State v. Reese

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234 S.E.2d 41 (1977)

33 N.C. App. 89

STATE of North Carolina v. Alan W. REESE.

No. 7623SC941.

Court of Appeals of North Carolina.

April 20, 1977.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Jack Cozort, Raleigh, for the State.

*42 Gregory & Joyce by Dennis R. Joyce, Wilkesboro, for defendant-appellant.

ARNOLD, Judge.

Defendant was found guilty by a jury of felonious possession of ethchlorvynol, a violation of G.S. 90-95(d)(2). We agree with defendant's contention that the trial judge failed to charge the jury on one of the essential elements of the crime charged. Specifically, the jury was not instructed that defendant must have possessed more than 100 ethchlorvynol tablets in order to be guilty of felonious possession of the drug.

Under the terms of G.S. 90-95(d)(2) ". . . if the quantity of the controlled substance . . . exceeds 100 tablets, capsules or other dosage units,. . . the violation shall be a felony . . .." Possession of 100 dosage units or less is a misdemeanor. Possession of more than 100 dosage units is an essential element of felonious possession of ethchlorvynol. The failure of the court to so charge was prejudicial error, since the essential elements of the crime must be explained to the jury. G.S. 1-180; see also, State v. Wingo, 30 N.C. App. 123, 226 S.E.2d 221 (1976).

We cannot agree with the State's position that since there was no evidence to indicate defendant possessed less than 100 tablets it is manifest that the quantity exceeded 100 tablets. Defendant did not admit that he possessed more than 100 tablets, and thus it was for the jury to decide the quantity of tablets defendant possessed.

New Trial.

MORRIS and HEDRICK, JJ., concur.