State v. MooreState v. Moore
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- Before:
- Mitchell
Lead Opinion
This case calls upon us to determine whether a defendant may be convicted under
The evidence at trial tended to show that on 16 October 1987 the defendant, Lee Hamilton Moore, sold and delivered five grams of mushrooms containing the hallucinogenic psilocyn to an undercover officer of the Pitt County Sheriff’s Department. Psilocyn is a Schedule I controlled substance under the North Carolina Controlled Substances Act.
On the defendant’s appeal, a unanimous Court of Appeals affirmed the convictions against the defendant, but remanded the case for resentencing, concluding that:
In summary, a prosecutor may of course go to trial against a single defendant on charges for the sale of a controlled substance and the delivery of the same substance. These two • crimes are separate and distinct offenses. However, in light of the legislative intent of the statute, we hold that the defendant may be punished for only one of those offenses where they involve thе same transaction.
For purposes of sentencing in this case, the convictions against the defendant for delivery of psilocyn on each bill of indictment are merged into the charges of selling the drug. A new sentencing hearing is ordered.
State v. Moore, 95 N.C. App. 718, 722, 384 S.E.2d 67, 69 (1989). We allowed the State’s Petition for Discretionary Review.
I.
The State argues that under
By criminalizing the sale or delivery of a controlled substance, the Legislature sought to prevent all attempts to place drugs into commerce by any act of transfer. To expedite this purpose the more inclusive word “delivery” was used in the statute. The only difference in the terms “sell” and “delivery” is that money changes hands in a sale; otherwise; the terms in this context are the same.
It is an overreading of the statute to conclude that the Legislature intended to punish a defendant twice for one drug transaction. The purpose of the statute is to рrevent drug transfers, a double punishment for a single transaction violates this legislative intent and accomplishes nothing short of placing the defendant in double jeopardy.
State v. Moore, 95 N.C. App. 718, 721-22, 384 S.E.2d 67, 69 (1990) (citations omitted). This analysis of legislative intent and the result reached by the Court of Appeals in this case are admittedly reasonable in light of statements this Court has made in prior cases. However, as we explain below, we do not entirely agree with either the reasoning utilized or the result reached by the Court of Appeals in this case.
Having examined the statute, we now conclude that the language of
“A sale is a transfer of property for a specified price payable in money.” State v. Creason, 313 N.C. at 129, 326 S.E.2d at 28 (emphasis in original) (citing State v. Albarty, 238 N.C. 130, 76 S.E.2d 381 (1953) (citing cases)). “Delivery” is “the actual constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.”
We recognize that “sell” and “deliver” are not synonymous terms. We have previously said that, under
Our conclusion regarding the proper interpretation of
II.
The jury in this case was improperly allowed under each indictment to convict the defendant of two offenses — sale and delivery— arising from a single transfer. Because the three convictions on eаch indictment were consolidated into one judgment per indictment, and because of the lengths of the prison terms imposed, we are unable to determine what weight, if any, the trial court gave each of the separate convictions for sale and for delivery in
For the foregoing reasons, the decision of the Court of Appеals in this case is affirmed in part and modified in part. This case is remanded to the Court of Appeals for its further remand to the Superior Court, Pitt County, for amendment of the judgments against the defendant and resentencing consistent with this opinion.
Affirmed in part; modified in part; remanded with instructions.
Dissenting Opinion
dissenting.
The majority opinion, relying on an analysis from State v. Creason, 313 N.C. 122, 326 S.E.2d 24 (1985), holds that a defendant may not be convicted under
Creason is cited by the majority to support the collapse of what has historically been two separate offenses, sale or delivery, into one offense, the “transfer of a controlled substance by sale or delivery.” Creason involved an exploration of the legislative intent of
This Court in Creason held that the legislative intent in making possession with the intent to “sell or deliver” a crime was to prevent the transfer of a controlled substance from one person to another. Id. The Court went on to state that “[w]hile the sale of narcotics and the delivery of narcotics are separate offenses, State v. Dietz, 289 N.C. 488, 223 S.E.2d 357 (1976), the possession of narсotics with the intent to ‘sell or deliver’ is one offense.” Creason, 313 N.C. at 129, 326 S.E.2d at 28 (emphasis added). The Creason reasoning is inapposite to the case at bar.
In the present case, defendant was convicted of selling the controlled substance and of delivering the controllеd substance. Neither offense is an intent crime, that is, intent is not an element of either offense. The majority fell into error in attempting to apply the reasoning of Creason to this appeal. To the contrary, Creason held that the sale of narcotics and the delivery of narcotics are two separate offenses, citing State v. Dietz, 289 N.C. 488, 223 S.E.2d 357.
A sale is a transfer of propеrty for a specified price payable in money. State v. Albarty, 238 N.C. 130, 76 S.E.2d 381 (1953). In the context of controlled substance statutes, “deliver” means the actual, constructive, or attempted transfer from one person to another of a controlled substance.
The decision of the Court of Appeals in this case was entirеly correct in holding that the sale of a controlled substance is a separate act from the delivery of a controlled substance and therefore a separate crime. See State v. Dietz, 289 N.C. at 498, 223 S.E.2d at 364; see also State v. McLamb, 313 N.C. 572, 330 S.E.2d 476
The distinct acts (manufacture, sell, deliver, possess) denounced by statute have consistently been held to constitute sеparate and distinct offenses. State v. Perry, 316 N.C. 87, 103, 340 S.E.2d 450, 460 (1986); State v. Aiken, 286 N.C. 202, 206, 209 S.E.2d 763, 766 (1974) (“One may sell an article or substance which he does not possess”).
The majority, sub silentio, by its decision overrules at least three of the decisions of this Court and three of the Court of Appeals.
In State v. Perry, 316 N.C. 87, 340 S.E.2d 450, this Court quoted with approval from State v. Anderson, 57 N.C. App. 602, 606, 292 S.E.2d 163, 166, disc. rev. denied, 306 N.C. 559, 294 S.E.2d 322 (1982), the following: “ ‘The distinct acts denounced by the statute (manufacture, sell, deliver, possess) have been held to constitute separate and distinct offenses. [Citing authorities.]’ ” Perry, 316 N.C. at 103, 340 S.E.2d at 460.
In Creason, we reiterated that the sale of narcotics and the delivery of narcotics are separate offenses.
Again, in State v. McLamb, 313 N.C. 572, 330 S.E.2d 476, this Court held that a verdict finding that defendant “feloniously did sell or deliver” cocaine was fatally defective and ambiguous beсause sale and delivery are distinct and separate offenses.
This Court held in State v. Dietz, 289 N.C. 488, 223 S.E.2d 357, that charging a defendant with “sale and delivery” of marijuana is one criminal act not defective because the two offenses could have been charged as separate offenses. There was no prejudice to defendant.
See also State v. Aiken, 286 N.C. 202, 209 S.E.2d 763 (where the Court held that possession of controlled substance and sale of a controlled substance were separate offenses and that a defendant could be convicted of both and sentenced to prison for each); State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973) (where the Court held that sale and possession of narcotics are separate and distinct offenses).
See also State v. Pulliam, 78 N.C. App. 129, 336 S.E.2d 649 (1985); State v. Clark, 71 N.C. App. 55, 322 S.E.2d 176 (1984).
To the same effect, in Albrecht v. United States, 273 U.S. 1, 11, 71 L. Ed. 505, 511 (1927), Brandéis, J., writing for the Court, said: “But possessing and selling are distinct offenses .... There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction . . . .”
The Court of Appeals also held, unfortunately, that “while it is appropriate to separate these offenses [sale and delivery] for the purpose of charging a defendant, we do not believe the Legislature intended to punish a defendant twice for one transfer of the same contraband.” State v. Moore, 95 N.C. App. 718, 721, 384 S.E.2d 67, 68-69 (1989). I disagree. The General Assembly has proscribed not just the transfer of controlled substances, but has specifically proscribed both their sale and their delivery. The intent of the General Assembly was to charge and punish separately both for the acceptance of money for the sale of a controlled substance and for the delivery of the substance, even where both occur in the same transaction. The trial court did not err in punishing the defendant for both.
Justice MARTIN joins in this dissenting opinion.
Concurrence Opinion
concurring in part and dissenting in part.
I believe that the Court of Appeals reached the right result in this case and that both the majority and dissenting opinions in this Court are incorrect in part.
In State v. Perry, 305 N.C. 225, 236-37, 287 S.E.2d 810, 817 (1982), this Court said that
the crimes of larceny, receiving, and possession of stolen property are separate and distinct offensеs, but having concluded that the Legislature did not intend to punish an individual for receiving or possession of the same goods that he stole,we hold that, though a defendant may be indicted and tried on charges of larceny, receiving, and possession of the same property, he may be convicted of only one оf those offenses.
When the legislature made it unlawful to “manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance,”
I vote to affirm the unanimous decision of the Court of Appeals to the effect that the delivery convictions in this case, for sentencing purposes, are merged into the sales charges and defendant is entitled to a new sentencing hearing on the convictions of selling a controlled substance.