State v. Coleman, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 21, 2020)

The defendant was convicted of trafficking in opium among other crimes. He argued on appeal that the trial court committed plain error when, despite the lack of a request by the defendant, it failed to instruct the jury on the lesser-included offense of selling hydrocodone. The Court of Appeals found no error. The court applied the rule that the trial judge should instruct the jury on any lesser included offense supported by any version of the evidence when there is conflicting evidence on an essential element of the charged. Here, there was no conflicting evidence. An analyst testified that the total weight of the drug tablets sold by the defendant was over 8 grams, while another witness testified that the defendant sold twenty “10-milligram hydrocodone” pills. The testimony was not conflicting, however, because only the total weight of the pill mixture mattered in establishing the elements of the charged offense. In the absence of conflicting evidence, the trial judge did not err by not instructing on a lesser-included offense.