State v. Baxter , 285 N.C. 735 ( 1974 )

LAKE, Justice.

There was no error in the denial of the defendant’s motion for judgment of nonsuit as to the charge of possession with intent to distribute marijuana. As the defendant concedes in his brief in the Court of Appeals:

“In the case at bar, all of the evidence points inescapably [to the conclusion] that one or both of the defendants had 219 grams of marijuana, if the State’s evidence is to be believed. * * * The physical evidence discovered by the officers, that is, the envelopes, the scotch tape and cigarette paper would give a reasonable inference as to the element of the intent to distribute.”

The uncontradicted evidence is that the defendant, his wife, and no one else, lived in the apartment, that underclothing of a male person was found in a dresser drawer, that the packaged marijuana was found beneath it, that a man’s coat with an envelope containing marijuana in its pocket was found in the closet of the bedroom and that no one other than the defendant’s wife was in the apartment at the time of the search.

It is elementary that upon consideration of a motion for judgment of nonsuit the evidence for the State is deemed to be true and the State is entitled to all reasonable inferences which may be drawn therefrom. Strong, N. C. Index 2d, Criminal Law, § 104 and cases there cited.

As is true with reference to the possession of intoxicating liquor, an accused has possession of marijuana within the meaning of the Controlled Subtances Act, G.S. Chapter 90, Art. V, when he has both the power and the intent to control its disposition or use, which power may be in him alone or in combination with another. State v. Fuqua, 234 N.C. 168, 66 S.E. 2d 667. Constructive possession is sufficient. State v. Meyers, 190 N.C. 239, 129 S.E. 600. Nothing else appearing, a man residing with his wife in an apartment, no one else residing or being present therein, may be deemed in constructive possession of marijuana located therein, notwithstanding the fact that he is temporarily absent from the apartment and his wife is present therein. See: State v. Spencer, 281 N.C. 121, 129, 187 S.E. 2d 779; State v. Harvey, 281 N.C. 1, 12, 187 S.E. 2d 706; State v. Allen, 279 N.C. 406, 410, 183 S.E. 2d 680. The jury could reasonably infer an intent to distribute from the amount of the substance found, the manner in which it was packaged and the presence of other packaging materials. There was clearly no error in the denial of the motion for judgment of nonsuit as to the charge of possession with intent to distribute.

After reviewing the evidence for the State in his instructions to the jury, the trial judge said:

“The defendants, Robert Baxter and Alveta Baxter, did not offer any evidence as they have the right to do.”

There was no request for an instruction concerning the failure of the defendant to offer evidence. There was no other statement in the charge with reference thereto. • The statement by the court is susceptible of two interpretations: (1) The defendant had the right not to offer any evidence and did not do so; or (2) he had the right to offer evidence and did not do so. In either view of the statement it was correct, both in law and in fact, but it was an incomplete statement of the pertinent rule of law and constituted prejudicial error.

In the absence of a request for an instruction on the point, it was not necessary for the court to refer to the failure of the defendant to offer evidence and, indeed, it would have been better to have made no reference at all to this circumstance. See: State v. Barbour, 278 N.C. 449, 457, 180 S.E. 2d 115; State v. Jordan, 216 N.C. 356, 364-366, 5 S.E. 2d 156. While it was not error for the court, in the absence of a request by the defendant, to instruct the jury correctly and completely on this point, any instruction thereon is incomplete and prejudicially erroneous unless it makes clear to the jury that the defendant has the right to offer or to refrain from offering evidence as he sees fit and that his failure to testify should not be considered by the jury as basis for any inference adverse to him. In State v. McNeill, 229 N.C. 377, 379, 49 S.E. 2d 733, Justice Denny, later Chief Justice, speaking for the Court, said:

“[W]e wish to call attention to the fact that the failure of a defendant to go upon the witness stand and testify in his own behalf should not be made the subject of comment, except to inform the jury that a defendant may or may not testify in his own behalf as he may see fit, and his failure to testify ‘shall not create any presumption against him.’ G.S. 8-54.” (Emphasis added.)

The language of the pertinent portion of G.S. 8-54 concerning this matter is as follows:

“In the trial of all indictments, complaints, or other proceedings against persons charged with the commission of crimes, offenses or misdemeanors, the person so charged is, at his own request, but not otherwise, a competent witness, and his failure to make such request shall not create any presumption against him.” (Emphasis added.)

While it is entirely clear to us that by this instruction the learned trial judge intended to tell the jury that the failure of the defendant to offer evidence should not be considered against him, the jury, not being so well acquainted with this fundamental principle of law, may not so have understood the instruction. For this inadvertent error of omission, there must be a new trial.

New trial.

Chief Justice Bobbitt not sitting.