State v. Baxter

203 S.E.2d 93 (1974) 21 N.C. App. 81

STATE of North Carolina
v.
Robert Earl BAXTER, Jr.

No. 7414SC198.

Court of Appeals of North Carolina.

March 6, 1974. Certiorari Allowed May 8, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

Blackwell M. Brogden, Durham, for defendant appellant.

Certiorari Allowed by Supreme Court May 8, 1974.

CAMPBELL, Judge.

Defendant contends that it was error for the trial court to deny his motion for judgment as of nonsuit as to the charge of manufacturing marijuana. The State contends that the discovery of the items found on defendant's property raises an inference of knowledge and possession sufficient to carry the case to the jury on the issue of manufacturing. However, the cases cited by the State, State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972), and State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972), deal with the raising of an inference of possession, not an inference of manufacture. Unlike State v. Elam, 19 N.C.App. 451, 199 S.E.2d 45 (1973), there was no evidence of growing marijuana or of any other process, preparation, production, propagation, compounding, conversion or synthesis. Compare with State v. Cockman, 20 N.C.App. 409, 201 S.E.2d 740(1974).

The word "manufacture" by definition in G.S. § 90-87(15) can only mean manufacture with the intent to distribute and cannot mean manufacture for one's own use. As of 1 January 1974, there is no longer a statutory presumption that possession of more than five grams is possession with the intent to distribute. See G.S. § 90-95(d)(4). Even were the old presumption still the law, it would be of no avail to the State in a case of manufacture to prove intent to distribute.

The only evidence of manufacturing, therefore, is the fact that the marijuana was "packaged". G.S. § 90-87(15). However, there was no showing when the marijuana was packaged, by whom, or for what purpose. The defendant was not at home at the time and it was not established that he had been home in over a week. The sport coat containing marijuana was not established as being the defendant's nor was any of the marijuana or other items found established to have been defendant's, other than on the theory of constructive possession. We hold that the State failed to prove a sufficient nexus between the defendant, the marijuana, and other items to establish that (1) marijuana was being manufactured and (2) that it was being done by the defendant.

We therefore reverse as to the conviction for manufacture.

We have reviewed the defendant's other assignments of error and find them without merit. There was no error in the trial, conviction and sentence for possession with the intent to distribute marijuana.

Reversed in part and no error in part.

HEDRICK and BALEY, JJ., concur.