State v. Campbell , 18 N.C. App. 586 ( 1973 )

BALEY, Judge.

The defendant assigns as error the denial of his motion for a change of venue on the grounds of unfavorable publicity, or, in the alternative, for a special venire from another county. This motion is addressed to the discretion of the trial judge, and his decision in the exercise of such discretion will not be disturbed on appeal unless a manifest abuse is shown. State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123; State v. Ray, 274 N.C. 556, 164 S.E. 2d 457; State v. Brown and State v. Maddox and State v. Phillips, 13 N.C. App. 261, 185 S.E. 2d 471, cert. denied, 280 N.C. 723. In the examination of the jury there was no indication that any of the jurors had been unduly influenced by press reports or other information or would be prejudiced against the defendant in any way. The defendant did not exhaust his peremptory challenges and has not shown that he was required to accept any juror to whom he had any legal objection. There is no abuse of discretion. This assignment of error is without merit.

The motion to quash the indictment was based on the premise that the indictments must set out to whom the defendant intended to distribute the particular controlled substances. The motion was properly denied. The defendant was not charged with the sale or distribution of these substances, but with possession with intent to distribute. This constitutes the crime and was charged in the indictments.

The motion of defendant to suppress the evidence seized when defendant was arrested was properly denied. Under the circumstances of this case the constitutional guaranty against unreasonable search and seizure would not apply. Upon information that the defendant would be distributing narcotics at Jones’s Ocean, Deputy Sheriff Wayne Davis and nine other officers went to investigate these possible violations of the criminal law. In approaching the defendant’s automobile Officer Davis saw the defendant make some transfer to one Pate. He walked directly to the door of the automobile and identified himself. He saw the defendant take a plastic bag in his right hand and put the hand behind him. The light was on inside the car and he could see several plastic bags which he knew were commonly used to transport narcotics, one containing green vegetable material resembling marijuana, another containing plastic tubing used by narcotics violators. He arrested the defendant and examined the other plastic bags which contained white powder, plastic tubing, pills and capsules. All of the articles were in plain view of the officer either before or after the defendant got out of the car. Officer Davis was familiar with the narcotics traffic. He had seen similar material before and he knew that these plastic bags could be used in the transfer of narcotics. No search warrant was necessary since the articles were found in plain view on the front seat of the car and not discovered by any search. State v. Harvey, 281 N.C. 1, 187 S.E. 2d 706; State v. Craddock, 272 N.C. 160, 158 S.E. 2d 25; State v. Parks, 14 N.C. App. 97, 187 S.E. 2d 462, cert. denied, 281 N.C. 157.

We have carefully considered the other assignments of error presented by the defendant including denial of his motion for nonsuit and his objections to the charge of the court and find them without merit. The charge of the court when taken as a whole presented every element of the offenses charged and instructed the jury fairly and impartially upon all the law arising on the evidence. The defendant filed no request for additional instructions.

Finally, the defendant complains that the sentences imposed were excessive. Each offense was a felony punishable under the statute, G.S. 90-95, by imprisonment of not more than five years and a fine of not more than $5,000.00. The sentences were well within statutory limits and are not reviewable on appeal. State v. Fleming, 202 N.C. 512, 163 S.E. 453.

Defendant was caught with LSD, MDA, and marijuana in his possession on the front seat of his car. The evidence of his guilt is overwhelming. Upon this record the defendant has received a fair trial free from prejudicial error.

No error.

Judges Campbell and Britt concur.