{ "id": 2492889, "name": "STATE OF NORTH CAROLINA v. LEE HAMILTON MOORE", "name_abbreviation": "State v. Moore", "decision_date": "1990-08-29", "docket_number": "No. 502PA89", "first_page": "378", "last_page": "387", "citations": [ { "type": "official", "cite": "327 N.C. 378" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "384 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": -1 }, { "cite": "95 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523196 ], "year": 1989, "opinion_index": -1, "case_paths": [ "/nc-app/95/0718-01" ] }, { "cite": "325 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "concerning denial of life insurance proceeds to the plaintiff if the jury found that she killed or procured the killing of the victim" } ], "opinion_index": 0 }, { "cite": "312 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749165 ], "year": 1985, "pin_cites": [ { "parenthetical": "concerning denial of life insurance proceeds to the plaintiff if the jury found that she killed or procured the killing of the victim" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0725-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "addressing the unanimity requirement in the context of indecent liberties" } ], "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "year": 1990, "pin_cites": [ { "parenthetical": "addressing the unanimity requirement in the context of indecent liberties" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "223 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "364", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "289 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570811 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "498", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0488-01" ] }, { "cite": "76 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "parenthetical": "citing cases" } ], "opinion_index": 0 }, { "cite": "238 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600942 ], "year": 1953, "pin_cites": [ { "parenthetical": "citing cases" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0130-01" ] }, { "cite": "322 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "71 N.C. App. 55", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523796 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/71/0055-01" ] }, { "cite": "326 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "28" }, { "page": "28", "parenthetical": "emphasis in original" }, { "parenthetical": "concerning possession of a controlled substance with intent to sell or deliver" } ], "opinion_index": 0 }, { "cite": "313 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725335 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "129" }, { "page": "129" }, { "page": "129" }, { "parenthetical": "concerning possession of a controlled substance with intent to sell or deliver" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0122-01" ] }, { "cite": "384 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "69" }, { "page": "69", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523196 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "722" }, { "page": "721-22", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0718-01" ] }, { "cite": "273 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6136256 ], "weight": 2, "year": 1927, "pin_cites": [ { "page": "11" }, { "page": "511" } ], "opinion_index": 1, "case_paths": [ "/us/273/0001-01" ] }, { "cite": "336 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "78 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519795 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc-app/78/0129-01" ] }, { "cite": "195 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "parenthetical": "where the Court held that sale and possession of narcotics are separate and distinct offenses" } ], "opinion_index": 1 }, { "cite": "283 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558300 ], "year": 1973, "pin_cites": [ { "parenthetical": "where the Court held that sale and possession of narcotics are separate and distinct offenses" } ], "opinion_index": 1, "case_paths": [ "/nc/283/0191-01" ] }, { "cite": "294 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 1 }, { "cite": "306 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572480, 8572462, 8572438, 8572537, 8572508 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/nc/306/0559-03", "/nc/306/0559-02", "/nc/306/0559-01", "/nc/306/0559-05", "/nc/306/0559-04" ] }, { "cite": "292 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "166" } ], "opinion_index": 1 }, { "cite": "57 N.C. App. 602", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525459 ], "year": 1982, "pin_cites": [ { "page": "606" } ], "opinion_index": 1, "case_paths": [ "/nc-app/57/0602-01" ] }, { "cite": "209 S.E.2d 763", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "766", "parenthetical": "\"One may sell an article or substance which he does not possess\"" } ], "opinion_index": 1 }, { "cite": "286 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564176 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "206", "parenthetical": "\"One may sell an article or substance which he does not possess\"" } ], "opinion_index": 1, "case_paths": [ "/nc/286/0202-01" ] }, { "cite": "340 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "460" }, { "page": "460" } ], "opinion_index": 1 }, { "cite": "316 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4701428 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "103" }, { "page": "103" } ], "opinion_index": 1, "case_paths": [ "/nc/316/0087-01" ] }, { "cite": "330 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 1 }, { "cite": "313 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720057 ], "weight": 2, "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/313/0572-01" ] }, { "cite": "87 N.M. 394", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831770 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "395" }, { "page": "487" } ], "opinion_index": 1, "case_paths": [ "/nm/87/0394-01" ] }, { "cite": "223 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1976, "pin_cites": [ { "page": "364" } ], "opinion_index": 1 }, { "cite": "289 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570811 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "498" } ], "opinion_index": 1, "case_paths": [ "/nc/289/0488-01" ] }, { "cite": "76 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 1 }, { "cite": "238 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600942 ], "year": 1953, "opinion_index": 1, "case_paths": [ "/nc/238/0130-01" ] }, { "cite": "322 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "71 N.C. App. 55", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523796 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc-app/71/0055-01" ] }, { "cite": "326 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "28" }, { "page": "28", "parenthetical": "emphasis added" }, { "page": "28" } ], "opinion_index": 1 }, { "cite": "313 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725335 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "129" }, { "page": "129" }, { "page": "129" } ], "opinion_index": 1, "case_paths": [ "/nc/313/0122-01" ] }, { "cite": "384 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "68-69" } ], "opinion_index": 1 }, { "cite": "95 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523196 ], "year": 1989, "pin_cites": [ { "page": "721" } ], "opinion_index": 1, "case_paths": [ "/nc-app/95/0718-01" ] }, { "cite": "287 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "817" } ], "opinion_index": 2 }, { "cite": "305 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567315 ], "year": 1982, "pin_cites": [ { "page": "236-37" } ], "opinion_index": 2, "case_paths": [ "/nc/305/0225-01" ] } ], "analysis": { "cardinality": 696, "char_count": 22173, "ocr_confidence": 0.756, "pagerank": { "raw": 6.026186942942643e-07, "percentile": 0.9546116395202964 }, "sha256": "a2d72f5b2f21af1151eff68439042db18078a00d3c37d70d6b8ffa6b4890473d", "simhash": "1:c38f6ceb240f247e", "word_count": 3671 }, "last_updated": "2023-07-14T20:39:47.348264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice MARTIN joins in this dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. LEE HAMILTON MOORE" ], "opinions": [ { "text": "MITCHELL, Justice.\nThis case calls upon us to determine whether a defendant may be convicted under N.C.G.S. \u00a7 90-95(a)(l) for both the sale and the delivery of a controlled substance arising from one transaction. We conclude that a defendant may not be so convicted.\nThe evidence at trial tended to show that on 16 October 1987 the defendant, Lee Hamilton Moore, sold and delivered five grams of mushrooms containing the hallucinogenic psilocyn to an undercover officer of the Pitt County Sheriff\u2019s Department. Psilocyn is a Schedule I controlled substance under the North Carolina Controlled Substances Act. N.C.G.S. \u00a7 90-89(c)(15) (1985). On 15 November 1987 the defendant sold and delivered ten more grams of psilocyn mushrooms to the same officer. After his arrest, a Pitt County Grand Jury returned two indictments against the defendant. Each indictment charged the defendant, in separate counts, with (1) possession of a Schedule I controlled substance with intent to sell or deliver, (2) sale of a Schedule I controlled substance, and (3) delivery of a Schedule I controlled substance. On the indictment relating to the 16 October 1987 transaction, the defendant was found guilty of possession of a Schedule I controlled substance (a lesser included offense of possession with intent to sell or deliver), sale of a Schedule I controlled substance, and delivery of a Schedule I controlled substance. On the indictment relating to the 15 November 1987 transaction, the defendant was found guilty of the three counts charged. The record indicates that as to each indictment, the trial court treated the sale count and the delivery count as separate offenses. However, the trial court consolidated the three counts in each indictment for the purpose of judgment. The trial court then entered two judgments \u2014one for each indictment \u2014 and sentenced the defendant to a six-year term on each indictment. The trial court ordered that those terms run consecutively for a total of twelve years\u2019 imprisonment.\nOn the defendant\u2019s appeal, a unanimous Court of Appeals affirmed the convictions against the defendant, but remanded the case for resentencing, concluding that:\nIn summary, a prosecutor may of course go to trial against a single defendant on charges for the sale of a controlled substance and the delivery of the same substance. These two \u2022 crimes are separate and distinct offenses. However, in light of the legislative intent of the statute, we hold that the defendant may be punished for only one of those offenses where they involve the same transaction.\nFor purposes of sentencing in this case, the convictions against the defendant for delivery of psilocyn on each bill of indictment are merged into the charges of selling the drug. A new sentencing hearing is ordered.\nState v. Moore, 95 N.C. App. 718, 722, 384 S.E.2d 67, 69 (1989). We allowed the State\u2019s Petition for Discretionary Review.\nI.\nThe State argues that under N.C.G.S. \u00a7 90-95(a)(l), \u201c[t]he separate convictions and separate punishment that the Defendant has suffered are exactly what the General Assembly intended by enacting G.S. \u00a7 90-95 (a).\u201d We disagree, but for a different reason than that given by the Court of Appeals.\nN.C.G.S. \u00a7 90-95(a)(l) makes it unlawful to \u201cmanufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance.\u201d The intent of the legislature in enacting N.C.G.S. \u00a7 90-95(a)(l) was twofold: \u201c(1) to prevent the manufacture of controlled substances, and (2) to prevent the transfer of controlled substances from one person to another.\u201d State v. Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985). In the context of this Court\u2019s and the Court of Appeals\u2019 prior opinions, the Court of Appeals in this case examined the legislative intent of the statute, and concluded that:\nBy criminalizing the sale or delivery of a controlled substance, the Legislature sought to prevent all attempts to place drugs into commerce by any act of transfer. To expedite this purpose the more inclusive word \u201cdelivery\u201d was used in the statute. The only difference in the terms \u201csell\u201d and \u201cdelivery\u201d is that money changes hands in a sale; otherwise; the terms in this context are the same.\nIt is an overreading of the statute to conclude that the Legislature intended to punish a defendant twice for one drug transaction. The purpose of the statute is to prevent drug transfers, a double punishment for a single transaction violates this legislative intent and accomplishes nothing short of placing the defendant in double jeopardy.\nState v. Moore, 95 N.C. App. 718, 721-22, 384 S.E.2d 67, 69 (1990) (citations omitted). This analysis of legislative intent and the result reached by the Court of Appeals in this case are admittedly reasonable in light of statements this Court has made in prior cases. However, as we explain below, we do not entirely agree with either the reasoning utilized or the result reached by the Court of Appeals in this case.\nHaving examined the statute, we now conclude that the language of N.C.G.S. \u00a7 90-95(a)(l) creates three offenses: (1) manufacture of a controlled substance, (2) transfer of a controlled substance by sale or delivery, and (3) possession with intent to manufacture, sell or deliver a controlled substance. We disapprove the contrary language in State v. Clark, 71 N.C. App. 55, 322 S.E.2d 176 (1984), which interpreted the statute as creating six separate offenses. By phrasing N.C.G.S. \u00a7 90-95(a)(l) to make it unlawful to \u201cmanufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance\u201d (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 \u2014 sale or delivery.\n\u201cA sale is a transfer of property for a specified price payable in money.\u201d State v. Creason, 313 N.C. at 129, 326 S.E.2d at 28 (emphasis in original) (citing State v. Albarty, 238 N.C. 130, 76 S.E.2d 381 (1953) (citing cases)). \u201cDelivery\u201d is \u201cthe actual constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.\u201d N.C.G.S. \u00a7 90-87(7) (1985). We need not address the relationship between the acts of sale and delivery as it might exist under any other statutory or common law provision, because by the statutory language at issue here the legislature has made it one criminal offense to \u201csell or deliver\u201d a controlled substance under N.C.G.S. \u00a7 90-95(a)(l).\nWe recognize that \u201csell\u201d and \u201cdeliver\u201d are not synonymous terms. We have previously said that, under N.C.G.S. \u00a7 90-95(a)(l), \u201cthe two acts could have been charged as separate offenses.\u201d State v. Dietz, 289 N.C. 488, 498, 223 S.E.2d 357, 364 (1976) (emphasis added). In State v. Creason, we said that \u201cthe sale of narcotics and the delivery of narcotics are separate offenses.\u201d Creason, 313 N.C. at 129, 326 S.E.2d at 28 (citing State v. Dietz, 289 N.C. 488, 223 S.E.2d 357). Admittedly, the language in Dietz and Creason indicates that a defendant may properly be charged, indicted and tried under N.C.G.S. \u00a7 90-95(a)(l) for both the sale and the delivery of a single controlled substance arising from a single transfer. However, those cases do not mandate the conclusion that a defendant may also be convicted for two offenses in such situations. Having reconsidered the language of the statute, we disapprove any reading of Dietz or Creason which infers that a defendant may be so convicted. A defendant may be indicted and tried under N.C.G.S. \u00a7 90-95(a)(l) in such instances for the transfer of a controlled substance, whether it be by selling the, substance, or by delivering the substance, or both. We conclude that a defendant may not, however, be convicted under N.C.G.S. \u00a7 90-95(a)(l) of both the sale and the delivery of a controlled substance arising from a single transfer. Whether the defendant is tried for transfer by sale, by delivery, or by both, the jury in such cases should determine whether the defendant is guilty or not guilty of transferring a controlled substance to another person.\nOur conclusion regarding the proper interpretation of N.C.G.S. \u00a7 90-95(a)(l) does not create a risk of a defendant being convicted by a nonunanimous verdict. The legislature intended that there be one conviction and punishment under the statute for defendants who transfer, i.e., \u201csell or deliver,\u201d a controlled substance. The transfer by sale or delivery of a controlled substance is one statutory offense, the gravamen of the offense being the transfer of the drug. So long as each juror finds that the defendant transferred the substance, whether by sale, by delivery, or by both, the defendant has committed the statutory offense, and no unanimity concerns are implicated. Cf. State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990) (addressing the unanimity requirement in the context of indecent liberties); State v. Creason, 313 N.C. 122, 326 S.E.2d 24 (1985) (concerning possession of a controlled substance with intent to sell or deliver); Jones v. All American Life Ins. Co., 312 N.C. 725, 325 S.E.2d 237 (1985) (concerning denial of life insurance proceeds to the plaintiff if the jury found that she killed or procured the killing of the victim).\nII.\nThe jury in this case was improperly allowed under each indictment to convict the defendant of two offenses \u2014 sale and delivery\u2014 arising from a single transfer. Because the three convictions on each indictment were consolidated into one judgment per indictment, and because of the lengths of the prison terms imposed, we are unable to determine what weight, if any, the trial court gave each of the separate convictions for sale and for delivery in calculating the sentences imposed upon the defendant. This case must thus be remanded for resentencing. On remand, the judgments in this case should be amended to reflect that the defendant was convicted on each indictment of a single count for the \u201csale or delivery of a controlled substance.\u201d These amendments will not prejudice the defendant; indeed, they will effectively remove one conviction from each of the two judgments in this case. The possession-related convictions on each indictment will not be affected, and they are not challenged on this appeal.\nFor the foregoing reasons, the decision of the Court of Appeals in this case is affirmed in part and modified in part. This case is remanded to the Court of Appeals for its further remand to the Superior Court, Pitt County, for amendment of the judgments against the defendant and resentencing consistent with this opinion.\nAffirmed in part; modified in part; remanded with instructions.", "type": "majority", "author": "MITCHELL, Justice." }, { "text": "Justice MEYER\ndissenting.\nThe majority opinion, relying on an analysis from State v. Creason, 313 N.C. 122, 326 S.E.2d 24 (1985), holds that a defendant may not be convicted under N.C.G.S. \u00a7 90-95(a)(l) for both the sale and the delivery of a controlled substance arising from one transaction. I disagree.\nCreason is cited by the majority to support the collapse of what has historically been two separate offenses, sale or delivery, into one offense, the \u201ctransfer of a controlled substance by sale or delivery.\u201d Creason involved an exploration of the legislative intent of N.C.G.S. \u00a7 90-95(a)(l) focusing on the single offense of possession. The analysis there was between possession \u201cwith the intent to sell\u201d and possession \u201cwith the intent to deliver.\u201d Creason, 313 N.C. at 129, 326 S.E.2d at 28.\nThis Court in Creason held that the legislative intent in making possession with the intent to \u201csell or deliver\u201d a crime was to prevent the transfer of a controlled substance from one person to another. Id. The Court went on to state that \u201c[w]hile the sale of narcotics and the delivery of narcotics are separate offenses, State v. Dietz, 289 N.C. 488, 223 S.E.2d 357 (1976), the possession of narcotics with the intent to \u2018sell or deliver\u2019 is one offense.\u201d Creason, 313 N.C. at 129, 326 S.E.2d at 28 (emphasis added). The Creason reasoning is inapposite to the case at bar.\nN.C.G.S. \u00a7 90-95(a)(l) makes it unlawful to: (1) manufacture a controlled substance, (2) sell a controlled substance, (3) deliver a controlled substance, (4) possess with intent to manufacture, sell or deliver a controlled substance. Creason was only concerned with the defendant\u2019s conviction of possession with intent to sell or deliver a controlled substance. In Creason, the Court held that this was an intent crime, the elements being (1) possession of the drug, and (2) defendant\u2019s intention to \u201csell or deliver\u201d the drug.\nIn the present case, defendant was convicted of selling the controlled substance and of delivering the controlled substance. Neither offense is an intent crime, that is, intent is not an element of either offense. The majority fell into error in attempting to apply the reasoning of Creason to this appeal. To the contrary, Creason held that the sale of narcotics and the delivery of narcotics are two separate offenses, citing State v. Dietz, 289 N.C. 488, 223 S.E.2d 357.\nA sale is a transfer of property for a specified price payable in money. State v. Albarty, 238 N.C. 130, 76 S.E.2d 381 (1953). In the context of controlled substance statutes, \u201cdeliver\u201d means the actual, constructive, or attempted transfer from one person to another of a controlled substance. N.C.G.S. \u00a7 90-87(7) (1985); State v. Medina, 87 N.M. 394, 395, 534 P.2d 486, 487 (1975).\nThe decision of the Court of Appeals in this case was entirely correct in holding that the sale of a controlled substance is a separate act from the delivery of a controlled substance and therefore a separate crime. See State v. Dietz, 289 N.C. at 498, 223 S.E.2d at 364; see also State v. McLamb, 313 N.C. 572, 330 S.E.2d 476 (1985); accord State v. Creason, 313 N.C. at 129, 326 S.E.2d at 28.\nThe distinct acts (manufacture, sell, deliver, possess) denounced by statute have consistently been held to constitute separate and distinct offenses. State v. Perry, 316 N.C. 87, 103, 340 S.E.2d 450, 460 (1986); State v. Aiken, 286 N.C. 202, 206, 209 S.E.2d 763, 766 (1974) (\u201cOne may sell an article or substance which he does not possess\u201d).\nThe majority, sub silentio, by its decision overrules at least three of the decisions of this Court and three of the Court of Appeals.\nIn State v. Perry, 316 N.C. 87, 340 S.E.2d 450, this Court quoted with approval from State v. Anderson, 57 N.C. App. 602, 606, 292 S.E.2d 163, 166, disc. rev. denied, 306 N.C. 559, 294 S.E.2d 322 (1982), the following: \u201c \u2018The distinct acts denounced by the statute (manufacture, sell, deliver, possess) have been held to constitute separate and distinct offenses. [Citing authorities.]\u2019 \u201d Perry, 316 N.C. at 103, 340 S.E.2d at 460.\nIn Creason, we reiterated that the sale of narcotics and the delivery of narcotics are separate offenses.\nAgain, in State v. McLamb, 313 N.C. 572, 330 S.E.2d 476, this Court held that a verdict finding that defendant \u201cfeloniously did sell or deliver\u201d cocaine was fatally defective and ambiguous because sale and delivery are distinct and separate offenses.\nThis Court held in State v. Dietz, 289 N.C. 488, 223 S.E.2d 357, that charging a defendant with \u201csale and delivery\u201d of marijuana is one criminal act not defective because the two offenses could have been charged as separate offenses. There was no prejudice to defendant.\nSee also State v. Aiken, 286 N.C. 202, 209 S.E.2d 763 (where the Court held that possession of controlled substance and sale of a controlled substance were separate offenses and that a defendant could be convicted of both and sentenced to prison for each); State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973) (where the Court held that sale and possession of narcotics are separate and distinct offenses).\nSee also State v. Pulliam, 78 N.C. App. 129, 336 S.E.2d 649 (1985); State v. Clark, 71 N.C. App. 55, 322 S.E.2d 176 (1984).\nTo the same effect, in Albrecht v. United States, 273 U.S. 1, 11, 71 L. Ed. 505, 511 (1927), Brand\u00e9is, J., writing for the Court, said: \u201cBut possessing and selling are distinct offenses .... There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction . . . .\u201d\nThe Court of Appeals also held, unfortunately, that \u201cwhile it is appropriate to separate these offenses [sale and delivery] for the purpose of charging a defendant, we do not believe the Legislature intended to punish a defendant twice for one transfer of the same contraband.\u201d State v. Moore, 95 N.C. App. 718, 721, 384 S.E.2d 67, 68-69 (1989). I disagree. The General Assembly has proscribed not just the transfer of controlled substances, but has specifically proscribed both their sale and their delivery. The intent of the General Assembly was to charge and punish separately both for the acceptance of money for the sale of a controlled substance and for the delivery of the substance, even where both occur in the same transaction. The trial court did not err in punishing the defendant for both.\nJustice MARTIN joins in this dissenting opinion.", "type": "dissent", "author": "Justice MEYER" }, { "text": "Justice FRYE\nconcurring in part and dissenting in part.\nI believe that the Court of Appeals reached the right result in this case and that both the majority and dissenting opinions in this Court are incorrect in part.\nIn State v. Perry, 305 N.C. 225, 236-37, 287 S.E.2d 810, 817 (1982), this Court said that\nthe crimes of larceny, receiving, and possession of stolen property are separate and distinct offenses, but having concluded that the Legislature did not intend to punish an individual for receiving or possession of the same goods that he stole, we hold that, though a defendant may be indicted and tried on charges of larceny, receiving, and possession of the same property, he may be convicted of only one of those offenses.\nWhen the legislature made it unlawful to \u201cmanufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance,\u201d N.C.G.S. \u00a7 90-95(a)(l), I believe that the legislature intended that the crimes of sale and delivery of a controlled substance, in violation of N.C.G.S. \u00a7 90-95(a)(l), though separate and distinct offenses, would be treated as one crime for purposes of punishment when the sale and delivery constitute one transaction for the same controlled substance. Stated differently, the legislature did not intend to punish an individual for selling a controlled substance and then punish him again for delivering that same substance pursuant to the sale when both are handled in one transaction. Had it intended to do so, the statute would have made it unlawful to \u201cmanufacture, sell, deliver, or possess . . . a controlled substance,\u201d rather than making it unlawful to \u201cmanufacture, sell or deliver, or possess ... a controlled substance.\u201d I believe that the punctuation controls.\nI vote to affirm the unanimous decision of the Court of Appeals to the effect that the delivery convictions in this case, for sentencing purposes, are merged into the sales charges and defendant is entitled to a new sentencing hearing on the convictions of selling a controlled substance.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Justice FRYE" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Victor H. E. Morgan, Jr., Assistant Attorney General, for the State appellant.", "Robin L. Fomes for the defendant appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LEE HAMILTON MOORE\nNo. 502PA89\n(Filed 29 August 1990)\n1. Narcotics \u00a7 1.3 (NCI3d)\u2014 narcotics statute \u2014 offenses created\nN.C.G.S. \u00a7 90-95(a)(l) creates three offenses: (1) manufacture of a controlled substance, (2) transfer of a controlled substance by sale or delivery, and (3) possession with intent to manufacture, sell or deliver a controlled substance.\nAm Jur 2d, Drugs, Narcotics, and Poisons \u00a7 40.\n2. Narcotics \u00a7 1.3 (NCI3d)\u2014 single transaction \u2014no conviction for sale and delivery\nA defendant may not be convicted under N.C.G.S. \u00a7 90-95(a)(l) of both the sale and delivery of a controlled substance arising from one transaction. Whether the defendant is tried for transfer by sale, by delivery, or by both, the jury in such cases should determine whether the defendant is guilty or not guilty of transferring a controlled substance to another person.\nAm Jur 2d, Drugs, Narcotics, and Poisons \u00a7 40.\n3. Narcotics \u00a7 5 (NCI3d); Criminal Law \u00a7 904 (NCI4th)\u2014 transfer by sale or delivery \u2014unanimity of verdict\nThe transfer by sale or delivery of a controlled substance is one statutory offense, the gravamen of the offense being the transfer of the drug. So long as each juror finds that the defendant transferred the substance, whether by sale, by delivery, or by both, the defendant has committed the statutory offense, and no verdict unanimity concerns are implicated.\nAm Jur 2d, Drugs, Narcotics, and Poisons \u00a7 40.\n4. Narcotics \u00a7 5 (NCI3d)\u2014 improper conviction for sale and delivery \u2014resentencing \u2014correction of judgment\nWhere the jury was improperly allowed to convict defendant under each of two indictments of both sale and delivery of a controlled substance arising from a single transfer, three convictions under each indictment were consolidated into one judgment per indictment, and the appellate court is unable to determine what weight, if any, the trial court gave each of the separate convictions for sale and delivery in calculating the sentences imposed upon defendant, the case must be remanded for resentencing. On remand, the judgments in each case should be amended to reflect that defendant was convicted on each indictment of a single count for the \u201csale or delivery of a controlled substance.\u201d\nAm Jur 2d, Criminal Law \u00a7 583; Drugs, Narcotics, and Poisons \u00a7 48.\nJustice MEYER dissenting.\nJustice MARTIN- joins in this dissenting opinion.\nJustice FRYE concurring in part and dissenting in part.\nON discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of the decision of the Court of Appeals, 95 N.C. App. 718, 384 S.E.2d 67 (1989), which modified the judgments entered by Small, J., in the Superior Court, PITT County, on 29 September 1988, and remanded the case for resentencing. Heard in the Supreme Court on 16 May 1990.\nLacy H. Thornburg, Attorney General, by Victor H. E. Morgan, Jr., Assistant Attorney General, for the State appellant.\nRobin L. Fomes for the defendant appellee." }, "file_name": "0378-01", "first_page_order": 416, "last_page_order": 425 }