concurring specially.
I agree with the result reached in the majority opinion. I agree that Perbix has not adequately raised the constitutionality of Section 19-03.1-23, N.D.C.C. We said in State v. Morris, 331 N.W.2d 48 (N.D.1983), that under Section 19-03.1-23(3) only intent to deliver, not knowledge or intent to possess, was an essential element of the crime. We also indicated that in order to show the unconstitutionality of the statute, the defendant must show that he was convicted of simple possession solely on the basis of his innocent act of being present in a vehicle which contained a controlled substance. The same rule is applicable to Perbix and he has not made the requisite showing. I also agree that the argument set forth by Perbix is insufficient to cause us to reconsider our decision in State v. Perbix, 331 N.W.2d 14 (N.D.1983).
*406I am, however, concerned about the majority’s disposition of the third issue, i.e., whether or not Perbix was denied a fair trial by the prosecutor’s refusal to move to dismiss charges against or to grant immunity to a defense witness. The majority opinion apparently concludes that only when a prosecutor interferes with a defense witness in an attempt to prevent or discourage the witness from testifying is the defendant entitled to relief. Although I also agree with that conclusion I am concerned about its application to the facts at issue. The majority opinion does not detail all the facts such as the fact that the State’s Attorney thought he had moved to dismiss the charge against Farrand and agreed that her testimony would be important but overnight changed his position. To say that the actions of the State’s Attorney did not “discourage” Farrand from testifying under those circumstances strains the ordinarily accepted meaning of that word. The State’s Attorney admitted in oral argument that after he discovered the charge against Farrand had not been dismissed he refused to move to dismiss it because he wanted an additional guaranty of her veracity if she did testify. He does not, however, have any intention of prosecuting her on the filed charge. Although I understand the State’s Attorney’s trial tactics, I am not sure I can agree they do not “discourage” Farrand from testifying.
I agree with the result reached by the majority opinion, however, because there has been no indication as to what Farrand’s testimony would be if she were required to testify. If I were to agree that the refusal to move to dismiss the action against Far-rand was improper under the circumstances of this case, I would nevertheless be left to speculate that her testimony would be beneficial to Perbix. It appears that we should be offered something more than speculation if we are asked to reverse a conviction on such a basis.