#### STATE OF NORTH CAROLINA v. RAYMOND A. CAZARRES

No. 7112SC580

(Filed 20 October 1971)

Narcotics § 4.5 — instructions — review of evidence concerning nonsuited charge

Where law officers arrested defendant in a park for transportation of marijuana, and thereafter charged defendant with possession of marijuana upon finding marijuana in defendant’s residence, and in a trial for both crimes the transportation charge was nonsuited, the trial court did not commit prejudicial error in reviewing in the charge evidence of the observation and arrest of defendant upon the transportation charge.

Appeal by defendant from Cooper, Judge, 8 February 1971 Session of Superior Court held in Cumberland County.

Defendant was brought to trial upon a bill of indictment which charged (1) that defendant used a certain motor vehicle *581to facilitate the transportation, conveyance, concealment and possession of marijuana (G.S. 90-111.2 (a) (3)); and (2) that defendant did transport, carry and convey a quantity of marijuana by means of a certain motor vehicle (G.S. 90-111.2(a)(1)). Defendant, at the same time, was brought to trial upon an information charging that he had in his possession and under his control marijuana in excess of one gram (G.S. 90-88 and 90-111 (a)). Waiver of indictment by the grand jury upon this latter charge was duly executed.

The State’s evidence tended to show: On 8 September 1970 a group of law enforcement officers entered Rowan Street Park in Fayetteville and encountered the defendant and other persons under circumstances which gave the officers reason to suspect that defendant was dealing in narcotics from defendant’s van-type motor vehicle. The officers placed defendant and his companions under arrest and took them to the Inter-Agency Bureau of Narcotics office in the Cumberland County Courthouse. Defendant was advised of his rights and consented to a search of his residence at 200 Sedberry Street. The officers conducted a search of defendant’s residence and found in excess of one gram of marijuana.

At the close of the State’s evidence. defendant’s motions to nonsuit the two charges contained in the bill of indictment were allowed. The jury returned a verdict of guilty of possession as charged in the information. Defendant appealed.

Attorney General Morgan, by Staff Attorney League, for the State.

Assistant Public Defender Taylor for the defendant.

BROCK, Judge.

Defendant assigns as error that the trial judge, in charging the jury, reviewed the evidence of the observation and arrest of defendant in the Park. Defendant contends this was error because the charges in connection with his arrest in the Park were nonsuited.

This assignment of error is without merit. Evidence of the observation and arrest in the Park served to explain why defendant was in custody when he consented to a search of his residence. The evidence was plenary and clear that more than *582one gram of marijuana was found during the search of defendant’s residence, and it is' not conceivable that the jury could have been confused.

No error.

Judges Vaughn,and Graham concur.