State v. Rogers

220 S.E.2d 398 (1975)

28 N.C. App. 110

STATE of North Carolina v. Cecil Van ROGERS.

No. 753SC443.

Court of Appeals of North Carolina.

December 17, 1975.

*400 Atty. Gen. Rufus L. Edmisten by Associate Atty. Noel Lee Allen, Raleigh, for the State.

Paul, Keenan, Rowan & Galloway by James V. Rowan, Durham, for defendant-appellant.

PARKER, Judge.

Prior to 1972, G.S. 90-111.2(a)(1), made it unlawful to "[t]ransport, carry, or convey any narcotic drug in, upon, or by means of any vehicle, vessel or aircraft." That statute was enacted by Ch. 909, Sec. 5, of the 1953 Session Laws, which also provided for forfeiture of any vehicle used to transport a narcotic drug. That statute was a part of Article 5 of the General Statutes. When that Article was rewritten by Ch. 919 of the 1971 Session Laws, which became effective on 1 January 1972, the provision making it unlawful to transport a narcotic drug was omitted, though the provision relating to forfeitures of "vehicles, vessels, or aircraft" was continued in present G.S. 90-112(a)(4). Thus, since 1 January 1972 the transportation of a controlled substance is not a separate substantive criminal offense. The indictment in the present case contains allegations charging that defendant "did feloniously possess" the controlled substance heroin and that he "did transport said substance." The allegations concerning transportation may be treated as surplusage. We find the remaining allegations adequate to charge the offense of unlawful possession of heroin, which is a felony under G.S. 90-95(b). Accordingly, we shall treat this case as one in which defendant is charged with the single offense of felonious possession of heroin.

Defendant assigns error to the denial of his motion for nonsuit, contending the evidence was insufficient to warrant a jury finding that he "possessed" any heroin in a legal sense. "[T]he State may overcome a motion to dismiss or motion for judgment as of nonsuit by presenting evidence which places the accused `within such close juxtaposition to the narcotic drugs as to justify the jury in concluding that the same was in his possession.'" State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). The evidence in the present case shows that defendant was the driver and in control of the car and that heroin was found on the floorboard of the car. One packet was on the driver's side of the front seat where, immediately prior thereto, defendant had been sitting. We have found substantially similar evidence sufficient to withstand the motion for nonsuit in State v. Wolfe, 26 N.C. App. 464, 216 S.E.2d 470 (1975), cert, denied, 288 N.C. 252, 217 S.E.2d 677 (1975) and in State v. Bagnard, 24 N.C.App. 54, 210 S.E.2d 93 (1974), cert. denied, 286 N.C. 416, 211 S.E.2d 796 (1975). In the present case we also find no error in the denial of the motion for nonsuit.

Defendant assigns error to the court's overruling his objection and allowing deputy sheriff Garrison to testify that from his examination of the white powder found in the five tinfoil packets, in his opinion the white powder contained heroin. The witness had previously testified that he had approximately twenty-five hours training in the identification of controlled substances, both through the S.B.I. and the Federal Government, that he had three and a half years experience "working with drugs on the street," and that he had examined heroin "numerous times." He was not asked, either on direct or on cross-examination, as to what his "examination" of the white powder consisted of, or as to what tests, if any, he made in the course of that "examination". Had such questions been asked, it would be easier to evaluate the witness's qualification to testify to the opinion called for, and the jury could have assessed *401 more accurately the weight which it might give to the opinion expressed. In any event, in view of the subsequent testimony of the S.B.I. chemist, we find no prejudicial error in the court's ruling in the present case.

In its charge, the court instructed the jury that if they found the defendant Rogers possessed heroin or if they found "that he knowingly transported the substance heroin, it would be [their] duty to return a verdict of guilty as charged, either guilty of possession of heroin or guilty of transporting heroin or both." As above noted, transportation of a controlled substance was not a substantive criminal offense at the time alleged in the bill of indictment. It was error for the court to instruct the jury as though transportation, as such, was a separate offense. Moreover, the quoted portion of the charge, expressed as it is in alternatives, makes it impossible to know upon what basis the jury returned its verdict. For the error in the charge, defendant is entitled to a

New trial.

BRITT and CLARK, JJ., concur.