dissenting.
I respectfully disagree with the holding of the majority that the State was required to allege in the indictment only that defendant transferred marijuana to another person. Accordingly, I believe that the indictment in this case was insufficient, and I would vacate the judgment on defendant’s conviction of delivery of marijuana.
Defendant contends that the superseding indictment for the delivery of marijuana was fatally defective because it failed to allege that he received remuneration for a delivery of less than five grams of marijuana. I agree.
“An indictment is fatally defective if it wholly fails to charge some offense ... or fails to state some essential and necessary element of the offense of which the defendant is found guilty.” State v. Partridge, 157 N.C. App. 568, 570, 579 S.E.2d 398, 399 (2003) (quotation and citation omitted). Defendant was charged with violating section 90-95(a)(l), which states “it is unlawful for any person... [t]o manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance.” N.C. Gen. Stat. § 90-95(a)(l) (2011). Section 90-95(b)(2) provides an exception, stating “[t]he transfer of less than 5 grams of marijuana or less than 2.5 grams of a synthetic cannabinoid or any mixture containing such substance for no remuneration shall not constitute a delivery in violation of G.S. 90-95(a)(l).” N.C. Gen. Stat. § 90-95(b)(2). In Partridge, we vacated the defendant’s convictions of felony possession of marijuana because the indictment failed to allege the amount of marijuana possessed by the defendant, a necessary element of the charge. 157 N.C. App. at 571, 579 S.E.2d at 400. There, the indictment made no mention of the amount of marijuana of which defendant was in possession, though both parties agreed that the amount was 59.4 grams. Id. at 569, 579 S.E.2d at 399. In order to convict the defendant, the jury was required to find that defendant was in possession of more than 42 grams of marijuana (one and one-half ounces). Accordingly, we concluded that
[possession of more than one and one-half ounces of marijuana is thus an essential element of the crime of felony possession of marijuana. Therefore, because the indictment charging defendant failed to allege defendant was in possession of more than one and *318one-half ounces, the trial court was without jurisdiction to allow defendant to be convicted of felony possession of marijuana.
Id. at 571, S.E.2d at 400 (citation omitted).
Here, the indictment states that defendant did “unlawfully, willfully and feloniously deliver to A. Demaioribus, a controlled substance, to wit: marijuana.” The amount of marijuana delivered by defendant was 2.03 grams, though this amount was not alleged in the indictment. In order for defendant to be convicted of delivery, there is no minimum amount that must be delivered under section 90-95(a)(l); however, if defendant did not deliver at least five grams, there is an additional requirement of remuneration. See N.C. Gen. Stat. §§ 90-95(a)(l), (b)(2). Here, like in Partridge, the indictment did not state the amount of marijuana that defendant possessed and delivered, nor did it mention remuneration. In this case, in order to convict defendant of delivery of marijuana, the amount of marijuana delivered must be in the indictment, as it affects whether or not the element of remuneration must also be alleged.
I disagree with the majority’s analysis of State v. Pevia. In Pevia, the defendant delivered a ten dollar bag of marijuana, but there was no testimony regarding the amount of marijuana delivered. 56 N.C. App. 384, 388, 289 S.E.2d 135, 137 (1982). I believe that given the facts of that case, it may be inferred that the amount of marijuana delivered was well over five grams, thus remuneration was not required. Here, however, the amount of marijuana that was delivered was clearly established as 2.03 grams, triggering the required element of remuneration.
Therefore, because the indictment failed to allege that defendant received remuneration for a delivery of less than five grams of marijuana, I believe the trial court was without jurisdiction to allow defendant to be convicted of delivery of marijuana. Accordingly, I would vacate the judgment on defendant’s conviction of delivery of marijuana.