Appeal by defendant from Brewer, Judge. Judgments entered 24 March 1981 in Superior Court, Robeson County. Heard in the Court of Appeals 3 February 1982.
Vaughn, Judge. Chief Judge Morris and Judge Martin (Harry C.) concur.
Defendant brings forward three assignments of error. None of them discloses prejudicial error.
Defendant first argues that the judge erred in failing to dismiss the charge of sale or delivery of marijuana.
G.S. 90-95(a)(1) states that it is unlawful for any person "[t]o manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance." G.S. 90-95(b) provides:
"(b) Except as provided in subsection (h) and (i) of this section, any person who violates G.S. 90-95(a)(1) with respect to:
(2) A controlled substance classified in Schedule . . . VI shall be guilty of a felony and shall be sentenced to a term of imprisonment of not more than five years or fined not more than five thousand dollars ($5,000), or both in the discretion of the court, but the transfer of less than 5 grams of marijuana for no remuneration shall not constitute a delivery in violations of G.S. 90-95(a)(1)."
G.S. 90-95(b)(2) (1977) (amended 1979) (emphasis added). Citing the italicized portions of the statute, defendant contends that the transfer of five or more grams of marijuana and the receipt of remuneration for such transfer are essential elements of delivery of marijuana which the State must prove beyond a reasonable doubt. We disagree.
The offense of delivery under G.S. 90-95(a)(1) is complete when there has been a transfer of a controlled substance. State v. Dietz, 289 N.C. 488, 499, 223 S.E.2d 357, 364 (1976). It is not necessary for the State to prove that defendant received remuneration for the transfer. Neither is the State initially required to prove the quantity transferred.
There is no separate statutory offense entitled delivery of marijuana. G.S. 90-95(b)(2), however, describes a situation limited in its applicability to the delivery of marijuana. If defendant transfers less than five grams of marijuana and receives no remuneration, he is not guilty of a delivery in violation of G.S. 90-95(a)(1).
Obviously that portion of G.S. 90-95(b)(2) will not apply to every charge of delivery of marijuana. Based on the statute's wording, if defendant transfers five or more grams of marijuana, he is guilty of delivery -- despite the absence of remuneration. Likewise, defendant is guilty of delivery if he receives remuneration for the transfer of marijuana -- regardless of the amount transferred. We, therefore, conclude that the State does not have to show both a transfer of five or more grams of marijuana and receipt of remuneration in order to submit to the jury the offense of delivery.
On a motion for judgment of nonsuit, the court must consider evidence in the light most favorable to ...