Felony marijuana conviction vacated over jury instruction error

The North Carolina Court of Appeals vacated a felony marijuana possession conviction after concluding the trial court improperly entered judgment on an offense the jury was never instructed to consider.

The defendant appealed from a consolidated judgment finding him guilty of multiple offenses, including felony possession of a Schedule VI controlled substance (marijuana), possession with intent to manufacture, sell, or deliver marijuana, felony possession of cocaine, possession of a stolen firearm, fleeing to elude arrest, hit and run, unsafe movement, and improper turn. On appeal, the defendant challenged only the felony marijuana possession conviction.

The defendant argued the trial court erred by entering judgment for felony possession of marijuana because the jury was instructed solely on simple possession of marijuana, a misdemeanor offense. The appellate court agreed, framing the issue as a sentencing error rather than a challenge to the jury instructions themselves.

Under North Carolina law, felony possession of marijuana requires proof that the defendant possessed more than 1.5 ounces. The court noted that the trial court never instructed the jury that it was required to find any specific quantity of marijuana. The verdict sheets listed only “possession of a Schedule VI controlled substance,” and the jury was told merely that the defendant was charged with possessing marijuana. Nothing in the record indicated the jury was asked to determine the amount possessed.

Although defendants generally must object to jury instructions to preserve such issues for appeal, the court emphasized that the defendant was not challenging the instructions but the judgment entered. By failing to submit the quantity element to the jury, the trial court effectively submitted only the offense of simple possession of marijuana. As a result, the jury’s verdict could be treated only as a conviction for that misdemeanor offense, regardless of any evidence presented at trial suggesting a higher amount.

Because the jury was never instructed on the elements of felony possession, the trial court erred by sentencing the defendant for that offense. The appellate court vacated the felony marijuana possession conviction and remanded the case for resentencing on the misdemeanor offense of simple possession of marijuana. The remaining convictions were not disturbed.

The 7 page opinion is State of North Carolina v. McKoy, Lawyers Weekly No. 011-287-25.