Opinion
No. COA18-575
02-05-2019
STATE OF NORTH CAROLINA v. KEVEN ANTHONY MORGAN, Defendant.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Daniel P. O'Brien, for the State. James R. Parish, for Defendant-Appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Pitt County, No. 15CRS52140-43, 16CRS1242-43 Appeal by Defendant from Judgment entered by Judge Imelda J. Pate in Pitt County Superior Court. Heard in the Court of Appeals 16 October 2018. Attorney General Joshua H. Stein, by Special Deputy Attorney General Daniel P. O'Brien, for the State. James R. Parish, for Defendant-Appellant. INMAN, Judge.
Defendant Keven Anthony Morgan ("Defendant") appeals from judgments of conviction following a jury verdict finding him guilty of felony possession and sale of ethylone and possession of drug paraphernalia. Defendant argues that (1) the trial court lacked subject matter jurisdiction because ethylone is not a statutorily defined controlled substance; (2) the trial court abused its discretion when it denied his motion for continuance; and (3) the State failed to present sufficient evidence that ethylone is a Schedule I controlled substance. After careful review of the record and applicable law, we conclude Defendant has failed to demonstrate error.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence at trial tended to show:
In December 2014, Detective Richard Pearce ("Detective Pearce") of the Greenville Police Department received information from a confidential informant that Defendant, who went by the nickname "Jamaica," was selling marijuana. After Detective Pearce asked the informant, Donta Harris ("Harris"), to see if Defendant was selling any other illegal drugs, Harris told Detective Pearce that Defendant was also selling "Molly," which he could purchase for $1,300 per ounce. Molly is a psychedelic and stimulant and a chemical analogue of another controlled substance.
On 16 and 29 December 2014, at the direction of Detective Pearce, Harris conducted two controlled purchases of Molly from Defendant. For each controlled purchase, Detective Pearce gave Harris between $1,200 and $1,400 along with a concealed recording device, and Harris completed the purchases, providing an audio recording of each transaction. Each transaction occurred as follows: Harris met with Defendant at an agreed upon location, entered into a red Dodge Durango, rode to another location to complete the transaction, and then Harris was dropped off close to where he originally met Defendant. Harris met with Detective Pearce a short time after each transaction and delivered to him the purchased drugs and the recording device.
Defendant was subsequently indicted on: (1) two charges of possession with intent to sell or deliver a Schedule I controlled substance; (2) maintaining a motor vehicle for the purposes of keeping and/or selling a controlled substance; (3) two charges of maintaining a dwelling for the purposes of keeping and/or selling a controlled substance; (4) two charges of possession with the intent to use drug paraphernalia; and (5) two charges of selling a Schedule I controlled substance. The initial indictments identified the Schedule I controlled substance as MDMA; subsequently, Defendant was charged in superseding indictments identifying the controlled substance as ethylone.
Defendant was tried before a jury on drug charges in May 2016, but the trial ended when the judge declared a mistrial.
The record shows that in May 2016, Defendant was tried on charges alleging other offenses committed in 2014 and 2015, but those other charges were not prosecuted in the trial from which Defendant appeals. Other than the transcript from the May 2017 trial, there is a dearth of information in the record as to what charges were initially called for trial. The transcript seems to indicate that the previous trial was on a marijuana offense Defendant allegedly committed on 25 March 2015.
Defendant's trial from which this appeal arises proceeded on 8 May 2017. Defendant was represented by new counsel, appointed by the trial court a few months earlier. Before any witnesses were called and outside the presence of the jury, defense counsel motioned for a continuance. Defense counsel argued that, because only about 75% of the transcript from the previous trial had been provided, counsel could not determine why the previous trial ended in a mistrial and could not determine whether any double jeopardy concerns resulted from the prior trial. Later that same day, the court reporter from the previous trial testified that the omitted portions of the transcript were unrecoverable due to a technical issue resulting in a corrupted computer file. The omitted portions were of testimony by Jeb Taub ("Taub")—the analyst who tested marijuana that had been found in Defendant's residence a date separate from the alleged ethylone sales—and rebuttal testimony by Officer William White ("Officer White"). In lieu of delivering the remaining unrecoverable portions of the transcript, the court reporter shared with defense counsel her typewritten notes related to the missing portions of testimony. The trial court denied the motion after finding that (1) the omitted portions of the transcript were the result of an innocent technical error; (2) the court reporter's notes were a sufficient substitute; and (3) there was insufficient evidence that Defendant would be prejudiced if the trial continued without the missing portions of transcript.
Prior to Defendant's counsel being appointed on 8 March 2017, throughout his criminal proceedings, Defendant has had three other attorneys, two of which, the record shows, voluntarily withdrew as counsel.
One of Defendant's charges that was joined, but did not come on for trial, was possession with intent to sell or deliver marijuana in March 2015.
At the close of the State's presentation of evidence, Defendant moved to dismiss all charges for insufficiency of the evidence. The State dismissed the charges of maintaining a motor vehicle for the purposes of keeping and/or selling a controlled substance and maintaining a dwelling for the purposes of keeping and/or selling a controlled substance, because the State had failed to obtain superseding indictments on those charges to accurately identify the controlled substance as ethylone, as opposed to MDMA. The trial court denied Defendant's motion to dismiss the remaining charges. At the close of Defendant's evidence, consisting of Defendant's testimony and admission of two exhibits, Defendant renewed his motion to dismiss, which the trial court denied.
No evidence of MDMA was introduced at trial.
On 11 May 2017, the jury found Defendant guilty on all charges. Defendant timely appealed.
ANALYSIS
I. Indictment
Defendant first argues that the indictments are fatally defective because ethylone is not expressly listed as a Schedule I controlled substance in Section 90-89 of our General Statutes. Although Defendant did not raise this argument at trial, "when an indictment is alleged to be facially invalid, . . . it may be challenged at any time, notwithstanding a defendant's failure to contest its validity in the trial court." State v. Call, 353 N.C. 400, 429, 545 S.E.2d 190, 208 (2001). We review the sufficiency of the indictments de novo. State v. Marshall, 188 N.C. App. 744, 748, 656 S.E.2d 709, 712 (2008).
An "indictment is essential to the jurisdiction of the trial court to try an accused for a felony." State v. Sturdivant, 304 N.C. 293, 308, 283, S.E.2d 719, 729 (1981). A valid indictment "must allege all of the essential elements of the crime sought to be charged," State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996), including the identity of the controlled substance allegedly possessed. State v. Ledwell, 171 N.C. App. 328, 331, 614 S.E.2d 412, 414 (2005). If the indictment "fails to state some essential and necessary element of the offense of which the defendant is found guilty," it is fatally defective and the trial court loses subject matter jurisdiction. State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998) (quotations and citation omitted).
Section 90-95(a) of our General Statutes provides:
Except as authorized by [] Article [5], it is unlawful for any person:
N.C. Gen. Stat. § 90-95(a) (2014). Defendant argues that the controlled substance identified in the indictments renders them invalid. We therefore must decide whether stating "ethylone" on an indictment properly identifies a Schedule I controlled substance within the scope of the statute.(1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance;
(2) To create, sell or deliver, or possess with intent to sell or deliver, a counterfeit controlled substance;
(3) To possess a controlled substance.
Each of the indictments charging Defendant with possession with intent to sell and deliver a Schedule I controlled substance alleges:
The jurors for the State upon their oath present that on or about . . . . . . [Defendant] unlawfully, willfully and feloniously did possess with intent to sell and deliver Ethylone (3, 4-methylenedioxy-N-ethylcathinone), a controlled substance . . . which is included in Schedule 1 of the North Carolina Controlled Substance Act, in violation of [N.C. Gen. Stat. 90-95(a)].(emphasis added). Each of the indictments charging Defendant with the sale of a Schedule I controlled substance alleges:
[T]he jurors for the State upon their oath present that on or about . . . . . . [Defendant] unlawfully, willfully and feloniously did sell to [Harris], Ethylone, a controlled substance, which is included in Schedule I of the North Carolina Controlled Substance Act, in violation of [N.C. Gen. Stat.] 90-95.(emphasis added).
The indictment for the 29 December 2014 charge identified the controlled substance as "ethylonecathinone" rather than ethylcathinone. This discrepancy is not a fatal defect because the term used is merely a part of another name for ethylone. See State v. Harris, 219 N.C. App. 590, 592, 724 S.E.2d 633, 636 (2012) (holding that indictments "should not be subjected to hyper technical scrutiny with respect to form"); see also State v. Isom, 65 N.C. App. 223, 225-26, 309 S.E.2d 283, 285 (1983) (misspelling the defendant's name as "Eldred" in the indictment instead of "Elred" did not constitute a material variance).
While ethylone is not referenced specifically in Section 90-89, its omission does not necessarily invalidate the indictments. "[T]he controlled substance need not be identified by the identical language used in the statute, but rather, the controlled substance may be identified by 'whatever official name, common or usual name, chemical name, or trade name[ designated.]' " State v. Stith, 246 N.C. App. 714, 717, 787 S.E.2d 40, 43 (2016) (quoting N.C. Gen. Stat. § 90-89(a) (2012)). Moreover, "controlled substance analogue[s]" are also "treated for the purposes of any State law as a controlled substance in Schedule I." N.C. Gen. Stat. § 90-89.1 (2014). A controlled substance analogue is a substance with a chemical structure substantially similar to the chemical structure of a Schedule I controlled substance, and "has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar" to the effect of a Schedule I controlled substance. N.C. Gen. Stat. §§ 90-87(5a)(i)-(ii) (2014).
The statutory language quoted in Stith is the same as it was in 2014 and at all times relevant to this case.
The General Assembly has noted that Sections 90-89.1 and 90-87(5a) were intended to "make[] State law consistent with federal law with regard to the treatment of controlled substance analogues" and that analogues "are not scheduled offenses unless specified." North Carolina Bill Summary, 2003 Reg. Sess. S.B. 694 (Dec. 1, 2003). "The object of [controlled substance analogues] is to prevent underground chemists from producing slightly modified drugs that are legal but have the same effects and dangers as scheduled controlled substances." United States v. Hodge, 321 F.3d 429, 432 (3d Cir. 2003).
Michael Kuzemko ("Dr. Kuzemko"), the forensic chemist who tested the substance Harris obtained from Defendant, testified that ethylone is an analogue of other Schedule I substances:
[STATE]. Dr. Kuzemko, in your work as a forensic chemist, can you tell us what type of drug ethylone is?
[DR. KUZEMKO]. Ethylone is a stimulant and it's also a psychedelic drug. Now, if you look at the drugs on the
market, Paxil, Prozac, Zoloft, you may have heard of those somewhere; it works the same way as those drugs. It's a serotonin re-uptake inhibitor. So it basically floods your brain with serotonin. So that's what causes the psychedelic effect.(emphasis added). Dr. Kuzemko also testified that ethylone is a cathinone, a specific class of designer drug and a Schedule I controlled substance.
[STATE]. And, Dr. Kuzemko, do you know what Molly is?
[DR. KUZEMKO]. Yes, Molly, you might say—currently Molly is—well, Molly is 3,4 Methylenedioxy and ethylcathinone. So you have two distinctions, methylcathinone and ethylcathinone. So it's an analog, if you want, of ethylone, Molly is.
. . . .
[DEFENSE COUNSEL]. And I know [the State] asked you, but the distinct difference between what they call Molly and the ethylone, as far as what—you said is what?
[DR. KUZEMKO]. Well, ethylone, you might say, is what they call a homolog of Molly, which is methylone. See on a nitrogen atom in that molecule—if you know anything about organic chemistry or chemistry at all—methylone has methyl group, CH3. Ethylone, on the other hand, has a CH2.5 or ethyl group. It's a very, very slight difference. So you could say it's a homolog, it's an analog, so they behave very, very similar when you look at the pharmacology.
[DEFENSE COUNSEL]. Okay. Do you know if Molly is a Schedule substance?
[DR. KUZEMKO]. Yes, it's Schedule I.
Because ethylone has a substantially similar chemical structure and effect as methylone, ethylone is a controlled substance analogue. As Molly—which is a street name used to refer to "bath salts" and "ecstasy"—is another name for methylone, ethylone is, by extension, a Schedule I controlled substance within the scope of Section 90-89. See State v. Williams, 242 N.C. App. 361, 370, 774 S.E.2d 880, 887-888 (2015) (relying on the State's forensic chemist's testimony that methylone is a Schedule I controlled substance falling under the " 'catch-all' provision" in Section 90-89(5)(j)). Defendant, who was familiar enough with the street nomenclature to refer to the drug he was selling as Molly, was thus sufficiently put on reasonable notice of the alleged crimes with respect to the substance ethylone. Sturdivant, 304 N.C. at 311, 283 S.E.2d at 731. Therefore, the indictments were not fatally defective and vested the trial court with subject matter jurisdiction.
II. Motion for Continuance
Defendant next asserts various arguments that the trial court erred and abused its discretion in denying his motion to continue the trial. We disagree.
"A motion for a continuance is ordinarily within the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion." State v. Weimer, 300 N.C. 642, 647, 268 S.E.2d 216, 219 (1980). If a motion for continuance is premised on a constitutional right, "the question presented is a reviewable question of law." State v. McFadden, 292 N.C. 609, 611, 234 S.E.2d 742, 744 (1977). "Denial of a motion for a continuance, regardless of its nature, is, nevertheless, grounds for a new trial only upon a showing by [the] defendant that the denial was erroneous and that his case was prejudiced thereby." State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981).
Defendant first argues—for the first time on appeal—that the trial court deprived him of his constitutional right to counsel when it denied defense counsel's motion for continuance to review the transcript of Defendant's previous trial. Defendant contends that the full transcript was necessary for defense counsel to (1) investigate why there was a mistrial and see if there were any double jeopardy concerns; and (2) prepare for trial. Because Defendant's trial counsel did not argue before the trial court that a continuance was necessary to satisfy Defendant's constitutional right to the assistance of counsel, Defendant cannot raise this argument on appeal. See State v. Nobles, 350 N.C. 483, 495, 515 S.E.2d 885, 893 (1999) (noting that review of a constitutional issue not raised at trial will not be considered for the first time on appeal).
Defendant also argues for the first time on appeal that his trial counsel could not adequately prepare because he first learned the identity of Harris the day of trial. The subject of Defendant's motion for continuance at trial was based on the lack of a complete transcript and not the identity of the informant. Nor did Defendant's trial counsel object prior to or during the trial to the delayed identification. We therefore disregard this argument.
Defendant mistakenly asserts in his brief that the judge in Defendant's previous trial denied his motion to disclose Harris' identity. The trial court on 9 May 2016 denied the disclosure of another informant for the generation of a search warrant, pursuant to N.C. Gen. Stat. § 15A-978, not Harris' identity.
Defendant also contends, as he argued before the trial court, that without a continuance of the new trial, and in the absence of findings of fact by the judge who declared a mistrial in his previous trial, his new counsel was unable to determine whether the mistrial arose from circumstances that would prevent a second trial, based on Defendant's protection against double jeopardy.
Section 15A-1064 of our General Statutes provides:
Before granting a mistrial, the judge must make finding of facts with respect to the grounds for the mistrial and insert the findings in the record of the case.N.C. Gen. Stat. § 15A-1064 (2017).
Defendant conceded before the trial court, and concedes on appeal, that his first trial concluded in a mistrial following his request. "Where the mistrial has been granted at [the] defendant's request, there can be no prejudice to [the] defendant in the failure to make such findings." State v. Moses, 52 N.C. App. 412, 418, 279 S.E.2d 59, 64 (1981). Even if the trial judge erred in failing to make findings of fact, such an omission "constitutes harmless error." State v. White, 85 N.C. App. 81, 85, 354 S.E.2d 324, 327 (1987). We are not persuaded that a harmless error committed by the judge in Defendant's first trial would compel the court in the trial from which this appeal arises to grant Defendant's motion for a continuance. Defendant's new counsel should have been able to assess any double jeopardy issue based on the nearly complete transcript of the prior trial.
Defendant also argues that he was prejudiced by the denial of his motion for continuance because he did not have a complete transcript of his previous trial. Defendant's trial counsel received the transcript from the previous trial weeks before the trial from which this appeal arises and admitted that he had sufficient opportunity to review all of it except for corrupted portions. The corrupted portions contained testimony by Taub, the chemical analyst who tested marijuana that was at issue only in the previous trial, and Officer White, who provided rebuttal testimony in the previous trial. Neither Taub nor Officer White testified in Defendant's trial from which this appeal arises. Additionally, before the second trial, the court reporter from the prior trial delivered to defense counsel her typewritten notes concerning the missing portions of testimony. Finally, Defendant has failed to demonstrate that a trial continuance could have resolved the problem. We hold that the trial court did not abuse its discretion in denying the motion to continue the trial.
III. Sufficiency of the Evidence
Defendant argues that the State failed to provide sufficient evidence that he possessed or sold a Schedule I controlled substance. We review the denial of a motion to dismiss de novo. State v. Foye, 220 N.C. App. 37, 40, 725 S.E.2d 73, 77 (2012).
To survive a motion to dismiss for insufficiency of the evidence, the State must produce substantial evidence of each essential element of the offense. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d 172, 174 (2005) (quotations and citation omitted). All evidence is to be construed in favor of the State, including all reasonable inferences therefrom. State v. Garcia, 358 N.C. 382, 412-13, 597 S.E.2d 724, 746 (2004). If there are any evidentiary contradictions or discrepancies, they "are for the jury to resolve and do not warrant dismissal." State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995).
We incorporate our analysis from Part I and hold that the State produced substantial evidence that Defendant possessed and sold a Schedule I controlled substance on the dates of the two controlled transactions. Dr. Kuzemko testified, with no objection or opposing evidence submitted by defense counsel, that ethylone is within the class of designer drugs called cathinone, a known Schedule I controlled substance. N.C. Gen. Stat. §§ 90-89(5)(b), (j) (2014). Further, Dr. Kuzemko testified, without objection or opposing evidence, that ethylone has a similar chemical structure and physiological effect as Molly, otherwise known as methylone, another known Schedule I controlled substance. Id. § 90-89(5)(j).
Defendant contends that Dr. Kuzemko should have testified that ethylone fell within the catch-all provision of Section 90-89(5)(j). Section 90-89(5) names a list of stimulants classified as Schedule I controlled substances, one being cathinone. Id. § 90-89(5)(b). Because cathinone's base structure can be modified in a variety of ways, Section 90-89(5) includes a catch-all provision to include cathinone substitutes:
A compound, other than bupropion, that is structurally derived from 2-amino-1-phenyl-1-propanone by modification in any of the following ways: (i) by substitution in the phenyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the phenyl ring by one or more other univalent substituents; (ii) by substitution at the 3-position to any extent; or (iii) by substitution at the nitrogen atom with alkyl, dialkyl, benzyl, or methoxybenzyl groups or by inclusion of the nitrogen atom in a cyclic structure.Id. § 90-89(5)(j). Defendant argues that, because ethylone is not expressly listed in Section 90-89 and that Dr. Kuzemko did not testify that ethylone fell within the catch-all provision, the State has failed to produce substantial evidence to support his convictions for felony possession and sale of a Schedule I controlled substance. We disagree.
Defendant also cites the unpublished decision of this Court in State v. Ledbetter, No. COA15-322, 2015 N.C. App. LEXIS 930 (N.C. Ct. App. Sept. 22, 2015), to support his argument. Defendant's reliance on Ledbetter is unpersuasive. N.C. R. App. P. 30(e)(3) (2017). Assuming arguendo that Ledbetter impacted our analysis, it concerned the defendant's knowing possession and selling of a separate controlled substance, not whether ethylone's status as a Schedule I controlled substance was sufficiently introduced. Ledbetter, 2015 N.C. App. LEXIS 930, at *6-7. --------
Dr. Kuzemko's testimony was sufficient for the jury to reasonably conclude, through "fairly logical and legitimate deduction," that ethylone is a Schedule I controlled substance. State v. Jones, 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981) (quotations and citation omitted). Dr. Kuzemko did not need to testify that ethylone fell within Section 90-89(5)(j)'s catch-all provision because he explained that ethylone is a Schedule I controlled substance, as both a class of cathinone and as a derivative of methylone. We therefore hold that the trial court did not err in denying Defendant's motion to dismiss.
NO ERROR.
Judges BRYANT and DIETZ concur.
Report per Rule 30(e).