State v. Jenkins , 74 N.C. App. 295 ( 1985 )

328 S.E.2d 460 (1985)

STATE of North Carolina
v.
Jimmie Richard JENKINS.

No. 846SC948.

Court of Appeals of North Carolina.

April 16, 1985.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Fred R. Gamin and Associate Atty. Victor H.E. Morgan, Jr., Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defenders Robin E. Hudson and Geoffrey C. Mangum, Raleigh, for defendant-appellant.

JOHNSON, Judge.

Defendant first contends that the court erred in denying his motion to dismiss at the close of the evidence.

Upon a motion to dismiss, all of the evidence favorable to the State, whether competent or incompetent, must be considered and taken as true, giving the State every inference of fact which may be deduced from the evidence. State v. Witherspoon, 293 N.C. 321, 237 S.E.2d 822 (1977). The court is not required to determine that the evidence excludes every reasonable hypothesis of innocence before denying a motion to dismiss. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). If more than a scintilla of evidence is presented to support the indictment, the case must be submitted to the jury. State v. Agnew, 294 N.C. 382, 241 S.E.2d 684, cert. denied, 439 U.S. 830, 99 S. Ct. 107, 58 L. Ed. 2d 124 (1978). The rule is the same whether the evidence is circumstantial, direct or a combination of both. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956).

G.S. 90-95(a)(1) makes it a crime for one to manufacture a controlled substance. Marijuana is a controlled substance. G.S. 90-94. The manufacture of a controlled substance consists of its "production, preparation, propagation, compounding, conversion, or processing ... by any means." G.S. 90-87(15). The evidence in the present case clearly showed marijuana was being produced. The question is whether the State presented sufficient evidence to show defendant was involved in its production.

The evidence in the present case shows that six patches of marijuana, some visible from defendant's home, were growing in the environs of defendant's home; that defendant acknowledged the presence of "a lot of marijuana" around his home; that paths led from defendant's mobile home to these fields; that defendant acknowledged being in one of the marijuana patches; that a shoeprint similar to defendant's was found in that patch, which had been watered; that defendant's shoes were muddy, although the weather had been dry; that defendant had a water tank on his truck underneath the shed; that manure had been spread on the fields; that a bucket of manure was found beside defendant's mobile home; that shavings of the same material as the five gallon buckets of marijuana plants were found in the shed; and that defendant stated he was custodian of the property and worked there. We hold the foregoing evidence placed defendant in such "close juxtaposition" to the marijuana as to justify a jury finding that defendant was engaged in its manufacture. State v. Shufford, 34 N.C.App. 115, 237 S.E.2d 481, disc. rev. denied, 293 N.C. 592, 239 S.E.2d 265 (1977). The evidence amounted to more than just a mere suspicion or conjecture.

Defendant next contends that the court erred in admitting one four foot high marijuana plant into evidence because a complete chain of custody was not shown. Assuming arguendo that the chain of custody was not adequately established, we think the admission of the plant was harmless error. Other samples of marijuana taken from these fields were analyzed and admitted into evidence after a proper chain of custody had been established. There was also plenary evidence that many of the marijuana plants seized were four to five feet tall. Defendant has thus failed to show that a different outcome might have occurred if the plant had not been received into evidence. G.S. 15A-1443(a).

Defendant next contends that the court erred in accepting a chemist as an expert witness in the field of marijuana identification, and in admitting her opinion as to the nature of the material seized from the fields. As defendant correctly states, the general rule is that the determination of whether a witness qualifies as an expert is a factual one which is ordinarily within the exclusive province of the trial judge whose finding will not be disturbed unless there is no competent evidence to support it or an abuse of discretion. 1 H. Brandis on North Carolina Evidence sec. 133 (1982). One is qualified as an expert if, through study or experience, he is better qualified than the jury to form an opinion on the particular subject. Id. The witness in the present case testified that she was a chemist with the State Bureau of Investigation, whose duties consisted of the analysis of substances for the presence of controlled substances, including marijuana; that she had been so employed for almost two years; and that she had had special training in the analysis of controlled substances. The foregoing evidence was sufficient to support the trial court's acceptance of the witness as an expert. Her opinion, therefore, was properly admitted. This contention is overruled.

Defendant's remaining contention is that the court erred in refusing to submit to the jury the offense of possession of marijuana. He argues that possession of marijuana, which is a crime under G.S. 90-95(a)(3), is a lesser included offense of manufacturing marijuana. This contention has no merit. Manufacturing marijuana and possession of marijuana are separate and distinct statutory offenses, neither of which is a lesser included offense of the other. State v. Rosser, 54 N.C.App. 660, 662, 284 S.E.2d 130, 131 (1981).

For the foregoing reasons, we find no error in defendant's trial or conviction.

No error.

WHICHARD and EAGLES, JJ., concur.