State v. Wiggins, 7630SC985

• Decision Date: 01 June 1977
• Docket Number: No. 7630SC985,7630SC985
• Citation: 33 N.C.App. 291,235 S.E.2d 265
• Parties: STATE of North Carolina v. Howard F. WIGGINS.
• Court: North Carolina Court of Appeals

Page 265

235 S.E.2d 265

33 N.C.App. 291

STATE of North Carolina v. Howard F. WIGGINS.

No. 7630SC985.

Court of Appeals of North Carolina.

June 1, 1977.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Associate Atty. Al S. Hirsch, Raleigh, for the State.

Simpson, Baker & Aycock, P.A., by Gene Baker, Morganton, for defendant-appellant.

MORRIS, Judge.

Defendant contends that the trial court erred by admitting the marijuana into evidence and in denying his motions for nonsuit because there was no evidence which showed that the drug was in defendant's actual or constructive possession.

An accused has possession of marijuana within the meaning of the Controlled Substances Act when he has both the power and intent to control its disposition. The possession may be either actual or constructive. State v. Baxter, 285 N.C. 735, 208 S.E.2d 696 (1974). Constructive possession of marijuana exists when the accused is without actual personal dominion over the material, but has the intent and capability to maintain control and dominion over it. State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972). "Where (narcotics) 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." State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).

Applying these principles to the present case, we must determine whether the marijuana discovered by Sheriff Moore and Deputy Shelton was "found on the premises under the control of an accused" so that possession by defendant could be reasonably inferred. We believe that the marijuana located in the flower pots 32 feet in front of defendant's trailer and beside defendant's television antenna was within such close proximity to defendant's residence as to raise the inference that defendant had at least constructive possession of it. Consequently, we hold that its admission into evidence was proper.

Problems arise, however, with respect to the admissibility of the marijuana discovered behind defendant's trailer. In State v. Spencer, supra, the defendant was charged with felonious possession of marijuana discovered in a pig shed located approximately 60 feet behind his residence. The Supreme Court, ruling on a motion for judgment as of nonsuit, noted that "(d)efendant had been seen on numerous occasions in and around the out-buildings directly behind his house. Thus, when considered with the fact that marijuana seeds were found in defendant's bedroom, this evidence raises a reasonable inference that defendant exercised custody, control, and dominion over the pig shed and its contents. . . . " State v. Spencer, supra, 281 N.C. at 129-30, 187 S.E.2d at 784. In the case sub judice, there was no evidence concerning whether the flower bed and cornfield in which the marijuana was located were on defendant's property or otherwise under his control. Nor was there any evidence linking defendant to the marijuana other than the fact that it was growing near his trailer. The State cites three decisions by this Court, State v. Salem, 17 N.C.App. 269, 193 S.E.2d 755, cert. den., 283 N.C. 259, 195 S.E.2d 692 (1973); State v. Summers, 15 N.C.App. 282, 189 S.E.2d 807, cert. den., 281 N.C. 762, 191 S.E.2d 359 (1972); State v. Crouch, 15 N.C.App. 172, 189 S.E.2d 763, cert. den., 281 N.C. 760, 191 S.E.2d 357 (1972). In each of these cases, however, as the State correctly concedes, either the contraband was found in defendant's home or there was additional evidence linking defendant to the drug. Again, there was no such evidence in the present case. Accordingly, the State did not show that the marijuana discovered behind defendant's trailer was found on premises under his control, and the admission of this marijuana into evidence constituted error.

In ruling upon defendant's motion for judgment as of nonsuit, the trial court was bound to consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable intendment and inference to be drawn therefrom. State v. Everette, 284 N.C. 81, 199 S.E.2d 462 (1973). Whether the evidence is direct, circumstantial, or both, if there is evidence from which the jury could find that defendant committed the offense charged, the motion for nonsuit should be overruled. State v. Lindley, 286 N.C. 255, 210 S.E.2d 207 (1974). To withstand the motion, there must be substantial evidence of all material elements of the offense charged. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975).

Defendant was charged with (1) unlawful possession of marijuana with intent to sell and deliver, and (2) manufacture of marijuana. The State's evidence consisted of the testimony of the two officers who went to defendant's premises and discovered the marijuana and the S.B.I. agents who chemically identified it. On cross-examination, Sheriff Moore stated:

"When I went to the home of Mr. Wiggins I did not find any type of scales or weight devices for weighing small amounts. I did not find any rolling paper, as associated with the smoking of marijuana. I didn't see any. I did not find anything to my knowledge, in the trailer, as such that was related to the growing or the weighing or the rolling of marijuana. . . . "

There was a stipulation that all of the marijuana found consisted of 215.5 grams, less than a half pound. There is nothing in the record which sheds any light on the amount found growing in each of the locations. Even so, this quantity alone, without some additional evidence, is not sufficient to raise an inference that the marijuana was for the purpose of distribution. See State v. Baxter, supra; State v. McDougald, 18 N.C.App. 407, 197 S.E.2d 11, cert. den., 283 N.C. 756, 198 S.E.2d 726 (1973). Thus, even when the evidence is viewed in the light most favorable to the State, evidence of possession of the marijuana, without more, is not sufficient to withstand a motion for judgment as of nonsuit on a charge of possession with intent to sell and distribute.

On the charge of manufacture, we reach a different conclusion. State's evidence, which we have held was admissible to show constructive possession, was that stripped stalks of marijuana were found growing behind a television antenna connected to defendant's residence and that marijuana plants were found growing in flower pots on a table in defendant's front yard 32 feet from his residence.

G.S. 90-95(a)(1), the...