Opinion
No. 743SC548
Filed 4 December 1974
Narcotics 4.5 — possession with intent to distribute — instruction on simple possession — lesser included offense The trial court in a prosecution for possession of L.S.D. with intent to distribute did not err in instructing the jury that it might return a verdict of guilty of simple possession of L.S.D. since possession is an offense included within the charge of possession with intent to distribute.
ON certiorari to review a trial before Wells, Judge, 11 September 1972 Session of Superior Court held in CARTERET County. Heard in the Court of Appeals on 17 September 1974.
Attorney General Carson, by Associate Attorney Robert P. Gruber, for the State.
Wheatly Mason, by L. Patten Mason and Warren J. Davis, for defendant appellant.
The defendant was tried under a bill of indictment charging him with felonious possession of a controlled substance with intent to distribute, to wit: 299 tablets of L.S.D. The State's evidence tended to show that, pursuant to a search of defendant's home, 299 L.S.D. tablets were found on defendant's kitchen table. The officers were aided by an informant who was visiting defendant at the time of the search. Defendant testified denying that the tablets were his and claimed that the informer had brought the tablets into defendant's house seeking to sell them to defendant.
The trial court charged that the jury could find defendant guilty of the crime of possession of L.S.D. with intent to distribute, guilty of possession of L.S.D. but without the intent to distribute, or not guilty. Defendant argues that simple possession of L.S.D. is a separate and distinct crime from possession of L.S.D. with intent to distribute, and, therefore, it was error to charge on simple possession of L.S.D. In State v. Aikens, 22 N.C. App. 310, 206 S.E.2d 348 (1974), aff'd, 286 N.C. 202, 209 S.E.2d 763 (1974), defendant was charged with possession of heroin with the intent to deliver, and this Court held that it was not error for the trial court to instruct the jury that defendant could be found guilty of possession with intent to distribute, or guilty of simple possession, or not guilty. In Aikens, supra, at 312, Judge Morris reasons that "[i]t is impossible to possess a controlled substance with intent to distribute without having first possessed it, either actually upon the person or constructively, with the possible exception of a conspiracy or aiding and abetting." L.S.D., like heroin, is a controlled substance under Schedule I of G.S. 90-89. Defendant's assignment of error on this point is overruled.
We have carefully considered defendant's remaining assignments of error and find them to be without merit.
No error.
Chief Judge BROCK and Judge MORRIS concur.