoting In re Vinson, 298 N.C. 640, 656-57, 260 S.E.2d 591, 602 (1979)).
¶9II. Issues
¶10The dispositive issue in this case is: (1) what “other incriminating circumstances” are required by the State to prove to permit an accused’s close proximity to drugs to raise a reasonable inference that defendant controlled, used, or possessed the drugs, when there is no evidence of actual possession, and (2) what is the impact of the taxi, wherein cocaine was later discovered, leaving the location for at least 10 minutes carrying an intervening passenger after defendant exited the taxi.
¶11III. Other Incriminating Circumstances
¶12The majority finds sufficient “other incriminating circumstances” from testimony that defendant: (1) exited a bus coming from or going to a “source city” of drug activity, (2) acted “nervous,” (3) hurriedly entered a recently cleaned taxi as the first fare of the morning, (4) telling the taxi driver to “go,” (5) bent down while inside the taxi, (6) pushed on the taxi driver’s seat from behind, and (7) “struggled” to exit the taxi.
¶13None of these seven factors considered individually or taken together show “other incriminating circumstances” to prove that defendant placed the cocaine under the taxi driver’s seat. These factors do show that defendant was nervous, paused, acted fidgety, and had difficulty getting out of a taxi. To translate these bodily actions *17into sufficient “other incriminating circumstances” to prove that defendant placed cocaine under the seat requires adding a premise that the circumstantial evidence does not contain. The majority’s logic presumes that all people who act nervous exiting buses, who are aware of others around them, who pause to gather their bearings at a bus terminal, and who struggle to exit taxis with baggage are guilty of possessing illegal drugs. Remove that presumption and these circumstances fail to raise a reasonable inference that defendant placed the drugs under the taxi driver’s seat.
¶14Based on the taxi driver’s own testimony, at least two other people could have placed the cocaine in the taxi, the taxi driver himself and/or the later passenger. “The fact that defendant exited the vehicle from the right rear passenger seat — the same side of the car in which the cocaine was found — raises no more of an inference defendant knew of the presence of the cocaine than it raised as to the other occupant of the rear passenger seat who could also have hidden the drugs there without defendant’s knowledge.” Matias, 143 N.C. App. at 454-55, 550 S.E.2d at 5 (Hunter, J., dissenting).
¶15Here, not only were two other people in the taxi after defendant exited the vehicle, the taxi drove away from the station, beyond the view of police detectives, for at least ten minutes. This gap in time and the departure of the taxi from the defendant’s location further weakens any inference that defendant placed the drugs under the driver’s seat.
¶16Defendant cooperated with the detective’s request and voluntarily exited the taxi, walked back into the bus station, and consented to a search of his person and baggage. These searches disclosed no connection whatsoever between defendant and the drugs or any unlawful activity. The drugs provided no link to defendant, except for his brief presence in the taxi while under the detectives’ surveillance and scrutiny. There was no evidence of defendant’s fingerprints on the cocaine package, there was no evidence of cocaine residue on defendant or in or about his searched bag, no drug paraphernalia, and no evidence of any other illegal drugs or weapons. Defendant was not observed engaged in any criminal activity.
¶17IV. Other Exculpatory Circumstances
¶18The record is replete with “other exculpatory circumstances” that the majority’s opinion ignores. The majority’s opinion fails to mention that defendant recently had been robbed and shot and that he had *18reported this incident to the police. According to Detective Murphy, “it was [a] pretty fresh wound, I mean, not within a day or two, but it was still tender.” This fact may explain defendant’s timidness and nervousness while walking through the bus station, being followed by three or four plain clothes detectives. This fact may also explain defendant’s “struggling” to get out of the taxi and bumping the rear of the driver’s seat as he retrieved his bag and tried to rotate his wounded body out of the taxi.
¶19Taxi driver Thomas and Detective Halsaber both testified that defendant carried a small bag, which he placed on the backseat after he entered the taxi. The detectives stood less than two feet from the cab door moments before they asked defendant to exit the taxi for questioning. Detective Murphy testified that, at that moment, defendant bent down so that he could not see defendant’s hands. The implication from Detective Murphy’s testimony is that at that precise moment defendant hid or stashed the drugs under the front seat. With detectives standing so close to the taxi and peering straight at defendant, it is difficult to imagine that defendant, in broad daylight, was able to remove drugs from his bag on the seat or from his body, and conceal 83.1 grams of cocaine wrapped in a paper towel without being seen. Detective Murphy testified that as he backed away from the vehicle so that defendant could exit, he observed defendant “make a straight motion down and then leaned out to get out of the vehicle. More or less a one motion thing where he bent over a little bit and opened the door to get out.” There was no testimony that defendant hesitated getting out of the taxi.
¶20The majority’s opinion also omits that after defendant exited the taxi, Thomas picked up a known passenger and transported him to the Wake County jail, after he left the bus station.
¶21Defendant was not in exclusive control or possession of the taxi, and no one observed him conceal the drugs under the seat. The “other incriminating circumstances” must be sufficient to raise an inference that defendant placed the drugs under the seat. Without more evidence than the State presented, the case should have been dismissed.
¶22The transcript reveals that the trial judge expressed grave concerns before ruling on defendant’s motion to dismiss. The court asked the prosecutor, “why in the world didn’t they search the car [before it left the bus station]? ... it’s [sic] just makes it messy.... it just makes it difficult.” The trial court also recognized the importance of the *19lapse in time and location: “[m]eaning that there was a time period in which the vehicle — in which the contraband was found was elsewhere and other people were in the vicinity of the — and had an opportunity to place the drugs there possibly.”
¶23V. Non-Exclusive Constructive Possession
¶24In State v. McLaurin, our Supreme Court reversed this Court concluding that “because defendant’s control over the premises [a residence] in which the paraphernalia were found was nonexclusive, and because there was no evidence of other incriminating circumstances linking her to those items, her control was insufficiently substantial to support a conclusion of her possession . . . .” 320 N.C. 143, 147, 357 S.E.2d 636, 638 (1987).
¶25In State v. Ledford evidence that: (1) a defendant was seen picking up objects from the ground in a public place where drugs were later found, (2) other persons had been in that area, and (3) defendant ran from that area when requested by police officers to empty his pockets, was insufficient to support an inference of constructive possession. 23 N.C. App. 314, 208 S.E.2d 870 (1974). Our Court examined the evidence in Ledford and found “it sufficient to raise a strong suspicion of defendant’s guilt but not sufficient to take that issue beyond the realm of suspicion and conjecture.” Id. at 316, 208 S.E.2d at 872.
¶26The facts at bar are analogous to Ledford: (1) both defendants were observed bending down in an area where drugs were later found, (2) there was no evidence concerning what they bent down for, other than drugs were later found in the area nearby, (3) defendant in Ledford ran; the defendant here was nervous, (4) both defendants did not have exclusive control of the areas, and (5) other persons were also located in close proximity to where the drugs were found. Defendant’s fleeing the scene in Ledford merely added to this suspicion of his guilt, but was insufficient for the evidence to go to the jury. Here, defendant’s nervousness and timidity, considering that defendant had been robbed and had a “tender” and “fresh” wound to his “rear,” does no more than merely add to the suspicion of his guilt.
¶27In Weems, the police observed three men enter a car and drive off. Weems was siting in the front passenger seat, along with the driver. Another passenger was seated in the back. The police searched the car and found three packets of heroin, two of which *20were in close proximity to the defendant in the front seat. “There was no evidence [defendant] had been in the car at any time other than during the short period .... There was no evidence of any circumstances indicating that defendant knew of the presence of the drugs hidden in the car.” Weems, 31 N.C. App. at 571, 230 S.E.2d at 194-95. This Court found “no evidence of any circumstance connecting the defendant to the drugs in any manner whatsoever other than the showing of his mere presence for a brief period in the car as a passenger.” Id. at 571, 230 S.E.2d at 195.
¶28In Matías, this Court recently found sufficient “other incriminating circumstances” to show constructive possession. We distinguished Matías from Weemsbecause “sufficient incriminating circumstances exist to give rise to a reasonable inference that defendant knew of the presence of the cocaine in the car and had the power and intent to control its disposition or use.” 143 N.C. App. at 449, 550 S.E.2d at 3. The defendant in Matías was found guilty of constructively possessing cocaine that was discovered in a vehicle in which he was a passenger. Part of the “other incriminating circumstances” consisted of marijuana odor which emanated from the vehicle after it passed the police and again after the police stopped it. These facts were evidence of criminal activity. The cocaine was discovered in the same container that contained the marijuana. Here, there is no evidence that defendant was engaged in any criminal activity. Also, in Matías the vehicle in which the cocaine was found never left the police’s sight or custody from the time criminal activity was suspected until the drugs were discovered.
¶29VI. Conclusion
¶30After carefully examining the entire record, the seven “other incriminating circumstances” relied on by the majority are not incriminating. All the circumstantial evidence fails to raise, as a matter of law, a reasonable inference of constructive possession. Because there is no evidence of actual possession of cocaine, and only a “suspicion or conjecture”, of constructive possession, the trial court erred in denying defendant’s motion to dismiss. “To hold otherwise places innocent persons, riding in a vehicle where cocaine has been hidden, at risk of being charged and convicted of possession of cocaine when there is no evidence of their having knowledge of the cocaine.” Matias, 143 N.C. App. at 453, 550 S.E.2d at 5 (Hunter, J., dissenting).
¶31I respectfully dissent.