Opinion
No. COA10-1295
Filed 19 July 2011 This case not for publication
Appeal by defendant from judgments entered 29 March 2010 by Judge James G. Bell in Johnston County Superior Court. Heard in the Court of Appeals 23 March 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Mary L. Lucasse, for the State. Brock, Payne Meece, P.A., by C. Scott Holmes, for defendant-appellant.
Johnston County No. 09 CRS 53341.
Where the State failed to present any evidence that defendant sold or possessed Oxycodone as alleged in the indictment, the trial court erred in denying his motion to dismiss based upon the sufficiency of the evidence.
I. Factual and Procedural Background
On 4 September 2008, Detective Greg Whitley (Detective Whitley) of the Smithfield Police Department was conducting surveillance of a possible drug transaction. Jennifer Kent (Kent), a confidential informant, arranged to purchase narcotics from Thomas Barnes, Jr. (defendant), specifically Vicodin. Detective Whitley had given Kent $100.00 and a digital recording device, and dropped her off on North 12th Street where he believed defendant was located. Detective Whitley did not stay stationary in his patrol car because he did not want to be discovered. Detective Whitley drove around the block and was subsequently contacted within "a matter of minutes" by Kent advising him she had purchased the narcotics. Detective Whitley picked up Kent and had a short conversation regarding the details of the sale.
Kent advised Detective Whitley that she had walked into a backyard where defendant and an unidentified individual were located. The three conversed for a couple of minutes, and then the individual removed a bottle of pills from his pocket and handed them to defendant. Defendant removed 18 pills from the bottle and gave them to Kent in exchange for $100.00. Kent subsequently left the backyard and called Detective Whitley to pick her up.
Defendant was indicted on two counts of trafficking in Oxycodone (Hydrochloride) by sale and possession pursuant to N.C. Gen. Stat. § 90-95(h)(4)(a). On 29 March 2010, defendant was found guilty of both charges. The trial court found defendant to be a prior record level IV for felony sentencing purposes. The trial court sentenced defendant to two sentences of 70 to 84 months imprisonment to be served concurrently.
Defendant appeals.
II. Motion to Dismiss
In his first argument, defendant contends that the trial court erred by denying his motion to dismiss at the close of the State's evidence based upon its failure to offer any evidence that the substance possessed and sold by defendant was schedule II Oxycodone (Hydrochloride) as alleged in the indictment. We agree.
A. Standard of Review
"Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted). We must view the evidence "in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn [therefrom]." State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387-88 (1984) (citation omitted).
B. Analysis
It is well-established that the identity of a controlled substance allegedly possessed or distributed is an essential element of the offense. State v. Board, 296 N.C. 652, 657, 252 S.E.2d 803, 806 (1979) ("A material element common to the offenses charged is the identity of the substance possessed and sold by defendant."); State v. Ledwell, 171 N.C. App. 328, 331, 614 S.E.2d 412, 414 ("Identity of a controlled substance allegedly possessed is such an essential element." (citation omitted)), disc. review denied, 360 N.C. 73, 622 S.E.2d 624 (2005). Our Supreme Court has noted that
throughout the lists of Schedule I through VI controlled substances found in sections 90-89 through 90-94, care is taken to provide very technical and "specific chemical designation[s]" for the materials referenced therein. E.g., N.C.G.S. §§ 90-89(1) (opiates),-90(2) (opiates),-91(j) (stimulants),-92(a)(1) (depressants). These scientific definitions imply the necessity of performing a chemical analysis to accurately identify controlled substances before the criminal penalties in N.C.G.S. § 90-95 are imposed.
State v. Ward, 364 N.C. 133, 143, 694 S.E.2d 738, 744 (2010) (alteration original).
Thus, the State bears the burden of establishing the identity of any controlled substance that is the basis of a prosecution. Id. at 147, 694 S.E.2d at 747.
In the instant case, defendant was indicted for (1) trafficking in opiates, synthetic opiates, and opiate derivatives by sale; and (2) trafficking in opiates, synthetic opiates, and opiate derivatives by possession pursuant to N.C. Gen. Stat. § 90-95(h)(4)(a). The allegations in the indictment as to both counts were virtually identical:
on or about September 4, 2008, in the county of Johnston, the Defendant named above unlawfully, willfully, and feloniously did traffick [sic] in opium or opiates or a derivative or preparation of opium or opiate or any mixture containing such substances, by [selling or possessing] four (4) grams or more but less than fourteen (14) grams of Oxycodone (Hydrochloride), a controlled substance which is included in Schedule II of the North Carolina Controlled Substances Act, to Jennifer Kent. This act was in violation of North Carolina General Statutes Section 90-95(h)(4)(a).
(Emphasis added.)
Thus, it was incumbent upon the State to prove at trial that defendant trafficked by possession and sale in the substance, Oxycodone (Hydrochloride), a schedule II controlled substance.
At trial, the only evidence pertaining to the identity of the substance at issue was a Laboratory Report from the State Bureau of Investigation. The lab report was entered into the evidence and published to the jury at the close of the State's evidence upon defendant's stipulation. The lab report stated that chemical analysis was conducted on a "Plastic bag containing eighteen white tablets." The results of the chemical analysis determined that the tablets were 11.5 grams of "Dihydrocodeinone — Schedule III."
We note that no expert witness testified as to the identity of the controlled substance at issue. Nor was any evidence presented as to any relationship that may exist between Dihydrocodeinone and Oxycodone (Hydrochloride), the controlled substance listed in the indictment. Our General Statutes very clearly distinguish between the two substances. N.C. Gen. Stat. § 90-90(1)(a)(14) (2009) classifies Oxycodone as a Schedule II controlled substance and specifically identifies the substance as an opiate. N.C. Gen. Stat. 90-91(d)(3)-(4) (2009) classify Dihydrocodeinone as a Schedule III controlled substance. However, the General Statutes do not identify Dihydrocodeinone as an opiate or opiate derivative, nor does any evidence in the record before this Court make such a connection.
Our Supreme Court has held that where the State failed to present substantial evidence that the substance distributed by the defendant was in fact 3, 4-methylenedioxyamphetamine, as charged in the bills of indictment, this failure requires dismissal of the charges against the defendant. See Board, 296 N.C. at 659, 252 S.E.2d at 807. We hold that because the State failed to produce any evidence that defendant was trafficking in opiates, specifically, Oxycodone (Hydrochloride), as alleged in the indictment, the trial court erred by denying his motion to dismiss based on the sufficiency of the evidence. Id.
We note that the lab report from the SBI is dated 16 December 2008. Defendant's trial did not begin until 24 March 2010. Thus, the State had over a year to obtain a superseding indictment to accurately reflect the controlled substance in which defendant was trafficking. See generally State v. Smith, 155 N.C. App. 500, 513, 573 S.E.2d 618, 627 (2002), disc. review denied, 357 N.C. 255, 583 S.E.2d 287 (2003). The State failed to do so.
The trial court erred in denying defendant's motion to dismiss. Defendant's convictions in 09 CRS 53341 are vacated. Because we are vacating defendant's convictions on the grounds articulated above, it is unnecessary to address defendant's remaining contentions.
REVERSED and VACATED.
Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).