State v. Finney ( 1976 )

228 S.E.2d 433 (1976) 290 N.C. 755

STATE of North Carolina
v.
William Alphonso FINNEY.

No. 33.

Supreme Court of North Carolina.

October 5, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Joan H. Byers, Raleigh, for the State.

Richard C. Erwin, Winston-Salem, for defendant.

COPELAND, Justice.

The only error assigned by the defendant is the trial court's denial of his motion for judgment of nonsuit made at the close of the State's evidence and at the close of all the evidence. We believe the motion made at the close of all of the evidence should have been allowed.

Upon motion for judgment as of nonsuit, the evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from it. When there is sufficient evidence, direct or circumstantial, by which the jury could find that the defendant had committed the offense charged, then the motion should be denied. State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); 2 Strong, N.C. Index 2d, Criminal Law, § 106 at 654.

In this case the State relied completely upon circumstantial evidence. In order to withstand a motion for nonsuit, there must be substantial evidence of all the essential elements of the offense charged "[b]ut evidence which raises no more than a surmise or conjecture of guilt is insufficient to overrule nonsuit . . ." 2 Strong, N.C. Index 2d, Criminal Law, § 106 at 655. See also State v. Minor, 290 N.C. 68, 224 S.E.2d 180 (1976).

This Court has considered several controlled substance cases in recent years. In each of these cases possession of the controlled substance was an essential element of the offense charged. Justice Branch spoke for our Court in State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972); and State v. Allen, 279 N.C. 406, 183 S.E.2d 680 (1971).

In Harvey, supra, he said:

"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 . . . 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.'" [Citations omitted.] State v. Harvey, supra, 281 N.C. at 12-13, 187 S.E.2d at 714.

In Harvey, supra, the facts indicated that the defendant was found alone in a room in his home some three or four feet from the marijuana. Our Court held that this evidence supported the reasonable inference that the marijuana was in defendant's possession.

In Allen, supra, the facts disclosed that the defendant had been present at the premises on which the heroin was found and from which it had been sold one day prior to the search; that the utilities were listed in the defendant's name, and that an Army identification card and other personal papers bearing the defendant's name were found in the master bedroom. In addition, there was testimony that the heroin discovered in the master bedroom belonged to the defendant and was being sold by a minor child as defendant's agent and at his direction during the defendant's absence. The Court concluded that the heroin which was seized and purchased at the place where these personal papers were found was subject to the defendant's dominion and control and that it was proper to deny a nonsuit motion.

In Spencer, supra, this Court held that evidence that the defendant had been seen on numerous occasions in and around a pig shed where marijuana was found, this shed being located some 20 yards from the defendant's residence, together with evidence that some marijuana seeds were found in defendant's bedroom, led to a reasonable inference that defendant exercised custody and control over the pig shed and the marijuana found therein.

In a recent case before our Court, State v. Minor, 290 N.C. 68, 224 S.E.2d 180 (1976), the evidence revealed that the property on which marijuana was growing had been leased by a co-defendant and that the defendant had been a visitor at an abandoned house on the property leased by the co-defendant. The marijuana field was located 100 feet away from the house, obscured by a wooded area and accessible by three different routes. At the time of arrest, the defendant was a passenger in the front seat of an automobile owned and operated by the co-defendant which was stopped by police officers a short distance from the house and marijuana field. Marijuana leaves were found on the left rear floorboard and in the trunk of this automobile. Our Court held that under a charge of possession of marijuana for the purpose of distribution, and manufacturing and growing marijuana, nonsuit should have been allowed.

The facts of our case are substantially weaker than and distinguishable from those of Harvey, supra; Allen, supra; and Spencer, supra. About all the evidence shows is: (1) The lease to the defendant had been in existence for about seven years. Defendant testified that he had paid the rent through 14 June 1974 and vacated the apartment. (2) When the search was made on 28 July 1974, records in the apartment disclosed that the defendant had not been present there for the previous 44 days. (3) On the night of the search Vernard Rapley appeared on the scene with a key to the apartment on his person. Defendant's evidence tended to show the apartment was sublet to Rapley and a key to the apartment delivered to him on 14 June 1974 before the defendant departed for Florida. (4) The bedroom on the south side did not appear to have been lived in for some time. (5) The toxicologist who identified the vegetable material delivered to him as marijuana, testified that the bags containing the contraband each had an identifying symbol, "Rapley's bedroom" and that there were no other identifying marks on the bags. (6) At the time of the trial, Rapley was serving a sentence for the felonious possession of marijuana in the same apartment and testified that all the marijuana therein belonged to him.

The Court of Appeals relied heavily on an earlier opinion of that Court, State v. Wells, 27 N.C.App. 144, 218 S.E.2d 225 (1975), in affirming the instant case. The facts in that case disclosed that the officers searched the premises on 11 August 1974 and found a controlled substance, commonly called MDA, in a bedroom of a two bedroom apartment. No one was present at the time the search was conducted. The defendant had rented and paid the rent on the apartment for the months of July and August 1974. He and his two brothers had been seen in the apartment on several occasions prior to the search, and the defendant had been seen there three days before. A letter from Duke Power Company to the defendant was found in the apartment dated 26 July 1974. The contraband was found within one foot of this letter. The facts in Wells are distinguishable from those in our case.

In Wells, the defendant had been seen on the premises many times, most recently three days before the search; defendant Finney had not been seen at Apartment C for 44 days prior to the search. There was no evidence of subletting in Wells. Not only was there testimony in the instant case that defendant had sublet his apartment, his bedroom appeared to have been abandoned. In Wells there was a letter addressed to the defendant lying within one foot of the controlled substance. The marijuana in this case was discovered in a closet across the room from where the papers bearing defendant's name (all dated prior to defendant's departure) were found. Finally, Rapley, who was in actual possession of Apartment C at the time of the search, testified that he owned all the marijuana discovered in the apartment. In Wells there was no similar testimony on the part of anyone in possession of the apartment. The differing facts prevent Wells from being determinative. Judge Vaughn was a panelist in both cases. Significantly, he voted with the majority in Wells and dissented in this case.

The case of this Court which appears to be closest on its facts to the case at bar is State v. Hunt, 253 N.C. 811, 117 S.E.2d 752 (1961). In that case involving non-tax-paid liquor the defendant had not been at his residence for 2 days. At the time of the search defendant's brother-in-law was intoxicated on the porch. Defendant's wife and brother-in-law testified that they bought the liquor and that the defendant had no knowledge of it. In that case we held the evidence was insufficient to show either actual or constructive possession of the illegal liquor by the defendant and a nonsuit should have been granted.

All the State has shown is that the 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. If the marijuana had been present 44 days earlier, defendant was at a place where he could have committed the crime charged. "Beyond that we must sail in a sea of conjecture and surmise. This we are not permitted to do." State v. Minor, supra, 290 N.C. at 75, 224 S.E.2d at 185. The trial judge should have allowed the motion for judgment as of nonsuit at the close of all the evidence. The decision of the Court of Appeals is

REVERSED.