State v. Owen , 51 N.C. App. 429 ( 1981 )

276 S.E.2d 478 (1981)

STATE of North Carolina
v.
Charles E. OWEN.

No. 8029SC1012.

Court of Appeals of North Carolina.

April 7, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Archie W. Anders, Raleigh, for the State.

Ramsey, White & Cilley by Robert S. Cilley, Brevard, for defendant-appellant.

CLARK, Judge.

The evidence, considered in the light most favorable to the State, was sufficient to support the jury finding that the defendant was guilty of manufacturing marijuana.

The burden was on the State to offer substantial evidence that defendant was in constructive possession of the patch of marijuana plants located near the trailer occupied by the defendant. See State v. Smith, 40 N.C.App. 72, 252 S.E.2d 535 (1979). Constructive possession of a contraband material exists when there was no actual personal dominion over the material but when there is an intent and capability to maintain control and dominion over it. State v. Davis, 25 N.C.App. 181, 212 S.E.2d 516 (1975).

The defendant moved to dismiss upon the close of the State's evidence. G.S. 15A-1227. The trial court erred in denying the motion because there was not substantial evidence that defendant was in constructive possession of the patch of marijuana plants located near his trailer. The arresting officer testified that he did not know whether the other trailer, beside the one occupied by defendant, was occupied. The worn path leading from the marijuana patch ended in grass between the two trailers, some 10 or 15 feet behind the two trailers, and the path or trail would have been easily accessible to both defendant and an occupant of the other trailer if the other trailer were occupied.

The defendant, however, did not elect to rest and rely on the weakness of the State's evidence at that stage of the trial. Instead, the defendant elected to introduce evidence, and in doing so he waived the motion for dismissal at the close of the State's evidence. G.S. 15-173; State v. Alston, 44 N.C.App. 72, 259 S.E.2d 767 (1979); State v. Stevens, 9 N.C.App. 665, 177 S.E.2d 339 (1970).

The defendant renewed his motion to dismiss upon the close of all the evidence, which presented the question of the sufficiency of all of the evidence to go to the jury. The defendant offered as a witness William E. Newman, Jr., who testified that he had lived in the trailer next to defendant's since January 1979, but that he did not know the marijuana patch was there before the raid on 21 August 1979. It must be concluded that since Newman had no knowledge of the marijuana patch he did not use the worn path leading from between the two trailers to the marijuana patch, and the only reasonable inference is that it was defendant who regularly used the worn path in going from his trailer to the marijuana patch for the purpose of planting and cultivating (manufacturing) the marijuana plants.

In State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 581-82 (1975), Justice Huskins wrote:

"A motion to nonsuit in a criminal case requires consideration of the evidence in the light most favorable to the State, and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). Contradictions and discrepancies are for the jury to resolve and do not warrant nonsuit. State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972); State v. Greene, 278 N.C. 649, 180 S.E.2d 789 (1971). All of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is considered by the Court in ruling upon the motion. State v. Cutler, supra; State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1966). If there is substantial evidence—whether direct, circumstantial, or both—to support a finding that the offense charged has been committed and that defendant committed it, a case for the jury is made and nonsuit should be denied. State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968); State v. Norggins, 215 N.C. 220, 1 S.E.2d 533 (1939)."

Applying these governing principles to all the evidence in this case, we hold the evidence sufficient to support the jury verdict.

There are several recent cases involving constructive possession of marijuana plants growing in a field, see State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972); State v. Blackburn, 34 N.C.App. 683, 239 S.E.2d 626 (1977), disc. rev. denied, 294 N.C. 442, 241 S.E.2d 522 (1978); State v. Wiggins, 33 N.C.App. 291, 235 S.E.2d 265, cert. denied, 293 N.C. 592, 241 S.E.2d 513 (1977). The factual circumstances vary, and none of the three are substantially similar to the case sub judice, where the circumstances point unerringly to defendant. Here defendant, by his own evidence, has directed suspicion away from the occupant of the nearby trailer, leaving himself as the only likely constructive possessor of the marijuana patch.

We have examined and considered defendant's other assignments of error and arguments and find them to be without merit.

No error.

ARNOLD and HARRY C. MARTIN, JJ., concur.