State v. Tuggle , 109 N.C. App. 235 ( 1993 )

EAGLES, Judge.

I

In his first assignment defendant raises a broadside challenge to the sentences imposed upon him by the trial court. Defendant’s argument here, at best, is convoluted. Nonetheless, it appears that defendant argues that the trial court violated his constitutional right against double jeopardy by (1) imposing sentence upon the defendant for possession with intent to sell marijuana (88CRS3900) and manufacturing marijuana by packaging (88CRS3901); (2) imposing consecutive sentences for possession with intent to sell marijuana (88CRS3900), manufacturing marijuana by packaging (88CRS3901), and knowingly and intentionally maintaining a vehicle for selling marijuana (88CRS3902); and by (3) imposing consecutive sentences upon the defendant for trafficking in cocaine by possession of more than 28 grams (88CRS3895) and maintaining a dwelling for the purpose of selling cocaine (88CRS3896). Defendant relies on State v. Mebane, 101 N.C. App. 119, 398 S.E.2d 672 (1990) and State v. McGill, 296 N.C. 564, 251 S.E.2d 616 (1979), disavowed by State v. Hurst, 320 N.C. 589, 359 S.E.2d 776 (1987).

Initially, we note that the defendant misstates that his sentence in 88 CRS 3901 runs consecutive to his sentence in 88 CRS 3900. The judgment in 88 CRS 3901 clearly states that it is “to run concurrently with 88 CRS 3900.” Because the sentences run concurrently, the State argues that any error committed in sentencing was harmless error. In State v. Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989) our Supreme Court, relying, on reasoning in Ball v. United States, 470 U.S. 856, 84 L.Ed.2d 740 (1985), expressly overruled the previously existing general rule that “where concurrent sentences of equal length are imposed, any error in the charge relating to one count only is harmless.” This Barnes holding, that separate convictions may give rise to adverse collateral consequences, is equally applicable here.

The dispositive issue here is whether the defendant’s right against double jeopardy has been infringed by the sentences imposed upon him by the trial court. We have closely examined each of the arguments raised by the defendant, in light of State v. Mebane and State v. McGill, and find no error. See State v. Steward, 330 N.C. 607, 411 S.E.2d 376 (1992); State v. Hurst, 320 N.C. 589, 359 S.E.2d 776 (1987), overruled on other grounds by State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988); and State v. Perry, 316 N.C. 87, 340 S.E.2d 450 (1986). Accordingly, this assignment is overruled.

II

By his second, fifth and seventh assignments of error, the defendant argues that the trial court erred by denying his motion to dismiss the charge of possession of diazepam and in instructing the jury on possession of diazepam. Specifically, defendant argues that (1) the State failed to show that the defendant unlawfully possessed diazepam and (2) because diazepam has a currently acceptable medical use the trial court should have instructed the jury that the State had to show defendant’s possession was unlawful.

The law attending our review of denials of motions to dismiss in criminal trials is well settled. . . .

Upon defendant’s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant’s being the perpetrator of such offense. If so, the motion is properly denied.

If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed.

State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992) (citations omitted).

In order for defendant to be convicted of possession of diazepam the State must show that (1) the defendant possessed diazepam (2) in a manner not authorized by the North Carolina Controlled Substances Act. G.S. § 90-95(a)(3). Here, the State’s brief cites portions of the trial transcript tending to show that officers, acting pursuant to a valid search warrant, found a white plastic bottle containing seventy-eight five milligram tablets of diazepam (valium) in the pocket of a coat located in the master bedroom. The State, however, does not point to any record evidence tending to show that the tablets were not issued pursuant to a prescription (the bottle was not submitted as an exhibit on appeal) or that the quantity of valium possessed by the defendant is larger than amounts normally prescribed. We conclude that the State has failed to present substantial evidence that the defendant possessed the diazepam unlawfully. Accordingly, the defendant’s conviction in 88 CRS 3903 is reversed.

III

By his fifth and seventh assignments, defendant argues that the trial court erred by instructing the jury on constructive possession as follows:

If you find, beyond a reasonable doubt, that a substance was found in certain premises, and that the defendant exercised control over those premises, whether or not he owned them, this would be a circumstance from which you may infer that the defendant was aware of the presence of the substance, and has the power and intent to control its disposition or use.

Defendant argues that the jury should have also been instructed that although they may infer possession by the defendant they are not required to do so. We disagree.

In State v. Peek, 89 N.C. App. 123, 365 S.E.2d 320 (1988), the defendant objected to the trial court’s instruction that the jury could infer that the defendant had constructive possession of contraband if they found beyond a reasonable doubt that the defendant had control of the premises. This court held:

The trial court may properly instruct the jury that it may infer a defendant’s constructive possession of contraband from his control of the premises if the instruction clearly leaves it to the jury to decide whether to make the inference. Here, the trial court properly instructed the jury on the inference. Defendant’s assignment of error is without merit.

Peek at 126-27, 365 S.E.2d at 323 (citation omitted). Here, too, we find the defendant’s assignment to be without merit.

IV

Finally, defendant argues through his second, third and fourth assignments that the trial court erred by failing to grant his motion to dismiss at the close of the evidence and his motion to set aside the jury verdict. Specifically, defendant argues that the State failed to present sufficient evidence to support (1) a constructive possession theory and (2) the convictions of knowingly and intentionally keeping and maintaining a vehicle for selling marijuana and knowing and intentionally keeping and maintaining a dwelling house for the purpose of keeping and selling cocaine.

After carefully examining the record on appeal we find more than ample evidence to support the trial court’s ruling on each of the charges disputed by the defendant. Accordingly, this assignment is overruled.

V

Defendant’s remaining assignments have been abandoned. N.C.R. App. Pro. 28(b)(5).

VI

In conclusion, the defendant’s conviction in 88 CRS 3903 is reversed. The remaining convictions (88 CRS 3889, 88 CRS 3890, 88 CRS 3891, 88 CRS 3892, 88 CRS 3894, 88 CRS 3895, 88 CRS 3896, 88 CRS 3897, 88 CRS 3900, 88 CRS 3901 and 88 CRS 3902) are without error.

Reversed in part; no error in part.

Judges ORR and JOHN concur.