State v. Wells

218 S.E.2d 225 (1975)

27 N.C. App. 144

STATE of North Carolina v. Kevin Eugene WELLS.

No. 7519SC352.

Court of Appeals of North Carolina.

October 1, 1975.

*226 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Conrad O. Pearson, Raleigh, for the State.

Carlton, Rhodes & Thurston by Gary C. Rhodes, Salisbury, for defendant-appellant.

CLARK, Judge.

The validity of the search warrant and the search pursuant thereto were not questioned on appeal.

The defendant assigns as error the failure of the trial court to define and explain constructive possession. Constructive possession is that which exists without actual personal dominion over the material, but with an intent and capability to maintain control and dominion over it. State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972). Cases dealing with constructive possession were collected in State v. Allen, 279 N.C. 406, 410, 183 S.E.2d 680, 683 (1971), wherein Justice Branch for the Court quoted the following language from People v. Galloway, 28 III.2d 355, 192 N.E.2d 370: "Where narcotics are found on premises under the control of the defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts which might leave in the minds of the jury a reasonable doubt as to his guilt." See also, State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972).

The trial judge, in his instructions to the jury, did not define and explain constructive *227 possession but did define possession as follows: "... that a person possesses a controlled substance when he has either by himself or together with others both the power and intent to control the disposition or the use of that substance." This definition of possession from N.C. Pattern July Instructions is brief and general, but we find it so broad in scope as to pertain in common to actual and constructive possession. The trial court properly could have added a definition of constructive possession and the inference that arises from the control of the premises; the failure to do so was not error.

The defendant also contends that the trial court erred in overruling his motion for judgment of nonsuit. The State may overcome this motion by 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, supra, and State v. Allen, supra.

In this case it is our opinion that the evidence of the defendant's lease of the apartment, his occupation of the same, together with all the other evidence, was sufficient to justify the jury in concluding that the defendant, either alone or jointly with others, was in control of the apartment and in possession of the MDA found therein. The trial judge correctly overruled defendant's motion for judgment of nonsuit.

We have examined the entire record and find

No error.

MORRIS and VAUGHN, JJ., concur.