An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-186


Filed: 1 April 2003


         v.                        Haywood County
                                Nos. 01 CRS 4303-05

    Appeal by defendant from judgment entered 18 September 2001 by Judge Ronald K. Payne in Haywood County Superior Court. Heard in the Court of Appeals 17 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State.

    James L. Goldsmith, Jr., for defendant appellant.


    Michael Joseph Meushaw (“defendant”) appeals from his conviction and resulting sentence entered after defendant pled guilty to trafficking in a controlled substance. For the reasons stated herein, we affirm the judgment of the trial court.
    The pertinent facts of the instant appeal are as follows: On 20 June 2001, a grand jury indicted defendant for violation of section 90-95(h) of the North Carolina General Statutes. The indictment charged defendant with trafficking in oxycodone, an opiate, by possession, sale and transportation of a mixture containing oxycodone weighing four grams or more but less than fourteen grams. Defendant pled guilty to trafficking by sale, subject to his right to appeal the trial court's refusal to findthat defendant trafficked in less than the threshold trafficking amount of four grams. The trial court sentenced defendant to a minimum term of seventy months and a maximum term of eighty-four months of imprisonment. From this conviction and resulting sentence, defendant appeals.
    Defendant contends that the trial court erred in denying his motion to determine that the amount of pure oxycodone contained in the mixture was less than four grams. We disagree, and we affirm the judgment of the trial court.
    Defendant contends that his conviction was erroneous, in that, although the stipulated total weight of the tablets (5.4 grams) possessed by defendant was between four and fourteen grams, the stipulated weight of pure oxycodone (1.6 grams) contained within the tablets was less than four grams. Defendant concedes that section 90-95(h)(4) of the General Statutes includes the phrase “or any mixture containing such substance.” N.C. Gen. Stat. § 90- 95(h)(4) (2001). Defendant nevertheless asks this Court to create an exception where the substance is a prescription drug, as opposed to a “street drug.”
    We decline defendant's request. Cases interpreting section 90-95(h)(4) hold that the statutory threshold is met if the total weight of the substance or mixture equals or exceeds the threshold amount, even though the weight of the pure substance contained therein fails to meet the threshold amount. See, e.g., State v. Agubata, 94 N.C. App. 710, 711, 381 S.E.2d 191, 192 (1989); Statev. Jones, 85 N.C. App. 56, 68, 354 S.E.2d 251, 258, disc. review denied, 320 N.C. 173, 358 S.E.2d 61, cert. denied, 484 U.S. 969, 98 L. Ed. 2d 404 (1987). These cases make no distinction between a prescription drug or a “street drug.” The statute likewise makes no distinction. If the General Assembly had intended to make this distinction, it could have easily included appropriate language in the statute. We therefore overrule defendant's assignment of error.
    For the foregoing reasons, the judgment of the trial court is
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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