State v. BrightState v. Bright
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Defendant argues one assignment of error that may be broken down into two separate contentions, both asserting defects in the trial court’s jury charge: First, that the court submitted to the jury instructions on a misdemeanor crime that does not exist and second, that, if there does exist such a crime, the trial court’s instructions to the jury erroneously omitted the essential element of the defendant’s mens rea to commit the crime.
Defendant failed to object to the jury instructions at trial; therеfore, we may review the jury instructions only if the error is deemed exceрted to as a matter of law or the error constitutes “plain error.” Rule 10(b)(2) of the Rules of Appellate Procedure;
Where no action wаs taken by counsel during the course of the proceedings, the burden is on the party alleging error to establish its right to review; that is, that an exceptiоn, “by rule or law was deemed preserved or taken without any such actiоn,” or that the alleged error constitutes plain error.
In so doing, a pаrty must, prior to arguing the alleged error in his brief, (a) alert the appellate court that no action was taken at trial level, and (b) establish his right to rеview by asserting in what manner the exception is preserved by rule or law оr, when applicable, how the error amounted to a plain errоr or defect affecting a substantial right which may be noticed although not brought to the attention of the trial court.
State v. Oliver, 309 N.C. 326, 307 S.E. 2d 304 (1983). The defendant has not taken thesе threshold steps to obtain review; therefore, we may not consider the alleged defects in the jury instructions.
There still remains the question of whether a misdemeanor crime of “maintaining a motor [vehicle] to which persons resorted to for the keeping or sale of marijuana” exists. A defendаnt cannot be convicted of a crime which does not exist. State v. Church, 73 N.C. App. 645, 327 S.E. 2d 33 (1985).
The relevant statutory provisions are as follows:
(a) It shall be unlawful for any person:
(7) To knowingly keep or maintain any . . . vehicle . . . which is resorted to by persons using controlled substances in violation of this Article for the purpose of using such substances, or which is used for the keeping or selling of the same ....
(b) Any person who viоlates this section shall be guilty of a misdemeanor. Provided, that if the criminal pleading alleges that the violation was committed intentionally, and upon trial it is specifically found that the violation was committed intentionally, such violation shall be a Class I felony.
(1) Maintaining a vehicle with knowledge that it is resorted tо by persons for the use, keeping or selling of controlled substances shаll be a misdemeanor,
(2) Maintaining a vehicle with the intent that it be so used shall be a Class I felony.
Defendant contends that “knowingly” is equivalent to “intentionally” and therefore only one crime, the felony, exists. For this proposition hе cites State v. Church, supra. In Church, the subsection of this statute challenged was G.S. 90-108(a)(10), which makes it a сrime “[t]o acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.” The legal definitions of these statutory terms all require that the conduct be done intentionally, mandating that this crime could only be a felony, not a misdemeanor. Id.
The statute applicable in the case at bar is distinguishable. The rеquired conduct need not be done intentionally, only know ingly, in order for the misdemeanor crime to be charged. A person knows of an activity if he is аware of a high probability of its existence. See Black’s Law Dictionary (5th ed. 1979). A person acts intentionally if he desires to cause the consequences of his act or that he believes the consequences are substantially certain to result. Id. Intent is more difficult to prove and, as shown by the statute, is the standard of greater culpability.
No error.
Judges Arnold and Martin concur.