Opinion
No. COA11-88
Filed 6 September 2011 This case not for publication
Appeal by defendant from judgments entered 22 July 2010 by Judge Beverly T. Beal in Superior County, Gaston County. Heard in the Court of Appeals 18 July 2011.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Christopher H. Wilson, for the State. Leslie C. Rawls, for defendant-appellant.
Gaston County Nos. 09CRS057022-23, 057029, 10CRS002984, 008273.
Travis Kenyel Sanders ("defendant") appeals from judgments dated 22 July 2010, and entered pursuant to jury verdicts finding him guilty of one count each of selling and delivering cocaine, two counts of felony possession of cocaine, and of having attained the status of an habitual felon. The trial court consolidated defendant's convictions into two judgments and sentenced defendant to two consecutive terms of 100 to 129 months imprisonment. For the reasons stated herein, we reverse the judgments entered by the trial court and remand for resentencing.
The State's evidence tended to show that on 5 November 2008, a confidential informant working with the Gaston County Police Department set up a drug buy in which he and Detective C.S. Vaughn would purchase $100.00 worth of cocaine from defendant. Detective Vaughn and the informant drove to the home of defendant's grandmother and asked for defendant. Defendant approached Detective Vaughn's car carrying two bags, which were later determined to contain 0.6 grams of cocaine base. Detective Vaughn and the informant each gave defendant $100.00, and defendant gave each of them one of the bags of cocaine.
Defendant was indicted on two counts of sale of cocaine (one to Detective Vaughn and the other to informant), two counts of delivery of cocaine (one to Detective Vaughn and the other to informant), two counts of possession of cocaine with the intent to sell and/or deliver cocaine, and of having attained the status of an habitual felon. The jury ultimately found defendant not guilty of the charges of sale and delivery of cocaine to the informant, but guilty of the remaining five charges. Defendant gave notice of appeal in open court.
Defendant first argues the trial court erred when it entered judgment on his convictions for both the sale and delivery of cocaine to Detective Vaughn because the evidence established only a single transfer of cocaine. The State concedes that the trial court erred, and we agree.
The North Carolina Supreme Court has held:
By phrasing N.C.G.S. § 90-95(a)(1) to make it unlawful to "manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance" (emphasis added), the legislature, solely for the purpose of this statutory subsection, has made each single transaction involving transfer of a controlled substance one criminal offense, which is committed by either or both of two acts — sale or delivery.
State v. Moore, 327 N.C. 378, 382, 395 S.E.2d 124, 126-27 (1990). The Court further held that while a "defendant may be indicted and tried under N.C. Gen. Stat. § 90-95(a)(1) in such instances for the transfer of a controlled substance, whether it be by selling the substance, or by delivering the substance, or both[,]" the defendant may not "be convicted under N.C. Gen. Stat. § 90-95(a)(1) of both the sale and the delivery of a controlled substance arising from a single transfer." Id. at 382, 395 S.E.2d at 127. Here, both the sale and delivery of the cocaine by defendant to Detective Vaughn arose from a single transfer. Accordingly, the trial court erred in entering judgment on defendant's convictions for both sale and delivery of cocaine, and we must remand this case for resentencing upon a single conviction for sale or delivery of cocaine.
Defendant next argues the trial court erred in denying his motion to dismiss with respect to one of the charges of possession with intent to sell or deliver cocaine, and in entering judgment on both of his convictions for this offense. Defendant contends the evidence presented at trial only established a single act of possession of cocaine. The State concedes that the trial court erred in entering judgment on both of defendant's convictions for possession with intent to sell or deliver cocaine. Again, we agree.
"In order for the State to obtain multiple convictions for possession of a controlled substance, the State must show distinct acts of possession separated in time and space." State v. Moncree, 188 N.C. App. 221, 231, 655 S.E.2d 464, 470 (2008) (citation omitted). Here, the evidence at trial established defendant simultaneously possessed two bags of cocaine, both of which he gave to Detective Vaughn and the confidential informant in exchange for $100.00 each. The State's evidence does not show distinct acts of possession separated in time and space. Accordingly, the trial court erred in entering judgment on both of defendant's convictions for possession of cocaine with intent to sell or deliver, and we must remand this case for resentencing upon one conviction for possession of cocaine with intent to sell or deliver.
REVERSED AND REMANDED.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).