State v. Mercer

367 S.E.2d 9 (1988)

89 N.C. App. 714

STATE of North Carolina v. Wilber MERCER.

No. 873SC760.

Court of Appeals of North Carolina.

April 19, 1988.

*10 Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Richard G. Sowerby, Jr., Raleigh, for the State.

Asst. Public Defender Arthur M. McGlauflin, Greenville, for defendant, appellant.

HEDRICK, Chief Judge.

In defendant's first argument he contends the trial court erred by submitting to the jury the possible verdict of guilty of possession of cocaine with intent to sell or deliver. The indictment charged that defendant "unlawfully, willfully and feloniously did possess with intent to sell and deliver ..." (emphasis added). Defendant argues this would have been the proper wording of the possible verdict and that the use of the disjunctive "or" allowed the State to meet a lower burden of proof than required under the indictment. We disagree.

It is proper for a jury to return a verdict of possession with intent to sell or *11 deliver under G.S. 90-95(a)(1). State v. McLamb, 313 N.C. 572, 330 S.E.2d 476 (1985); State v. Pulliam, 78 N.C.App. 129, 336 S.E.2d 649 (1985). Such a verdict is no less proper when the indictment charges possession with intent to sell and deliver since the conjunctive "and" is acceptable to specify the exact bases for the charge. State v. Swaney, 277 N.C. 602, 178 S.E.2d 399, appeal dismissed and cert. denied, 402 U.S. 1006, 91 S. Ct. 2199, 29 L. Ed. 2d 428 (1971), overruled on other grounds, State v. Hurst, 320 N.C. 589, 359 S.E.2d 776 (1987). For these reasons, this argument has no merit.

Defendant next contends the trial court erred in admitting State's exhibits two, three and four and exhibiting them to the jury. These exhibits were "records" which showed numbers in addition or multiplication sets, and in some cases, initials and names. Defendant argues the documents were not properly authenticated and no effort was made to show his handwriting was on them.

G.S. 8C-1, Rule 901(a) provides for authentication:

(a) General provisionThe requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Under the identical Rule 901 of the Federal Rules of Evidence, federal courts have held that a prima facie showing, by direct or circumstantial evidence, such that a reasonable juror could find in favor of authenticity, is enough. United States v. Black, 767 F.2d 1334, cert. denied, 474 U.S. 1022, 106 S. Ct. 574, 88 L. Ed. 2d 557 (1985). In this case, defendant was sole occupant of the residence in which the documents were found. This is sufficient for them to be admitted into evidence, and the weight given the evidence is for the jury to decide. Milner Hotels v. Mecklenburg Hotel, 42 N.C.App. 179, 256 S.E.2d 310 (1979). We hold there was no error as to admission of the exhibits.

Finally, defendant argues the trial court erred in denying his motion to dismiss because the evidence was insufficient for a guilty verdict of possession with intent to sell or deliver. We disagree. The documents, cash, and sodium bicarbonate found in defendant's locked closet, coupled with the vials of cocaine, constitute sufficient evidence to take the charge of possession with intent to sell or deliver to the jury. Defendant's contention is without merit.

We hold defendant had a fair trial, free from prejudicial error.

No error.

PHILLIPS and EAGLES, JJ., concur.