State v. Dorsey , 71 N.C. App. 435 ( 1984 )

322 S.E.2d 405 (1984)

STATE of North Carolina
v.
Rudy Valley DORSEY.

No. 8426SC44.

Court of Appeals of North Carolina.

November 20, 1984.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas J. Ziko, Raleigh, for the State.

Charles V. Bell, Charlotte, for defendant-appellant.

PHILLIPS, Judge.

Though none of the several assignments of error brought forward by defendant list the exceptions upon which they are based or state where the proceedings complained of can be found in the record, as Rule 10(c) of the N.C. Rules of Appellate Procedure requires, we have nevertheless considered all of the assignments since one of them is that he was denied the effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution.

In support of his claim that he failed to receive the effective assistance of counsel defendant first cites Mr. Nixon's failure to make timely objection to the court's refusal to receive the testimony of Assistant Clerk of Court Mickey Creech, the contention being that the failure to object waived his right to challenge this ruling on appeal. Such is not the law. All that the law requires to preserve exceptions based on the refusal to receive testimony is an offer of proof that states the substance of the refused testimony, G.S. 15A-1446(a); 1 Brandis N.C. Evidence § 26 (1982), and Mr. Nixon made such an offer. Furthermore, the proffered testimony, that Gail Wells had a case in court the morning of November 11, 1982, the same day the drug bust was made, and failed to appear, was clearly irrelevant and without probative force, in any event. The evidence was offered in support of defendant's contention that somebody else, most likely Gail Wells, placed the illegal contraband in his house; but no such deduction can properly be drawn from this and the other evidence in the case, and the court's refusal to receive it was proper. Another alleged shortcoming of trial counsel was the failure to "renew" his motion to dismiss at the close of all the evidence, the claim being that counsel thereby waived defendant's right to contest the sufficiency of the evidence on appeal. That is not the law, either, as G.S. 15A-1446(d)(5) makes plain, and the sufficiency of the evidence to convict defendant has been considered, as that statute authorizes. The other failings alleged have no more merit, and this assignment of error is overruled.

Defendant's contention that the evidence was insufficient to support his conviction of any of the charges is founded on the State's alleged failure to prove that he was in constructive possession of the substances seized. But evidence that the two drugs and the heroin-quinine mixture were all in defendant's bedroom or sitting room, that the mixture was systematically packed in bags similar to a supply of empty bags also there, and that close by were several mixing and storage utensils that contained ingredients of the mixture, was sufficient to support the inference that all of the illegal drugs were in defendant's constructive possession. State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972). The contention that the trafficking in heroin charge should have been dismissed is also based on the claim that the evidence failed to show that the mixture contained more than four grams of heroin, as the statute he was prosecuted under requires. This contention is mistaken. G.S. 90-95(h)(4)a makes it a Class F felony to sell, manufacture, deliver, transport or possess four grams or more of opium or opiate, "including heroin, or any mixture containing such substance." (Emphasis supplied). The evidence shows that 5.03 grams of a heroin quinine mixture were found by the police under defendant's sitting room sofa. And, as was held in State v. Tyndall, 55 N.C.App. 57, 284 S.E.2d 575 (1981), under this statute it is the weight of the mixture, rather than that of the drug itself, that controls. Both of these contentions are therefore overruled, as are the other contentions made by the defendant concerning the cocaine and heroin cases. Defendant's convictions of these offenses were without prejudicial error.

But in the marijuana case (82CR74268), the defendant was not sentenced according to law and must be resentenced. Though defendant was charged with possessing more than an ounce of marijuana, a Class I felony, in violation of G.S. 90-95(d)(4), the jury returned a verdict of "guilty of possessing marijuana." Since the only evidence about marijuana tended to show there was more than an ounce, the trial judge treated the verdict as a finding of guilty of possessing more than an ounce of marijuana and sentenced defendant accordingly. In so doing the court erred. An essential element of the felony defendant was tried for was that the amount of marijuana possessed weighed more than an ounce, and in finding defendant "guilty of possessing marijuana," without finding that more than an ounce was possessed, the jury, in effect, found defendant guilty of simple possession of marijuana, a misdemeanor. State v. Gooch, 307 N.C. 253, 297 S.E.2d 599 (1982). We therefore vacate the judgment in this case and remand for sentencing in accord with the verdict.

Case No. 82CR74262—no error.

Case No. 82CR74265—no error.

Case No. 82CR74268—vacated and remanded.

HEDRICK and BECTON, JJ., concur.