Miller's testimony was substantially the same as the testimony given by Wilkins. Particularly, that defendant's car was blocked off by the detectives, that defendant never exited the car until removed by police, and Miller never witnessed defendant drop any package or pouch to the ground. Defendant requested the jury be instructed on the lesser included offense of possession of controlled substance. The trial court refused defendant's proffered instruction. Subsequently, defendant was found guilty of trafficking in the second degree.
Defendant raises two points on appeal.
In his first point, defendant alleges the trial court erred when it refused to submit defendant's proposed instruction for the lesser included offense of possession of a controlled substance. Defendant argues there was evidence which would support a conviction of possession, a Class C felony, and acquittal of trafficking in the second degree, a Class B felony. If in doubt, the trial judge should instruct on the lesser included offense. Under the facts of the case at bar, the state does not dispute that possession of a controlled substance is a lesser included offense of trafficking in the second degree. A trial court should resolve all doubts regarding the evidence in favor of instructing on the lower degree of crime, leaving it to the jury to decide which of the grades of an offense a defendant is guilty.