Appeal by defendant from Brown, Judge. Judgment entered 4 March 1981 in Superior Court, Pitt County. Heard in the Court of Appeals 10 December 1981.
Whichard, Judge. Judges Clark and Becton concur.
The State's evidence showed that on 3 December 1980 law enforcement officers, pursuant to a search warrant, searched a residence located at 507-B Darden Drive, Greenville, North Carolina. Defendant was in the residence at the time. The search disclosed slightly less than a pound of marijuana. As a consequence, defendant was indicted for felonious possession of marijuana in excess of one ounce. G.S. 90-94, -95(a)(3), -95(d)(4) (1981 & Supp. 1981).
Defendant contends the court erred in denying his motions (1) for nonsuit and (2) to set aside the verdict and order a new trial. We find no error.
"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." State v. Baxter, 285 N.C. 735, 737, 208 S.E.2d 696, 698 (1974). Our Supreme Court has declared the following standard for evaluating evidence in cases of illegal possession of controlled substances:
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. Where such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession. Also, the 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, 12-13, 187 S.E.2d 706, 714 (1972).
The State's evidence here showed the following: A confidential source informed Greenville law enforcement officers that, within forty-eight hours prior to the search, the source had been at 507-B Darden Drive and had observed defendant there with co-caine and marijuana. When the officers arrived with a search warrant, they found defendant there sitting on a couch. Their search disclosed slightly less than a pound of marijuana located in a back bedroom closet. It also disclosed the following: (1) a "temporary marriage certificate" of defendant and his wife, which was located on the hall wall; (2) an Employment Security Commission card bearing defendant's name, which was located on a peg board in the kitchen; (3) an application for a North Carolina Driver's license, bearing defendant's name and the address "507-B Darden Drive, Greenville, North Carolina," which was also located on the kitchen peg board; (4) a receipt dated 27 October 1980 bearing defendant's name and the address "507 Darden Drive," which was
located on top of a dresser or chest in the bedroom in which the marijuana was found; and (5) a North Carolina Division of Motor Vehicles registration card, apparently dated 8 October 1980, bearing defendant's name and the address "507 Darden Drive, Greenville, North Carolina," which was located on the same dresser or chest. This evidence sufficed, under the Harvey standard, to present a jury question as to whether defendant was in control of the premises or in such close juxtaposition to the narcotic drugs as to justify a conclusion that they were in his possession. See also State v. Roseboro, 55 N.C. App. 205, 284 S.E.2d 725 (1981), disc. rev. denied, 305 N.C. 155, 289 S.E.2d 566 (1982). The court thus properly denied the motions challenging the sufficiency of the evidence.
Defendant further contends the court should have allowed his motion to suppress "any and all evidence gained . . . by means of a search of premises at 507-B Darden Drive" on the ground that "the search warrant and the affidavit in support thereof are invalid because the affiant misrepresented the facts to the magistrate." The sole basis for the contention is that defendant denied on voir dire that he lived at the premises searched.
"A defendant may contest the validity of a search warrant and the admissibility of evidence obtained thereunder by contesting the truthfulness of the testimony showing probable cause for its issuance." G.S. 15A-978(a). If, absent a statement demonstrated by a substantial preliminary showing to be false, the affidavit on the basis of which probable cause was found is insufficient therefor, "the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was ...