#### STATE OF NORTH CAROLINA v. ALAN W. REESE

No. 7623SC941

(Filed 20 April 1977)

Narcotics § 4.5— felonious possession of drug — failure to instruct on quantity possessed — error

In a prosecution for felonious possession of ethchlorvynol, the trial court committed prejudicial error in failing to instruct the jury that defendant must have possessed more than 100 ethchlorvynol tablets in order to be guilty of felonious possession of the drug.

*90Appeal by defendant from Seay, Judge. Judgment entered 4 August 1976 in Superior Court, Wilkes County. Heard in the Court of Appeals 14 April 1977.

Attorney General Edmisten, by Associate Attorney Jack Cozort, for the State.

Gregory & Joyce, by Dennis R. Joyce, for defendant appellant.

ARNOLD, Judge.

Defendant was found guilty by a jury of felonious possession of ethchlorvynol, a violation of G.S. 90-95 (d) (2). We agree with defendant’s contention that the trial judge failed to charge the jury on one of the essential elements of the crime charged. Specifically, the jury was not instructed that defendant must have possessed more than 100 ethchlorvynol tablets in order to be guilty of felonious possession of the. drug.

Under the terms of G.S. 90-95 (d) (2) “ ... if the quantity of the controlled substance . . . exceeds 100 tablets, capsules or other dosage units, . . . the violation shall be a felony . . . . ” Possession of 100 dosage units or less is a misdemeanor. Possession of more than 100 dosage units is an essential element of felonious possession of ethchlorvynol. The failure of the court to so charge was prejudicial error, since the essential elements of the crime must be explained to the jury. G.S. 1-180; see also, State v. Wingo, 30 N.C. App. 123, 226 S.E. 2d 221 (1976).

We cannot agree with the State’s position that since there was no evidence to indicate defendant possessed less than 100 tablets it is manifest that the quantity exceeded 100 tablets. Defendant did not admit that he possessed more than 100 tablets, and thus it was for the jury to decide the quantity of tablets defendant possessed.

New trial.

Judges Morris and Hedrick concur.