On writ of certiorari to review judgments dated 12 September
2001 by Judge Ronald K. Payne in Haywood County Superior Court.
Heard in the Court of Appeals 26 March 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General E. Burke Haywood, for the State.
Staples Hughes Appellate Defender by Assistant Appellate
Defender Constance E. Widenhouse, for defendant appellant.
BRYANT, Judge.
Pamela Jean McCracken (defendant) appeals, upon writ of
certiorari, from (A) judgments dated 12 September 2001 entered
consistent with a jury verdict finding her guilty of (1)
maintaining a vehicle to keep and sell a controlled substance (01
CRS 4297), (2) trafficking by possession of oxycodone, (3)
trafficking by sale of oxycodone, and (4) trafficking by
transportation of oxycodone (01 CRS 4294) and (B) a judgment dated
12 September 2001 entered consistent with defendant's no contest
plea to two counts of trafficking by sale of oxycodone (01 CRS
4293/4295).
(See footnote 1)
On 20 June 2001, the respective trafficking indictments wereissued and charged defendant with trafficking in “a mixture
containing oxycodone weighing 4 grams or more but less than 14
grams” on 5 March 2001. The evidence at trial revealed defendant
met Tyronne Heath, an informant for the Haywood County Sheriff's
Department, at a Wal-Mart on 5 March 2001 and sold him forty
tablets of the prescription drug Oxycontin. The forty tablets had
a total weight of 5.4 grams, of which 1.6 grams consisted of
oxycodone, a Schedule II opium derivative. Heath and another
witness also testified to other occasions between 7 February and 14
March 2001, when they had met with defendant at various prearranged
locations, including K-Mart, Time Out Market, Ingles, and a “Rec
Park,” to buy oxycodone. The trial court, over defendant's
objections under Rules 404(b) and 403, admitted this testimony,
finding that:
[T]hose transactions [were] similar in kind
and . . . involve[d] arrangements to meet by
telephone, sale of the same matter . . . and
. . . is admissible for [the] purpose of
showing that . . . [d]efendant had
knowledge[,] which is a necessary element of
the crimes charged in this case. And that
there existed in her mind a plan, scheme or
system or design involving the . . . crimes
charged . . . . She had the opportunity to
commit the crime, it was absence of . . .
mistake and absence of entrapment.
The jury was instructed accordingly.
_________________________
The dispositive issues are whether: (I) a pharmaceutical drug
dispensed in tablet form is a “mixture” within the meaning of N.C.
Gen. Stat. § 90-95(h)(4); (II) the trial court erred in failing tosubmit to the jury the lesser-included offenses of simple sale and
simple possession of oxycodone; and (III) the trial court abused
its discretion under Rules 404(b) and 403 in admitting evidence of
other drug transactions conducted by defendant.
I
Defendant first argues the trial court should have allowed her
motion to dismiss the trafficking charges because, of the 5.4 grams
of Oxycontin sold to Heath, only 1.6 grams consisted of the
controlled substance oxycodone. She contends that because the
remaining ingredients in each tablet consisted of filler
substances, their weight should not have counted toward the four
grams or more charged in the indictment.
N.C. Gen. Stat. § 90-95(h)(4) provides that:
Any 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
. . .
or any mixture containing such
substance,
shall be guilty of a felony which
felony shall be known as “
trafficking in opium
or heroin” . . . .
N.C.G.S. § 90-95(h)(4) (2001) (emphasis added). This Court has
previously decided whether the statute envisions use of the total
weight of a mixture or the actual weight of the controlled
substance within a mixture and held: “Clearly, the legislature's
use of the word 'mixture' establishes that the total weight of the
dosage units . . . is sufficient basis to charge a suspect with
trafficking.”
State v. Jones, 85 N.C. App. 56, 68, 354 S.E.2d 251,
258 (1987). Acknowledging the ruling in
Jones, defendant arguesprescription medication in tablet form should be treated
differently because it does not constitute a mixture within the
meaning of section 90-95(h). In support of her argument, defendant
points to several subsections that prohibit trafficking in a
specified number of “tablets, capsules, or other dosage units” of
a controlled substance “or any mixture containing such substance”
depending on its quantity or weight.
See N.C.G.S. § 90-95(h)(2),
(4a)-(4b) (2001). Because these subsections list both tablets and
mixtures, defendant contends the Legislature could not have
intended for tablets to be included in the definition of “mixture.”
We disagree.
The term “mixture” is not defined by statute. When, however,
the language of a statute is clear and unambiguous, there is no
room for judicial construction and the courts must give the
language its plain and definite meaning.
Utilities Comm'n v.
Edmisten, Atty. General, 291 N.C. 451, 465, 232 S.E.2d 184, 192
(1977). Statutes dealing with the same subject matter must be
construed
in pari materia and harmonized, if possible, to give
effect to each.
Utilities Comm'n v. Electric Membership Corp., 275
N.C. 250, 260, 166 S.E.2d 663, 670 (1969).
A mixture is defined as “a portion of matter consisting of two
or more components that do not bear a fixed proportion to one
another and that however thoroughly commingled are regarded as
retaining a separate existence.”
Webster's Third New International
Dictionary 1449 (1968);
see also Ex parte Fletcher, 718 So.2d 1132,
1134 (Ala. 1998) (“a 'mixture' consists of two or more substancesblended together so that the particles of one substance are
diffused among the particles of the other(s) and yet each substance
retains its separate existence”).
Dosage units like tablets and
capsules, by their nature, contain commingled substances that are
identifiable and thus regarded as retaining their separate
existence.
The
Jones Court implicitly recognized this
fact by
treating the dosage units of Dilaudid at issue in that case, which
came in tablet form, as mixtures
.
See Jones, 85 N.C. App. at 68,
354 S.E.2d at 258;
see also United States v. Young, 992 F.2d 207,
209-10 (8th Cir. 1993) (considering a tablet to be a mixture and
counting the entire tablet weight).
The statutes cited by defendant are not inconsistent with this
interpretation. The terms “tablets, capsules, or other dosage
units” are only used in sections in which the Legislature specified
the exact number of tablets, possession of which would amount to
the felony of trafficking. N.C.G.S. § 90-95(h)(2), (4a)-(4b). In
this context, the language “or any mixture containing such
substance” presents a catch-all provision for any variation in
form, weight, or quantity of the controlled substance and does not
lead to the conclusion that the Legislature did not intend to
include tablets within the definition of “mixture.” We thus
conclude that the trial court did not err in treating the tablets
of Oxycontin in this case as mixtures and applying the holding in
Jones. Accordingly, defendant's motion to dismiss was properly
denied.
II
Defendant next argues the trial court erred in failing to
instruct the jury on the lesser-included offenses of simple sale
and simple possession of oxycodone because, at the very least, the
question of which weight to apply was a question of fact for the
jury and, if the jury decided to use the controlled substance
weight as opposed to the total tablet weight, the lesser-included
offenses would have been warranted. This contention is without
merit. As the above analysis illustrates, the question of which
weight to apply is a legal one.
See Jones, 85 N.C. App. at 68, 354
S.E.2d at 258. Pursuant to
Jones, the jury was to consider the
total weight of the tablets, which was 5.4 grams and thus within
the parameters in which defendant could be found guilty of
trafficking in oxycodone.
See State v. Willis, 61 N.C. App. 23,
37-38, 300 S.E.2d 420, 429 (instruction on lesser-included offenses
not warranted where the total weight of the mixture exceeded the
lower weight limit even though only thirty percent of the mixture
was pure heroin),
modified on other grounds and aff'd, 309 N.C.
451, 306 S.E.2d 779 (1983). Accordingly, there was no evidence
presented in this case from which the trial court could have
legitimately fashioned a charge for a lesser offense.
See id.
III
Finally, defendant contends the trial court abused its
discretion under Rules 404(b) and 403 in admitting evidence of
other drug transactions conducted by defendant.
Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a
person in order to show that he acted inconformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C.G.S. § 8C-1, Rule 404(b) (2001). Evidence admissible under
Rule 404(b) is also subject to the balancing test of Rule 403,
which provides that “[a]lthough relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, . . . or needless
presentation of cumulative evidence.”
N.C.G.S. § 8C-1, Rule 403
(2001).
The transcript reflects that evidence of additional drug
transactions between 7 February and 14 March 2001 was offered and
admitted for the purpose of establishing knowledge, plan, scheme,
or design, opportunity, and absence of mistake or entrapment,
proper purposes under Rule 404(b).
See N.C.G.S. § 8C-1, Rule
404(b);
State v. Rosier, 322 N.C. 826, 829, 370 S.E.2d 359, 361
(1988) (evidence of other offenses showing common scheme or plan to
commit the offense with which defendant was charged held relevant
and admissible pursuant to Rule 404(b)). “When incidents are
offered for a proper purpose, the ultimate test of admissibility is
whether they are sufficiently similar and not so remote in time as
to be more probative than prejudicial under the balancing test of
Rule 403 of the N.C. Rules of Evidence.”
State v. Richardson, 100
N.C. App. 240, 244, 395 S.E.2d 143, 146 (1990);
see also State v.
Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990) (because
“[e]vidence which is probative of the State's case [is] necessarily. . . prejudicial” to the defendant, “the question is one of
degree”)
.
In this case, the other drug transactions involved the sale of
oxycodone at prearranged locations similar to the location at which
defendant had met Heath on March 5. These other transactions also
occurred within a few weeks before and after that date. As such,
they were sufficiently similar and not too remote in time,
see,
e.g., Richardson, 100 N.C. App. at 245, 395 S.E.2d at 146
(remoteness not an issue since all of the events took place within
a ten-month period), so as to make the evidence more probative than
prejudicial. Thus, the trial court did not abuse its discretion in
admitting the evidence.
No error.
Judges TIMMONS-GOODSON and GEER concur.
Footnote: 1