State v. Siler

314 S.E.2d 547 (1984)

310 N.C. 731

STATE of North Carolina v. Richard Raymond SILER, III.

No. 46A84.

Supreme Court of North Carolina.

April 30, 1984.

*548 Rufus L. Edmisten, Atty. Gen. by John R.B. Matthis, Sp. Deputy Atty. Gen. and *549 Philip A. Telfer, Asst. Atty. Gen., Raleigh, for the State.

Bruce C. Fraser, Winston-Salem, for defendant-appellant.

BRANCH, Chief Justice.

Defendant's sole contention upon appeal is that the trial judge erroneously failed to charge on the lesser included offenses of misdemeanor possession and felony possession. Defendant points out that the crime of "trafficking," as defined in G.S. 90-95(h)(3)a, requires that a party possess at least 28, but not more than 200, grams of cocaine. Defendant maintains that while there is evidence to support a finding that he "trafficked," i.e., possessed at least 28 grams, there is also evidence from which the jury could have found that he possessed less than the requisite 28 grams. Defendant's own testimony was that he only knew about the small plastic bag of cocaine on the front seat of Caudle's car. No analysis was done to verify the weight of the substance in this small bag. Thus, defendant maintains that the jury could have found that he possessed less than 28 grams and would thereby be guilty of only misdemeanor or felony possession under G.S. 90-95(d)(2). The Court of Appeals majority rejected defendant's contention, holding the evidence insufficient to support a charge on the lesser included offense. We disagree. Nevertheless, we conclude that the trial judge correctly charged the jury under the circumstances of this case. The court charged, in pertinent part, as follows:

So, coming back down to the possession, trafficking by possession, I charge if you find from the evidence beyond a reasonable doubt that on or about the 11th day of May of this year, the defendant knowingly possessed cocaine and the amount of which the defendant possessed was more than 28 grams but less than 200 grams, it would be your duty to return a verdict of guilty of possessing more than 28 grams but less than 200 grams of cocaine. However, if you do not so find or have a reasonable doubt as to one or both of these things, you would not return a verdict of guilty of possession of more than 28 grams but less than 200 grams of cocaine, in which case you would consider whether the defendant is guilty of possessing cocaine. The difference in the two charges being that in possessing of cocaine, the State need not prove the amount he possessed as long as some cocaine was possessed. I charge if you find from the evidence beyond a reasonable doubt that on or about the 11th day of May, 1982, the defendant knowingly possessed cocaine, it would be your duty to return a verdict of guilty of possessing cocaine, it would be your duty to return a verdict of guilty of possessing cocaine, (sic) However, if you have a reasonable doubt as to any one of these things, then it would be your duty to return a verdict of not guilty.

The court went on to charge on the possible verdicts:

Your verdict must be unanimous. That is, all twelve of you must be of the same accord. I would suggest when you go to make up your verdicts, you select one of your group as foreman to lead you in your deliberations and to mark the papers that will be handed to you as you go out. They read in part: As to the possession of cocaine, there's a blank space, guilty of possession of more than 28 grams but less than 200 grams, another blank space, guilty of possession of cocaine; another blank space, not guilty. Have your foreman put an x mark or check mark by your unanimous verdict, date it and sign it and return it open court.

Thus, the jury was instructed that if they should find that defendant possessed less than 28 grams, they should consider whether he was guilty of simple possession. Under the circumstances of this case, there being no evidence as to the amount of cocaine in the smaller bag, the trial judge's charge on the lesser included offense was adequate.

*550 The decision of the Court of Appeals finding no error in the trial court's instruction as modified is affirmed.

MODIFIED and AFFIRMED.