78 N.C. App. 68 | N.C. Ct. App. | 1985
Defendant brings forward eight assignments of error challenging the admission of evidence, the sufficiency of the evidence, the denial of his motion for mistrial, and the denial of one of his requested jury instructions. We find no error prejudicial to defendant.
Defendant first contends that the trial court erred in admitting into evidence photographs depicting defendant in close proximity to marijuana plants, or holding or smoking marijuana. Defendant argues that such photographs were inadmissible because they were evidence of other offenses. We do not agree. G.S. 8C-1, Rule 404(b) provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” We find that the photographs, which were found in defendant’s kitchen, were admissible as evidence that defendant was living at the house on Godwin Town Road, rather than at Jernigan’s Airport as Evans Johnson testified. They were also admissible to show defendant’s knowledge of the controlled substance marijuana. See State v. Snyder,
In a related assignment of error defendant argues that the trial court erred in permitting testimony that photographs of defendant’s girlfriend, partially nude, were found in an envelope in his bedroom. Defendant contends that the photographs had no relevance and were prejudicial. Again, these photographs were relevant as evidence that defendant lived in the house; if defendant had moved out it is unlikely that he would have left behind such personal photographs.
Defendant’s next four assignments of error relate to the denial of his motions for mistrial, made during the cross-examination of Evans Johnson and at the conclusion of the jury arguments. Defendant alleges that the cumulative effect of various eviden-tiary rulings by the court and improper questions and arguments by the prosecutor was to deny his right to a fair trial. We will discuss each of his contentions.
Defendant first directs us to the following portion of the prosecutor’s cross-examination of Evans Johnson:
[MR. Beard]: As a matter of fact, I’ll ask you if your brother —to your knowledge if your brother tell Vicki Baggett — let her know that she didn’t have much of a record so she wouldn’t have anything to fear if she came up here and took the credit for this.
MR. Baker and Mr. Jones: Object.
MR. JONES: I’d like to approach the bench.
THE COURT: Sustained.
[Bench conference and motion for mistrial made in the absence of the jury and denied.]
[Jury returns.]
[The COURT]: Let me again just say one thing to you and please keep this in mind. If a question is asked of a witness and if the Court sustains the objection to that question, that question is not to be answered. The question itself is not to be considered by you. The question asked of a witness to which an objection is sustained is not to be considered in any*73 way. You are not to draw any inference from it. It is not before you. It is not evidence in the case. You are to disregard it in your consideration of these cases.
Defendant contends that the District Attorney inferred by his question that defendant had a criminal record and that he had therefore attempted to solicit someone else to confess to the crimes. Defendant asserts that this inference was so prejudicial that the trial court should have granted his motion for a mistrial. We disagree. Although the prosecutor’s suggestion that defendant had a criminal record was improper, the court immediately sustained defendant’s objection to the offensive question and instructed the jury not to draw any inference from it and to disregard it. This instruction sufficed to remove any prejudice. State v. Robbin, 287 N.C. 483, 214 S.E. 2d 756 (1975), death sentence vacated, 428 U.S. 903, 49 L.Ed. 2d 1208, 96 S.Ct. 3208 (1976).
Defendant again moved for a mistrial at the conclusion of the prosecutor’s jury argument. He based his motion, and his assignment of error to its denial, upon his assertion that the District Attorney improperly argued facts not in evidence. Again we find that upon defendant’s objections to the District Attorney’s improper argument the trial court immediately sustained the objections and instructed the jury to disregard the statements. Thus, any impropriety in the argument was cured by the prompt action of the trial court. State v. Woods, 307 N.C. 213, 297 S.E. 2d 574 (1982).
As a further basis for his contention that the trial court abused its discretion in denying his motion for mistrial, defendant contends that the trial court erred in permitting a deputy sheriff to testify that defendant declined to make a statement after being advised of his Miranda rights. Although the court’s ruling on defendant’s objection was not argued by defendant when he made his later motions for mistrial, we will consider his exception to the testimony to determine if he was prejudiced thereby.
It is error to permit the prosecution to present evidence that an accused exercised his constitutional privilege against self-incrimination by remaining silent after having been advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966); State v. McCall, 286 N.C. 472, 212 S.E. 2d 132 (1975), vacated and remanded, 429 U.S. 912, 50 L.Ed. 2d 278, 97
Defendant next contends that the trial court should have declared a mistrial because it erred in allowing a deputy sheriff to testify that defendant’s girlfriend, Vicki Baggett White had also been charged with possessing the cocaine in question as a result of some conversation which she had with the deputy. The substance of the conversation was not admitted. Defendant contends that this evidence implied that he coerced Vicki to confess in order to exonerate himself. We read no such implication in the evidence. Evidence that a third person had been charged with possession of cocaine could not have been prejudicial to defendant and could have been helpful. The evidence could be relevant to his case, in that it tended to show that the cocaine was owned by someone other than defendant.
The allowance or denial of a defendant’s motion for mistrial is largely within the discretion of the trial court and its ruling is not reviewable in the absence of an abuse of discretion. State v. Loren, 302 N.C. 607, 276 S.E. 2d 365 (1981). Defendant has failed to show, in the foregoing four assignments of error relating to the denial of his motions for mistrial, such serious improprieties as to render impossible a fair and impartial trial. The denial of the motions for mistrial was not an abuse of the trial court’s discretion.
In his next assignment of error defendant argues that the trial court erred in failing to grant his motion to dismiss the charges. He contends that there was no evidence that he possessed cocaine or that he had any intent to manufacture or sell marijuana. 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*75 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 the charge of unlawful possession.
State v. Harvey, 281 N.C. 1, 12, 187 S.E. 2d 706, 714 (1972). See also State v. Long, 58 N.C. App. 467, 294 S.E. 2d 4 (1982); State v. Moore, 40 N.C. App. 613, 253 S.E. 2d 297 (1979). The possession of the contraband may be shared, the defendant need not have the exclusive power and intent to control the disposition. State v. Lofton, 42 N.C. App. 168, 256 S.E. 2d 272 (1979).
In the instant case the evidence, viewed in the light most favorable to the State, tended to show that defendant lived in the front of the house; the cocaine was found in an upstairs room in the front part of the house; a bag of marijuana and cocaine paraphernalia were found in the living room in defendant’s part of the house; two bags of marijuana were found in defendant’s bedroom; cocaine paraphernalia and a bag of marijuana seeds were found in the kitchen, which was also in the front of the house. Additionally, a large quantity of marijuana seeds were found in the shed behind the house, and marijuana debris, presumably from drying marijuana, was found in the attic. Clearly this evidence was sufficient to withstand defendant’s motion to dismiss.
In his last assignment of error defendant argues that the trial court erred by refusing to instruct the jury that in order to convict defendant of possession of marijuana with intent to manufacture or sell they must find beyond a reasonable doubt that the manufacturing was not for personal use. Manufacture is defined in G.S. 90-87(15) as “the production, preparation, propagation, compounding, conversion or processing of a controlled substance by any means . . . ; and ‘manufacture’ further includes any packaging or repackaging of the substance or labeling or relabeling of its container except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use . . . .”
In State v. Childers, 41 N.C. App. 729, 255 S.E. 2d 654, cert. denied, 298 N.C. 302, 259 S.E. 2d 916 (1979), the defendant was convicted of manufacturing marijuana, and on appeal presented the same argument as defendant in the instant case. This court
Defendant’s last argument compels us to note that defendant was charged, in separate bills of indictment, with possession of marijuana with intent to sell it and possession of marijuana with intent to manufacture it. Pursuant to a stipulation by defendant’s counsel, these charges were combined and submitted to the jury as one charge, i.e., “possession of marijuana with intent to manufacture or sell it.” In our view, possession of a controlled substance with the intent to manufacture it is a separate and distinct offense from possession of such substance with the intent to transfer it.
In State v. Creason, 313 N.C. 122, 326 S.E. 2d 24 (1985), our Supreme Court held that legislative intent declared by G.S. 90-95 (a)(1) “was twofold: (1) to prevent the manufacture of controlled substances, and (2) to prevent the transfer of controlled substances from one person to another.” Id. at 129, 326 S.E. 2d at 28. The court held that “transfer” encompassed the terms “sell” and “deliver” and possession of a controlled substance with intent to transfer it is one crime, whether the possessor intended the transfer to be by sale or by delivery. The term “manufacture” however, is not included within the term “transfer.” In our view, possession of a controlled substance with the intent to manufacture it is a separate and distinct offense from possession of such a substance with intent to transfer it. Thus, one who possesses a narcotic with the intent to manufacture it and also with the intent to thereafter sell or deliver it is guilty of two crimes. In the case sub judice, both charges should have been submitted to the jury. By submitting them as one charge, in the disjunctive, the trial court permitted the jury to return an ambiguous verdict. See
No prejudicial error.
