STATE OF NORTH CAROLINA
v. Watauga County
No. 02 CRS 3079
FRED NORRIS MARTIN, JR.
Attorney General Roy Cooper, by Assistant Attorney General
Sueanna P. Sumpter, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Kelly D. Miller, for defendant-appellant.
CALABRIA, Judge.
On 23 September 2002, Fred Norris Martin, Jr. (“defendant”),
was convicted of possession with intent to sell and deliver cocaine
and sale and delivery of cocaine in violation of N.C. Gen. Stat. §
90-95(a)(1) (2003).
The case was tried at the 12 July 2004
Criminal Session of Watauga County Superior Court.
With respect to the charge of sale and delivery of cocaine,
the trial court instructed the jury:
The Defendant has also been charged with
a separate crime and that is Selling or
Delivering Crack Cocaine, which again is a
controlled substance under the law of the
State of North Carolina. For you to find the
Defendant guilty of this particular crime, the
State must prove to you beyond a reasonabledoubt that the Defendant knowingly sold or
delivered crack cocaine to the undercover
officer in this case. Delivery of a
controlled substance means the actual
constructive or attempted transfer from one
person to another of a controlled substance,
whether or not there is an agency relationship
between the two.
Therefore if you find from the evidence
beyond a reasonable doubt that on or about the
alleged date the Defendant knowingly sold or
delivered crack cocaine to the undercover
officer it would be your duty to return a
verdict of guilty. 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.
After instructing the jury on the law, the trial court then
instructed the jury on how to use the verdict sheets. The trial
court told the jury that the verdict sheet included a charge of
sale and delivery of cocaine. The jury returned a guilty verdict
on the offense of sale and delivery of cocaine.
Defendant argues
that the trial court erred by entering
judgment and sentencing defendant for the Class G felony sale of
cocaine. Defendant contends that the verdict only authorized a
judgment for sale or delivery of cocaine, a Class H felony.
Although defendant alleges plain error in his assignment of
error, he fails to provide any explanation in his brief supporting
the contention that error is fundamental. “The right and
requirement to specifically and distinctly contend an error amounts
to plain error does not obviate the requirement that a party
provide argument supporting the contention that the trial court's
instruction amounted to plain error, as required by subsections (a)and (b)(5) of [North Carolina] Rule [of Appellate Procedure] 28.”
State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000),
cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641, 121 S. Ct. 1660
(2001). As the defendant has failed to argue plain error, he has
waived appellate review. Accordingly, we hold that defendant has
waived appellate review of this assignment of error and is
dismissed.
Dismissed.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
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