State v. Cloninger

245 S.E.2d 192 (1978)

37 N.C. App. 22

STATE of North Carolina v. Willie D. CLONINGER.

No. 7725SC1060.

Court of Appeals of North Carolina.

June 20, 1978.

*194 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George J. Oliver, Raleigh, for the State.

Michael P. Baumberger, Lenoir, for defendant-appellant.

CLARK, Judge.

One issue raised by this appeal is whether the trial court erred in failing to charge on lesser included offenses of (1) possession of marijuana with intent to sell and (2) possession of hashish with intent to sell, both Schedule VI controlled substances, in violation of G.S. 90-95(a)(1), as charged in the bills of indictment.

The marijuana indictment charged possession with intent to sell of four pounds of marijuana. Possession of more than one ounce of marijuana is a felony under G.S. 90-95(d)(4), and punishable by imprisonment of not more than five years.

The hashish indictment charged possession with intent to sell in excess of 0.10 ounce of hashish. Possession of more than 0.10 ounce of hashish is a felony under G.S. 90-95(d)(4), and punishable by imprisonment of not more than five years.

All of the evidence tends to show that if defendant possessed these controlled substances, he possessed 5½ or 6 pounds of marijuana, and less than one gram (also less than one ounce) of hashish. Thus the evidence would have supported a verdict of possession of more than one ounce of marijuana, a felony under G.S. 90-95(d)(4), but would not have supported a verdict of felony possession of hashish in excess of 0.10 ounce. Absent the intent to sell, the defendant under this evidence could be guilty only of possession of hashish in violation of G.S. 90-95(a)(3), which is a misdemeanor under G.S. 90-95(d)(4).

The quantity of marijuana, 5½ or 6 pounds, found in the case sub judice was evidence of intent to sell. This court has held that the quantity of the drug seized is an indicator of intent to sell. State v. Mitchell, 27 N.C.App. 313, 219 S.E.2d 295 (1975); State v. Carriker, 24 N.C.App. 91, 210 S.E.2d 98 (1975), rev'd on other grounds, 287 N.C. 530, 215 S.E.2d 134 (1975). However, this evidence of quantity and the other evidence in the case did not compel a verdict of possession with intent to sell. Defendant testified and denied possession of any quantity of illicit drugs. The evidence in this case is not so positive as to the element of intent to sell marijuana that there is no conflicting evidence, as in State v. Carriker, supra.

Possession of an illicit drug is an element of possession with intent to sell or deliver the drug, and the former is a lesser included offense of the latter. State v. Aiken, 286 N.C. 202, 209 S.E.2d 763 (1974); State v. Stanley, 24 N.C.App. 323, 210 S.E.2d 496 (1974), rev'd on other grounds, 288 N.C. 19, 215 S.E.2d 589 (1975).

Where there is evidence of defendant's guilt of a lesser degree of the crime included in the bill of indictment, defendant *195 is entitled to have the question submitted to the jury, even when there is no specific prayer for the instruction; and error in failing to do so is not cured by a verdict convicting the defendant of the offense charged, because in such case it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees arising on the evidence had been correctly presented in the charge. State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970); 4 Strong's, N.C. Index 3d, Criminal Law, § 115.

As to the marijuana charge (77CRS1251) we conclude that under the evidence the trial court properly charged on possession of marijuana with intent to sell as charged, but the court erred in failing to charge on the lesser offense of felony possession of marijuana in excess of one ounce. The indictment alleged possession of four pounds of marijuana with intent to sell. Since all of the evidence was positive as to the quantity found (5½ or 6 pounds) the court was not required to charge on the lesser offense of misdemeanor possession of marijuana (less than one ounce).

As to the hashish charge (77CRS1249), there was no evidence of intent to sell because the quantity was small, less than one gram, and there was no other evidence from which this intent could be inferred. The trial court should not have charged on the crime of possession of hashish with intent to sell, but only on the crime of misdemeanor possession in violation of G.S. 90-95(d)(4), less than one gram.

Defendant moved to suppress the smoking materials found in his trailer on the ground that the search warrant did not adequately describe the mobile home. There were two other trailers nearby. The search warrant description was as follows: "[T]he mobile home and premises owner [sic] and occupied by Willie Clonninger. [sic] Located at the end of a dirt road, approx 100 yds behind Lindas truck stop...."

The search warrant must describe the premises with reasonable certainty. The description is somewhat similar to the description of a mobile home in State v. Woods, 26 N.C.App. 584, 216 S.E.2d 492 (1975), which held the description was adequate. Further, Officer Colvard testified that he knew the trailer and had seen defendant about the premises on several occasions. In State v. Walsh, 19 N.C.App. 420, 199 S.E.2d 38 (1973), it was held that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This assignment is without merit.

We do not treat the other assignments of error since they may not recur upon retrial.

In 77CRS1251 the judgment is reversed and the cause remanded for a new trial. The State may elect to proceed against the defendant on the charge of possession of marijuana with intent to sell in violation of G.S. 90-95(a)(1), or on the charge of felony possession of marijuana in excess of one ounce in violation of G.S. 90-95(a)(3) and G.S. 90-95(d)(4).

In 77CRS1249 the judgment is reversed and the cause is remanded for a new trial on the charge of simple possession of hashish, a misdemeanor in violation of G.S. 90-95(a)(3).

New trial.

BRITT and ERWIN, JJ., concur.