State v. Perry

• Decision Date: 05 March 1986
• Docket Number: No. 125A85,125A85
• Citation: 340 S.E.2d 450,316 N.C. 87
• Parties: STATE of North Carolina v. Samuel PERRY.
• Court: North Carolina Supreme Court

Page 450

340 S.E.2d 450

316 N.C. 87

STATE of North Carolina v. Samuel PERRY.

No. 125A85.

Supreme Court of North Carolina.

March 5, 1986.

Lacy H. Thornburg, Atty. Gen. by William F. Briley, Asst. Atty. Gen., for the State.

Currie, Pugh & Joyner by Irving Joyner, Raleigh, for defendant-appellant.

BRANCH, Chief Justice.

Defendant assigns as error the trial judge's denial of his motion to dismiss all charges at the close of all the evidence.

We first consider the conspiracy charges. The indictment in Case No. 82CRS36668 charges that defendant conspired with Edell Willis to possess 28 grams or more of heroin on 9 June 1982. The indictment in Case No. 82CRS36670 charges that defendant conspired to manufacture with Edell Willis 28 grams or more of heroin on 9 June 1982.

Defendant contends that the State failed to offer sufficient evidence of either of these charges to survive his motions to dismiss. We do not reach this argument since Cases Nos. 82CRS 36668 and 82CRS36670 are not before us for decision. Upon the jury verdict of guilty in Case No. 82CRS36668 charging that defendant conspired with Edell Willis to possess 28 grams or more of heroin on 9 June 1982, the trial judge entered the following order:

ORDER--82CRS36668

Offense: Conspiring with Edell Willis to possess 28 grams or more of heroin on June 9, 1982

Attorney for State: Evelyn Hill

Attorney for Defendant: Thomas Loflin

PLEA: [X] Not Guilty

VERDICT: [X] Guilty

It is Ordered that Prayer for Judgment be continued, with the express consent of the defendant in open court, from term to term and session to session of the Wake County Superior Court for a maximum term of five (5) years from this date unless the Solicitor for the State in his/her unfettered and unbridled discretion prays judgment in the next five (5) years.

Date: October 24, 1984

Name of Presiding Judge: Hon. Anthony M. Brannon

Signature of Presiding Judge

s/ANTHONY BRANNON

An identical order was entered in Case No. 82CRS36670 upon the jury verdict of guilty of conspiracy to manufacture with Edell Willis 28 grams or more of heroin on 9 June 1982.

In State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962), we find the following:

Where prayer for judgment is continued and no conditions are imposed, there is no judgment, no appeal will lie, and the case remains in the trial court for appropriate action upon motion of the solicitor.

Id. at 638, 127 S.E.2d at 340 (citations omitted).

In instant cases the trial judge, with defendant's express consent given in open court, entered prayer for judgment continued without imposing conditions in either of the conspiracy charges. Therefore there is no appeal before us in cases 82CRS36670 and 82CRS36668. The purported appeals in each of these cases are dismissed.

By his next assignment of error, defendant argues that the trial judge erred in failing to allow his motion to dismiss, made at the close of all the evidence, the charges of trafficking in heroin by possessing and transporting heroin. Defendant argues that there was insufficient evidence to support a reasonable inference that he possessed or transported 28 grams or more of heroin.

N.C.G.S. § 90-95(h)(4) in part provides:

(4) Any person who sells, manufactures, delivers, transports, or possesses four grams or more of opium or opiate, or any salt, compound, derivative, or preparation of opium or opiate (except apomorphine, nalbuphine, analoxone and naltrexone and their respective salts), including heroin, or any mixture containing such substance, shall be guilty of a felony which felony shall be known as 'trafficking in opium or heroin' and if the quantity of such controlled substance or mixture involved:

....

c. Is 28 grams or more, such person shall be punished as a Class C felon and shall be sentenced to a term of at least 45 years in the State's prison and shall be fined not less than five hundred thousand dollars ($500,000).

(Emphasis added.)

We particularly note that this section penalizes possession of 4 grams or more of any mixture containing heroin without regard to the percentage of heroin in the mixture.

Defendant's motion to dismiss must be considered in light of all the evidence introduced by the State as well as that introduced by defendant. N.C.G.S. § 15-173 (1983), N.C.G.S. § 15A-1227 (1983). Thus, the question presented is whether upon consideration of all the evidence, whether competent or incompetent, in the light most favorable to the State, there is substantial evidence that the crime charged in the bill of indictment was committed and that defendant was a perpetrator of that crime. State v. Riddle, 300 N.C. 744, 268 S.E.2d 80 (1980); State v. Scott, 289 N.C. 712, 224 S.E.2d 185 (1976).

It is well settled in this jurisdiction that in a prosecution for possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials. Proof of constructive possession is sufficient and that possession need not always be exclusive. State v. Williams, 307 N.C. 452, 298 S.E.2d 372 (1983); State v. Baxter, 285 N.C. 735, 208 S.E.2d 696 (1974); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Allen, 279 N.C. 406, 183 S.E.2d 680 (1971).

In Allen defendant was charged with possessing a quantity of heroin. The State offered evidence tending to show that the utilities for the house in which the heroin was found were listed in defendant's name, that an Army identification card and other papers bearing defendant's name were found in the bedroom of the house where the heroin was discovered, and that heroin was being sold by a sixteen-year-old boy at defendant's direction. Defendant testified that he did not reside at the residence where the heroin was found and that he had no dealings with the drug or the minor who allegedly was selling it. Holding that the trial court correctly denied defendant's motion for nonsuit, this Court quoted, with approval, from People v. Galloway, 28 Ill.2d 355, 358, 192 N.E.2d 370, 372 (1963), cert. denied, 376 U.S. 910, 84 S.Ct. 665, 11 L.Ed.2d 608 (1964), the following:

'where narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury * * * a reasonable doubt as to his guilt.'

State v. Allen, 279 N.C. at 410, 183 S.E.2d at 683.

We again considered possession of contraband in State v. Harvey, 281 N.C. 1, 187 S.E.2d 706, and find there language pertinent to a decision of the question before us. We quote:

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. 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. Also, the State may overcome a motion to dismiss or motion for judgment as of nonsuit by presenting evidence which places the accused 'within such close juxtaposition to the narcotic drugs as to justify the jury in concluding that the same was in his possession.'

281 N.C. at 12-13, 187 S.E.2d at 714 (citations omitted).

Defendant relies heavily on State v. Chavis, 270 N.C. 306, 154 S.E.2d 340 (1967). There defendant was convicted of felonious possession of marijuana. The State offered evidence tending to show that officers followed him and a companion along a street and through a vacant lot. They observed defendant and his companion in conversation about a minute and lost sight of him for just a few seconds. When defendant was first observed by the officers he was wearing a hat, but when he came back toward the officers, he was bareheaded. He was arrested and a search of his person did not reveal any contraband materials. In the vacant lot officers later found a hat, similar to the one worn by defendant, containing a quantity of marijuana. We held this evidence to be insufficient to overcome a motion for judgment as of nonsuit.

Instant case differs from Chavis in that defendant was alone from the time he was seen leaving the apartment carrying the silver-wrapped package until it was found in some bushes near his truck. In addition, there was evidence which would support an inference that defendant was either in joint or exclusive control of the apartment at 823-C Suffolk Boulevard from which defendant had departed carrying the silver-colored package and in which 26.3 grams of virtually uncut heroin, together with implements for the manufacturing of heroin, were found. There was also evidence of admissions by defendant that he knew some heroin was in the apartment and that his girlfriend knew nothing about it. In Chavis the only evidence connecting defendant to the marijuana was that it was found in a hat identical to one he had been seen wearing just a short time before his arrest.

We hold that the evidence of defendant's control of the apartment at 823-C Suffolk Boulevard, where heroin and implements of manufacturing of heroin were found, when considered with the evidence of transportation of 82.9 grams of heroin mixture is ample evidence of such actual and constructive possession as to support a reasonable inference that defendant had the power and intent to control the disposition and use of the contraband and that he did possess and transport heroin in violation of N.C.G.S. § 90-95(h)(4)(c).

The trial judge correctly overruled defendant's motion to dismiss the charge of trafficking in heroin by possessing and transporting 28 grams or more of heroin.

Defendant next argues that there was not sufficient evidence to carry the charge of trafficking in...