State v. Washington

VAUGHN, Judge.

One of the questions presented is whether the evidence was sufficient to withstand defendants’ motions for nonsuit. As to both defendants we hold that there was sufficient evidence to require the submission of the case to the jury.

Upon a motion for judgment as of nonsuit, the evidence must be considered in the light most favorable to the State and every reasonable inference arising therefrom must be given to the State. Any evidence of the defendant which is favorable to the State is considered, but his evidence that is in conflict with that of the State is not considered upon such motion. State v. Price, 280 N.C. 154, 184 S.E. 2d 866. When all of the evidence is so considered, the State must have set forth substantial evidence to support a finding both that the offense charged has been committed and that the defendants committed it. State v. Poole, 285 N.C. 108, 203 S.E. 2d 786.

With respect to Washington, evidence that he was the owner and operator of the vehicle in which the controlled substances and the narcotic paraphernalia were found is sufficient to require submission of his case to the jury. State v. Harvey, 281 N.C. 1, 187 S.E. 2d 706. As to defendant Wiggins, there was evidence that placed the bottle cap containing heroin residue, needles and syringes in such a position that they could have easily been seen by him. This and all of the other circumstances of the case would permit the jury to conclude that defendant had both the power and intent to control the contraband.

Defendant Washington’s exception in the judge’s charge is without merit.

Defendant Wiggins assigns as error the following instruction:

“With respect to the defendant Wiggins I charge you that if you find beyond a reasonable doubt that heroin was found in close proximity, physical proximity to the defendant Wiggins, you may infer that the defendant had either by himself or together with others both the power and the intent to control its disposition or use.

Defendant Wiggins’ Exception No. 15

However, as to each defendant you are not compelled to make this inference. (You may consider this evidence together with all the other evidence in the case in determining whether the State has proved beyond a reasonable doubt that either defendant had either by himself or together with others both the power and the intent to control the disposition and use of that substance.)”

In State v. Weems, 31 N.C. App. 569, 230 S.E. 2d 193, Judge Parker speaking for this Court stated:

“Necessarily, power and intent to control the contraband material can exist only when one is aware of its presence. Therefore, evidence which places an accused within close juxtaposition to a narcotic drug under circumstances giving rise to a reasonable inference that he knew of its presence may be sufficient to justify the jury in concluding that it was in his possession. ‘However, mere proximity to persons or locations with drugs about them is usually insufficient, in the absence of other incriminating circumstances, to convict for possession.’ Annot., 91 A.L.R. 2d 810, 811 (1963). Consistent with this view, a number of courts have recognized the principle that ‘the mere presence of the defendant in an automobile in which illicit drugs are found does not, without more, constitute sufficient proof of his possession of such drugs . . . . ’ Annot., 57 A.L.R. 3d 1319, 1326 (1974).”

Although we have held that the evidence of Wiggins’ possession was sufficient to take the case to the jury, we conclude that Wiggins’ exception to the charge has merit. We are aware of the suggested instruction, “if you find beyond a reasonable doubt that. . . was found in close physical proximity to the defendant, you may infer that the defendant had . . . the power and intent to control its use” comes directly from N.C.P.I. — Crim. 104.41. We conclude, however, that it is over-broad and erroneous. To infer power and intent to control a substance to a mere passenger in a vehicle, the jury must rely on circumstances in addition to defendant’s mere “close physical proximity to the drugs.” State v. Weems, supra.

In defendant Washington’s trial, we find no error.

Defendant Wiggins is awarded a new trial.

Judges Britt and Arnold concur.