State v. DiNunno

EAGLES, Judge. In his first argument, defendant contends that it was error for the trial court to deny his motion to dismiss made at the close of the State’s evidence and renewed at the close of defendant [319] Greenberg’s evidence. This presents the question of whether Greenberg’s testimony as to defendant DiNunno should have been considered. G.S. 15-173 provides in part: When on the trial of any criminal action in the superior or district court, the State has introduced its evidence and rested its case, the defendant may move to dismiss the action, or for judgment as in case of nonsuit. . . . If the defendant introduces evidence, he thereby waives any motion for dismissal or judgment as in case of nonsuit which he may have made prior to the introduction of his evidence and cannot urge such prior motion as ground for appeal. . . . This statute has been interpreted to mean that when defendants are tried jointly and one of them offers no evidence, the evidence of the co-defendant may not be considered on a motion to dismiss by the defendant offering no evidence. See State v. Frazier, 268 N.C. 249, 150 S.E. 2d 431 (1966) and State v. Berryman, 10 N.C. App. 649, 179 S.E. 2d 875 (1971). The State argues that this rule does not apply because the defendant offered evidence through cross-examination of the witness for co-defendant Greenberg. We do not agree. While the opinions in Frazier and Berryman do not reveal whether the defendants who did not offer evidence cross-examined witnesses for the defendants who offered evidence, we do not believe we can disregard them in our determination of the instant case. The defendant DiNunno through his attorney cross-examined Greenberg as to the events leading up to and surrounding the arrest. As we read the cross-examination, he did not attempt to elicit substantive evidence beneficial to the defendant DiNunno. This does not constitute introducing evidence within the meaning of G.S. 15-173. We believe that in passing on the motion to dismiss we can consider only the evidence offered by the State before it rested. The State’s evidence tends to show that defendant was en route to Montreal, Canada, from Fort Lauderdale, Florida, on a non-commercial plane piloted by co-defendant Greenberg. The plane landed in Wilmington. While it was being refueled, Green-berg returned to the plane to get money to pay for the fuel. While at the plane, he noticed the arrival of law enforcement officers. Greenberg removed a briefcase from the plane and walked [320] quickly into the terminal building, refusing the order of one of the officers to stop. He left the briefcase next to the wall in the back of the terminal building, out of sight of the officers following him, and returned to the front of the terminal. The briefcase was later found to contain in excess of 400 grams of cocaine. During this time, the defendant remained at the counter near the front of the terminal. The only competent evidence tending to show any connection between defendant and the briefcase is the presence of both on the same plane. There was no evidence that the defendant had control of the plane. The State’s evidence showed that defendant was in close proximity to the drugs but does not show that he ever had control of the briefcase or knew of its contents. We hold that this does not support a reasonable inference that the defendant had possession of the drugs. See State v. Weems, 31 N.C. App. 569, 230 S.E. 2d 193 (1976). Defendant’s motion to dismiss should have been allowed. Reversed. Judges Webb and Phillips concur.