State v. Balsom , 17 N.C. App. 655 ( 1973 )

195 S.E.2d 125 (1973) 17 N.C. App. 655

STATE of North Carolina
v.
Stephen F. BALSOM et al.

No. 7312SC131.

Court of Appeals of North Carolina.

March 28, 1973.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Howard P. Satisky, Raleigh, for the State.

Sol G. Cherry, Public Defender, Fayetteville, for defendant appellants Balsom and Gove.

Butler, High & Baer, by Sneed High, Fayetteville, for defendant appellants Siracuse and Kausner.

HEDRICK, Judge.

Defendants, Balsom, Gove, Kausner and Siracuse, assign as error the denial of their motions for judgments as of nonsuit.

"An accused's possession of narcotics may be actual or constructive. . . . 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." State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972)

When the evidence in the present case is considered in the light most favorable to the State, it is sufficient to show that LSD was found in the premises under the control of defendant Gove. Defendant Gove told the officers that "he lived there". LSD was found in a drawer with a wallet containing Gove's identification. LSD was found in a closet containing Gove's clothing. Such evidence, in our opinion, is sufficient to raise an inference that Gove was a permanent resident of the premises and that he was in control of the premises and had knowledge of the narcotic drug LSD found therein. Gove's exception to the denial of his motion for judgment as of nonsuit is not sustained.

With respect to defendants Balsom, Kausner and Siracuse, there is no evidence that the premises at 102 Fleishman Street was under their control, or that they knew of the LSD located therein. There is no evidence that these defendants had actual or constructive possession of the LSD. The evidence tends to show that these defendants were mere transient visitors. There is no evidence that any of these defendants were under the influence of or users of narcotics. Evidence tending to show that on 29 April 1972, defendant Kausner, accompanied by defendant Siracuse, brought a quantity of the narcotic drug mescaline to Fayetteville from Buffalo, New York, by way of Washington, D. C., raises no inference that Kausner or Siracuse either actually or constructively possessed the narcotic drug LSD found on or about the premises at 102 Fleishman Street. It is recognized that "mere proximity to persons or locations with drugs about them is usually insufficient, in the absence of other incriminating circumstances, to convict for possession". Annot., 91 A.L.R. 2d 810, 811 (1963).

It is our opinion, and we so hold, the court erred in not allowing the motions of defendants Balsom, Kausner and Siracuse for judgments as of nonsuit. State v. King, 264 N.C. 578, 142 S.E.2d 130 (1965); Haley v. State, 7 Md.App. 18, 253 A.2d 424 (1969).

Defendant Gove contends the court erred in admitting into evidence the LSD found in the premises. The record discloses Gove's premises were searched and the LSD seized pursuant to a validly issued and executed search warrant. This assignment of error is overruled.

Defendant Gove contends the court erred in admitting into evidence a photograph taken at the time of his arrest. This assignment of error has no merit.

It is well settled that photographs may be introduced into evidence for the purpose of illustrating the testimony of a witness. Here the officer testified, without objection, describing the appearance of defendants at the time of their arrest. It was not error for the court to allow photographs taken of defendants at the time of their arrest to illustrate the testimony of the witness.

Defendant Gove has additional assignments of error which we have carefully considered and find to be without merit. Defendant Gove had a fair trial free from prejudicial error.

The judgment against defendant Gove contains the erroneous recital that defendant was charged and convicted of "possession of LSD with intent to distribute". The record reveals the defendant Gove was charged and convicted of felonious possession of the narcotic drug LSD. The erroneous recital is hereby stricken and the judgment modified to conform to the record. As modified, the judgment as to defendant Gove is affirmed. As to defendants Balsom, Kausner and Siracuse, the judgments are reversed.

CAMPBELL and GRAHAM, JJ., concur.