State v. Siler

Court of Appeals of North Carolina

State v. Siler

311 S.E.2d 23, 66 N.C. App. 165, 1984 N.C. App. LEXIS 2815

CourtCourt of Appeals of North Carolina

DecidedJanuary 17, 1984

Docket8321SC512

StatusPublished

Cited by6 cases

This text of 311 S.E.2d 23 (State v. Siler) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Siler, 311 S.E.2d 23, 66 N.C. App. 165, 1984 N.C. App. LEXIS 2815 (N.C. Ct. App. 1984).

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Opinions

HILL, Judge.

The first question presented in this case is whether the trial court erred in refusing to instruct the jury on lesser included offenses. Defendant asserts as error the trial judge’s refusal to submit to the jury, as a possible lesser included offense, misdemeanor and felonious possession of cocaine pursuant to G.S. 90-95(d)(2).

The principle of defendant being entitled to have different permissible verdicts arising on the evidence presented to the jury under proper instructions applies when, and only when, there is evidence of guilt of the different permissible degrees. State v. Griffin, 280 N.C. 142, 185 S.E. 2d 149 (1971); State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931). “The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.” State v. Hicks, 241 N.C. 156, 159, 84 S.E. 2d 545, 547 (1954) (original emphasis).

[167]*167Applying this rule to the facts of this case, we find that the record is void of any evidence tending to show that defendant may be guilty of a lesser included offense. The evidence is briefly summarized as follows: On 11 May 1982, defendant telephoned an acquaintance, asking, “Can we play eighteen holes of golf this afternoon?” Based on prior communications, the acquaintance interpreted the inquiry as a request for cocaine. He told defendant he would know later that day, and upon calling back, said he could secure eight ounces of cocaine. Defendant requested four additional ounces. Subsequently the two met at a designated place. Defendant used cocaine in the acquaintance’s car, knew about cocaine in the front seat of the car, and knew the purpose of the meeting. Defendant and his acquaintance were arrested and eleven ounces of cocaine were seized from the car. The only evidence as to the amount of cocaine possessed by defendant is to the effect that defendant possessed cocaine in excess of 28 grams. There is not a scintilla of evidence from which the jury could conclude that defendant possessed cocaine in an amount less than 28 grams. Hence, the court properly refused to instruct the jury with reference to G.S. 90-95(d)(2).

Defendant next submits that the court should have granted his motion to dismiss. This assignment of error challenges the sufficiency of the evidence for the State, which viewed in a light most favorable to the State shows that defendant arranged to purchase between eight and twelve ounces of cocaine. He was in the process of doing exactly that when he was arrested. The evidence is clearly sufficient to support a guilty verdict. This assignment of error is without merit.

Defendant next contends that the trial court erred in allowing the prosecuting witness to interpret conversations he had with the defendant. Defendant asserts such testimony was inadmissible in that it invaded the jury’s province as fact-finder. We disagree.

The testimony elicited from the witness merely explained that a code was used by the witness and the defendant in discussing cocaine over the telephone. The trial judge allowed the witness to relate what the conversations meant to him. Without such testimony the jury would not have understood the significance of the conversations. When the jury is not as well qualified [168]*168as the witness to draw inferences and conclusions from the facts, opinion testimony is admissible. E.g., State v. Watson, 287 N.C. 147, 214 S.E. 2d 85 (1975); see also 1 Stansbury’s North Carolina Evidence § 124 (Brandis Rev. 1973). This assignment of error is overruled.

We have carefully examined defendant’s other contentions and find no basis for reversal. The defendant has received a fair and impartial trial, free from prejudicial error.

No error.

Chief Judge VAUGHN concurs. Judge Becton dissents.

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HILL, Judge.

The first question presented in this case is whether the trial court erred in refusing to instruct the jury on lesser included offenses. Defendant asserts as error the trial judge’s refusal to submit to the jury, as a possible lesser included offense, misdemeanor and felonious possession of cocaine pursuant to G.S. 90-95(d)(2).

The principle of defendant being entitled to have different permissible verdicts arising on the evidence presented to the jury under proper instructions applies when, and only when, there is evidence of guilt of the different permissible degrees. State v. Griffin, 280 N.C. 142, 185 S.E. 2d 149 (1971); State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931). “The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.” State v. Hicks, 241 N.C. 156, 159, 84 S.E. 2d 545, 547 (1954) (original emphasis).

[167]*167Applying this rule to the facts of this case, we find that the record is void of any evidence tending to show that defendant may be guilty of a lesser included offense. The evidence is briefly summarized as follows: On 11 May 1982, defendant telephoned an acquaintance, asking, “Can we play eighteen holes of golf this afternoon?” Based on prior communications, the acquaintance interpreted the inquiry as a request for cocaine. He told defendant he would know later that day, and upon calling back, said he could secure eight ounces of cocaine. Defendant requested four additional ounces. Subsequently the two met at a designated place. Defendant used cocaine in the acquaintance’s car, knew about cocaine in the front seat of the car, and knew the purpose of the meeting. Defendant and his acquaintance were arrested and eleven ounces of cocaine were seized from the car. The only evidence as to the amount of cocaine possessed by defendant is to the effect that defendant possessed cocaine in excess of 28 grams. There is not a scintilla of evidence from which the jury could conclude that defendant possessed cocaine in an amount less than 28 grams. Hence, the court properly refused to instruct the jury with reference to G.S. 90-95(d)(2).

Defendant next submits that the court should have granted his motion to dismiss. This assignment of error challenges the sufficiency of the evidence for the State, which viewed in a light most favorable to the State shows that defendant arranged to purchase between eight and twelve ounces of cocaine. He was in the process of doing exactly that when he was arrested. The evidence is clearly sufficient to support a guilty verdict. This assignment of error is without merit.

Defendant next contends that the trial court erred in allowing the prosecuting witness to interpret conversations he had with the defendant. Defendant asserts such testimony was inadmissible in that it invaded the jury’s province as fact-finder. We disagree.

The testimony elicited from the witness merely explained that a code was used by the witness and the defendant in discussing cocaine over the telephone. The trial judge allowed the witness to relate what the conversations meant to him. Without such testimony the jury would not have understood the significance of the conversations. When the jury is not as well qualified [168]*168as the witness to draw inferences and conclusions from the facts, opinion testimony is admissible. E.g., State v. Watson, 287 N.C. 147, 214 S.E. 2d 85 (1975); see also 1 Stansbury’s North Carolina Evidence § 124 (Brandis Rev. 1973). This assignment of error is overruled.

We have carefully examined defendant’s other contentions and find no basis for reversal. The defendant has received a fair and impartial trial, free from prejudicial error.

No error.

Chief Judge VAUGHN concurs. Judge Becton dissents.

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311 S.E.2d 23, 66 N.C. App. 165, 1984 N.C. App. LEXIS 2815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-siler-ncctapp-1984.

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