{
  "id": 8519927,
  "name": "STATE OF NORTH CAROLINA v. THOMAS EPPS",
  "name_abbreviation": "State v. Epps",
  "decision_date": "1989-08-15",
  "docket_number": "No. 8816SC914",
  "first_page": "173",
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  "last_updated": "2023-07-14T18:25:49.576177+00:00",
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  "casebody": {
    "judges": [
      "Judges BECTON and JOHNSON concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. THOMAS EPPS"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nThe State\u2019s evidence tends to show that on 6 April 1987, Lee Hecht, who was serving as an undercover narcotics agent with the Scotland County Sheriff\u2019s Office, and a confidential informant were introduced to a man claiming to be Allen Scott. Hecht told Scott he wanted to purchase an ounce and a quarter (IV4) of cocaine. Upon instruction from Scott, Hecht and the informant followed Scott to an abandoned business formerly known as Chico\u2019s Trading Post.\nOfficer Hecht was told by Scott to get out of his van and approach the abandoned building. He refused to, and Scott disappeared walking in the direction of the Benton Trailer Park. Hecht later learned that defendant lived in the trailer park. Shortly thereafter, Scott returned, with the defendant appearing a couple of seconds later. Before reaching Hecht\u2019s van, defendant and Scott stopped and had a brief dialogue. Officer Hecht testified that \u201cI advised him [defendant] that I was there to purchase an ounce and a quarter of cocaine. I advised him [defendant] that the price agreed upon was $2,000.00. At that point in time, he advised me, no, that the correct price was going to be $2,100.00.\u201d The two then consummated the deal.\nOfficer Hecht left the area and made notes on the transaction. Thereafter Hecht met with an officer to whom he was reporting and turned over three plastic bags containing a white powdery substance which defendant had referred to as cocaine. The substance was later determined to be cocaine based on a chemical analysis.\nDefendant was subsequently arrested and charged with conspiracy to commit the felony of trafficking in cocaine under G.S. 90-95(i); trafficking in cocaine by possession with the intent to sell or deliver cocaine under G.S. 90-95(h)(3)(a); and trafficking in cocaine by sale and delivery also under G.S. 90-95(h)(3)(a). Defendant was then tried before a jury and found guilty as charged. He was sentenced to a total of 18 and one-half years imprisonment. Defendant now appeals.\nI.\nThe first issue which we will address is whether the court erred in denying defendant\u2019s motion to quash the indictments for conspiracy to traffic in cocaine and for trafficking in cocaine by sale. Defendant contends that the conspiracy indictment contains no reference to any particular statute and it fails to refer to any weight or volume of cocaine involved. He likewise contends that the trafficking by sale indictment fails to allege a weight; therefore, it fails to state a chargeable offense.\n\u201cAn indictment is a written accusation of crime drawn up by the public prosecuting attorney and submitted to a grand jury, and found and presented by them on oath or affirmation as a true bill.\u201d 7 Strong\u2019s N.C. Index 3d Indictment and Warrant section 7 (1976). In order for an indictment to be valid,\nthere must be such certainty in the statement of accusation as will (1) identify the offense with which the accused is sought to be charged; (2) protect the accused from being twice put in jeopardy for the same offense; (3) enable the accused to prepare for trial; and (4) enable the court, on conviction or plea of nolo contendere or guilty, to pronounce sentence.\nState v. Goforth, 65 N.C. App. 302, 305, 309 S.E.2d 488, 491 (1983). Goforth involved an indictment where defendants were alleged to have conspired to traffic in \u201cat least 50 pounds of marijuana\u201d in violation of G.S. 90-95(i). Id. There we held that weight is an essential element of that offense and we arrested the judgment on that charge because the indictment failed to allege that the amount of marijuana involved was \u201cin excess of 50 pounds\u201d as required by G.S. 90-95(h)(1). (Emphasis added.)\nDefendant correctly points out that the conspiracy indictment fails to give any weight for the cocaine involved. Our trafficking statutes were enacted with an aim toward the offender who facilitates the large scale transfer of drugs. State v. Willis, 61 N.C. App. 23, 42, 300 S.E.2d 420, 431, modified and aff\u2019d, 309 N.C. 451, 306 S.E.2d 779 (1983). An indictment for conspiracy to traffic in cocaine must sufficiently demonstrate that the alleged offender was facilitating the transfer of \u201c28 grams or more of cocaine.\u201d See G.S. 90-95(h)(3) and (i). Therefore, we find that because this indictment did not clearly allege all of the material elements to support a conviction for conspiracy to traffic in cocaine, the judgment on that issue must be arrested. State v. McGaha, 306 N.C. 699, 295 S.E.2d 449 (1982); State v. Stokes, 274 N.C. 409, 163 S.E.2d 770 (1968).\nII.\nAs to the trafficking in cocaine by sale charge, the defendant was charged in a two-count indictment which states, inter alia, that:\n[O]n or about the 6th day of April, 1987 . . . the defendant named above unlawfully and feloniously did possess with intent to sell or deliver a controlled substance, 35.1 grams of cocaine which is included in Schedule II of the North Carolina Controlled Substances Act ....\n[O]n or about the 6th day of April, 1987 . . . the defendant named above unlawfully, willfully and feloniously did sell to Det. Lee Hecht a controlled substance, cocaine which is included in Schedule II of the North Carolina Controlled Substance Act ....\nAs previously indicated, defendant is challenging the second count. He claims that the indictment does not contain all of the requisite elements in order to validly charge him with a violation of G.S. 90-95(h)(3).\nThe State contends that since the amount of cocaine, 35.1 grams, was alleged in the \u201cpossession] with intent to sell\u201d offense, defendant could not have been misled or placed in double jeopardy by the indictments. We agree with the State\u2019s position on this issue and affirm the trial court\u2019s denial of the defendant\u2019s motion to quash this indictment for the reasons set forth below.\nWhile we recognize that each count of an indictment should be complete in itself, \u201cthe fact that the first count charges the offense in general terms and is insufficient is not fatal when subsequent counts for specific violations sufficiently set out the offense complete within themselves.\u201d 7 Strongs N.C. Index 3d Indictment And Warrant section 9 (1976). Furthermore,\nit is not the function of an indictment to bind the hands of the State with technical rules of pleading; rather, its purposes are to identify clearly the crime[,] . . . [put] the accused on reasonable notice . . . and to protect the accused from being jeopardized by the State more than once for the same offense.\nState v. Sturdivant, 304 N.C. 293, 311, 283 S.E.2d 719, 731 (1981).\nHere, the two counts, when read together, apprise defendant that he is being charged with trafficking in cocaine by the sale of 35.1 grams of that substance to Officer Hecht. There is no possibility that defendant was confused about the offense charged, nor does defendant claim any problem with his trial preparation. The two counts in the indictment are based upon a single drug transaction between defendant and Officer Hecht. There was only one amount of cocaine involved \u2014 the 35.1 grams as was alleged in the first count. Furthermore, the court did not encounter any problems in pronouncing defendant\u2019s sentence.\nThis case does not involve the risk of abuse to defendant\u2019s constitutional rights which similar factual problems might present. The two-count indictment clearly alleges the offense of trafficking in cocaine by sale and trafficking in cocaine by possession. Cf. State v. Goforth, 65 N.C. App. 302, 309 S.E.2d 488 (1983). There was no error in the court\u2019s denial of defendant\u2019s motion.\nDefendant raised the additional issue of the trial court\u2019s alleged error in failing to dismiss the conspiracy to traffic in cocaine charge due to insufficient evidence. We see no need to consider that assignment of error in light of our decision to arrest judgment on that conviction.\nJudgment is arrested on the conspiracy charge, case number 87CRS1738.\nJudgment is affirmed on the trafficking in cocaine by sale charge, case number 87CRS1739.\nJudges BECTON and JOHNSON concur.",
        "type": "majority",
        "author": "ORR, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Associate Attorney General Robert J. Blum, for the State.",
      "Williamson, Dean, Brown & Williamson, by Richard T. Brown, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. THOMAS EPPS\nNo. 8816SC914\n(Filed 15 August 1989)\n1. Narcotics \u00a7 2\u2014 conspiracy to traffic in cocaine \u2014 failure to allege amount of cocaine \u2014quashed required\nThe trial court erred in failing to quash the indictment in a prosecution for conspiracy to traffic in cocaine where weight was an essential element of the offense but the indictment failed to give any weight for the cocaine involved.\n2. Narcotics \u00a7 2\u2014 trafficking in cocaine \u2014 two-count indictment\u2014 amount alleged in only one count \u2014 indictment sufficient to charge crime\nWhere defendant was charged in a two-count indictment with trafficking in cocaine by sale and the second count did not state the amount of cocaine involved, the trial court did not err in denying defendant\u2019s motion to quash the indictment, since the first count did allege the amount involved; the two counts, when read together, apprised defendant that he was being charged with trafficking in cocaine by the sale of 35.1 grams of that substance to an undercover officer; there was no possibility that defendant was confused about the offense charged; defendant did not claim any problem with his trial preparation; the two counts were based upon a single drug transaction; there was only one amount of cocaine involved; and the court did not encounter any problems in pronouncing defendant\u2019s sentence.\nAPPEAL by defendant from Ellis (B. Craig), Judge. Judgment entered 24 March 1988 in Superior Court, SCOTLAND County. Heard in the Court of Appeals 21 March 1989.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Robert J. Blum, for the State.\nWilliamson, Dean, Brown & Williamson, by Richard T. Brown, for defendant-appellant."
  },
  "file_name": "0173-01",
  "first_page_order": 201,
  "last_page_order": 205
}
