{ "id": 4104409, "name": "STATE OF NORTH CAROLINA v. CLEO PATRICK DAVIS, JR., Defendant", "name_abbreviation": "State v. Davis", "decision_date": "2012-11-06", "docket_number": "No. COA11-1526", "first_page": "296", "last_page": "300", "citations": [ { "type": "official", "cite": "223 N.C. App. 296" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "364 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152316 ], "opinion_index": -1, "case_paths": [ "/nc/364/0133-01" ] }, { "cite": "625 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635052 ], "year": 2006, "pin_cites": [ { "page": "605", "parenthetical": "holding that indictment was facially invalid when it failed to identify controlled substance by name specified in statute" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0604-01" ] }, { "cite": "723 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "334", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "365 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154240 ], "year": 2012, "pin_cites": [ { "page": "518", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0506-01" ] }, { "cite": "694 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "747" }, { "page": "747-48" } ], "opinion_index": 0 }, { "cite": "175 N.C. App. 783", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353483 ], "year": 2006, "pin_cites": [ { "page": "784-85", "parenthetical": "holding that indictment was facially invalid when it failed to identify controlled substance by name specified in statute" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0783-01" ] }, { "cite": "183 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "646" } ], "opinion_index": 0 }, { "cite": "279 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569495 ], "year": 1971, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0442-01" ] }, { "cite": "488 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "172", "parenthetical": "\"Regarding the alleged variance between the indictment and the evidence at trial, defendant based his motions at trial solely on the ground of insufficient evidence and thus has failed to preserve this argument for appellate review.\"" }, { "page": "172" } ], "opinion_index": 0 }, { "cite": "346 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139473 ], "year": 1997, "pin_cites": [ { "page": "645", "parenthetical": "\"Regarding the alleged variance between the indictment and the evidence at trial, defendant based his motions at trial solely on the ground of insufficient evidence and thus has failed to preserve this argument for appellate review.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0628-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(h)(4)" }, { "page": "(h)(4)" } ], "opinion_index": 0 }, { "cite": "364 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152316 ], "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0133-01" ] } ], "analysis": { "cardinality": 509, "char_count": 10073, "ocr_confidence": 0.727, "pagerank": { "raw": 4.518461695170957e-08, "percentile": 0.28320222530348294 }, "sha256": "d45498bc694f6b42371b8db43cec635b8135e47c12ffed0c6f8c23f8b7c68903", "simhash": "1:0329d42eb437363c", "word_count": 1585 }, "last_updated": "2023-07-14T18:08:05.693184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and THIGPEN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CLEO PATRICK DAVIS, JR., Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Cleo Patrick Davis, Jr. appeals from his convictions of trafficking in opium by transportation and trafficking in opium by possession. Defendant primarily contends on appeal that there was a fatal variance between the indictment and the proof offered at trial. Defendant points out that the indictment alleged that he trafficked in opium, while the evidence showed that the substance was an opium derivative. Based on the plain language of the statute, we hold that no fatal variance occurred.\nFacts\nThe State\u2019s evidence tended to show the following facts. At about 3:00 p.m. on 20 March 2009, Deputy Brett Sasser of the Brunswick County Sheriff\u2019s Department pulled over defendant for driving without a seat belt. Deputy Sasser asked defendant for his driver\u2019s license and for consent to search his vehicle. After defendant consented to the search, Deputy Sasser found a small amount of marijuana in the center console. Deputy Sasser then obtained defendant\u2019s consent to search his person and found a prescription bottle containing 29 Percocet tablets in defendant\u2019s left front coat pocket.\nDefendant told Deputy Sasser that he was picking up the pills for his mother. At Deputy Sasser\u2019s request, a fellow officer called the pharmacy and learned that defendant\u2019s mother had picked up the pills a few days earlier. Deputy Sasser then placed defendant under arrest. After arriving at the police station, Deputy Sasser interviewed defendant, and defendant told Deputy Sasser that his intention was to sell the pills and split the money with his mother.\nDefendant was charged with trafficking in opium or heroin by transportation and by possession pursuant to N.C. Gen. Stat. \u00a7 90-95(h)(4). At trial, Special Agent Alisha Matkowsky testified that the pills contained oxycodone, a derivative of opium. The jury convicted defendant of trafficking in opium both by possession and by transportation. The trial court sentenced defendant to a term of 90 to 117 months imprisonment. Defendant timely appealed to this Court.\nDiscussion\nDefendant first argues that the trial court erred in denying his motion to dismiss the charges because there was a fatal variance between the indictment and the State\u2019s trial evidence. Specifically, defendant contends that the indictment alleged that he trafficked in \"opium,\" while the State presented evidence that defendant was trafficking in oxycodone, an opium derivative.\nThe State points out that defendant did not make this argument at trial. Our Supreme Court has previously held that a defendant\u2019s motion to dismiss based on the sufficiency of the evidence is not sufficient to preserve for appellate review an argument that the evidence, varied from the indictment. See State v. Pickens, 346 N.C. 628, 645, 488 S.E.2d 162, 172 (1997) (\u201cRegarding the alleged variance between the indictment and the evidence at trial, defendant based his motions at trial solely on the ground of insufficient evidence and thus has failed to preserve this argument for appellate review.\u201d). However, even assuming, without deciding, that defendant\u2019s counsel did present this issue for appellate review, defendant has failed to show any fatal variance.\nThe Supreme Court has held that \u201c \u2018[a] motion to dismiss [for a variance] is in order when the prosecution fails to offer sufficient evidence the defendant committed the offense charged. A variance between the criminal offense charged and the offense established by the evidence is in essence a failure of the State to establish the offense charged.\u2019 \u201d Id. at 646, 488 S.E.2d at 172 (quoting State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971)).\nIt is well established that \u201cthe identity of the controlled substance that defendant allegedly possessed is considered to be an essential element which must be alleged properly in the indictment.\u201d State v. Ahmadi-Turshizi, 175 N.C. App. 783, 784-85, 625 S.E.2d 604, 605 (2006) (holding that indictment was facially invalid when it failed to identify controlled substance by name specified in statute). Defendant was, however, charged under N.C. Gen. Stat. \u00a7 90-95(h)(4) (2011), which provides that \u201c[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 \u2018trafficking in opium or heroin\u2019. . . .\u201d (Emphasis added.)\nThus, the plain language of the statute does not create a separate crime of possession or transportation of an opium derivative, but rather specifies that possession or transportation of an opium derivative is trafficking in opium 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. At trial, the State presented evidence that defendant committed the precise crime that was charged.\nDefendant next argues that the trial court erred in admitting the testimony of Special Agent Matkowsky that the pills possessed by defendant were oxycodone. Our Supreme Court held in State v. Ward, 364 N.C. 133, 147, 694 S.E.2d 738, 747 (2010), that \u201c[u]nless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.\u201d In Ward, the Court concluded that the trial court should have excluded an agent\u2019s identification of prescription drugs based solely on comparing the outward appearance of the tablets and their markings with literature identifying pharmaceutical markings. Id. at 148, 694 S.E.2d at 747-48.\nHere, however, Special Agent Matkowsky did perform a chemical analysis of the pills. Her testimony explained the technique she used to isolate the components of the pills, including running the material through an \u201cinstrument\u201d that generated a graphic printout of the chemical make-up of the components, which she could then compare to known graphs of the components and identify the substances in the pills. Special Agent Matkowsky\u2019s testimony complied with Ward and, therefore, the trial court properly admitted her testimony.\nFinally, defendant argues that the trial court committed plain error when the evidence showed that defendant possessed an opium derivative, but the trial court instructed the jury that it could convict defendant if it found \u201cthat the defendant knowingly possessed Opium or any mixture containing such substance.\u201d (Emphasis added.) As our Supreme Court has observed:\nFor error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury\u2019s finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings^]\nState v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted).\nEven assuming that the trial court erred in giving the \u201cmixture\u201d instruction, defendant has not shown that in the absence of the error, the jury would probably have reached a different verdict. In this case, defendant does not dispute that he had the pills at issue in his possession. Defendant also gave a signed statement that he intended to sell those pills and split the money with his mother. Special Agent Matkowsky testified both that the pills contained oxycodone and that oxycodone is an opium derivative. Consequently, defendant cannot show that the jury probably would have reached a different verdict if the trial court had referred in its instructions to an opium derivative rather than a mixture. We, therefore, hold that defendant received a trial free from prejudicial error.\nNo error.\nJudges ELMORE and THIGPEN concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Jonathan D. Shaw, for the State.", "William D. Spence for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CLEO PATRICK DAVIS, JR., Defendant\nNo. COA11-1526\n(Filed 6 November 2012)\n1. Indictment and Information \u2014 variance with evidence at trial \u2014 not fatal \u2014 trafficking in opinm and opium derivative\nThere was not a fatal variance between the indictment and the evidence at trial where the indictment alleged trafficking in opium pursuant to N.C.G.S. \u00a7 90-95(h)(4) and the evidence involved oxycodone, an opium derivative. The statute specifies that possession or transportation of an opium derivative is trafficking in opium or heroin.\n2. Drugs \u2014 contents of seized pills \u2014 testimony specific\nThere was no error in the admission of a special agent\u2019s testimony about the contents of pills seized from defendant where the special agent performed a chemical analysis of the pills and her testimony complied with State v. Ward, 364 N.C. 133.\n3. Drugs \u2014 instructions\u2014mixture instead of derivative \u2014 no plain error\nThere was no plain error in a prosecution for trafficking in oxycodone where the trial court instructed the jury on possession of opium or an opium mixture rather than an opium derivative. Defendant did not dispute that he had the pills in his possession, defendant gave a signed statement that he intended to sell those pills and split the money with his mother, a special agent testified both that the pills contained oxycodone and that oxycodone is an opium derivative, and defendant could not show that the jury probably would have reached a different verdict with a correct instruction.\nAppeal by defendant from judgment entered 2 June 2011 by Judge Thomas H. Lock in Columbus County Superior Court. Heard in the Court of Appeals 10 May 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Jonathan D. Shaw, for the State.\nWilliam D. Spence for defendant-appellant." }, "file_name": "0296-01", "first_page_order": 306, "last_page_order": 310 }