71 N.C. App. 203 | N.C. Ct. App. | 1984
Defendant’s first assignment of error relates to the admission of evidence at trial over defendant’s objections. Defendant argues that the witness for the State should not have been allowed to testify “to the illegal search and seizure of the defendant’s home and surrounding premises.”
N.C. Gen. Stat. Sec. 15A-975 provides that a motion to suppress evidence in superior court must be made prior to trial, subject to several enumerated exceptions. “When no exception to making the motion to suppress before trial applies, failure to make the pretrial motion to suppress waives any right to contest the admissibility of the evidence at trial on constitutional grounds.” State v. Detter, 298 N.C. 604, 616, 260 S.E. 2d 567, 577 (1979). Defendant does not contend that any of the statutory exceptions apply under the circumstances of the instant case, nor does our examination of the record reveal any support for such a contention. We thus hold defendant waived his right to contest at trial the admissibility of the challenged testimony on constitutional grounds. The assignment of error is overruled.
Defendant next contends the trial court erred in denying his motions to dismiss the charge against him. Considered in the light most favorable to the State, the evidence tends to show the following:
Defendant, his wife, and his son live in the second story of a two-story house in a rural area in Wilkes County. Defendant rents
N.C. Gen. Stat. Sec. 90-95 defines felonious possession of marijuana as possession of more than one ounce of marijuana. Defendant’s contention on appeal is that the State failed to offer evidence tending to show that he possessed the marijuana found near his home, and the charge against him should thus have been dismissed.
Possession of narcotics may be actual or constructive. State v. Williams, 307 N.C. 452, 298 S.E. 2d 372 (1983). “Constructive possession exists when a person, while not having actual possession, has the intent and capability to maintain control and dominion over a controlled substance.” Id. at 455, 298 S.E. 2d at 374.
In the instant case, the evidence tends to show that the pipe running between defendant’s house and the plots of marijuana plants was readily visible and was connected, in the basement of defendant’s house, to defendant’s water supply. Further, the path running through the wooded area to the various plots of marijuana plants followed the placement of the pipe, and was the only readily accessible means of ingress and egress to the plots. There
No error.