State v. Garcia , 16 N.C. App. 344 ( 1972 )

192 S.E.2d 2 (1972) 16 N.C. App. 344

STATE of North Carolina
v.
Rocky A. GARCIA et al.

No. 7212SC648.

Court of Appeals of North Carolina.

October 25, 1972. Certiorari Denied December 5, 1972.

Atty. Gen. Robert Morgan, by Associate Atty. Gen. Henry E. Poole, for the State.

Sol G. Cherry, Public Defender, for defendants Rocky A. Garcia and Robert E. Burgess.

Robert F. Page, Fayetteville, for defendant Johnny Ray McGee.

Certiorari Denied by Supreme Court December 5, 1972.

BROCK, Judge.

Defendants assign as error that the trial judge allowed consolidation of the cases for trial over defendants' objections. When two or more defendants are charged in separate bills of indictment with identical crimes and the offense charged against each is so connected in time and place as to constitute one continuous criminal offense, the trial court may order the cases consolidated for trial, G.S. § 15-152, and his decision will not be disturbed in the absence of a showing of abuse of discretion. State v. Bass, 280 N.C. 435, 186 S.E.2d 384. Defendants have failed to show an abuse of discretion in the consolidation.

Defendant McGee assigns as error the denial of his motion to sequester the witnesses. This motion was addressed to the discretion of the trial judge. No abuse of discretion appears upon the record. This assignment of error is overruled. State v. Yoes, 271 N.C. 616, 157 S.E.2d 386.

Defendants assign as error the denial of their motions to quash the three bills of indictment upon the grounds that the statute under which they were drawn is unconstitutional for creating a presumption of guilt.

G.S. § 90-95(f)(3) provides that possession of more than five grams of marijuana shall be presumed to be possession for the purpose of violating G.S. § 90-95(a)(1), which makes it unlawful for a person to possess marijuana with intent to distribute it. Under the terms of the statute, evidence of possession of more than five grams of marijuana constitutes presumptive or prima facie evidence of possession of marijuana with intent to distribute it.

"It is well established that it is competent for a legislative body to provide by statute or ordinance that certain facts shall be prima facie or presumptive evidence of other facts. This power is not confined to civil cases, but applies to criminal prosecutions as well, there being no vested right to the rule of evidence that everyone shall be presumed innocent until proved guilty, which prevents the legislature from making the doing of certain acts prima facie proof of guilt or of some element of guilt. In other words, the mere fact that a criminal statute creates a presumption from certain facts does not of itself render the statute unconstitutional." 29 Am.Jur.2d, Evidence, § 10, p. 46.

There are numerous cases sustaining the validity of statutes providing that evidence of certain facts shall be presumptive or prima facie evidence of facts which constitute a violation of the law: possession of intoxicating liquor as presumptive or prima facie evidence of possession for sale, Annot., 31 A.L.R. 1222, State v. Russell, 164 N.C. 482, 80 S.E. 66; percentage of alcohol in a person's blood as presumptive or prima facie evidence of intoxication, Annot., 16 A.L.R. 3d 748, State v. Cooke, 270 N.C. 644, 155 S.E.2d 165; possession of fish or game, or of specified hunting or fishing equipment as presumptive or prima facie evidence of violation of game laws, Annot., 81 A.L.R. 2d 1093; the finding of merchandise concealed upon a person which had not theretofore been purchased by such a person as constituting presumptive or prima facie evidence of willful concealment in violation of G.S. § 14-72.1, State v. Hales, 256 N.C. 27, 122 S.E.2d 768. For a general discussion of the constitutionality of statutes making one fact presumptive or prima facie evidence of another, see Annot., 51 A.L.R. 1139.

The statutory provisions of which defendants complain merely constitute a rule of evidence for the establishment of a prima facie case; it does not deprive defendants of the presumption of their innocence nor relieve the State of its burden to prove their guilt beyond a reasonable doubt. The establishment of such a prima facie case will support, but it does not compel, a finding of guilty. Clearly there is a rational connection between the fact proved (possession of more than five grams of marijuana) and the ultimate fact to be established (possession of marijuana with intent to distribute). We hold the challenged provisions of the statute to be constitutional. It follows that denials of defendants' motions to quash were not error.

Defendants assign as error the admission into evidence of the fruits of the search of the automobile in which defendants were riding. Defendants argue that the officers had no right to stop defendants, and, therefore, the seizure of the marijuana and their arrest therefor under the "plain view" doctrine was an unconstitutional invasion of their rights. It is defendants' position that because the officers were assigned to the narcotics investigation division and that discovery and arrest of narcotics law violators were their prime concern, their stopping defendants to check driver's license and vehicle registration was merely a ruse.

This argument is without merit, G.S. § 20-183(a) provides among other things that all law enforcement officers "within their respective jurisdictions shall have the power to stop any motor vehicle upon the highways of the State for the purpose of determining whether the same is being operated in violation of any of the provisions of this article." The officers had plenary authority to stop defendants' vehicle to check license and registration.

Defendants further argue that the evidence on the hearing to determine the admissibility of the marijuana found in defendants' vehicle was conflicting and that the trial judge gave no weight to defendants' evidence. The trial judge heard and observed, and he made his findings of fact from the evidence presented. His findings of fact support the conclusion that the marijuana was admissible in evidence against defendants and his findings will not be disturbed.

Defendants' remaining assignments of error are overruled. In our opinion defendants had a fair trial free from prejudicial error.

No error.

MALLARD, C. J., and BRITT, J., concur.