{
  "id": 8524711,
  "name": "STATE OF NORTH CAROLINA v. HANSEL ROTEN",
  "name_abbreviation": "State v. Roten",
  "decision_date": "1984-11-06",
  "docket_number": "No. 8423SC142",
  "first_page": "203",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state",
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      "pin_cites": [
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          "page": "577"
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      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1979,
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  "last_updated": "2023-07-14T17:51:06.115640+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges BECTON and PHILLIPS concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. HANSEL ROTEN"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendant\u2019s first assignment of error relates to the admission of evidence at trial over defendant\u2019s objections. Defendant argues that the witness for the State should not have been allowed to testify \u201cto the illegal search and seizure of the defendant\u2019s home and surrounding premises.\u201d\nN.C. Gen. Stat. Sec. 15A-975 provides that a motion to suppress evidence in superior court must be made prior to trial, subject to several enumerated exceptions. \u201cWhen no exception to making the motion to suppress before trial applies, failure to make the pretrial motion to suppress waives any right to contest the admissibility of the evidence at trial on constitutional grounds.\u201d State v. Detter, 298 N.C. 604, 616, 260 S.E. 2d 567, 577 (1979). Defendant does not contend that any of the statutory exceptions apply under the circumstances of the instant case, nor does our examination of the record reveal any support for such a contention. We thus hold defendant waived his right to contest at trial the admissibility of the challenged testimony on constitutional grounds. The assignment of error is overruled.\nDefendant next contends the trial court erred in denying his motions to dismiss the charge against him. Considered in the light most favorable to the State, the evidence tends to show the following:\nDefendant, his wife, and his son live in the second story of a two-story house in a rural area in Wilkes County. Defendant rents the first floor to nine young men who are members of a band. On 16 August 1983 officers from the Wilkes County Sheriffs Department went to the defendant\u2019s residence with a search warrant. After a search of the house yielded only a picture of a marijuana plant, found in the first story, the officers went outside the residence, where they found a \u201cblack plastic-type pipe\u201d connected to the water system in the basement of the house. The officers followed the pipe \u201cacross a small pasture area into a wooded area\u201d where it was connected to a green \u201cwater-type\u201d hose and where, 282 feet from the house, they found a plot of approximately thirty marijuana plants. The pipe branched off in a \u201cjoint or T section,\u201d with other pipes or hose in this wooded area, and these led to other plots of marijuana. The pipes were located next to \u201cwell worn paths\u201d which ran through the area, and the pipe came to an end just before the path ended. Officers seized 171 plants, ranging in size from six inches to seven feet. The officers searched for \u201ca shorter way\u201d than that offered by the path near defendant\u2019s house into the heavily wooded thicket in which the plants were found, but were unable to find any other route by which they might more easily remove the harvested plants. The plants were found to weigh eighty pounds.\nN.C. Gen. Stat. Sec. 90-95 defines felonious possession of marijuana as possession of more than one ounce of marijuana. Defendant\u2019s contention on appeal is that the State failed to offer evidence tending to show that he possessed the marijuana found near his home, and the charge against him should thus have been dismissed.\nPossession of narcotics may be actual or constructive. State v. Williams, 307 N.C. 452, 298 S.E. 2d 372 (1983). \u201cConstructive possession exists when a person, while not having actual possession, has the intent and capability to maintain control and dominion over a controlled substance.\u201d Id. at 455, 298 S.E. 2d at 374.\nIn the instant case, the evidence tends to show that the pipe running between defendant\u2019s house and the plots of marijuana plants was readily visible and was connected, in the basement of defendant\u2019s house, to defendant\u2019s water supply. Further, the path running through the wooded area to the various plots of marijuana plants followed the placement of the pipe, and was the only readily accessible means of ingress and egress to the plots. There was ample evidence tending to show that the pipe, connected to defendant\u2019s water supply in defendant\u2019s house, was being used to irrigate marijuana plants growing 282 feet from defendant\u2019s residence. This evidence taken in the light most favorable to the State is more than sufficient to raise an inference that defendant had both the intent and the capability to exercise control over the plants. The court thus acted properly in denying defendant\u2019s motion to dismiss.\nNo error.\nJudges BECTON and PHILLIPS concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten, by Associate Attorney William N. Farrell, for the State.",
      "Franklin Smith for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. HANSEL ROTEN\nNo. 8423SC142\n(Filed 6 November 1984)\n1. Searches and Seizures \u00a7 43\u2014 seized evidence \u2014absence of pretrial motion to suppress \u2014 waiver of right to contest admissibility\nBy failing to make a motion to suppress seized evidence before trial, defendant waived his right to contest the admissibility of the evidence at trial on constitutional grounds.\n2. Narcotics \u00a7 4.3\u2014 constructive possession of growing marijuana plants\nThe State\u2019s evidence was sufficient to support an inference that defendant had constructive possession of marijuana plants so as to support his conviction of felonious possession thereof where it tended to show that a pipe connected to the water supply in defendant\u2019s house was being used to irrigate 171 marijuana plants growing in various plots approximately 282 feet from defendant\u2019s house, that the path running through a wooded area to the plots of marijuana plants followed the placement of the pipe and was the only readily accessible means of ingress to and egress from the plots, and that the plants weighed 80 pounds.\nAppeal by defendants from Freeman, Judge. Judgment entered 9 November 1983 in Superior Court, Wilkes County. Heard in the Court of Appeals 16 October 1984.\nDefendant was charged in a proper bill of indictment with felonious trafficking in marijuana in violation of N.C. Gen. Stat. Sec. 90-95(h). He was found guilty of felonious possession of marijuana. From judgment entered on the verdict sentencing him to a prison term of two years, defendant appealed.\nAttorney General Rufus L. Edmisten, by Associate Attorney William N. Farrell, for the State.\nFranklin Smith for defendant, appellant."
  },
  "file_name": "0203-01",
  "first_page_order": 237,
  "last_page_order": 240
}