An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-688

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2003

STATE OF NORTH CAROLINA

v .                         Pitt County
                            Nos. 01 CRS 50941
RANDY CRAIG JOYNER                    01 CRS 50946

    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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