State v. Whittington
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA11-1197-2 NORTH CAROLINA COURT OF APPEALS Filed: 18 March 2014 STATE OF NORTH CAROLINA v. Nash County No. 09 CRS 51601 GLENN EDWARD WHITTINGTON Appeal by Defendant from judgment entered 7 April 2011 by Judge Quentin T. Sumner in Superior Court, Nash County. Heard originally in the Court of Appeals 6 March 2012, and opinion filed 19 June consideration 2012. of Remanded remaining to the Court of issues by judgment Appeals and for opinion rendered by the North Carolina Supreme Court on 24 January 2014. Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. Currin & Currin, by George B. Currin, for Defendant. McGEE, Judge. Glenn Edward Whittington ( Defendant ) was indicted on three counts of trafficking in opium on 11 May 2009: Count I, trafficking in opium by sale; Count II, trafficking in opium by delivery; and Count III, trafficking in opium by possession. -2Defendant appealed and this Court vacated the convictions on Counts I and II, and ordered a new trial on Count III. State v. Whittington, __ N.C. App. __, __, 728 S.E.2d 385, 388 90 (2012) ( Whittington I ). The basis for granting a new trial on Count III was this Court s holding that the State had failed in its burden of showing that Defendant had waived his constitutional right to introduced confront as the evidence analyst at who trial to prepared show the that lab the report substance Defendant possessed was an opium derivative as defined in N.C. Gen. Stat. § 90 95. Whittington I, __ N.C. App. at __, 728 S.E.2d Our at petition 388 90. for Supreme discretionary Court review granted State s this challenging the Court s reversal and remand for a new trial on Count III. State v. Whittington, __ N.C. __, 753 S.E.2d 320 (2014) ( Whittington II ). The Supreme Court reversed this Court s decision on Count III, trafficking by possession, holding that Defendant had not preserved that argument for appellate review. S.E.2d at 325. Whittington II left Id. at __, 753 unchanged this Court s holdings in Whittington I vacating the convictions for Counts I and II. Id. Our Supreme Court remanded the case for consideration by this Court of Defendant s remaining arguments. Id. Because the convictions for Counts I and II have been vacated, we address the remaining arguments only as they pertain -3to Count III. Additional relevant facts can be found in Whittington I and Whittington II. In Defendant s third argument, he contends the trial court erred in denying his motion to dismiss the trafficking by possession charge in violation of N.C. Gen. Stat. § 90-95(h)(4) (2013), which states in part: Any person who . . . possesses four grams or more of opium or opiate, or any . . . derivative . . . of opium or opiate . . . shall be guilty of a felony which felony shall be known as trafficking in opium or heroin[,] because there was a fatal variance between the offense charged in the indictment and the evidence presented at trial. We disagree. Specifically, Defendant contends that, because the indictment charged Defendant with possessing 4 grams but less than 14 grams of Opium, a controlled substance[,] but the evidence at trial was that Defendant possessed Oxycondone, an opium derivative, there existed a fatal variance between the indictment and the evidence presented at trial. This Court rejected the same argument in State v. Davis, __ N.C. App. __, 733 S.E.2d 191 (2012), where we held that the plain language of [N.C. Gen. Stat. § 90 95(h)(4)] does not create a separate crime of possession . . . of an opium derivative, but rather specifies that possession . . . of an opium derivative is trafficking in -4opium or heroin, precisely as alleged in the indictment. Based on the statutory language, defendant has shown no fatal variance between the indictment and the evidence. Davis, __ N.C. App. at __, 733 S.E.2d at 193 (emphasis added). Defendant s argument is without merit. In Defendant s fourth argument, he contends the trial court erred in instructing the jury that they could find Defendant guilty of trafficking in opium if they found he . . . knowingly possessed an opium derivative, on the grounds that the indictment did not allege that Defendant had trafficked in an opium derivative, but rather only opium. We again disagree. Because we hold there was no fatal variance between the indictment and the evidence presented at trial, we further hold that the trial court did not err in using the opium derivative language in instructing the jury. Defendant s argument is without merit. Therefore, Whittington II, the and ultimate the present outcome opinion of Whittington is: (1) I, Defendant s convictions on Counts I and II are vacated and, (2) no error in Defendant s conviction on Count III. Vacated in part, no error in part. Judges GEER and McCULLOUGH concur. Report per Rule 30(e).
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