{ "id": 8569900, "name": "STATE OF NORTH CAROLINA v. BRYAN BOARD", "name_abbreviation": "State v. Board", "decision_date": "1979-03-16", "docket_number": "No. 95", "first_page": "652", "last_page": "661", "citations": [ { "type": "official", "cite": "296 N.C. 652" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "215 S.E. 2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": -1 }, { "cite": "246 S.E. 2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": -1 }, { "cite": "37 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554151 ], "year": 1978, "opinion_index": -1, "case_paths": [ "/nc-app/37/0581-01" ] }, { "cite": "288 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564626 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nc/288/0019-01" ] }, { "cite": "31 S.E. 2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "224 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610442 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/nc/224/0577-01" ] }, { "cite": "116 S.E. 2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "253 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624818 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/253/0318-01" ] }, { "cite": "183 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569568 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0447-01" ] }, { "cite": "199 S.E. 2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559946 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0081-01" ] }, { "cite": "215 S.E. 2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565031 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0113-01" ] }, { "cite": "183 S.E. 2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569206 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0398-01" ] }, { "cite": "240 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572673 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0299-01" ] }, { "cite": "215 S.E. 2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 1 }, { "cite": "288 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564626 ], "opinion_index": 1, "case_paths": [ "/nc/288/0019-01" ] } ], "analysis": { "cardinality": 822, "char_count": 20108, "ocr_confidence": 0.835, "pagerank": { "raw": 1.0627743750928743e-07, "percentile": 0.5575151292604318 }, "sha256": "6a3a716d22d3f948e4950c73473c85a795da34cba2170a1635bc9b3e6c7d1189", "simhash": "1:b22d92ac43b33c02", "word_count": 3372 }, "last_updated": "2023-07-14T21:17:53.962359+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices COPELAND and Britt join in this concurring opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. BRYAN BOARD" ], "opinions": [ { "text": "HUSKINS, Justice.\nSince we dispose of the case on other grounds, the question of entrapment, vigorously debated in the briefs, is not reached.\nFor reasons which follow, we hold that defendant\u2019s motion for judgment of nonsuit at the close of all the evidence should have been allowed.\nTo withstand a motion for nonsuit there must be substantial evidence against the accused of all material elements of the offense. State v. Lee, 294 N.C. 299, 240 S.E. 2d 449 (1978), and cases cited therein; State v. Allred, 279 N.C. 398, 183 S.E. 2d 553 (1971), and cases cited therein. Evidence which is sufficient only to raise a suspicion or conjecture of guilt is insufficient to withstand non-suit. State v. Lee, supra; State v. McKinney, 288 N.C. 113, 215 S.E. 2d 578 (1975).\nDefendant was tried upon four separate bills of indictment charging him with possession with intent to sell and selling, on two separate occasions, 3, 4-methylenedioxyamphetamine, a Schedule I controlled substance. See G.S. 90-89(c)l. A material element common to the offenses charged is the identity of the substance possessed and sold by defendant. In the present case the crucial question is whether the State offered substantial evidence that the drug possessed and sold by defendant was 3, 4-methylenedioxyamphetamine.\nThe only proof that the drug possessed and distributed by defendant was 3, 4-methylenedioxyamphetamine, as charged, is found in the cross-examination of J. R. Adcox, Special Agent, as follows: \u201cTwo of the three substances that I purchased from Mr. Board were MDA. The third was not a controlled substance.\u201d This testimony tends to show that' Adcox purchased \u201cMDA,\u201d a \u201ccontrolled substance,\u201d from defendant. This testimony, however, does not constitute substantial evidence that the drug possessed and sold by defendant was in fact 3, 4-methylenedioxyamphetamine as charged in the bills of indictment.\nSchedule I controlled substances include those listed in G.S. 90-89 \u201cby whatever official name, common or usual name, chemical name, or trade name designated.\u201d (Emphasis added.) At all times pertinent to this case that list embraced forty-three substances enumerated in G.S. 90-89(a), twenty-three additional substances enumerated in subsection (b), and eighteen additional substances enumerated in subsection (c). The designation \u201cMDA\u201d nowhere appears in Schedule I or any of the other schedules of controlled substances. See G.S. 90-89 through 90-94. The significance of the designation \u201cMDA\u201d is thus left to conjecture and the jury is left to speculate whether \u201cMDA\u201d refers to the controlled substance named in the bills of indictment.\nIs \u201cMDA\u201d an abbreviation, common or usual name, chemical name, trade name or even the \u201cstreet\u201d name for the drug 3, 4-methylenedioxyamphetamine? The witnesses do not say. The record tends to show that the white powdery substances purchased from defendant on February 8 and February 14, 1975 (State\u2019s Exhibits 1 and 2) were mailed to the Chemical Laboratory of the State Bureau of Investigation for analysis and were duly returned. The exhibits were then turned over to the Clerk of Superior Court of Rowan County and were offered in evidence at trial. For reasons not readily apparent the chemical analysis was never offered in evidence. Did the analysis show that the substances possessed and sold by defendant were 3, 4-methylene-dioxyamphetamine? The record provides no answer.\nIn State v. McKinney, supra, we stressed that identification of a controlled substance by an abbreviation not designated by the schedules of controlled substances does not constitute substantial evidence that the substance distributed by defendant was the controlled substance alleged in the indictments. McKinney was indicted for the felonious sale and distribution of tetrahy-drocannabinols, a controlled substance included in Schedule VI of the North Carolina Controlled Substances Act. See G.S. 90-94. The State\u2019s evidence tended to show that defendant distributed a substance identified as \u201cTHC, a substance similar to marijuana like drugs.\u201d The abbreviation THC was not used in Schedule VI. The State never established whether THC was an abbreviation for tetrahydrocannabinols. We concluded that the State\u2019s evidence was insufficient to establish that the substance distributed by defendant was in fact tetrahydrocannabinols. Held: Defendant\u2019s motion for nonsuit should have been granted.\nTo withstand a motion for judgment as of nonsuit there must be substantial evidence of all material elements of the offense charged, and whether the State has offered such evidence is a question of law for the trial court. State v. Everette, 284 N.C. 81, 199 S.E. 2d 462 (1973); State v. Evans, 279 N.C. 447, 183 S.E. 2d 540 (1971); State v. Allred, supra. Here, the State has failed to offer substantial evidence that the substance distributed by defendant was in fact 3, 4-methylenedioxyamphetamine, as charged in the bills -of indictment. This failure requires dismissal. State v. McKinney, supra: State v. Bass, 253 N.C. 318, 116 S.E. 2d 772 (1960); State v. Edwards, 224 N.C. 577, 31 S.E. 2d 762 (1944).\nFor the reasons stated the decision of the Court of Appeals is reversed. The case is remanded to that court for further remand to the Superior Court of Rowan County for entry of judgment dismissing the charges in accordance with this opinion.\nReversed and remanded.\nJustice BRANCH", "type": "majority", "author": "HUSKINS, Justice. Justice BRANCH" }, { "text": "concurring.\nFor the reasons stated in State v. Stanley, 288 N.C. 19, 215 S.E. 2d 589 (1975), I concur in result.\nJustices COPELAND and Britt join in this concurring opinion.", "type": "concurrence", "author": null }, { "text": "Justice BROCK\ndissenting.\nThe majority dismisses these charges against the defendant because no witness testified that MDA was in fact an abbreviation for 3, 4-methylenedioxyamphetamine. The majority then reasons that testimony that defendant possessed and delivered MDA \u201cdoes not constitute substantial evidence that the drug possessed and sold by defendant was in fact 3, 4-methylene-dioxyamphetamine as charged in the bills of indictment.\u201d\nI disagree with the majority opinion for what I consider to be two substantial reasons.\nFirst: The Courts are not required nor expected to be more blind than other segments of society to facts which are commonly known or to facts which are readily verifiable. \u201cMany facts . . .. are so indisputable, and so generally known or so readily verifiable that it would be a waste of time and a perversion of the judicial function to require them to be proved. A court will take judicial notice of facts of this character, i.e., it will assume or declare them to exist without requiring the production of evidence to establish them.\u201d 1 Stansbury\u2019s North Carolina Evidence, Judicial Notice, \u00a7 11, p. 24 (Brandis Rev. 1973). Drug Laws of North Carolina (Including Regulations) issued by North Carolina Drug Authority (now North Carolina Drug Commission) sets out on page 121 the Common or Trade Name for the Statutory or Legal name of Schedule 1 Controlled Substances. MDA is listed as the Common or Trade Name for 3, 4-methylenedioxyam-phetamine. This source is readily available and the abbreviation is readily verifiable. The trial judge took judicial notice of this fact when he instructed the jury as follows:\n\u201cNow, the defendant in these cases has been accused of possession of methylenedioxyamphetamine, a controlled substance, with the intent to sell it, and sale of this same controlled substance. Now, for the purposes of clarification, I will refer to that alleged substance by the term, MDA, which is the common way that it is referred to. It is the common abbreviation for the controlled substance, methylenedioxyam-phetamine. In these instructions, when I use the abbreviations MDA, you will know that that is the alleged substance to which I refer.\u201d\nThe State\u2019s witnesses, the district attorney, counsel for defendant, and the defendant himself referred to the drug as MDA. No objection or exception was taken by the defendant to the trial judge\u2019s taking notice, and instructing the jury, that MDA was the common abbreviation for 3, 4-methylenedioxyamphet-amine. If defendant had objected, I think it would have been without merit. But the point is that defendant himself is satisfied with the trial judge\u2019s action in this regard. For this Court to say the evidence of defendant\u2019s possession and delivery of MDA does not constitute substantial evidence that the drug possessed and sold by defendant was in fact 3, 4-methylenedioxyamphetamine is tantamount to saying that the trial judge abused his discretion in judicially noticing this fact. In my opinion the trial judge was correct.\nSecond: The primary argument of defendant, both in the Court of Appeals and in this Court, is that the evidence establishes entrapment as a matter of law. At no point does defendant argue that the evidence that he possessed and delivered MDA does not constitute substantial evidence that he sold and delivered 3, 4-methylenedioxyamphetamine as charged in the bills of indictment. He, in effect, took notice of that fact himself.", "type": "dissent", "author": "Justice BROCK" } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by James Peeler Smith, Assistant Attorney General, for the State.", "Robert M. Davis, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BRYAN BOARD\nNo. 95\n(Filed 16 March 1979)\nNarcotics \u00a7 4.1\u2014 possession and sale of 3, 4-methylenedioxyamphetamine charged \u2014 proof of possession and sale of MDA \u2014 entrapment \u2014 conviction reversed\nConviction of defendant for possession, possession with intent to sell, and sale of MDA is reversed, three judges being of the opinion that nonsuit should have been granted because defendant was charged with possession with intent to sell and sale of 3, 4-methylenedioxyamphetamine but there was no evidence that 3, 4-methylenedioxyamphetamine and MDA were the same thing, and three judges being of the opinion that the conviction should be reversed under S'. v. Stanley, 288 N.C. 19, because the evidence showed entrapment as a matter of law.\nJustice Branch concurring.\nJustices Copeland and Britt join in the concurring opinion.\nJustice Brock dissenting.\nON defendant\u2019s petition for discretionary review of decision of the Court of Appeals, 37 N.C. App. 581, 246 S.E. 2d 581 (1978), upholding judgment of Judge Collier entered at the 17 October 1977 Session of ROWAN Superior Court. This case was docketed and argued as No. 120 at the Fall Term 1978.\nDefendant was charged in four separate bills of indictment, proper in form, with the following crimes: (1) Possession with intent to sell, 3, 4-methylenedioxyamphetamine, a Schedule I controlled substance, on 8 February 1975; (2) sale of 3, 4-methylenedi-oxyamphetamine to SBI Agent J. R. Adcox on 8 February 1975; (3) possession with intent to sell 3, 4-methylenedioxyamphetamine on 14 February 1975; and (4) sale of 3, 4-methylenedioxyampheta-mine to SBI Agent J. R. Adcox on 14 February 1975.\nThe State\u2019s principal witnesses were Earnest F. Casey, Jr., and J. R. Adcox. Casey testified that he was twenty years of age and a long-time friend of defendant who was a junior in high school and seventeen years of age. Both Casey and defendant attended the First Baptist Church of China Grove in Rowan County. Defendant and his family were active members of the church, and Casey was the coach of the church basketball team on which defendant played.\nIn January 1975 Casey was trying to start a career in law enforcement and agreed to work as an undercover agent for the SBI under the supervision of J. R. Adcox, a special agent. After accepting such role, he went around the China Grove area talking with different people to find out if there was any drug traffic in that area. Defendant stated on Casey\u2019s first inquiry that he did not know where any drugs could be obtained. Casey went to defendant a second time and told him a man from Charlotte was trying to make contacts in Rowan County to purchase drugs; that while he, Casey, was in the Air Force he had been into drugs in Mississippi and was able to get a lot of high-grade marijuana (a statement which Casey admitted was untrue). Casey visited in the home of defendant several times and asked defendant in the presence of his parents to join a scout troop which was being organized. He also saw defendant in Sunday school and at basketball practice and made many inquiries concerning the purchase of drugs. \u2022\nOn 7 February 1975 Casey told defendant a man from Charlotte named Jim \u201cwas going to come down and was going to make some contacts with people down here\u201d; that \u201cJim was into drugs in Charlotte\u201d; that he wanted to introduce him to Jim. The introduction took place in the Methodist Church parking lot in China Grove about 8 p.m. that evening. At that meeting \u201cJim\u201d (who was SBI Agent J. R. Adcox) gave defendant $50 with which to purchase \u201cMDA.\u201d They agreed to meet later that night for delivery of the \u201cMDA,\u201d but the meeting never took place because Casey was stopped by the local police and given a traffic ticket. The following morning Casey talked with defendant and arranged for Casey and \u201cJim\u201d to meet defendant at his home that afternoon. When they arrived at the house, Casey entered and went to defendant\u2019s room where defendant showed him a white \u201cbaggy\u201d with a white powdery substance in it (State\u2019s Exhibit 1). Casey told him to carry it out to Adcox who had remained in the car, and defendant did so. This transaction gives rise to charges (1) and (2).\nThe next day, 9 February 1975, Casey talked with defendant at church and asked him \u201cif he knew where he could get any more drugs. He said that he would do what he could. And so, on the 14th he did obtain some for me. I was the one that asked him if he knew where he could get anything like that, but he did turn it over to Agent Adcox. The 14th was the next time that Mr. Board brought drugs to Agent Adcox.\u201d\nJ. R. Adcox testified that he was a special agent with the State Bureau of Investigation; that on the afternoon of 8 February 1975 defendant gave him the \u201cbaggy\u201d which contained three quarters of a gram of \u201cMDA\u201d and returned $15 in change, saying he had been unable to purchase a full gram. They discussed drugs generally for a few minutes, and Agent Adcox told defendant he would purchase a gram of \u201ccrystal.\u201d He gave defendant $25 and they agreed to meet again at approximately 9:30 p.m. at the China Grove Junior High School at which time Adcox was to pay an additional $25 \u2014 making a total of $50 \u2014for the gram of crystal.\nLater that evening defendant left word to meet him at the King of Pizza in Kannapolis, and the parties met there around 9 p.m. The defendant, with three friends, approached Casey\u2019s car and defendant handed Adcox another \u201cbaggy.\u201d They discussed the price and Adcox finally gave defendant $10, making a total price of $35. Subsequent analysis of the contents in this \u201cbaggy\u201d revealed that it was not a controlled substance.\nThereafter, on Friday, 14 February 1975, Casey called defendant to inquire about buying another gram of \u201cMDA.\u201d Adcox and Casey met defendant about 4 p.m. in the A & P parking lot and, as they drove around together, defendant said \u201chere you go, Jim\u201d and handed Adcox a small clear plastic bag containing a powder (State\u2019s Exhibit 2). This transaction is the basis for indictments (3) and (4). Adcox commented that he was disappointed about the previous purchase made at the King of Pizza because it was not a drug. Defendant said he was sorry and told Adcox he could taste the substance defendant had just handed to him. Ad-cox then gave defendant $45 and asked if that particular \u201cMDA\u201d came from the Moores, and defendant replied he got it from \u201cthe little Moore\u2014 that Ricky was not at home and the little Moore appeared to have been left in charge.\u201d\nDefendant testified in his own behalf. His evidence tends to show that defendant was in the twelfth grade, had known Earnest Casey most of his life, went to school and to church with him, and played on a church basketball team which Casey coached. In early 1975 defendant saw Casey two or three nights a week. One night \u201call of a sudden\u201d Casey started asking where he could get some drugs and continued to ask that question every time they were together. Defendant repeatedly stated he did not know where drugs could be obtained. Eventually Casey said he was working at the bank and they were going to have a bank party and he needed some drugs. Defendant said he would ask people at school where drugs could be obtained. Casey said he had a friend named Jim who worked at the bank with him and that Jim was coming down one night to get the drugs and Casey wanted defendant to meet Jim. As a result of his inquiries, defendant learned where he could get some drugs, so informed Casey, and they agreed to meet at the parking lot of the First Methodist Church. They met that night and Jim was introduced by Casey as \u201ca friend of mine that works at the bank.\u201d Jim said he would like to buy some drugs and gave defendant $50 with which to purchase them. Defendant testified he then went to the Moores and bought drugs, and the next day Casey and \u201cJim\u201d came to his home. Casey came to the bedroom and defendant, as directed, took the drug outside and gave it to \u201cJim\u201d together with $15 in change. Jim thereupon returned the $15 plus an additional $10 with which to buy more drugs. Defendant went back to the Moores\u2019 house but they didn\u2019t have any and referred him to a girl. Defendant said he bought what he thought was a drug from the girl and later delivered it to Jim at the pizza place.\nBetween February 8 and 14 defendant said Casey called practically every day wanting more drugs \u201cfor the coming weekend.\u201d During that period Casey brought an Explorer Scout Troop application blank to defendant\u2019s home, said they were starting a new post and wanted defendant to join it.\nOn 14 February defendant met Casey and \u201cJim\u201d in the A & P parking lot as prearranged, got in their car and gave Jim what he had previously bought for him. Defendant testified that he did all these things because Casey wanted him to and he was doing it for Casey as a friend. That afternoon as they rode around Casey and Jim wanted more drugs and defendant agreed to take them to a trailer where they could get some. When they got there defendant recognized cars belonging to people he did not want to associate with and refused to go in.\nDefendant further testified that Casey smoked marijuana with defendant and another fellow one night after a basketball game, talked about his days in the Air Force in Mississippi when he was on drugs, continuously encouraged drugs and never said there was anything wrong with using them. Finally, Casey\u2019s insistence that defendant get more and more drugs for him became so bothersome that defendant refused to take telephone calls from Casey and refused to get any more drugs for him.\nDefendant testified that he did not make any profit from any of the transactions with Jim and Casey, always returning the difference between what he paid for the drugs and the sum they had given him. And there is no evidence to the contrary.\nThe testimony of defendant\u2019s father and mother tends to corroborate defendant\u2019s testimony.\nOn cross-examination both defendant and his father testified they had heard of the case of State v. Stanley (288 N.C. 19, 215 S.E. 2d 589 (1975)). Defendant said he hadn\u2019t read it but had \u201cseen it and heard Mr. Davis talk about it.\u201d Defendant further admitted on cross-examination that he had been convicted of simple possession of marijuana in December 1976 while this case was on appeal to the Court of Appeals.\nThe jury rendered the following verdict: In case (1) \u2014guilty of simple possession of \u201cMDA\u201d on 8 February 1975; in case (2) \u2014 not guilty of the sale of \u201cMDA\u201d on 8 February 1975; in case (3) \u2014 guilty of possession of \u201cMDA\u201d with intent to sell on 14 February 1975; and in case (4) \u2014 guilty as charged of sale of \u201cMDA\u201d on 14 February 1975. Defendant appealed from a consolidated judgment imposing imprisonment for a maximum term of eighteen months as a committed youthful offender. The Court of Appeals found no error, and we allowed defendant\u2019s petition for discretionary review.\nRufus L. Edmisten, Attorney General, by James Peeler Smith, Assistant Attorney General, for the State.\nRobert M. Davis, for defendant appellant." }, "file_name": "0652-01", "first_page_order": 676, "last_page_order": 685 }