State v. Beaver

336 S.E.2d 112, 77 N.C. App. 734, 1985 N.C. App. LEXIS 4371
CourtCourt of Appeals of North Carolina
DecidedNovember 19, 1985
DocketNo. 8530SC265
StatusPublished
Cited by1 cases

This text of 336 S.E.2d 112 (State v. Beaver) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Beaver, 336 S.E.2d 112, 77 N.C. App. 734, 1985 N.C. App. LEXIS 4371 (N.C. Ct. App. 1985).

Opinions

BECTON, Judge.

I

Defendant was convicted by a jury of manufacturing a controlled substance under N.C. Gen. Stat. Sec. 90-95(a)(l) (Supp. 1983). (Three related charges were dismissed at the close of the State’s evidence.) A subsequent motion for appropriate relief was denied. Defendant appeals the judgment entered on the verdict, contending that it was error to deny his motion to dismiss the manufacturing charge made at the close of all the evidence; that the trial court erroneously admitted statements of defendant’s mother made contemporaneously with his arrest, and his own in-custody statements to his mother; and that it was error to deny his motion for appropriate relief. We conclude the defendant’s motion to dismiss should have been granted, and we reverse. Therefore, we do not address the remaining assignments of error.

II

The State’s evidence tended to show that on 28 July 1982, the North Carolina State Bureau of Investigation (S.B.I.) and the Cherokee County Sheriffs Department (Sheriffs Department) were involved in an aerial marijuana eradication program. A nine-person ground crew composed of special agents and sheriffs deputies followed the directions of a pilot, and turned off a rural unpaved road to the residence of defendant and his mother. The defendant came around from the rear of the house. He was wearing green coveralls and was sweating. A member of the ground crew informed defendant that some marijuana plants had been observed from the air in the vicinity behind the house and requested defendant’s permission to cross the yard and pull them up. Defendant told them his mother would not appreciate their driving through her yard but directed them to an old logging road off the rural unpaved road by which the plants could be reached. The ground crew took the logging road and found marijuana drying in a barn located approximately seventy-five yards from the house. The crew observed a path leading from the barn to the house. The crew also discovered five “patches” of marijuana plants. One patch was located about 125 yards from the house; the other four patches were located about 300 yards from the house. A number of freshly mowed paths led from the house to the gen[736]*736eral direction of the patches. Also located in the vicinity were a corn patch and a vegetable garden.

While the ground crew was examining the marijuana patches, the defendant came back outside. The ground crew placed him under arrest and transported him in their truck back to the house. Defendant’s mother was standing on the front porch. Two members of the ground crew walked up to the house and informed her they had just arrested her son for manufacturing marijuana. Defendant’s mother began to cry, and at her request she and the two crew members walked down to the truck so that she could speak to her son. Two crew members testified that when they got to the truck defendant’s mother said that she had tried for forty-five years to raise him right and that she told him if he messed with this stuff that it would get him in trouble. One crew member testified that defendant then told his mother to “hush” and not say anything to the officers. The other testified that he said, “Shut up, Mamma, shut up. They hadn’t caught me in the fields. They hadn’t caught me doing anything. Shut up.”

Defendant put on evidence. He denied that he or his mother owned the land where the barn and the marijuana patches were located. He also testified that at that time he was not living at his mother’s home, but only visited there on occasion.

Ill

Defendant contends that the evidence was not sufficient to support his conviction and that his motion to dismiss should have been granted.

A motion to nonsuit in a criminal case requires consideration of the evidence in the light most favorable to the State, and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. . . . Contradictions and discrepancies are for the jury to resolve and do not warrant nonsuit. . . . All of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is considered by the Court in ruling upon the motion. ... If there is substantial evidence— whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that defendant committed it, a case for the jury is made and nonsuit should be denied. . . .

[737]*737State v. McKinney, 288 N.C. 113, 117, 215 S.E. 2d 578, 581-82 (1975) (citations omitted).

Defendant was convicted of manufacturing a controlled substance. It is not disputed that marijuana was in fact being manufactured. The dispositive question in this case is whether substantial evidence was adduced that defendant was the manufacturer, which question may only be answered by determining whether defendant was in actual or constructive possession of the marijuana. See State v. Brown, 64 N.C. App. 637, 640-41, 308 S.E. 2d 346, 348-49 (1983), aff’d, 310 N.C. 563, 313 S.E. 2d 585 (1984). The State does not contend that defendant had actual possession of the marijuana; rather, its argument is based upon a theory of constructive possession. “The doctrine of constructive possession applies when a person lacking actual physical possession nevertheless has the intent and capability to maintain control and dominion over a controlled substance.” State v. Baize, 71 N.C. App. 521, 529, 323 S.E. 2d 36, 41 (1984), disc. rev. denied, 313 N.C. 174, 326 S.E. 2d 34 (1985) (identifying factors to be considered in determining constructive possession: “No single factor controls.”).

The evidence in the instant case is distinguishable from that in cases where there was a sufficient showing of constructive possession and analogous to that in cases where there was an insufficient showing. The distance from the barn and marijuana patches to the house, ranging from 75 yards (225 feet) to 300 yards (900 feet), was considerably more than the distance between defendant’s residence and the location of the controlled substance in other cases. See State v. Wiggins, 33 N.C. App. 291, 235 S.E. 2d 265, cert. denied, 293 N.C. 592, 241 S.E. 2d 513 (1977) (no constructive possession of marijuana plants growing 55 feet and 145 feet from defendant’s trailer); cf. State v. Roten, 71 N.C. App. 203, 321 S.E. 2d 557 (1984) (constructive possession of marijuana 282 feet from house where pipe connected to garden hose ran directly from house to marijuana plants). There was no evidence that defendant owned the land upon which the barn or the marijuana patches were located. In fact, positive evidence was introduced that someone other than defendant or his mother owned the subject land. Cf. State v. Sanderson, 60 N.C. App. 604, 300 S.E. 2d 9, disc. rev. denied, 308 N.C. 679, 304 S.E. 2d 759 (1983) (undisputed that defendant owned or leased land). There was no evidence of [738]*738defendant’s ownership or constructive possession of the main building from which an inference of constructive possession of the barn and marijuana fields could be made. Cf. State v. Williams, 307 N.C. 452, 298 S.E. 2d 372 (1983) (evidence that defendant’s name on mailbox outside residence near outbuilding where heroin found, and that three bills addressed to defendant and bottle of pills bearing his name found therein supported his constructive possession of residence). No evidence placed defendant in the barn, the marijuana patches or their environs at any time near his arrest. Cf. State v.

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344 S.E.2d 77 (Court of Appeals of North Carolina, 1986)

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Bluebook (online)
336 S.E.2d 112, 77 N.C. App. 734, 1985 N.C. App. LEXIS 4371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-beaver-ncctapp-1985.