State v. Rosser , 54 N.C. App. 660 ( 1981 )

284 S.E.2d 130 (1981)

STATE of North Carolina
v.
Ward Maxton ROSSER and Robert Edward Backlund.

No. 8111SC237.

Court of Appeals of North Carolina.

November 17, 1981.

Atty. Gen. Rufus L. Edmisten by Associate Atty. William R. Shenton, Raleigh, for the state.

Kirk, Tantum and Hamrick by Andy W. Gay, Wendell, for defendants-appellants.

MORRIS, Chief Judge.

Defendants submit that the convictions should be set aside as inconsistent with the finding of not guilty of possession of marijuana. They allege that without the control element of possession it is impossible to meet the legal definition of manufacturing.

We find no merit in this contention. It is well established in North Carolina that a jury is not required to be consistent and that incongruity alone will not invalidate a verdict. State v. Brown, 36 N.C. App. 152, 242 S.E.2d 890 (1978); State v. Shufford, 34 N.C.App. 115, 237 S.E.2d 481, cert. denied 293 N.C. 592, 239 S.E.2d 265 (1977); State v. Best, 31 N.C.App. 250, 229 S.E.2d 581 (1976), rev. on other grounds, 292 N.C. 294, 233 S.E.2d 544 (1977); State v. Black, 14 N.C.App. 373, 188 S.E.2d 634, appeal dismissed 281 N.C. 624, 190 S.E.2d 467 (1972); State v. Lindquist, 14 N.C.App. 361, 188 S.E.2d 686 (1972); State v. Davis, 214 N.C. 787, 1 S.E.2d 104 (1939); State v. Sigmon, 190 N.C. 684, 130 S.E. 854 (1925). In State v. Davis, supra, the defendant was charged with unlawful possession of intoxicating liquors and transportation for the purpose of sale. Defendant was found guilty of the transportation charge but acquitted on the possession charge. Quoting State v. Sigmon, supra, at 691, 130 S.E. 854, the Davis Court wrote:

The offenses are designated in the statute separately and while the jury would have been fully justified in finding the defendant guilty on both counts under the evidence in this case, their failure to do so does not as a matter of law vitiate the verdict on the count of transporting. It goes without saying that the jury would have to find from the circumstantial evidence that defendant had in his possession liquors that he was transporting before they could convict him.

State v. Davis, supra, 214 N.C. at 794, 1 S.E.2d 104. Similarly, in the case at hand "[t]he offenses charged in the two indictments, though closely related, were separate and distinct statutory offenses, neither being a lesser included offense of the other." State v. Brown, supra 36 N.C.App. at 153, 242 S.E.2d 890; State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973); State v. Yelverton, 18 N.C.App. 337, 196 S.E.2d 551, cert. denied 283 N.C. 670, 197 S.E.2d 880 (1973). Both charges arose on the same evidence, and conviction on both charges would seem to have been the more cogent result. Yet failure of the jury to find the defendants guilty of the possession of marijuana does not preclude it from finding the defendants guilty of manufacturing the illicit drug. We will not speculate as to why the jury convicted on one count and not on the other. "``[A] jury is not required to be consistent and mere inconsistency will not invalidate the verdict.'" State v. Black, supra at 377, 188 S.E.2d at 637.

Defendants also assign as error the denial of the trial court of a motion to set aside the guilty verdicts as contrary to the weight of the evidence. Defendants contend that their mere presence among live marijuana plants is not enough to sustain an inference of intent to manufacture. They fail to acknowledge that the evidence of their visits to the plot, of white powder on the plants, of lack of weeds around the plants, and the statement about pinching to induce the plants' expansion could be interpreted to show active cultivation. Considering the body of facts in the light most favorable to the state, we think the evidence was clearly sufficient to survive the defendants' motion, and we perceive no abuse of discretion in the trial judge's refusal to set aside the verdict in this case.

By analogy, it has been held that a defendant's presence at a place where illegal whiskey is being manufactured, along with other supporting evidence, is sufficient to go to the jury. State v. Adams, 191 N.C. 526, 132 S.E. 281 (1926); State v. Perry, 179 N.C. 718, 102 S.E. 277 (1920). As pointed out in State v. Shufford, supra, a manufacture of marijuana case, the conduct of the defendants, when found at active distilleries, was an important factor in allowing a case to go to the jury. State v. Moore, 190 N.C. 876, 130 S.E. 713 (1925); State v. Sykes, 180 N.C. 679, 104 S.E.2d 83 (1920); State v. Ogleston and Perry, 177 N.C. 541, 98 S.E. 537 (1919).

There is ample evidence in the record to sustain a conviction on both the possession and manufacturing charges. The jury was free to accept or reject that evidence and the inferences arising thereon.

No error.

CLARK and WELLS, JJ., concur.