Appeal by defendant from judgments entered 24 October 2001 by
Judge William C. Griffin, Jr. in Pitt County Superior Court. Heard
in the Court of Appeals 29 January 2003.
Attorney General Roy Cooper, by Assistant Attorney General Ann
Stone, for the State.
David C. Sutton for defendant appellant.
TIMMONS-GOODSON, Judge.
Randy Craig Joyner (“defendant”) appeals from his convictions
and resulting sentences entered upon jury verdicts finding
defendant guilty of delivering marijuana to a minor and
contributing to the delinquency of a minor. For the reasons
discussed herein, we vacate the conviction for contributing to the
delinquency of a minor and uphold defendant's conviction for
delivering marijuana to a minor.
The State's evidence at trial tended to show the following:
On 18 January 2001, fourteen-year-old Clayton Russell (“Russell”)
and his friend, Corey Mitchell (“Mitchell”) visited Mattie's Mini
Park (“the park”) to purchase marijuana. Defendant was at the park
playing basketball when Russell approached him and inquired aboutpurchasing marijuana. Defendant informed Russell that he did not
have any marijuana for sale; however, defendant advised Russell
that if he returned to the park at a later time he would be able to
purchase marijuana from another person. Russell then left the park
and returned approximately fifteen minutes later.
Upon his return to the park, Russell again approached
defendant and inquired about the purchase of marijuana. Defendant
then secured marijuana from Maurice Tucker (“Tucker”) and offered
to sell it to Russell. However, Russell was not satisfied with the
amount of marijuana defendant offered and declined the purchase.
Shortly thereafter, Russell returned to the park with Mitchell and
purchased marijuana from Tucker. Defendant was not present during
the transaction between Russell and Tucker.
As the events between defendant, Russell, and Tucker unfolded,
Chuck Simpson (“Simpson”), a private investigator, was in the park
conducting video surveillance on an unrelated matter. As a result,
Simpson captured on videotape the incident between defendant,
Russell, Tucker, and Mitchell. Simpson then went to the Grifton
Police Department with the videotape and reported the above
described events to Officer Ralph Whitehurst (“Officer
Whitehurst”). Officer Whitehurst viewed the videotape, made a copy
of it and deleted certain portions of the videotape. According to
Officer Whitehurst, he decided to edit portions of the videotape
which did not contain information relevant to the events between
defendant and Russell. Officer Whitehurst then made contact with Russell's parents
and arranged for them to bring Russell to the police station.
Officer Whitehurst conducted an interview with Russell and
defendant was subsequently arrested. At trial, Russell testified
that although the videotape was an accurate depiction of the events
which took place on 18 January 2001, it did not include the final
transaction in which he purchased marijuana from Tucker. Russell
testified that he purchased marijuana from Tucker for five dollars
and that he consumed all of the marijuana with Mitchell. Neither
Mitchell nor Simpson testified at trial.
At the conclusion of the evidence, the jury found defendant
guilty of delivering marijuana to a minor and contributing to the
delinquency of a juvenile. The trial court then sentenced
defendant to a minimum term of imprisonment of fifteen months and
a maximum of twenty-seven months for delivering marijuana to a
minor. Additionally, defendant was sentenced to forty-five days
imprisonment for contributing to the delinquency of a juvenile.
From the judgments entered against him, defendant appeals.
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Defendant presents four assignments of error on appeal,
arguing that the trial court erred in (1) failing to dismiss the
indictment for contributing to the delinquency of a minor; (2)
denying defendant's motion to exclude testimony of a controlled
substance; (3) failing to give proper jury instructions; and (4)
admitting a videotape into evidence. For the reasons statedherein, we vacate in part and conclude that there was no error in
part.
In his first assignment of error, defendant argues that his
motion to dismiss the indictment for contributing to the
delinquency of a juvenile was improperly denied. We agree.
In considering a motion to dismiss, the trial court must
examine the evidence in the light most favorable to the State and
give the State the benefit of every reasonable inference that may
be drawn from the evidence.
State v. Benson, 331 N.C. 537, 544,
417 S.E.2d 756, 761 (1992). An indictment must include “[a] plain
and concise factual statement in each count which, . . . asserts
facts supporting every element of a criminal offense and the
defendant's commission thereof with sufficient precision clearly to
apprise the defendant . . . of the conduct which is the subject of
the accusation.” N.C. Gen. Stat. § 15A-924(a)(5) (2001). “[T]he
purpose of an indictment is to identify clearly the crime being
charged, thereby putting the accused on reasonable notice to defend
against it and prepare for trial.”
State v. Thrift, 78 N.C. App.
199, 201, 336 S.E.2d 861, 862 (1985). The defendant is entitled to
a new trial when there is a fatal variance between the charging
document and the evidence.
See State v. Christopher, 307 N.C. 645,
650, 300 S.E.2d 381, 386-387 (1983).
Here, the single indictment at issue reads as follows:
. . . .
The jurors for the State upon their oath
present that . . . the defendant named above
unlawfully, willfully and feloniously did
possess with intent to sell and delivermarijuana, a controlled substance included in
Schedule VI of the North Carolina Controlled
Substance Act, in violation of G.S. 90-95.
And the jurors of the State upon their oath
present that . . . the defendant named above
unlawfully, willfully, and feloniously did
sell to . . . Russell, a controlled substance,
marijuana, which is included in Schedule VI of
the North Carolina Controlled Substance Act,
in violation of G.S. 90-95.
[T]he jurors for the State upon their oath
present that . . . the defendant named above
unlawfully and willfully did knowingly, while
at least 16 years of age, cause, encourage and
aid . . . Russell, 14 years of age, a
juvenile, to commit an act, sell [sic] of one
dosage unit of marijuana, whereby that
juvenile could be adjudicated delinquent, in
violation of G.S. 14-316.1.
The State concedes that the indictment was poorly drafted, but
maintains that when read in the context of the other charges
contained therein, it was adequately clear that defendant was being
charged with contributing to the delinquency of a juvenile by
selling marijuana to Russell. We disagree. When read as a whole,
there is a fatal variance between the indictment for contributing
to the delinquency of a minor and the evidence at trial.
In the case
sub judice, Russell did not sell or transfer any
marijuana as alleged in the third paragraph of the indictment and
the record fails to support a finding that defendant encouraged
Russell in the sale or transfer of marijuana. We also note that
defendant did not sell marijuana to Russell as alleged in the
second paragraph of the indictment. Moreover, the charge for
selling marijuana to a minor was dismissed by the State. Weconclude that the conduct which was the subject of the accusation
was not adequately described in the indictment and defendant's
motion to dismiss the indictment was improperly denied. Therefore,
the judgment pursuant to defendant's conviction for contributing to
the delinquency of a minor is vacated.
Defendant argues, in his second assignment of error, that the
trial court erred by referring to the substance sold to Russell as
a controlled substance. Defendant argues that there is no evidence
that a controlled substance was delivered to Russell. We disagree.
In cases where the witness does not give expert testimony,
“his testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (a) rationally based on the
perception of the witness and (b) helpful to a clear understanding
of his testimony or the determination of a fact in issue.” N.C.
Gen. Stat. § 8C-1, Rule 701 (2001). We find persuasive the
decision in
United States v. Dolan, 544 F.2d 1219 (4th Cir. 1976),
in which the Court stated that:
Lay testimony and circumstantial evidence may
be sufficient, without the introduction of an
expert chemical analysis, to establish the
identity of the substance involved in an
alleged narcotics transaction. Such
circumstantial proof may include evidence of
the physical appearance of the substance
involved in the transaction, evidence that the
substance produced the expected effects when
sampled by someone familiar with the illicit
drug, evidence that the substance was used in
the same manner as the illicit drug, testimony
that a high price was paid in cash for the
substance, evidence that transactions
involving the substance were carried on with
secrecy or deviousness and evidence that the
substance was called by the name of theillegal narcotic by the defendant or others in
his presence.
Id. at 1221 (citations omitted).
In the present case, defendant complains that Russell was
either too inexperienced in using drugs or lacked the requisite
knowledge to formulate a valid opinion that defendant showed him
marijuana. We believe otherwise. Russell testified that he
specifically asked defendant for marijuana and that defendant's
response was to show him a substance which Russell believed to be
marijuana. Russell testified that the agreed upon price for the
marijuana was five dollars; however, he did not believe that the
“bag” he was shown contained the correct amount of marijuana for
that price. The record fails to reveal any evidence to support the
position that Russell or defendant believed the substance contained
in the bag was a substance other than marijuana. Further testimony
from Russell revealed that he returned to the park, purchased from
Tucker the same marijuana shown to him by defendant, consumed it
with a friend, and that the substance produced a “high” effect.
Although trial testimony from Russell showed that he had a limited
knowledge of marijuana, there was evidence of the physical
appearance of the substance; the effect of the substance on Russell
when used; that the substance was used in the same manner that
marijuana is used; and that the substance was referred to by the
name of an illegal narcotic by Russell. Therefore, the reference
to Russell purchasing a controlled substance was an opinion which
was rationally based on Russell's perception and helpful to the
jury. This assignment of error is overruled. By his third assignment of error, defendant contends that the
trial court erred by failing to instruct the jury that a transfer
without remuneration of less than five grams of marijuana does not
constitute a delivery. We disagree.
According to North Carolina General Statutes § 90-95(a)(1),
“it is unlawful for any person to . . . sell or deliver, or possess
with intent to . . . sell or deliver a controlled substance.” N.C.
Gen. Stat. § 90-95(a)(1) (2001). “The transfer of less than 5
grams of marijuana for no remuneration shall not constitute a
delivery in violation of G.S. 90-95(a)(1).” N.C. Gen. State. § 90-
95(b)(2) (2001). Delivery is “the actual constructive, or
attempted transfer from one person to another of a controlled
substance, whether or not there is an agency relationship.” N.C.
Gen. Stat. § 90-87(7) (2001). “To prove delivery, the State is not
required 'to prove that defendant received remuneration for the
transfer.'”
Thrift, 78 N.C. App. at 201, 336 S.E.2d at 862
(quoting
State v. Pevia, 56 N.C. App. 384, 387, 289 S.E.2d 135,
137,
cert. denied, 306 N.C. 391, 294 S.E.2d 218 (1982)).
In
Thrift, the defendant informed a drug agent that he had
cocaine available for sale.
Id. at 200, 336 S.E.2d at 862. The
defendant and the agent then went into the defendant's bedroom
where the defendant removed a plastic bag containing white powder
from a paper bag, showed the plastic bag to the agent, and weighed
it.
Id. The agent put the plastic bag back into the paper bag and
placed the bag “under the bed for security purposes.”
See id. The
agent then left, telling the defendant that he was going to get hisbuyer and the money in order to exchange the money and drugs.
See
id. The agent later returned to the defendant's house and the
defendant received a telephone call.
See Thrift, 78 N.C. App. at
200, 336 S.E.2d at 861.
While the defendant was talking, the agent
retrieved the bag of powder from under the bed, and the defendant
was placed under arrest.
Id. This Court held that the evidence
was sufficient for the jury to determine whether the defendant
delivered cocaine.
Id. at 201, 336 S.E.2d at 862. Likewise, the
evidence in the case at bar supports a finding that defendant
delivered marijuana to Russell when he showed Russell a bag of
marijuana and offered to sell it to him. It is the “intent of the
defendant that is the gravamen of the offense.”
State v. Creason,
313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985). The fact that the
sale was not completed does not alter the fact that defendant
intended a sale of marijuana, not a gift of marijuana.
Accordingly, defendant's third assignment of error is overruled.
In his final assignment of error, defendant argues that the
State failed to lay a proper foundation for the admission of a
videotape into evidence. Defendant contends that the trial court
erred in admitting the videotape into evidence.
Assuming for the benefit of argument that the admission of the
videotape into evidence was error, the error was not prejudicial to
defendant. Russell testified that he approached defendant to
inquire about purchasing marijuana, that he agreed to pay defendant
five dollars for marijuana, and that defendant showed him a “bag”
which he believed to be marijuana. Given the testimony by Russell, defendant has not shown that a reasonable possibility exists that
without the videotape the jury would have reached a different
result. This assignment of error is overruled.
Judgment vacated in 01 CRS 050941; no error in 01 CRS 050946.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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