State v. Perry

352 S.E.2d 259, 84 N.C. App. 309, 1987 N.C. App. LEXIS 3318

• Court: Court of Appeals of North Carolina
• Decided: February 3, 1987
• Docket: No. 8627SC70I
• Status: Published

Opinion

ARNOLD, Judge.

Defendant contends that he was not charged with possession of more than one ounce of marijuana and therefore the trial judge erred in charging the jury on the alternative verdict of possession of more than one ounce of marijuana.

To prove the offense of possession of over one ounce of marijuana, the State must show possession and that the amount possessed was greater than one ounce. State v. McGill, 296 N.C. 564, 251 S.E. 2d 616 (1979).

We do not agree with defendant’s contention that he was not charged with possession of more than one ounce of marijuana since the two elements of possession of more than one ounce of marijuana are both set forth in the indictment.

G.S. 15A-924(a)(5) provides in part that a criminal pleading must contain:

A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant’s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.

The indictment in the present case alleged the element of possession of marijuana and further alleged that the amount of marijuana possessed exceeded one ounce. We find that the elements of possession of more than one ounce of marijuana were set out with sufficient clarity to apprise defendant that he was charged with that offense.

We have reviewed defendant’s remaining assignments of error and find them to be without merit.

No error.

Judges Phillips and Orr concur.