State v. Shaw

28 N.C. App. 207 | N.C. Ct. App. | 1975

MORRIS, Judge.

Defendant first contends that the trial court erred in its instruction to the jury that their verdict in one case in no way depended on their verdict in any other case. We disagree. In several recent decisions our Supreme Court has held that possession of controlled substances with the intent to distribute and the actual distribution of the controlled substances constitute separate and distinct offenses. State v. Aiken, 286 N.C. 202, 209 S.E. 2d 763 (1974) ; State v. Cameron, 283 N.C. 191, 195 S.E. 2d 481 (1973) ; also see State v. Rush, 19 N.C. App. 109, 197 S.E. 2d 891 (1973).

As Justice Lake noted in State v. Aiken, supra, at 206:

“. . . neither the offense of unauthorized possession nor the offense of unauthorized sale of a controlled substance is included within the other offense and one placed in jeopardy as to the one offense is not thereby placed in jeopardy as to the other. Thus, one charged' with- both offenses may be convicted of both and sentenced to imprisonment for each.”

Thus, the court’s instruction properly reflects the present state of the law in North Carolina.

Defendant’s brief also notes an alleged inconsistency between the aforesaid charge and a later aspect of the same charge. Notwithstanding defendant’s failure to take proper exception, on the merits we cannot perceive any prejudice to defendant in this charge and find no inconsistency.

Defendant next contends that the trial court erred in charging the jury as to the elements of constructive possession. We find no merit in these contentions. A reading of the instructions contextually reveals that the court carefully distinguished the various elements of the charges against defendant, adequately defined the various elements and specifically covered the aspects of constructive possession.

Finally, defendant contends that the court erred in overruling his motion for nonsuit. Again, we disagree. The evidence was plenary to submit the question of defendant’s guilt or innocence to the jury and to support their verdicts.

No error.

Judges Hedrick and Arnold concur.