State v. Land, 733 S.E.2d 588

Undercover officer purchased marijuana via defendant after paying $20; 2.03 grams were seized.
Indictments: originally charged with possession with intent to sell/deliver marijuana and delivering cocaine; superseding indictment charged delivering marijuana; habitual felon allegation added.
Jury convicted Land of possession with intent to sell/deliver marijuana and delivering marijuana; found him not guilty of selling marijuana; sentenced to consecutive terms of 101–131 months.
Defendant argued the delivery indictment failed to allege remuneration for <5 grams of marijuana; majority held indictment facially valid under N.C. Gen. Stat. § 90-95(b)(2) and Pevia.
On appeal, the State defended the conviction; Land challenged evidentiary and instructional aspects; the court rejected these challenges and affirmed, with a dissent arguing the indictment was defective.
Judgment affirmed; there is a concurrence and a dissent detailing disagreement on the indictment sufficiency and remuneration element.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Indictment sufficiency for delivery	Land argues remuneration not alleged for <5g.	Land asserts remuneration element is essential and must be in the indictment.	Indictment facially valid; remuneration evidentiary, not required in indictment.
Evidence of remuneration and marijuana identity	There was substantial evidence of remuneration and that substance was marijuana.	Evidence insufficient for remuneration; substance not proven as marijuana.	Evidence sufficient to prove delivery and that substance was marijuana.
Jury instructions on remuneration and lesser offense	Court should have instructed remuneration and possible lesser offense.	Trial court erred by not giving remuneration-related instruction and lesser offense instruction.	No plain error; instructions not required to alter verdict.
Plain error for failure to instruct on simple possession	Failure to give simple possession instruction was plain error.	Plain error should have been found; ineffective assistance if counsel failed to request.	No plain error; no prejudice shown; ineffective assistance claim rejected.

State v. Partridge, 157 N.C. App. 568 (2003) (indictment must charge offense elements; weight may be evidentiary)
State v. Pevia, 56 N.C. App. 384 (1982) (delivery of marijuana under 90-95(b)(2) can be proven by weight or remuneration)
State v. Blackmon, 130 N.C. App. 692 (1998) (indictment in language of statute generally sufficient)
State v. Williams, 201 N.C. App. 161 (2009) (indictment need not include evidentiary matters)
State v. Coker, 312 N.C. 432 (1984) (proof of substance type is evidentiary; indictment need not specify)
State v. Rose, 339 N.C. 172 (1994) (Rose: Rose instruction on evidence in motion to dismiss)
State v. Shaw, 322 N.C. 797 (1988) (instruction on substantial features of case)
State v. Bogle, 324 N.C. 190 (1989) (plain error standards in jury charges)
State v. Lawrence, 365 N.C. 506 (2012) (plain error review requires probable impact on verdict)
State v. Pratt, 161 N.C. App. 161 (2003) (ineffective assistance and plain error link)
State v. Ryder, 196 N.C. App. 56 (2009) (lesser included offense submission requires evidentiary basis)