STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 01 CRS 53923-24
IRVING LARRY HAYLOCK
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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