37 N.C. App. 216 | N.C. Ct. App. | 1978
The defendant first contends that the trial court erred in its denial of his several motions for judgment as of nonsuit as to the three charges of possession with intent to deliver controlled substances. Specifically, the defendant, citing State v. Thornton, 17 N.C. App. 225, 193 S.E. 2d 373 (1972), argues that since the sale and delivery of the controlled substances necessarily included the possession of the same, he could be convicted only of the former offense with respect to each drug.
The defendant, as well as the State, overlooks the fact that the rule which he extracts from State v. Thornton, supra, was overturned by our Supreme Court in its decision in the same case. State v. Thornton, 283 N.C. 513, 196 S.E. 2d 701 (1973). In that case, as in a line of cases which followed, the Supreme Court re-affirmed the principle set forth in State v. Cameron, 283 N.C. 191, 195 S.E. 2d 481 (1973), that possession and sale are separate and distinct offenses. See also State v. Aiken, 286 N.C. 202, 209 S.E. 2d 763 (1974); State v. Lewis, 32 N.C. App. 298, 231 S.E. 2d 693 (1977). We hold that the evidence viewed in the light favorable to the State was sufficient to submit each case to the jury and to support the verdicts.
The defendant also contends that the trial court erred in excluding the testimony of the defendant as to a conversation between himself and one of the undercover agents. In the pertinent testimony, which was offered to bolster the defendant’s defense
Prior to offering the foregoing testimony the defendant was allowed to testify that Kelley had called him often and had come to his residence “about three or four times a week” and had “talked to me about getting some speed for truck driving and I didn’t want to do it at first because ... I was afraid of getting caught.” After the subject testimony was excluded the defendant was allowed to testify as follows:
I had never dealt in drugs before I met Agent Kelley. On December 22, Agent Kelley had set up a deal. He came to my house and Agent Prillaman was with him. Agent Kelley introduced Agent Prillaman as a friend and said he was not going to be in town and that he was leaving and that Agent Prillaman would be handling his connection and that I should treat him as I treated him, meaning Agent Kelley. . . . They painted a pretty picture about the money that I would make and they said at no risk to me, that I would be the middle man and no one would know my name.
The foregoing demonstrates that the defendant was allowed to testify to the nature of his relationship with Agent Kelley and Agent Kelley’s overtures to the defendant to. persuade him to sell drugs. Thus, the substance of that testimony excluded by the trial court was admitted at other times. In view of the law of entrapment, see State v. Stanley, 288 N.C. 19, 215 S.E. 2d 589 (1975), we think the defendant has failed to show any prejudicial error in the trial judge’s ruling. This assignment is overruled.
Finally, the defendant contends that the trial court erred in its charge to the jury in failing to define “reasonable doubt.” The trial court is not required to define reasonable doubt in the absence of a specific request by the defendant to do so. State v. Edwards, 286 N.C. 140, 209 S.E. 2d 789 (1974). The record reveals and the defendant admits that no such request was tendered. Therefore, this assignment is without merit.
No error.
