North Carolina statute makes it a crime to sell or deliver or to possess with the intent to sell or deliver any controlled substance. The term “deliver” is defined by statute to mean “the actual constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.”
The severity of the punishment for selling or delivering a controlled substance is based on what type of controlled substance is sold or delivered. A person who sells a controlled substance classified in Schedule I or II is punished as a Class G felon. Schedules I and II include controlled substances such as LSD, mescaline, heroin, MDPV, cocaine, codeine, and oxycodone. North Carolina law provides that a person who commits a Class G felony must receive a sentence between 8 and 31 months, depending on the person’s prior convictions. A person with no prior convictions may receive intermediate punishment, but the court is permitted to sentence any person convicted of a Class G felony to active jail time.
A person possesses a controlled substance when he has the power and intent to control its disposition or use. Possession can be either actual or constructive. A person has actual possession of a controlled substance when he has the controlled substance on his person, he is aware of the presence of the controlled substance and he has the power and intent to control its disposition or use. A person can have constructive possession of a controlled substance that is not on his person, but of which presence he is aware and has the power and intent to control its disposition or use. If a person has exclusive possession of the place where the controlled substance is found, this is typically sufficient to establish constructive possession of the controlled substance. If the person does not have exclusive possession of the place in which the controlled substance is found, other incriminating circumstances are necessary to show constructive possession.
Because intent goes to a person’s mental state, there is rarely direct evidence that a person acted with the requisite intent to sell or deliver a controlled substance. Intent is often proven by circumstantial evidence, meaning that the person’s intent is inferred from the surrounding facts and circumstances. Such surrounding facts and circumstances might include also possessing items typically used to sell or deliver controlled substances, such as baggies, containers, scales or large amounts of cash.
A person who delivers or possesses with the intent to sell or deliver a controlled substance classified in Schedule I or II is punished as a Class H felon. North Carolina law provides that a person who commits a Class H felony must receive a sentence between 4 and 25 months, depending on the person’s prior convictions. A person with no prior convictions may receive community or intermediate punishment, but the court is permitted to sentence any person convicted of a Class H felony to active jail time.
