State v. Hobbs , 101 Idaho 262 ( 1980 )

PER CURIAM.

Defendant Dwayne McKinley Hobbs appeals from his conviction of delivering, in violation of I.C. § 37-2732(a)(l)(B), a quantity of phencyclidine. Phencyclidine is classified in Schedule III of the Uniform Controlled Substances Act, I.C. §§ 37-2701 et seq., as a controlled substance.

Appellant contends his conviction must be reversed because the state did not put before the jury any evidence of phencyclidine’s classification in the Act as a controlled substance. We disagree.

The question whether a substance is designated in the Act as a controlled substance is a question of law for the court, and not the jury, to decide. I.C. § 9-102; see State v. Harris, 564 S.W.2d 561 (Mo.App. 1978); Skaggs v. State, 260 Ind. 180, 293 N.E.2d 781 (1973); State v. Carter, 475 S.W.2d 85 (Mo. 1972). Pursuant to I.C. § 9 — 101, the district court could have taken judicial notice of phencyclidine’s classification and instructed the jury accordingly. See Skaggs v. State, supra.

It is fundamental that error will not be presumed but must be shown affirmatively by appellant on the record. State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978); Mahaffey v. State, 87 Idaho 233, 392 P.2d 423 (1964). Because the instructions given below have not been made a part of the record on appeal, no error is shown.

The judgment of conviction is affirmed.