No. 7521SC1071 | N.C. Ct. App. | May 5, 1976
Lead Opinion
The defendant assigns error to the trial court’s denial of his motion for judgment of nonsuit made at the close of State’s evidence and at the close of all the evidence. He argues that the State failed to prove he was in control of the apartment when the marijuana was found.
We fail to see any substantial distinction between the facts of this case and the facts in State v. Wells, 27 N.C. App. 144" court="N.C. Ct. App." date_filed="1975-10-01" href="https://app.midpage.ai/document/state-v-wells-1378817?utm_source=webapp" opinion_id="1378817">27 N.C. App. 144, 218 S.E. 2d 225 (1975), where this court held the defendant’s motion for judgment of nonsuit was properly overruled. “The State may overcome this motion by 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.’ ” State v. Wells, supra, at 146 [quoting State v. Harvey, 281 N.C. 1" court="N.C." date_filed="1972-04-12" href="https://app.midpage.ai/document/state-v-harvey-1343416?utm_source=webapp" opinion_id="1343416">281 N.C. 1, 187 S.E. 2d 706 (1972), and State v. Allen, 279 N.C. 406" court="N.C." date_filed="1971-10-13" href="https://app.midpage.ai/document/state-v-allen-1337722?utm_source=webapp" opinion_id="1337722">279 N.C. 406, 183 S.E. 2d 680 (1971).]
There was enough evidence for the jury to consider and decide whether defendant, either alone or with someone else, had control over the apartment and possession of the marijuana. The defendant had lived in the apartment since 1967, and the lease was in his name. Personal correspondence and receipts dating from October 1973 to 14 June 1974, and bearing defendant’s name, were found in the bedroom. The matter was correctly submitted to the jury.
In his assignments of error relating to the jury instructions defendant asserts that error was committed in the instructions concerning circumstantial evidence and constructive possession. We do not agree.
Defendant contends the court’s charge concerning constructive possession was error because the jury was told that a person is in possession when he has the power and intent to control “either by himself or together with others.” We see no error in the use of the phrase, “either by himself or together with others.” In State v. Wells, supra, this Court found no error in the trial judge’s instructions that “a person possesses a controlled substance when he has either by himself or together with others both the power and intent to control the disposition or the use of that substance.” The trial court’s instructions were proper.
We have examined defendant’s remaining assignments of error and find
No error.
Dissenting Opinion
dissenting.
In my opinion the evidence was insufficient to take the case to the jury and defendant’s motion for nonsuit at the close of the evidence should have been allowed.