{
  "id": 8526471,
  "name": "STATE OF NORTH CAROLINA v. WILLIAM MACK PERRY and WESLEY PERRY",
  "name_abbreviation": "State v. Perry",
  "decision_date": "1984-07-03",
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    "judges": [
      "Judges Hedrick and Wells concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIAM MACK PERRY and WESLEY PERRY"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Chief Judge.\nWe summarily reject defendants\u2019 first contention that their arrest warrants and subsequent indictments were issued without probable cause. By pleading and participating in the trial without ever making motions to quash, defendants waived their right to challenge the propriety of the issuance of the warrants and indictments. State v. Teasley, 9 N.C. App. 477, 176 S.E. 2d 838, cert. denied and appeal dismissed, 277 N.C. 459, 177 S.E. 2d 900 (1970); see G.S. 15A-952; G.S. 15A-955; State v. Lynch, 300 N.C. 534, 268 S.E. 2d 161 (1980) (a motion to dismiss an indictment is waived unless it is made at or before the arraignment).\nAt trial, the State introduced into evidence, over defense counsel\u2019s objection, marijuana plants seized from the cornfields farmed by defendants. Defendants contend that this evidence should have been excluded as the fruits of a search illegal under the fourth amendment. We find no merit in defendants\u2019 contention. The right to protection under the fourth amendment from governmental intrusion depends not upon a property right but upon whether there exists in the invaded area a reasonable expectation of privacy. State v. Boone, 293 N.C. 702, 239 S.E. 2d 459 (1977). Areas our courts have excluded from the protective guarantees of the fourth amendment include open fields, orchards, or lands not an immediate part of a dwelling site. See State v. Spencer, 281 N.C. 121, 187 S.E. 2d 779 (1972). The marijuana plants seized in this case were found in a cornfield and beside a packhouse not near a dwelling or in an area in which defendants demonstrated they had a legitimate expectation of privacy.\nDefendants next contend that the trial court erred by denying their motions for a directed verdict or for nonsuit. We find no error.\nIn testing the sufficiency of evidence to sustain a conviction upon a motion for a directed verdict or for nonsuit, the evidence must be considered in the light most favorable to the State, with the State entitled to every reasonable inference to be drawn therefrom. State v. Lowe, 295 N.C. 596, 247 S.E. 2d 878 (1978); State v. Agnew, 294 N.C. 382, 241 S.E. 2d 684, cert. denied, 439 U.S. 830, 99 S.Ct. 107, 58 L.Ed. 2d 124 (1978). Contrary to defendants\u2019 contention, it is irrelevant that the State relied primarily on circumstantial evidence to prove defendants\u2019 guilt. If there is substantial evidence, whether direct, circumstantial, or both that a crime was committed and that defendants committed it, then a motion for nonsuit or dismissal is properly denied. State v. McKinney, 288 N.C. 113, 215 S.E. 2d 578 (1975). Defendants in this case were charged with possession with intent to manufacture marijuana and felonious manufacture of marijuana in violation of G.S. 90-95(a)(1). The record reveals evidence of defendants\u2019 possession and manufacture of marijuana sufficient to withstand defendants\u2019 motions and leave to the jury the question of defendants\u2019 guilt.\nPursuant to G.S. 90-95(a)(1), an accused has possession of marijuana when he has both the power and intent to control its disposition. State v. Wiggins, 33 N.C. App. 291, 235 S.E. 2d 265, cert. denied, 293 N.C. 592, 241 S.E. 2d 513 (1977). Possession may be either actual or constructive. Constructive possession exists when an accused, though not having actual control and dominion over the marijuana, has the intent and capability of having such control and dominion. Id. Our courts have articulated the rule that contraband found on premises under the control of the accused may give rise to an inference of knowledge and possession sufficient to carry the case to the jury on the question of unlawful possession. State v. Harvey, 281 N.C. 1, 187 S.E. 2d 706 (1972); State v. Wiggins, supra. In light of these principles, we hold that the jury was properly allowed to consider and render a verdict on the question of defendants\u2019 possession. The evidence here showed that defendants had control over the land and by inference over the plants grown thereon.\nWe reach the same conclusion on the question of defendants\u2019 felonious manufacture. The term \u201cmanufacture\u201d under G.S. 90-95(a)(1) is defined in G.S. 90-87(15), in pertinent part, as \u201cthe production, preparation, propagation, compounding, conversion, or processing of a controlled substance by any means, whether directly or indirectly, artificially or naturally . . The State\u2019s evidence, which showed that at least thirty-nine marijuana plants were being grown in a cornfield farmed by defendants was sufficient to support a conviction of intent to manufacture and of manufacturing marijuana. See State v. Wiggins, supra; State v. Elam, 19 N.C. App. 451, 199 S.E. 2d 45, cert. denied and appeal dismissed, 284 N.C. 256, 200 S.E. 2d 656 (1973).\nThe next assignment of error we consider concerns the trial court\u2019s denial of defendants\u2019 motion to discover the identity of the confidential informant who told the police of the marijuana being grown. We find no error in the trial court\u2019s ruling. A defendant is not entitled to elicit the name of a confidential informant unless such disclosure is essential to a fair trial. State v. Cherry, 55 N.C. App. 603, 286 S.E. 2d 368, review denied, 305 N.C. 589, 292 S.E. 2d 572 (1982). Defendants have not demonstrated the necessity of such disclosure.\nWe next consider defendant Mack Perry\u2019s contention that the trial court erred in denying his motion for a separate trial. We find no error. The trial court acted within its discretion in consolidating for trial the cases of defendants, charged with the same offenses arising from the same set of circumstances. State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976), reconsideration denied, 293 N.C. 259, 243 S.E. 2d 143 (1977).\nWe group together defendants\u2019 last several assignments of error which concern evidentiary rulings by the trial court.\nWe find no merit in defendants\u2019 first evidentiary assignment of error concerning the trial court\u2019s decision to admit Sheriff Terry\u2019s testimony about the marijuana, its value, weight, and the stages involved in its growth and harvest. Defendants contend that Terry\u2019s testimony should have been excluded since the witness was not qualified as an expert on marijuana. Although the trial court made no findings as to Terry\u2019s qualifications as an expert, in the absence of a special request by the defense, such a finding is deemed implicit in the trial court\u2019s admission of the challenged testimony. State v. Hunt, 305 N.C. 238, 287 S.E. 2d 818 (1982). To challenge the proffered testimony on appeal, defense counsel should have made a special request to have Terry qualified as an expert. Defense counsel\u2019s general objection at trial to the content of Terry\u2019s testimony was insufficient to preserve the matter for our review. Id.; State v. Edwards and State v. Nance, 49 N.C. App. 547, 272 S.E. 2d 384 (1980).\nDefendants\u2019 next assignment of error concerns the trial court\u2019s admission into evidence, over defense counsel\u2019s objection, photographs of the marijuana plants and the cornfield where they were found growing. We find no error in the admission of these photographs which the record shows were used to illustrate Sheriff Terry\u2019s testimony. See G.S. 8-97.\nDefendants next contend that the trial court erred by excluding questions by defense counsel during cross-examination of Sheriff Terry. Because the record on appeal fails to indicate how the witness would have answered had he been permitted, we overrule this assignment of error. Without a proposed answer in the record, it is impossible to determine whether the exclusion thereof constituted prejudicial error. State v. Davis, 282 N.C. 107, 191 S.E. 2d 664 (1972).\nDefendants\u2019 next contention concerns defense counsel\u2019s attempt to introduce into evidence income tax returns of defendant, Wesley Perry. We fail to see how this evidence is relevant on the question of defendant\u2019s guilt under G.S. 90-95. See G.S. 8C-1, Rule 401. We, therefore, overrule defendants\u2019 contention that the trial court\u2019s exclusion of this evidence constituted prejudicial error.\nDefendants next contend that the trial court erred in excluding testimony from one of their witnesses intended to impeach State\u2019s witness, Rita Perry, who had testified earlier. The testimony sought pertained to a shoplifting incident in which Ms. Perry, during earlier cross-examination, had denied any involvement. Because the shoplifting incident was wholly collateral to the issue at trial, defense counsel was bound by Ms. Perry\u2019s answers and the trial court was correct in excluding testimony seeking to show the contrary. State v. Cross, 284 N.C. 174, 200 S.E. 2d 27 (1973); See G.S. 8C-1, Rule 608.\nDefendants\u2019 contention that they were prejudiced by their inability to cross-examine Sheriff Terry regarding defendant Mack Perry\u2019s knowledge of marijuana is overruled. Defendants cite no exception or assignment of error and, thus, this issue merits no review. Rule 10(a); Rules of Appellate Procedure; State v. Smith, 50 N.C. App. 188, 272 S.E. 2d 621 (1980).\nWe find no merit in defendants\u2019 final evidentiary objection that they were prejudiced by the State\u2019s cross-examination of defendant, Dan Perry, as to how often he went to the cornfield where marijuana was growing. We find no abuse of discretion nor resulting prejudice to defendants from the trial court decision to admit such testimony. See State v. Pinch, 306 N.C. 1, 292 S.E. 2d 203, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed. 2d 622 (1982); G.S. 8C-1, Rule 611(b).\nDefendants received a fair trial. We find no error in the judgment and commitment of defendants.\nNo error.\nJudges Hedrick and Wells concur.",
        "type": "majority",
        "author": "VAUGHN, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by James Peeler Smith, Assistant Attorney General, for the State.",
      "Rosbon D. B. Whedbee, for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM MACK PERRY and WESLEY PERRY\nNo. 836SC1002\n(Filed 3 July 1984)\n1. Indictment and Warrant \u00a7 15\u2014 motion to quash not timely\nBy pleading and participating in the trial without ever making motions to quash, defendants waived their right to challenge the propriety of the issuance of the warrants and indictments.\n2. Searches and Seizures \u00a7 3\u2014 search of cornfield \u2014 no expectation of privacy\nIn a prosecution of defendants for possession with intent to manufacture and manufacture of marijuana, there was no merit to defendants\u2019 contention that marijuana plants seized from cornfields farmed by defendants should have been excluded as the fruits of an illegal search, since the plants were found in a cornfield and beside a packhouse not near a dwelling or in an area in which defendants demonstrated they had a legitimate expectation of privacy.\n3. Narcotics \u00a7 4.3\u2014 marijuana in cornfield \u2014 constructive possession \u2014 sufficency of evidence\nIn a prosecution of defendants for possession with intent to manufacture and manufacture of marijuana, evidence was sufficient to be submitted to the jury where it tended to show that at least 39 marijuana plants were being grown in a cornfield farmed by defendants. G.S. 90-95(a)(l); G.S. 90-87(15).\n4. Constitutional Law \u00a7 67\u2014 identity of informant \u2014 no disclosure required\nThe trial court did not err in denying defendants\u2019 motion to discover the identity of the confidential informant who told police about marijuana being grown in defendants\u2019 field, since defendants did not demonstrate that disclosure was essential to a fair trial.\n5. Criminal Law 8 92.1\u2014 defendants charged with same offense \u2014 consolidation proper\nThe trial court acted within its discretion in consolidating for trial the cases of defendants who were charged with the same offenses arising from the same set of circumstances.\n6. Criminal Law \u00a7 51.1\u2014 expert testimony \u2014 no finding as to witness\u2019s qualification\nIn a prosecution for possession with intent to manufacture and manufacture of marijuana, the trial court did not err in admitting the sheriffs testimony about the marijuana, its value, weight, and the stages involved in its growth and harvest, though the court made no finding as to the witness\u2019s qualifications as an expert, since, in the absence of a special request by the defense, such a finding is deemed implicit in the trial court\u2019s admission of the challenged testimony.\n7. Criminal Law \u00a743\u2014 admissibility of photographs\nIn a prosecution for possession with intent to manufacture and manufacture of marijuana, the trial court did not err in admitting photographs of marijuana plants and the cornfield where they were found growing, since the photographs were used to illustrate a witness\u2019s testimony.\n8. Criminal Law \u00a7 88.3\u2014 cross-examination as to collateral matters\nWhere a shoplifting incident involving a State\u2019s witness was wholly collateral to the issue at trial, defense counsel was bound by the witness\u2019s answers denying involvement, and the trial court properly excluded testimony seeking to show to the contrary.\nAppeal by defendants from Barefoot, Judge. Judgment entered 5 May 1983 in Superior Court, BERTIE County. Heard in the Court of Appeals 4 June 1983.\nDefendant, William Mack Perry, and his son, defendant Wesley Perry, were each charged in separate indictments with possession with intent to manufacture marijuana and manufacture of marijuana. After a consolidated trial, defendants were found guilty of both offenses and sentenced to two years.\nThe State\u2019s evidence tended to show: On 29 September 1982, law enforcement officers were informed of marijuana being grown on land farmed by defendants. The officers searched the farm and found two recently cut stalks of marijuana lying about four feet from the back of a packhouse. They also discovered marijuana plants growing in the back of a cornfield. Though the corn was dried out, the marijuana plants were green and healthy. Also in the cornfield was a galvanized washtub holding manure. A path led from the area of the cornfield where the marijuana plants grew to the packhouse and barn area. Defendants stipulated at trial that thirty-nine plants removed from the cornfield by law enforcement officers were marijuana.\nState\u2019s witness, Rita Perry, testified that during the summer of 1982, she saw Mack Perry remove marijuana plants from the barn and replant them in an area near the field where the plants were discovered.\nAttorney General Edmisten, by James Peeler Smith, Assistant Attorney General, for the State.\nRosbon D. B. Whedbee, for defendant appellants."
  },
  "file_name": "0477-01",
  "first_page_order": 505,
  "last_page_order": 511
}
