26 N.C. App. 499 | N.C. Ct. App. | 1975
In his first assignment of error defendant objects to the denial of his motion for a directed verdict made at the close of all the evidence. He argues that the evidence is insufficient to show constructive possession and that the evidence shows only proximity of the defendant to a controlled substance and not “the power and intent to control its disposition and use.” We disagree.
“An accused’s possession of narcotics may be actual or constructive. He has possession of the contraband material within the meaning of the law when he has both the power and intent to control its disposition or use. 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 of motion for judgment as of .nonsuit by presenting evidence which places the accused ‘within such close juxta-r-*501 position to' the narcotic drugs as to justify the jury in concluding that the same was in his possession.’ (Citations omitted.)” State v. Harvey, 281 N.C. 1, 12-18, 187 S.E. 2d 706, 714 (1972).
Moreover, as we noted in the case of State v. Brim, 25 N.C. App. 709, 714, 214 S.E. 2d 622, 625 (1975) :
“ ‘One who has the requisite power to control and intent to control access to and use of a vehicle or a house has also the possession of the known contents thereof. (Citations omitted.)’ State v. Eppley, 282 N.C. 249, 254, 192 S.E. 2d 441, 445 (1972).”
The trial court instructed the jury as follows:
“Furthermore, one possesses marijuana only if he has knowledge of his power of control over that substance.
If the defendant, David Fleming, had marijuana within his power of control, but was unaware of that fact, then he is not guilty of the possession of it .... ”
Whether the defendant was aware that marijuana was in the automobile was properly a question for the jury. As there was sufficient evidence to go to the jury, this assignment of error is overruled.
In his only remaining assignment of error, defendant asserts that the trial court’s charge to the jury was insufficient with respect to the application of the law of possession to the facts of this case. We note that the trial court did charge the jury on constructive possession. However, defendant maintains the instruction was insufficient in light of the fact that the jury asked for clarification of the law on three separate occasions. We find no merit in this contention. We have examined the charge and conclude the charge was adequate and fair to all parties.
Defendant received a fair trial free from prejudicial error.
No error.
