State v. Cuthrell

WELLS, Judge.

Defendant first assigns error to the admission into evidence of the cocaine and marijuana identified at trial. Defendant contends that with respect to these exhibits there was not a sufficient showing of a chain of custody. This contention is without merit. The officers who handled the drugs positively identified the exhibits and accounted for every link in the chain of possession. State v. Olsen, 25 N.C. App. 451, 453 , 213 S.E. 2d 372, 374 (1975); cert. denied, 287 N.C. 468 , 215 S.E. 2d *197 628 (1975). The State’s evidence established a clear chain of identity between the substances Agent Bowden testified defendant sold him and the substances which the State’s chemist testified he tested and found to contain cocaine and marijuana respectively. State v. Rogers, 43 N.C. App. 475, 480 , 259 S.E. 2d 572, 576 (1979); State v. Williams, 20 N.C. App. 310, 312 , 201 S.E. 2d 366, 367 (1973); cert. denied, 285 N.C. 89 , 203 S.E. 2d 62 (1974) (substance purchased kept in locked trunk of agent’s car). The unique manner in which the marijuana was packaged substantiates Agent Bowden’s identification and tends to negate any inference that Bowden was unable to distinguish the substances sold to him by defendant from the other narcotics occupying Bowden’s trunk.

Defendant next assigns as error the failure of the trial court to properly instruct the jury as to the elements of the offenses charged in the bills of indictment. The indictments used the phrase “sell and deliver” instead of “sell or deliver”. The pertinent statute, G.S. 90-95 (a) (1) makes it unlawful for any person to “manufacture, sell or deliver” a controlled substance. The evidence produced by the State tends to show both sale and delivery by defendant of each controlled substance. As to the cocaine, the trial court charged the jury as follows:

So I charge that if you find from the evidence beyond a reasonable doubt that on or about the 20th day of September, 1979, James Cuthrell knowingly placed a quantity of cocaine within the dominion and control of James [sic] Bowden with the intent to transfer the possession of that cocaine to James [sic] Bowden and/or this act was done in exchange for $400 in United States currency actually placed by James [sic] Bowden within the dominion and control of James Cuthrell, then it would be your duty to return a verdict of guilty of sale or delivery of cocaine. However, if you do not so find or if you have a reasonable doubt, then it would be your duty to return a verdict of not guilty.

A similar charge was given as to the marijuana.

The pertinent counts in the bills of indictment charged two acts, sale and delivery, which were a part of a single transaction. The two acts could have been charged as separate offenses. See State v. Dietz, 289 N.C. 488, 498 , 223 S.E. 2d 357, 364 (1976). The fact that the trial judge charged the jury in such manner so that the defendant was exposed to conviction of but one offense with respect to sale and *198 delivery rather than two separate offenses as charged in the bills of indictment does not prejudice defendant. State v. O’Keefe, 263 N.C. 53, 56 , 138 S.E. 2d 767, 769 (1964), cert. denied, 380 U.S. 985 , 14 L.Ed. 2d 277 , 85 S.Ct. 1355 (1965); see also State v. Dietz, supra. We, therefore, find no error in the charge of the court.

No error.

Judges VAUGHN and Martin (Robert) concur.