State v. Smith

219 S.E.2d 516 (1975)

27 N.C. App. 568

STATE of North Carolina v. James Willis SMITH.

No. 7514SC618.

Court of Appeals of North Carolina.

November 19, 1975.

*517 Atty. Gen. Rufus L. Edmisten by Associate Atty. Joan R. Byers, Raleigh, for the State.

Clayton, Myrick, McCain & Oettinger by Jerry B. Clayton, Robert W. Myrick, Kenneth B. Oettinger, Durham, for defendant-appellant.

PARKER, Judge.

Thirty-four assignments of error are listed in the record on appeal. Only two questions are presented and discussed in appellant's brief. The questions raised by assignments of error which are not presented and discussed in appellant's brief are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals. (For cases in which notice of appeal is given on and after 1 July 1975, see Rule 28 of the North Carolina Rules of Appellate Procedure.)

The first question presented and discussed in appellant's brief relates to denial of his motion for mistrial. Following a lengthy cross-examination of the State's witness, the S.B.I. chemist Lytle, by counsel for defendant, the district attorney asked on redirect examination:

Defendant's counsel objected, whereupon the district attorney withdrew the question. Defendant's counsel then moved for a mistrial, contending that by asking the question, the district attorney was insinuating that defendant's counsel, in his cross-examination and in his representation of defendant, was "grasping at straws" and was attempting to focus the jury's attention on irrelevant and unimportant facts. The court denied the motion, and in this we find no error. Assuming the purport of the question was as appellant contends, the mere asking of the question was clearly insufficient grounds for a mistrial. Although more appropriately to be included in his argument to the jury, the contention that the defense was grasping at straws was not an improper one for the district attorney to make. "Moreover, the allowance or refusal of a motion for a mistrial in a criminal case less than capital rests largely in the discretion of the trial court." State v. Foster, 284 N.C. 259, 275, 200 S.E.2d 782, 794 (1973). Clearly no abuse of discretion has been here shown.

The second question presented and discussed in appellant's brief relates to the denial of his motion in arrest of judgment in Case No. 74CR4546 in which he was charged with unlawful possession of heroin. Appellant's contention in this connection has merit. One may not possess a substance with intent to sell or deliver it without *518 having possession of it. Thus, possession is an element of possession with intent to sell or deliver. A defendant's unlawful possession of heroin is, of necessity, an offense included within the charge that he did unlawfully possess with intent to sell or deliver, where, as here, both are in fact one transaction. State v. Aiken, 286 N.C. 202, 209 S.E.2d 763 (1974).

The result is:

In Case No. 74CR4545, in which defendant was found guilty of felonious possession of heroin with intent to sell, we find

No error.

In Case No. 74CR4546, in which defendant was charged with felonious possession of heroin.

Judgment arrested.

MORRIS and MARTIN, JJ., concur.