State v. Burke , 36 N.C. App. 577 ( 1978 )

BROCK, Chief Judge.

Defendant brings forward six assignments of error, five of which are presented in four arguments. Defendant does not argue his assignment of error number 1, thus it is deemed abandoned. App. R. 28(a).

Defendant assigns as error the denial of his motions to dismiss, to set aside the verdict as being against the greater weight of the evidence, for a new trial, and in arrest of judgment. By this assignment, defendant challenges the sufficiency of the State’s evidence to warrant its submission to the jury and to support the verdict thereon. More specifically, defendant contends that the State failed to prove possession of more than one ounce of marijuana. We disagree.

Upon defendant’s motion to dismiss, or for judgment of non-suit, G.S. 15-173, “the evidence for the State must be taken as true and the question for the court is whether there is substantial evidence that the offense charged in the bill of indictment, or a lesser offense included therein, has been committed and that the defendant committed it. State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679.” State v. Mason, 279 N.C. 435, 439, 183 S.E. 2d 661, 663 (1971). Applying these principles to the case sub judice, we hold that the State’s evidence was sufficient as to all essential elements of the offense charged. The evidence for the State, taken as true, establishes that defendant was seated at a table upon which there were located some 5.5 pounds of marijuana in compressed bricks, and that he had in his hand a bag containing one-half pound of loose marijuana. “[EJvidence which places an accused within close juxtaposition to a narcotic drug under circumstances giving rise to a reasonable inference that he knew of its presence may be sufficient to justify the jury in concluding that it was in his possession.” State v. Weems, 31 N.C. App. 569, 571, 230 S.E. 2d 193, 194 (1976). The State’s evidence, therefore, was sufficient to establish an inference of possession and that the possession was felonious, that is, of a quantity greater than one ounce.

The denial of defendant’s motion to set aside the verdict as being against the weight of the evidence is a decision within the sole discretion of the trial court and is not reviewable. State v. Shepherd, 288 N.C. 346, 218 S.E. 2d 176 (1975). Denial of defendant’s motion for a new trial is not reviewable absent abuse of discretion, which has not been shown. State v. McKenna, 289 N.C. 668, 224 S.E. 2d 537, death sentence vacated 429 U.S. 912, 50 L.Ed. 2d 278, 97 S.Ct. 301 (1976). Motion for arrest of judgment is proper only when fatal error or defect appears on the face of the record. Id. No such error or defect appears on the face of the record in this case.

Defendant’s assignment of error number 2 is overruled.

Defendant’s third and fourth assignments of error challenge the propriety of the trial judge’s instructions as to “acting in concert” and “aiding and abetting.” Defendant contends that there is no evidence (1) that defendant, with a common purpose, did some act which forms a part of the offense charged, so as to warrant an instruction on “acting in concert”; or (2) that defendant, though present, committed no act necessary to constitute the crime, yet aided and abetted another in its commission, so as to warrant an instruction on “aiding and abetting.” See State v. Mitchell, 24 N.C. App. 484, 211 S.E. 2d 645 (1975).

Because the situation presented by the instant case is similar to that in State v. Cameron, 284 N.C. 165, 200 S.E. 2d 186 (1973), cert. denied 418 U.S. 905 (1974), we find it unnecessary to review the propriety of the judge’s instructions. To convict defendant of the crime of possession, the jury was required to determine that defendant actually knew and was aware that marijuana was in his presence. The State’s evidence, admittedly, required the jury to infer culpable knowledge by virtue of defendant’s close juxtaposition to the marijuana. Defendant testified that he was merely a chance visitor at the premises and did not know that the substance before him was marijuana. In this case, as in Cameron, supra, “[t]he jurors’ decision was not clouded by questions of joint participation or common purpose to commit a crime. Thus the jury was given a clear-cut decision: whether to believe the State’s evidence and return a verdict of guilty or believe the defendant’s evidence [negating intent] and return a verdict of not guilty.” 284 N.C. at 171, 200 S.E. 2d at 191. Defendant’s assignments of error numbered 3 and 4 are overruled.

In his assignment of error number 5, defendant contends that the trial judge erred in instructing the jury that they could consider the amount of marijuana on the premises in question as an indicator of intent, since there was no evidence that defendant had any knowledge of the marijuana which was found outside of the kitchen. This assignment is likewise without merit. The error, if any, in this charge was harmless in light of the amount of marijuana which was found in defendant’s presence in the kitchen. Furthermore, construing the charge contextually, we note that the challenged portion was given in connection with the judge’s charge as to possession with intent to sell and deliver and addressed the element of defendant’s intent to sell the marijuana. Defendant’s assignment of error number 5 is overruled.

In his final assignment of error, defendant contends that based upon the recent case of State v. Washington, 33 N.C. App. 614, 235 S.E. 2d 903 (1977), the trial judge erred in that portion of this charge which allowed the jury to infer defendant’s power and intent to control the disposition or use of marijuana from his close physical proximity to it. In Washington, such a charge was found to be overbroad and erroneous as to a mere passenger in a vehicle. Washington is distinguishable from the instant case. Here the evidence showed that defendant was in a house, seated at a table upon which several pounds of marijuana were located, and had a bag in his hand containing a quantity of marijuana. This assignment of error is overruled.

No error.

Judges VAUGHN and ERWIN concur.