Opinion
No. COA11–1326.
2012-07-3
STATE of North Carolina v. Cole Reeves WILLIAMS.
Attorney General Roy Cooper, by Assistant Attorney General Richard A. Graham, for the State. Brock, Payne & Meece, P.A., by C. Scott Holmes, for defendant-appellant.
Appeal by defendant from judgment entered 5 May 2011 by Judge Gary M. Gavenus in Haywood County Superior Court. Heard in the Court of Appeals 3 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Richard A. Graham, for the State. Brock, Payne & Meece, P.A., by C. Scott Holmes, for defendant-appellant.
BRYANT, Judge.
Where the trial court did not err in failing to dismiss the charge of trafficking buprenorphine on the basis of a fatally defective indictment or a fatal variance between the indictment, the evidence presented, and the jury verdict sheet, and where the trial court's instruction to the jury that buprenorphine was an opium derivative did not amount to prejudicial error, we find defendant received a fair trial free from prejudicial error.
On 11 October and 16 December 2010, in Haywood County Superior Court, defendant was indicted on trafficking in opium or heroin, possession with intent to manufacture, sell or deliver a schedule I controlled substance, trafficking in opium or heroin by possession, misdemeanor possession of a schedule IV controlled substance, misdemeanor possession of a schedule VI controlled substance, and misdemeanor possession of drug paraphernalia.
Defendant had been seized near Lake Junaluska on 21 July 2010 by a private security officer. Found in defendant's vehicle and backpack were sixty-two tablets which tested positive for clonazepam—a Schedule IV controlled substance; two capsules which tested positive for MDMA—a Schedule I controlled substance; thirty-six tablets which tested positive for buprenorphine—a Schedule IV opium derivative; an off-white material which also tested positive for MDMA; ten tablets which tested positive for Alprazolam—a Schedule IV controlled substance; five tablets which contained pharmaceutical markings indicating they contained Amphetamine—a Schedule II controlled substance; and mushroom material which tested positive for Psilocin—a Schedule I controlled substance.
Following a jury trial, the Haywood County Superior Court entered judgment against defendant in accordance with the jury verdict convicting him of trafficking in opium, felony possession of a schedule I controlled substance, misdemeanor possession of drug paraphernalia, and simple possession of a schedule IV controlled substance. The judgments were consolidated, and defendant was sentenced to an active term of 90 to 117 months. Defendant appeals.
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On appeal, defendant raises three issues: (I) Did the trial court fail to dismiss the charge of trafficking buprenorphine because the indictment was fatally defective; (II) did the trial court fail to dismiss the charge of trafficking buprenorphine on the grounds of a variance between the indictment, the evidence presented at trial, and the verdict sheets; and (III) did the trial court err by instructing the jury that the substance at issue was an opiate derivative.
I
Defendant argues that the trial court erred in failing to dismiss the charge of trafficking buprenorphine. Defendant acknowledges that he was indicted pursuant to N.C. Gen.Stat. § 90–95(h)(4)(b) on the charge of trafficking in opium or heroin for possession of between fourteen and twenty-eight grams of an opium derivative, specifically, buprenorphine. Defendant notes that rather than being listed as an opium or opiate derivative under the Controlled Substances Act, buprenorphine is listed under Schedule IV as a narcotic drug, N.C.G.S. § 90–92(a)(5)(b). Defendant contends that the indictment is fatally defective because it charges defendant with trafficking in opium or heroin for possession of between fourteen and twenty-eight grams of buprenorphine which is classified as a schedule IV narcotic rather than an opium derivative. We disagree.
“[W]hen an indictment is alleged to be facially invalid, thereby depriving the trial court of its jurisdiction, 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) (citation omitted).
“An indictment charging a statutory offense must allege all of the essential elements of the offense.” State v. De La Sancha Cobos, –––N.C.App. ––––, ––––, 711 S.E.2d 464, 468 (2011) (citing State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)).
Pursuant to North Carolina General Statutes, section 90–95(h),
[n]otwithstanding any other provision of law, the following provisions apply except as otherwise provided in this Article.
...
(4) Any person who sells, manufactures, delivers, transports, or possesses four grams or more of opium or opiate, or any salt, compound, derivative, or preparation of opium or opiate (except apomorphine, nalbuphine, analoxone and naltrexone and their respective salts), including heroin, or any mixture containing such substance, shall be guilty of a felony which felony shall be known as “trafficking in opium or heroin” and if the quantity of such controlled substance or mixture involved:
...
b. Is 14 grams or more, but less than 28 grams, such person shall be punished as a Class E felon and shall be sentenced to a minimum term of 90 months and a maximum term of 117 months in the State's prison and shall be fined not less than one hundred thousand dollars ($100,000);
N.C. Gen.Stat. § 90–95(h)(4)(b) (2011).
Defendant was indicted for “TRAFFICKING OPIUM/HEROIN BY POSSESSION” in violation of N.C. Gen.Stat. § 90–95(h)(4)(b).
The jurors for the State upon their oath present that ... the defendant named above unlawfully, willfully, and feloniously, did TRAFFICK IN BUPRENORPHINE, AN OPIUM DERIVATIVE, BY POSSESSING 14 GRAMS OR MORE BUT LESS THAN 28 GRAMS, TO WIT: APPROXIMATELY 14.6 GRAMS OF BUPRENORPHINE, AN OPIUM DERIVATIVE WHICH IS INCLUDED IN SCHEDULE IV OF THE NORTH CAROLINA CONTROLLED SUBSTANCES ACT.
Defendant argues that because buprenorphine is not listed as an opium derivative under Schedule II it cannot be used to satisfy the opium derivative element used to indict him for trafficking in opium or heroin pursuant to N.C.G.S. § 90–95(h)(4). We find no support for defendant's argument that an opium derivative necessary to maintain an action for trafficking in opium or heroin under G.S. § 90–95(h) must be an opium derivative listed in Schedule II. Moreover, the controlled substances list in Schedule II under G.S. § 90–90 is not an exhaustive list of opium derivatives under the Controlled Substances Act. Schedule I under G.S. § 90–89 lists opium derivatives distinct from those listed under Schedule II. SeeN.C. Gen.Stat. § 90–89(2)(a)–(w) (2011).
Nevertheless, defendant was indicted for trafficking in opium or heroin by possession. The indictment informed him that the charge was based upon his possession of more than 14 grams but less than 28 grams of an opium derivative, buprenorphine. We hold that the indictment alleges the essential elements of the offense: possession of an opium derivative, the name of that derivative, and the amount. N.C.G.S. § 90–95(4)(h). Accordingly, we overrule defendant's argument.
II
Defendant argues that the trial court erred in failing to dismiss the charge of trafficking buprenorphine on the grounds of a fatal variance between the indictment, the evidence at trial, and the verdict sheets. Defendant contends that he was indicted on the allegation that he possessed 14.6 grams of buprenorphine while the evidence at trial suggested that one pill out of thirty-six was tested and determined to contain 8 milligrams of buprenorphine. Furthermore, defendant argues that the evidence submitted indicated that buprenorphine was an opium derivative; however, on the verdict sheet the jury found defendant guilty of “Trafficking in opium.” Defendant contends that this is a variance sufficient to vacate the judgment. We disagree.
[A] defendant must be convicted, if at all, of the particular offense charged in the bill of indictment. “Whether there is a fatal variance between the indictment and the proof is properly presented by defendant's motion to dismiss.” State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969); State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967). Thus the threshold question presented by this case is whether the offense charged conforms to the evidence elicited....
State v. Best, 292 N.C. 294, 302, 233 S.E.2d 544, 549 (1977).
We note that pursuant to G.S. § 95–90(h)(4)
[a] ny person who sells, manufactures, delivers, transports, or possesses four grams or more of opium or opiate, or any salt, compound, derivative, or preparation of opium or opiate (except apomorphine, nalbuphine, analoxone and naltrexone and their respective salts), including heroin, or any mixture containing such substance, shall be guilty of a felony which felony shall be known as “trafficking in opium or heroin”....
N.C.G.S. § 90–95(h)(4).
“This Court has previously decided whether the statute envisions use of the total weight of a mixture or the actual weight of the controlled substance within a mixture and held: “Clearly, the legislature's use of the word ‘mixture’ establishes that the total weight of the dosage units ... is sufficient basis to charge a suspect with trafficking.” State v. Jones, 85 N.C.App. 56, 68, 354 S.E.2d 251, 258 (1987).
State v. McCracken, 157 N.C.App. 524, 526–27, 579 S.E.2d 492, 494 (2003); see also, State v. Conway, 194 N.C.App. 73, 82, 669 S.E.2d 40, 46 (2008) ( “Additionally, this Court noted that this interpretation had been held to be constitutional under Article I § 19 of the North Carolina Constitution and the due process and equal protection clauses of the United States Constitution.” (citing State v. Jones, 85 N.C.App. 56, 68, 354 S.E.2d 251, 258 (1987)).
Here, the State presented testimony from a forensic chemist with the North Carolina State Bureau of Investigation admitted as an expert in the field of forensic drug chemistry. The forensic chemist testified that she was provided with thirty-six identical tablets in State's exhibit 14. She examined one. “Based on the results of my analysis, State's Exhibit 14 contained buprenorphine, which is a Schedule IV opium derivative at a weight of 14.6 grams.”
Because defendant does not contest that the total weight of the pills individually containing buprenorphine weighed 14.6 grams, we hold that the evidence was not inconsistent with G.S. § 90–95(h)(4) or the indictment charging defendant with possession of 14.6 grams of buprenorphine. See McCracken, 157 N.C.App. at 526–27, 579 S .E.2d at 494;compare Best, 292 N.C. 294, 233 S.E.2d 544.
Moreover, as G.S. § 90–95(h)(4) states that “[a]ny person who ... possesses four grams or more of opium ... derivative ... or any mixture containing such substance, shall be guilty of a felony which felony shall be known as ‘trafficking in opium or heroin[,]’ “ we hold that the verdict sheet did not reflect a variance between the indictment and the evidence presented at trial. SeeN.C.G.S. § 90–95(h)(4). Therefore, the trial court did not err in denying defendant's motion to dismiss. Accordingly, defendant's arguments are overruled.
III
Lastly, defendant argues that the trial court erroneously instructed the jury that the substance at issue was an opium derivative. Defendant contends that this was a matter of fact for the jury's determination, and by stating his opinion that the State had met its burden of proving that buprenorphine is an opium derivative, the trial court impermissibly removed this question from the province of the jury. We disagree.
“In instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence.” N.C. Gen.Stat. § 15A–1232 (2011); see State v. Mohamud, 199 N.C.App. 610, 681 S.E.2d 541 (2009) (holding the trial court's instruction “that Khat is a Schedule I controlled substance” amounted to plain error where the evidence indicated that the substance cathinone, present in living khat, was a Schedule I controlled substance which broke down to cathine, a Schedule IV substance, within 48 hours of harvest).
Here, the trial court gave the following instruction: “The defendant has been charged with trafficking in opium, which is the unlawful possession of 14 grams or more but less than 28 grams of opium, opiate or any salt, compound, derivative or preparation of opium or opiate or any mixture containing such substance. Buprenorphine is an opium derivative.”
Reviewing the record, the evidence that buprenorphine is an opium derivative was uncontradicted. Moreover, defendant does not argue on appeal that buprenorphine is not an opium derivative and that the trial court's statement was inaccurate. Therefore, even presuming error, defendant cannot not establish prejudice. Accordingly, defendant's argument is overruled.
No prejudicial error. Chief Judge MARTIN and Judge McCullough concur.
Report per Rule 30(e).