State v. Mercado
In State v. Mercado, 166 Vt. 632, 699 A.2d 50 (1997)(mem.), the defendant was charged with delivery of heroin and requested an instruction on possession of heroin, the lesser-included offense.
The only evidence in that case, however, was the testimony of an informant who bought two bags of heroin from the defendant. We held that an instruction on possession was improper because there was no evidence that defendant only possessed the heroin but did not deliver it. 166 Vt. at 632, 699 A.2d at 50.
Given the evidence, delivery was the only logical conclusion. "If defendant didn't hand the bags of heroin over to the confidential informant, there's absolutely no evidence that he possessed them. And if he did hand them over to the informant, then he delivered them." 166 Vt. at 632-33, 699 A.2d at 50.