State v. Weems

230 S.E.2d 193 (1976)

31 N.C. App. 569

STATE of North Carolina v. Willie WEEMS.

No. 765SC542.

Court of Appeals of North Carolina.

December 1, 1976.

*194 Atty. Gen. Rufus L. Edmisten by Special Deputy Atty. Gen. Edwin M. Speas, Jr., Raleigh, for the State.

Jay D. Hockenbury, Wilmington, for defendant-appellant.

PARKER, Judge.

The question presented is whether the evidence was sufficient to withstand defendant's motion for nonsuit. We hold that it was not.

"An accused's possession of narcotics may be actual or constructive. He has possession of the contraband material within the meaning of the law when he has both the power and intent to control its disposition or use." State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). Necessarily, power and intent to control the contraband material can exist only when one is aware of its presence. Therefore, evidence 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. "However, 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). Consistent with this view, a number of courts have recognized the principle that "the mere presence of the defendant in an automobile in which illicit drugs are found does not, without more, constitute sufficient proof of his possession of such drugs.. . ." Annot., 57 A.L.R.3d 1319, 1326 (1974).

In the present case, the evidence showed that the police, acting on information the nature of which is not disclosed in this record, placed a certain automobile under surveillance. They saw three men get into the automobile and drive away. They followed and shortly thereafter stopped the car. Defendant was found to be a passenger sitting in the right front seat. The driver was the registered owner of the car. The third man was riding in the back seat. Packets of heroin were found hidden in three different locations in the car, two of which were in the front seat area and one in the back seat area. Defendant was in close proximity to the heroin hidden in the front seat area. There was no evidence defendant owned or controlled the car. There was no evidence he had been in the car at any time other than during the short period which elapsed between the time the officers saw the three men get in the car and the time they stopped and searched it. There was no evidence of any circumstance *195 indicating that defendant knew of the presence of the drugs hidden in the car.

Viewing the evidence in the light most favorable to the State, and giving the State the benefit of every legitimate inference which may be reasonably drawn from the evidence, we find no evidence of any circumstance connecting the defendant to the drugs in any manner whatsoever other than the showing of his mere presence for a brief period in the car as a passenger. In our opinion, this was not enough. See generally State v. Minor, 290 N.C. 68, 224 S.E.2d 180 (1976); State v. Finney, 290 N.C. 755, 228 S.E.2d 433 (1976). Defendant's motion for nonsuit should have been allowed.

Reversed.

BROCK, C. J., and HEDRICK, J., concur.