State v. Davis

201 S.E.2d 61 (1973) 20 N.C. App. 191

STATE of North Carolina
v.
J. D. DAVIS.

No. 7326SC635.

Court of Appeals of North Carolina.

December 12, 1973. Certiorari Denied February 5, 1974.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. H. A. Cole, Jr., Raleigh, for the State.

Charles V. Bell, Charlotte, for defendant appellant.

Certiorari Denied by Supreme Court February 5, 1974.

MORRIS, Judge.

Defendant's sole assignment of error is to the trial court's denial of his motion for judgment as of nonsuit, made at the close of all the evidence. It is his contention that the evidence was insufficient to go the jury inasmuch as there was no evidence of a "state of awareness" on his part of the presence of the heroin in this bathroom.

In the leading case of State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972), the Supreme Court held that an accused has possession of a controlled substance within the meaning of the law "when he has both the power and intent to control its disposition or use." Id. at 12, 187 S.E.2d at 714. The requirements of power and intent necessarily imply that a defendant must be aware of the presence of an illegal drug if he is to be convicted of possessing it. But here there was ample evidence to show that defendant was aware of the presence of the heroin. It was found hidden under a toilet seat cover in a bathroom at the back of his house. Before entering the house, police officers saw a man hurriedly removing something from a front room of the house and carrying it toward the back.

"Where such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession. Also, the State may overcome a motion to dismiss or motion for judgment as of nonsuit by presenting evidence which places the accused `within such close juxtaposition to the narcotic drugs as to justify the jury in concluding that the same was in his possession.' (Citations omitted.)" (Emphasis added.) Id. at 12-13, 187 S.E.2d at 714.

In State v. Summers, 15 N.C.App. 282, 189 S.E.2d 807 (1972), this Court held that the State's evidence was sufficient to go to the jury. Defendant shared a house with one other person, and at the time of the arrival of the police, 15 to 20 people were visiting defendant and listening to the stereo. Marijuana was found in a stove in the backyard "practically up against the house."

While the rule established in State v. Harvey, supra, does not compel submission of the case to the jury in every instance in which controlled substances are found on the premises of an accused, the facts of this case are sufficient.

No error.

VAUGHN and BALEY, JJ., concur.