State v. Stanley

Court of Appeals of North Carolina

State v. Stanley

210 S.E.2d 496, 24 N.C. App. 323, 1974 N.C. App. LEXIS 1995

CourtCourt of Appeals of North Carolina

DecidedDecember 18, 1974

DocketNo. 745SC875

StatusPublished

Cited by1 cases

This text of 210 S.E.2d 496 (State v. Stanley) 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.

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State v. Stanley, 210 S.E.2d 496, 24 N.C. App. 323, 1974 N.C. App. LEXIS 1995 (N.C. Ct. App. 1974).

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Opinion

VAUGHN, Judge.

The trial court instructed the jury that they could find defendant guilty or not guilty of possession of a controlled substance, and guilty or not guilty of distribution of a controlled substance. Defendant contends that the court erred in instructing the jury on the offense of possession of a controlled substance when the bill of indictment charged him with possession of a controlled substance with the intent to distribute, arguing that possession of LSD is a separate and distinct crime from possession of LSD with intent to distribute. In State v. Aiken, 286 N.C. 202, _S.E. 2d _ (1974), defendant was charged with possession of heroin, a controlled substance, with the' intent to deliver, and the Supreme Court, affirming this Court, held that it was not error to instruct the jury that defendant could [325]*325be found guilty of possession with intent to distribute, or guilty of simple possession, or not guilty. In Aiken, supra, the Court said-:

. . [o]ne may not possess a substance with intent to deliver it (the offense charged in the present indictment) without having possession thereof. Thus, possession is an element of possession with intent to deliver and the unauthorized possession is, of necessity, an offense included within the charge that the defendant did unlawfully possess with intent to deliver. Consequently, there was no error in instructing the jury that, under the indictment in the present case, it might find the defendant guilty of the unauthorized possession of a controlled substance.”

In State v. Reindell (N. C. Court of Appeals, opinion filed 4 December 1974), defendant was charged with possession of a controlled substance with intent to distribute, to wit: 299 tablets of LSD, and this Court, citing Aiken as authority, held that it was not error to instruct the jury that defendant could be found guilty “of possession of LSD with intent to distribute, guilty of possession of LSD but without the intent to distribute, or not guilty.”

The crime of possession of a controlled substance is a lesser included offense of the crime of possession of a controlled substance with intent to distribute.

We have carefully considered defendant’s other assignment of error, find it to be without merit and hold that defendant’s trial was free from prejudicial error.

No error.

Judges Britt and Arnold concur.

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VAUGHN, Judge.

The trial court instructed the jury that they could find defendant guilty or not guilty of possession of a controlled substance, and guilty or not guilty of distribution of a controlled substance. Defendant contends that the court erred in instructing the jury on the offense of possession of a controlled substance when the bill of indictment charged him with possession of a controlled substance with the intent to distribute, arguing that possession of LSD is a separate and distinct crime from possession of LSD with intent to distribute. In State v. Aiken, 286 N.C. 202, _S.E. 2d _ (1974), defendant was charged with possession of heroin, a controlled substance, with the' intent to deliver, and the Supreme Court, affirming this Court, held that it was not error to instruct the jury that defendant could [325]*325be found guilty of possession with intent to distribute, or guilty of simple possession, or not guilty. In Aiken, supra, the Court said-:

. . [o]ne may not possess a substance with intent to deliver it (the offense charged in the present indictment) without having possession thereof. Thus, possession is an element of possession with intent to deliver and the unauthorized possession is, of necessity, an offense included within the charge that the defendant did unlawfully possess with intent to deliver. Consequently, there was no error in instructing the jury that, under the indictment in the present case, it might find the defendant guilty of the unauthorized possession of a controlled substance.”

In State v. Reindell (N. C. Court of Appeals, opinion filed 4 December 1974), defendant was charged with possession of a controlled substance with intent to distribute, to wit: 299 tablets of LSD, and this Court, citing Aiken as authority, held that it was not error to instruct the jury that defendant could be found guilty “of possession of LSD with intent to distribute, guilty of possession of LSD but without the intent to distribute, or not guilty.”

The crime of possession of a controlled substance is a lesser included offense of the crime of possession of a controlled substance with intent to distribute.

We have carefully considered defendant’s other assignment of error, find it to be without merit and hold that defendant’s trial was free from prejudicial error.

No error.

Judges Britt and Arnold concur.

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210 S.E.2d 496, 24 N.C. App. 323, 1974 N.C. App. LEXIS 1995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stanley-ncctapp-1974.

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