An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-799


Filed: 6 April 2004


         v.                         Mecklenburg County
                                 Nos. 01 CRS 53923-24

    Appeal by defendant from judgment entered 13 December 2002 by Judge James E. Lanning in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State.

    James N. Freeman, Jr., for defendant appellant.

    McCULLOUGH, Judge.

    Defendant was found guilty of trafficking in marijuana and of possession of drug paraphernalia. The convictions were consolidated for judgment and defendant was sentenced to an active term of 25-30 months.
    The State presented evidence tending to show that on 7 December 200l, officers of the Charlotte-Mecklenburg Police Department, went to the main United Parcel Service facility to investigate a report that a package containing narcotics would be arriving at the facility from McAllen, Texas, a town on the border with Mexico. Further investigation disclosed that the package would be addressed to Apartment 15, 1528 Delane Avenue, Charlotte. After a drug-sniffing dog alerted officers to a package at thefacility, they opened the package pursuant to a search warrant and found twelve packages of marijuana having a total weight of approximately twenty-five pounds contained inside a microwave oven. The package was addressed to the above address.
    A controlled delivery of the package was arranged. The package was delivered to Apartment 15, 1528 Delane Avenue. A codefendant approached the delivery person and signed for the package. Officers who were conducting surveillance also saw the codefendant talk to defendant, who was talking on a cordless telephone.
    The officers decided to execute an anticipatory search warrant. At the time the officers entered, defendant and the codefendant were the only persons present inside the apartment. The officers found the package in a bedroom. The package had been opened but the microwave oven had not been removed from the package. The officers searched defendant's person and found a marijuana pipe containing marijuana residue in his pants pocket.
     Defendant waived his rights and gave a statement. Defendant stated that his mother's boyfriend, named Orozco, told defendant that he would pay defendant a large amount of money, $500 to $1500, to receive the package. Defendant further stated that Orozco told him the package would contain something defendant liked. Defendant surmised that since he liked “weed, women and beer,” the package would contain marijuana. Defendant further stated that he and the codefendant opened the package and that because he was angry with Orozco, he intended to take the marijuana and sell it himself.
    Defendant brings forward two assignments of error.    First, defendant contends the court erred by failing to re- instruct the jury that defendant must have “knowingly possessed” the marijuana before he could be convicted of trafficking. During its original charge to the jury, the court instructed the jury that it had to find defendant “knowingly possessed marijuana and the defendant knew that what he possessed was marijuana.” After retiring to deliberate, the jury returned to the courtroom and asked the court to define again the offense of trafficking. The court instructed the jury that it had to find defendant “knowingly possessed marijuana.” The jury returned to the courtroom one more time and requested a written copy of the instruction on trafficking. The court declined to provide a written copy. The court read the instruction to the jury again, and instructed the jury that it had to find defendant “knowingly possessed marijuana.”     Although the court failed to include the statement “defendant knew that what he possessed was marijuana” in the subsequent instructions, “[t]he trial judge is not required to repeat a definition each time a word or term is repeated in the charge when it has once been defined.” State v. Robbins, 275 N.C. 537, 549-50, 169 S.E.2d 858, 866 (1969). “It is axiomatic that jury instructions must be construed contextually; segregated portions will not support reversal on appeal where the charge as a whole is free from prejudicial error.” State v. McKenzie, 292 N.C. 170, 178, 232 S.E.2d 424, 430 (1977). Viewed in their entirety, the court's instructions clearly imparted to the jury the necessity to find that defendant “knowingly possessed marijuana” in order to find himguilty of the offense. This assignment of error is overruled.
    Second, he contends the court erred by denying his motion to dismiss the charge of trafficking. Upon a motion to dismiss, the trial court determines whether there is substantial evidence to establish each element of the offense charged and to identify defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65- 66, 296 S.E.2d 649, 651 (1982). "The trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged." State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991). All of the evidence must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
    The indictment charged that defendant committed the offense of trafficking in violation of N.C. Gen. Stat. § 90-95(h)(1)(a) (2003) by possessing between ten and fifty pounds of marijuana. Defendant argues the State failed to prove that he knowingly possessed marijuana.
        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 or motion for judgment as of nonsuit bypresenting 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. Harvey, 281 N.C. 1, 12-13, 187 S.E.2d 706, 714 (1972) (citations omitted). The evidence, viewed in the light most favorable to the State, shows that the package was mailed to defendant's mother's apartment, to which defendant had a key and where defendant slept sometimes. Defendant knew that a package would be arriving at this apartment and that he would receive a large amount of money for receiving the package. Defendant had surmised that the package contained marijuana. Defendant told the police that he opened the package with the intention of taking the marijuana and selling it himself. Defendant had on his person at the time of the search a pipe used to smoke marijuana. The pipe contained marijuana residue and defendant admitted to the officers that he liked to smoke marijuana, thereby demonstrating his familiarity with the substance. Based upon the foregoing evidence, a jury could reasonably conclude that defendant knowingly possessed the marijuana contained in the package. This assignment of error is also overruled.
    Defendant received a fair trial, free of prejudicial error.
    No error.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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