The trial court should have given a lesser-included offense instruction because there was a serious evidentiary dispute about whether Garret had intent to deal methamphetamine.
. . . .
In this case it is the element of intent to deliver that distinguishes dealing in methamphetamine from the lesser-included offense of possession of methamphetamine. There was a serious evidentiary dispute as to whether Garrett merely possessed methamphetamine or also intended to deliver it. Therefore, the instruction on possession should have been given.
. . . .
. . . [I]n the case before us, the jury was not required to believe Garrett’s version of the events. But . . . it was for the jury to decide whether the lesser offense was committed and the greater one was not. [Footnote omitted.] Garrett testified Haines, the driver of the car in which she was riding when police stopped them, was the drug dealer and she was not. She testified Haines had been physically abusive and threatened to hurt her and her children if she did not tell police the drugs and weapons were hers. A State’s witness conceded the amount of methamphetamine in Garrett’s possession could be consistent with using as opposed to dealing and conceded a glass pipe found on Garrett was commonly associated with use, not dealing.
As the jury was not properly instructed, we must reverse Garrett’s conviction and remand for a new trial.
CRONE, J., and BROWN, J., concur.