State v. Palmer, No. COA19-970
| Docket Nº | No. COA19-970 |
| Citation | 847 S.E.2d 449 |
| Case Date | August 18, 2020 |
| Court | Court of Appeal of North Carolina (US) |
847 S.E.2d 449
STATE of North Carolina
v.
Kimberly Renee PALMER, Defendant.
No. COA19-970
Court of Appeals of North Carolina.
Filed: August 18, 2020
Attorney General Joshua H. Stein, by Assistant Attorney General Rory Agan, for the State.
Stephen G. Driggers, Raleigh, for defendant-appellant.
MURPHY, Judge.
Defendant, Kimberly Renee Palmer, was convicted of violating N.C.G.S. § 90-95(e)(9), felony possession of a controlled substance on jail premises. At trial, she requested the jury be provided a special instruction requiring the State to prove lawful possession of a controlled substance as an element of N.C.G.S. § 90-95(e)(9). Our plain reading of Chapter 90 reveals lawful possession of a controlled substance is not an element of the statute but rather an exception, per N.C.G.S. § 90-113.1(a). Defendant requested lawful possession be instructed as an element rather than an exception, which would have erroneously shifted the burden of proof from herself to the State. The trial court did not err in denying Defendant's requested jury instruction.
BACKGROUND
Defendant was indicted for felony possession of a controlled substance on jail premises, misdemeanor possession of a Schedule II controlled substance, misdemeanor possession of drug paraphernalia, and for attaining habitual felon status. These charges arose out of an incident that began as a domestic dispute with Defendant later being found to have Oxycodone on her person during her intake following arrest. At trial, in lieu of N.C.P.I.--Crim. 260.12, Defendant requested the following jury instruction:
The Defendant has been charged with illegally possessing oxycodone, a controlled substance, on the premises of a local confinement facility. For you to find the defendant guilty of this offense, the state must prove two things beyond a reasonable doubt: First, that the defendant knowingly and illegally possessed oxycodone. Oxycodone is a controlled substance. A person knowingly possesses a controlled substance when a person is aware of its presence, and has both the power and intent to control the disposition or use of that substance. Illegal possession of a controlled substance is possession of that substance when a person does not have a valid prescription for that controlled substance. And Second, that the defendant was on the premises of a local confinement facility at the time of the defendant's knowing and illegal possession of the controlled substance. If you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant knowingly and illegally possessed oxycodone and that the defendant was on the premises of a local confinement facility at that time, it would be your duty to return a verdict of guilty. If you do not find or have a reasonable doubt as to one or both of these things, it would be your duty to return a verdict of not guilty. (Emphasis added).
The trial court denied this request. At no point during trial did Defendant request an instruction on the defense of lawful possession.1 Defendant was found guilty on all charges and sentenced to 103 to 136 months in prison. She gave notice of appeal on 11 February 2019.
ANALYSIS
On appeal, Defendant contends the trial court erred in failing to give her requested instruction to the jury defining illegal possession of a controlled substance as possession without a prescription. We disagree.
"It is the duty of the trial court to instruct the jury on all substantial features of a case raised by the evidence." State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988). "[W]hen a request is made for a specific
instruction which is correct in itself and supported by evidence, the trial judge, while not required to parrot the instructions ... must charge the jury in substantial conformity to the...
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State v. Teague, COA21-10
...possession of a controlled substance is not an element of the statute but rather an exception[.]" State v. Palmer, 273 N.C.App. 169, 169, 847 S.E.2d 449, 450 (2020). Significantly, the Industrial Hemp Act did not remove THC from Schedule VI of the Controlled Substances Act. See N.C. Gen. St......
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State v. Teague, COA21-10
...possession of a controlled substance is not an element of the statute but rather an exception[.]" State v. Palmer, 273 N.C.App. 169, 169, 847 S.E.2d 449, 450 (2020). Significantly, the Industrial Hemp Act did not remove THC from Schedule VI of the Controlled Substances Act. See N.C. Gen. St......
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State v. Steele, COA20-894
...law," this Court reviews de novo "the trial court's decisions regarding jury instructions[.]" State v. Palmer , 273 N.C. App. 169, 171, 847 S.E.2d 449, 451 (2020). "Failure to give a requested and appropriate jury instruction is reversible error if the requesting party is prejudiced as a re......
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State v. Carey, COA18-1233-2
...possession "does not apply," is exculpatory, and is not an underlying element of the offense. See State v. Palmer, ––– N.C. App. ––––, 847 S.E.2d 449 (2020).1. "Under Contract with the United States"Defendant testified and presented evidence he was serving upon active duty and under the com......
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State v. Teague, COA21-10
...possession of a controlled substance is not an element of the statute but rather an exception[.]" State v. Palmer, 273 N.C.App. 169, 169, 847 S.E.2d 449, 450 (2020). Significantly, the Industrial Hemp Act did not remove THC from Schedule VI of the Controlled Substances Act. See N.C. Gen. St......
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State v. Steele, COA20-894
...law," this Court reviews de novo "the trial court's decisions regarding jury instructions[.]" State v. Palmer , 273 N.C. App. 169, 171, 847 S.E.2d 449, 451 (2020). "Failure to give a requested and appropriate jury instruction is reversible error if the requesting party is prejudiced as a re......
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State v. Carey, No. COA18-1233-2
...possession "does not apply," is exculpatory, and is not an underlying element of the offense. See State v. Palmer, ––– N.C. App. ––––, 847 S.E.2d 449 (2020).1. "Under Contract with the United States"Defendant testified and presented evidence he was serving upon active duty and under the com......
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State v. Steele, COA20-894
...of law," this Court reviews de novo "the trial court's decisions regarding jury instructions[.]" State v. Palmer, 273 N.C.App. 169, 171, 847 S.E.2d 449, 451 (2020). "Failure to give a requested and appropriate jury instruction is reversible error if the requesting party is prejudiced as a r......