{
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  "name": "STATE OF NORTH CAROLINA v. JEVAN ANDERSON",
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    "judges": [
      "Judges Wells and Phillips concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. JEVAN ANDERSON"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nThe verdict form on the charge of \u201ctrafficking in heroin by selling and delivering\u201d reads as follows: \u201cGuilty of trafficking . . . by selling or delivering in excess of 4 grams of a mixture containing heroin.\u201d (Emphasis supplied in both instances.) Defendant contends that his conviction on this charge cannot stand because use of the disjunctive \u201cor\u201d in the verdict form renders the verdict inherently ambiguous and deprives him of the right to a unanimous verdict. We agree.\n\u201cTwo offenses cannot, in the absence of statutory permission, be alleged alternatively in the same count.\u201d State v. Albarty, 238 N.C. 130, 132, 76 S.E. 2d 381, 383 (1953). Such a disjunctive charge \u201cleavfes] the exact accusation . . . shrouded in uncertainty.\u201d Id.\nSale and delivery of narcotics are separate offenses. State v. Dietz, 289 N.C. 488, 498-99, 223 S.E. 2d 357, 364 (1976). Further, each of the denounced acts in the trafficking statute constitutes a separate offense. State v. Anderson, 57 N.C. App. 602, 606, 292 S.E. 2d 163, 166, disc. rev. denied, 306 N.C. 559, 294 S.E. 2d 372 (1982).\nIn State v. McLamb, 313 N.C. 572, 330 S.E. 2d 476 (1985), our Supreme Court held that a verdict \u201cfinding that defendant \u2018feloni-ously did sell or deliver\u2019 cocaine is fatally defective and ambiguous.\u201d Id. at 577, 330 S.E. 2d at 480. We find McLamb controlling and accordingly award a new trial on this charge.\nWe note that McLamb and the case here are distinguishable from State v. Creason, 313 N.C. 122, 326 S.E. 2d 24 (1985) and Jones v. All American Life, 312 N.C. 725, 325 S.E. 2d 237 (1985), which also dealt with disjunctive verdicts. In Creason the defendant was found guilty of possession of LSD with intent to sell or deliver. The Court held that such a verdict was not fatally defective because\nthe possession of narcotics with the intent to \u201csell or deliver\u201d is one offense. On this charge the state is required to prove two elements: (1) defendant\u2019s possession of the drug, and (2) defendant\u2019s intention to \u201csell or deliver\u201d the drug. ... It is the intent of the defendant that is the gravamen of the offense.\nCreason, 313 N.C. at 129, 326 S.E. 2d at 28. In Jones plaintiff asserted that submission of the disjunctive issue whether she killed or procured the killing of the insured resulted in an ambiguous verdict. The Court held that the issue and instructions did not deny plaintiffs right to a unanimous verdict since a finding of plaintiff\u2019s participation in the death of the insured by either alternative would bar recovery. Jones, 312 N.C. at 738, 325 S.E. 2d at 244.\nCreason and Jones thus deal with situations where a single wrong is established by a finding of any one of multiple alternative elements. That is not the case here. There is no single offense of trafficking which may be proved by evidence of the commission of any one of multiple acts. Anderson, supra. Since the verdict form contained two separate offenses which were stated in the disjunctive, the verdict is inherently ambiguous and fails to support the judgment. McLamb at 577, 330 S.E. 2d at 480; Albarty at 133, 76 S.E. 2d at 383.\nDefendant contends the evidence did not suffice to convict him of trafficking by either possession or sale because only three of the fourteen packets of powder were chemically analyzed. The weight of the powder so analyzed was under one gram. Defendant admits that the total weight of all fourteen packets was in excess of six grams. He also acknowledges that the percentage of heroin in the mixture is not important so long as there is some heroin in a mixture that exceeds the statutory weight. State v. Tyndall, 55 N.C. App. 57, 60-61, 284 S.E. 2d 575, 577 (1981). He contends, however, that each of the packets, or at least enough of them to achieve a weight of four grams, should have been tested.\nState v. Hayes, 291 N.C. 293, 230 S.E. 2d 146 (1976), is dispos-itive of this issue. There the chemist visually examined nineteen envelopes of vegetable matter seized from the defendant and determined that the contents were the same. He then examined chemically and microscopically the contents of five of the envelopes selected at random and identified the contents as marijuana. The Court found that \u201cthere was sufficient evidence to go to the jury on the question of whether all the envelopes contained marijuana.\u201d Id. at 302, 230 S.E. 2d at 151-52.\nHere, similarly, an SBI forensic chemist with over fourteen years experience visually analyzed all packets in question and chemically tested a random sample. He testified that in his opinion the plastic packets \u201call contained] similar material which would contain heroin.\u201d He based his opinion\nnot . . . just on the analysis but also on [his] experience in having seen and analyzed quite a number of different types of containers which contained controlled substances as well as noncontrolled substances and the general appearance of the powder, the weight or amount of material in the individual packets, more or less a visual examination along with the chemical analysis.\nThis evidence allowed the jury to determine that all the packets contained heroin. Id., see also State v. Riera, 276 N.C. 361, 366-67, 172 S.E. 2d 535, 538-39 (1970); State v. Wooten, 20 N.C. App. 499, 504, 201 S.E. 2d 696, 700 (1974).\nDefendant contends the evidence was insufficient to establish that he possessed or conspired to possess any controlled substance. We disagree.\nPossession of a controlled substance may be either actual or constructive. State v. Harvey, 281 N.C. 1, 12, 187 S.E. 2d 706, 714 (1972). It may be in a single individual or in combination with another. State v. Baxter, 285 N.C. 735, 737-38, 208 S.E. 2d 696, 698 (1974). To possess a controlled substance the accused must have both the power and intent to control its disposition or use. Harvey, 281 N.C. at 12, 187 S.E. 2d at 714; State v. Allen, 279 N.C. 406, 412, 183 S.E. 2d 680, 684-85 (1971) (power and intent to control disposition and use while acting in combination with others).\nDefendant informed Bowman of the availability and price of heroin. Defendant\u2019s remarks to Thompson were indicative of his knowledge of heroin and intent to transfer it to Bowman. Further, Bowman specifically asked Thompson how much defendant wanted for the heroin. Thompson\u2019s answer indicates that defendant exercised control over the heroin by setting the price. The evidence thus clearly sufficed to support a finding of defendant\u2019s possession.\nIt similarly sufficed to support a finding of conspiracy. \u201cA criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means.\u201d State v. Bindyke, 288 N.C. 608, 615, 220 S.E. 2d 521, 526 (1975). The conspiracy itself is the crime and not the act agreed upon. Id. at 616, 220 S.E. 2d at 526.\nIt was not necessary that Bowman observe an actual exchange of money or drugs, or overhear a conversation concerning such, between defendant and Thompson.\nDirect proof of the charge is not essential, for such is rarely obtainable. It may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but [which], taken collectively, . . . point unerringly to the existence of a conspiracy.\nState v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933). Bowman contacted defendant to arrange the purchase of heroin and defendant informed her as to the price and quantity available. Bowman later obtained the agreed-upon amount of heroin from Thompson after meeting defendant. We find this evidence sufficient to establish a prima facie case of a conspiracy between defendant and Thompson. Once a prima facie case of conspiracy was established, the jury could also consider Thompson\u2019s statement that defendant wanted a certain price for the heroin. State v. Conrad, 275 N.C. 342, 348, 168 S.E. 2d 39, 43 (1969).\nWe conclude that there was no error in defendant\u2019s trial on the charges of conspiracy to traffick in heroin by possession, conspiracy to traffick in heroin by selling and delivering, and trafficking in heroin by possession. Because the verdict form used the disjunctive, resulting in an ambiguous verdict, there must be a new trial on the charge of trafficking in heroin by sale and delivery. Because the trafficking by possession charge was consolidated for sentencing with the trafficking by sale and delivery charge, the sentence as to the trafficking by possession charge must be vacated and the cause remanded for resentencing.\nThe result is:\n(1) As to conspiracy to traffick in heroin by possession, no error.\n(2) As to conspiracy to traffick in heroin by sale and delivery, no error.\n(3) As to trafficking in heroin by possession, no error in the trial; sentence vacated and cause remanded for resentencing.\n(4) As to trafficking in heroin by sale and delivery, new trial.\nJudges Wells and Phillips concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
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    "attorneys": [
      "Attorney General Thornburg, by Assistant Attorney General George W. Lennon, for the State.",
      "Appellate Defender Adam Stein, by Assistant Appellate Defender Robin E. Hudson, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JEVAN ANDERSON\nNo. 848SC1159\n(Filed 3 September 1985)\n1. Narcotics \u00a75\u2014 trafficking by sale or delivery \u2014 ambiguous verdict\nA verdict finding defendant guilty of trafficking \u201cby selling or delivering in excess of 4 grams of a mixture containing heroin\u201d was inherently ambiguous and fatally defective since sale and delivery are separate offenses.\n2. Narcotics \u00a7 4\u2014 trafficking in heroin \u2014 analysis of portion of packets \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to permit the jury to find that all fourteen packets obtained from defendant contained heroin and that defendant was thus guilty of trafficking by selling and delivering in excess of 4 grams of a mixture containing heroin where it tended to show that the contents of three of the packets were analyzed by an SBI forensic chemist and found to contain heroin, the chemist visually analyzed all of the packets and testified that in his opinion the packets all contained similar material, and the total weight of the sixteen packets exceeded 6 grams.\n3. Narcotics g 4.3\u2014 constructive possession of heroin \u2014 conspiracy to possess heroin-sufficiency of evidence\nThe evidence was sufficient to support jury findings that defendant possessed and conspired to possess heroin where it tended to show that an undercover agent contacted defendant to arrange the purchase of heroin and defendant informed her as to the price and quantity available; when the agent later met with defendant, defendant asked a codefendant if he had \u201cgone to get it\u201d and \u201cwhat he was waiting for\u201d; the agent later obtained the agreed-upon amount of heroin from the codefendant; and the agent asked the code-fendant how much defendant wanted for the heroin and was told a specific price.\nAPPEAL by defendant from Watts, Judge. Judgment entered 19 January 1984 in Superior Court, LENOIR County. Heard in the Court of Appeals 22 August 1985.\nDefendant was arrested following an undercover narcotics investigation by the State Bureau of Investigation. He was charged with two counts of conspiracy to traffick in heroin (one by possession with intent to sell and deliver and one by sale and delivery) and with two counts of trafficking in heroin (one by possession with intent to sell and deliver and one by sale and delivery).\nSBI Agent Deidre Bowman testified as follows:\nOn 19 July 1983 she approached defendant and inquired as to the availability of heroin. Defendant said that \u201csixties\u201d were available. Defendant then told his brother to \u201cget J.T.\u201d Shortly thereafter codefendant Jerry Thompson arrived. Defendant told Thompson to \u201ctake care of\u2019 Bowman. Thompson and Bowman subsequently engaged in a sixty dollar heroin transaction. Immediately prior to the transaction defendant asked Bowman how much Thompson was charging and indicated that the next time he (defendant) would sell it cheaper.\nOn 8 August 1983 Bowman asked defendant how much \u201cdope\u201d she could get for $605. Defendant calculated and said she could get twelve \u201cquarters.\u201d After negotiation he raised the number to fourteen.\nBowman met defendant later that evening and asked for her \u201cpackage.\u201d Thompson came into the room and defendant asked him if he had \u201cgone to get it yet.\u201d Thompson said no and defendant \u201casked him what he was waiting for.\u201d Thompson indicated that Bowman was to accompany him.\nBowman then drove Thompson to a corner where Thompson left the car and returned shortly with a small bottle containing fourteen clear plastic packets of white powder. An expert witness in forensic chemistry subsequently testified that samples of the powder contained heroin. Bowman asked Thompson how much defendant wanted for the powder. Thompson replied \u201csix,\u201d whereupon she gave him $600.\nDefendant later mentioned to Bowman that he had \u201clost $170 on the deal.\u201d Bowman heard no specific conversation between Thompson and defendant relating to the transaction nor did she observe an exchange of drugs or money between the two.\nDefendant presented no evidence. The jury convicted him on all counts. The conspiracy charges were consolidated for sentencing, as were the trafficking charges. The court sentenced defendant to thirty-four years imprisonment and fined him $200,000. Defendant appeals.\nAttorney General Thornburg, by Assistant Attorney General George W. Lennon, for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender Robin E. Hudson, for defendant appellant."
  },
  "file_name": "0434-01",
  "first_page_order": 468,
  "last_page_order": 474
}
