Criminal Practice — Jury Instructions – Cocaine Possession – Intent – Manufacture, Sell or Deliver – ‘Fair’ Doubt – Attorneys – Ineffective Assistance Claim

State v. Turner (Lawyers Weekly No. 14-07-1082, 16 pp.) (Wanda Bryant, J.) Appealed from Catawba County Superior Court (Nathaniel Poovey, J.) N.C. App.

Holding: Defendant was indicted for possession with intent to sell or deliver cocaine, but the trial court instructed the jury on possession with intent to manufacture, sell, or deliver cocaine. Since the state was required to prove possession and intent, and since defendant received a mitigated sentence for possession with intent to sell or deliver cocaine, the trial court’s use of the word “manufacture” in the jury instructions was harmless error.

We find no prejudicial error in defendant’s convictions of possession with intent to sell or deliver cocaine.

Even though, in preliminary instructions to potential jurors, the trial court went slightly off-script in describing reasonable doubt as “fair” doubt, the trial court otherwise followed the pattern instruction, and the jury charge as a whole was correct.

Defendant has not shown that he received ineffective assistance of counsel when his trial counsel failed to object to the trial court’s jury instruction on possession of cocaine with intent to manufacture, sell or deliver. Even if counsel was deficient in failing to object, defendant was not prejudiced thereby. Where defendant’s car was stopped by officers acting on a tip and, in addition to a bag with 5 or 6 rocks of crack cocaine and cash found on the driver’s seat and defendant’s voluntary admission that “it’s all mine,” over 200 rocks of crack cocaine were found in a baggie in defendant’s glove box, there was no reasonable probability that a different result would have been reached by the jury.

No error.