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North Carolina v. Gray

Filed: April 6, 1982.

STATE OF NORTH CAROLINA
v.
JANEY KAREN GRAY



Appeal by defendant from Long, Judge. Judgments entered 10 April 1981, in Superior Court, Wilkes County. Heard in the Court of Appeals 10 February 1982.

Arnold, Judge. Judges Clark and Whichard concur.

Arnold

By her first assignment of error, defendant contends that the trial court erred in allowing Agent Black to testify as to conversations and acts he had with co-conspirator Thomas Quinn. The basis of defendant's contention is that the acts and conversations amounted to inadmissible hearsay. Defendant's assignment of error encompasses six exceptions, two of which involve Black's restatement of what he said during the drug transaction and do not, therefore, fall within the definition of hearsay. Another one of Black's statements to which defendant took exception was his description of what occurred, not what was said, during the drug sale, and we do not find defendant's hearsay argument applicable. Additionally, Agent Black was allowed, on two occasions to which defendant took exception, to testify about what the defendant said to him. The admission of this testimony did not constitute error. "Any statement made by an accused which is relevant to the issue and not subject to some specific exclusionary rule may be received in evidence against him. This is so even when the statements may have been made at a time when they were not against his interest." State v. Cobb, 295 N.C. 1, 14, 243 S.E.2d 759, 766-67 (1978).

Under this assignment of error, defendant brings forward one final exception which she took to the trial court's admission of Black's testimony about how he learned that he would receive seven pills for his $18. Black's testimony that Quinn informed him of the specifics of the deal, however, was not offered to prove the

truth of the matter asserted by Quinn and was, therefore, not objectionable as hearsay. 1 Stansbury's North Carolina Evidence ยง 141 (Brandis Rev. 1973). Defendant's first assignment of error is overruled.

In a later, related assignment of error, defendant contends that the trial court erred in allowing hearsay as to what Black paid defendant. Again we rule that the evidence that Quinn informed Black of the terms of the drug deal did not constitute objectionable hearsay because it was not offered to prove the truth of the matter asserted by Quinn. Id. We have also determined at this point that, because we have overruled defendant's assignments of error with respect to this evidence, her fourth assignment of error in which she challenges the trial court's summary of the same evidence has no merit.

Defendant next assigns as error the admission into evidence of other undercover operations conducted by Agent Black during and immediately after the drug transaction with the defendant. Defendant's argument is that such testimony was irrelevant, that it added unfairly to the jury's perception of Black's expertise, and that it allowed the jury to speculate too freely on possible links between the defendant and the other investigations. Assuming arguendo that the testimony was irrelevant, this Court can find no resulting prejudice to the defendant. On cross-examination, defense counsel was free to attack Black's expertise and to destroy any implications that the defendant was involved, or was a suspect, in any of Black's other investigations.

By her fifth assignment of error, defendant argues that the trial court erred in charging the jury that possession of methaqualone is a lesser included offense of possession with intent to sell or deliver methaqualone. Defendant's argument has no merit.

Under the general rule in North Carolina, simple possession of contraband is a lesser included offense of possession with intent to sell or deliver the same substance, State v. Aiken, 286 N.C. 202, 209 S.E.2d 763 (1974). The reason for this is that generally the offense of possession does not require proof of an element which is not also required for the offense of possession with intent to sell or deliver. State v. McGill, 296 N.C. 564, 251 S.E.2d 616 (1979). "One crime is not a lesser included offense of another '[i]f each of two criminal offenses, as a matter of law, requires

proof of some fact, proof of which fact is not required for conviction of the other offense." Id. at 568, 251 S.E.2d at 619, quoting State v. Overman, 269 N.C. 453, 465, 153 S.E.2d 44, 54 (1967).

Defendant here relies heavily on the McGill case where the Supreme Court held that possession of more than one ounce of marijuana is not a lesser included offense of possession with intent to sell or deliver marijuana. The Court observed that proof of possession of more than one ounce of marijuana required the State to show possession and an amount of marijuana greater than one ounce. To prove the offense of possession with intent to sell or deliver marijuana, the State must show possession of any amount of marijuana and intent by the accused to sell or deliver it. Hence, the two ...


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