Appeal by Defendant from judgment entered 12 December 2003 by
Judge Ronald E. Spivey in Superior Court, Guilford
in the Court of Appeals 6 June 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Hilda Burnett-Baker, for the State.
M. Gordon Widenhouse, Jr., for the defendant-appellant.
An indictment is fatally flawed where it fails to state some
essential and necessary element of the offense of which the
defendant is found guilty. State v. Wilson, 128 N.C. App. 688,691, 497 S.E.2d 416, 419 (1998) (quotation omitted). Here,
Defendant Eric MacKinley Ledwell contends that the trial court
lacked jurisdiction on the charge of felonious possession of a
controlled substance because the indictment failed to allege a
substance listed in Schedule I, North Carolina General Statutes
section 90-89. N.C. Gen. Stat. § 90-89(3) (2003). We agree and
hold that the indictment fails to allege felonious possession of a
Schedule I controlled substance. But as to Defendant's issues on
appeal regarding the remaining charge of felonious conspiracy to
traffic in cocaine, we find no error.
The record reflects that on 15 October 2002, members of the
Greensboro Police Department monitored the motel area near
Interstate 40 and High Point Road for narcotics trafficking. That
day, Defendant was observed checking into a motel, exiting the
motel while on a cellular telephone and looking up and down the
street. Approximately ten minutes thereafter, a blue Ford
Expedition entered the motel parking lot. The driver was driving
very slowly and circling and was also on a cellular telephone. The
driver of the Expedition then parked the vehicle, Defendant got
into the passenger side, and the vehicle left the parking lot. The
police stopped the Expedition, and Defendant was asked to step out
of the vehicle and placed under arrest. A police detective
searched the Expedition and found, in the front center console, a
semi-automatic weapon, and in the back center console, $3000.00 in
cash. When the police searched Defendant's person, they found
$8690.00 in cash, postal scales, marijuana, and a tablet of[m]ethylenedioxyamphetamine (MDA)[.] When the driver of the
Expedition, Timothy Walden, was searched, he was found to have
$2472.00 and marijuana on his person.
Shortly after stopping the Expedition, the police stopped a
black pick-up truck that had been following the Expedition. The
driver of the pick-up truck, Eliazar Perez Garcia, appeared
shocked, looked toward the Expedition, and stated I don't know
them. Garcia was asked to step out of the vehicle, and the police
observed that Garcia's pocket contained a large, partially open
grocery bag filled with cocaine. Garcia also had $4236.00 in cash
on his person.
Defendant presented no evidence at trial. Moreover, Defendant
entered into a stipulation at trial as to a laboratory report
reflecting the contents of the plastic bag described as off-white
powder sent, and reflected in State's Exhibit No. 2, containing
cocaine, Schedule II. The weight of that material, 592.2 grams.
The trial court then explained to the jury Members of the jury,
the parties have stipulated or agreed that these facts should be
accepted by you as true without further authentication or proof in
the form of this laboratory report . . .. Further, at trial,
Garcia testified that Defendant called me and he told me to bring
him that amount [of cocaine]. And that's what I did. Garcia
testified that Defendant had three of four times bought 500
grams of cocaine from him. In response to being asked Did you get
drugs for any other people other than Eric Ledwell[,] Garcia
responded No. When asked [w]ere all the drugs for EricLedwell[,] Garcia responded affirmatively. Moreover, evidence
admitted at trial demonstrated that Defendant and Garcia had
telephoned one another's cellular telephones before their arrests.
Defendant was convicted of felonious possession of MDA and
felonious conspiracy to traffic in cocaine by possession of more
than 400 grams. Defendant appeals.
 On appeal, Defendant contends that the trial court lacked
jurisdiction on the charge of felonious possession of a controlled
substance because the indictment was facially insufficient in
failing to allege a substance listed in Schedule I.
(See footnote 1)
It is elementary that a valid bill of indictment is essential
to the jurisdiction of the trial court to try an accused for a
felony. State v. Sturdivant
, 304 N.C. 293, 308, 283 S.E.2d 719,
729 (1981) (citations omitted). An indictment must allege all of
the essential elements of the crime sought to be charged. Statev. Westbrooks
, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996)
(citation omitted). Identity of a controlled substance allegedly
possessed is such an essential element. State v. Board
, 296 N.C.
652, 658, 252 S.E.2d 803, 807 (1979) (testimony that substance a
special agent purchased was MDA insufficient evidence that
defendant possessed and sold 3, 4-methylenedioxyamphetamine as
charged in bills of indictment). An indictment is invalid
fails to state some essential and necessary element of the offense
of which the defendant is found guilty. Wilson
, 128 N.C. App. at
691, 497 S.E.2d at 419 (quotation omitted).
Here, the indictment at issue states that on or about the
date of offense shown and in the county named above the defendant
named above unlawfully, willfully and feloniously did possess
Methylenedioxyamphetamine (MDA), a controlled substance included in
Schedule I of the North Carolina Controlled Substances Act.
Schedule I of the Controlled Substances Act, North Carolina
General Statutes section 90-89, includes, inter alia
, the following
(3) Any material, compound, mixture, or
preparation which contains any quantity of the
following hallucinogenic substances, including
their salts, isomers, and salts of isomers,
unless specifically excepted, or listed in
another schedule, whenever the existence of
such salts, isomers, and salts of isomers is
possible within the specific chemical
a. 3, 4-methylenedioxyamphetamine.
amphetamine (also known asN-ethyl-alpha-methyl-3,4-(methylene
dioxy)phenethylamine, N-ethyl MDA,
MDE, and MDEA).
amphetamine (also known as
N.C. Gen. Stat. § 90-89(3). In the case sub judice
, the indictment
alleged possession of [m]ethylenedioxyamphetamine (MDA), a
controlled substance included in Schedule I of the North Carolina
Controlled Substances Act. No such substance, however, appears in
(See footnote 2)
In a similar case, United States v. Huff
, 512 F.2d 66 (5th
Cir. 1975), the defendant was charged with two crimes:
distribution of 3,4 methylenedioxy amphetamine, a controlled
substance pursuant to a statutory schedule of controlled
substances, and possession of methylenedioxy amphetamine, which
was not listed on the statutory schedule of controlled substances.
The Fifth Circuit stated that while [t]he addition of the numbers
'3,4' would have indeed saved this count, . . . we cannot regard
this defect as a mere technicality, for the chemical and legal
definition of these substances is itself technical and requires
. at 69. The Fifth Circuit held that the second
count failed to charge an offense and reversed the defendant's
conviction. In contrast, in Rogers v. State
, 599 So. 2d 930 (Miss.1992), the Supreme Court of Mississippi upheld an indictment that
charged a defendant with distribution of crystal
Notably, however, the Mississippi controlled substance statute
explicitly included as controlled substances '[a]ny substance
which contains any quantity of methamphetamine, including its
salts, isomers, and salts of isomers[.] Id
. at 933 (emphasis
omitted) (quotation omitted). North Carolina's Schedule I, in
contrast, does not include any substance which contains any
quantity of methylenedioxyamphetamine (MDA). N.C. Gen. Stat. §
Here, as in Huff
, the substance listed in Defendant's
indictment does not appear in Schedule I of the North Carolina
Controlled Substances Act. N.C. Gen. Stat. § 90-89. As a
consequence, the indictment must fail, and Defendant's conviction
of felonious possession of [m]ethylenedioxyamphetamine (MDA) is
 Defendant further argues that the trial court erred by
failing to instruct the jury on the lesser-included offenses of
conspiracy to traffic in cocaine by possession of 200 to 400 grams
of cocaine and conspiracy to feloniously possess cocaine where
there was conflicting evidence as to the specific amount of
cocaine Defendant intended to possess. We disagree.
A defendant is 'entitled to an instruction on a lesser
included offense if the evidence would permit a jury rationally to
find him guilty of the lesser offense and acquit him of the
greater.' State v. Leazer
, 353 N.C. 234, 237, 539 S.E.2d 922, 924(2000) (quoting Keeble v. United States
, 412 U.S. 205, 208, 36 L.
Ed. 2d 844, 847 (1973)). However, 'due process requires that a
lesser included offense instruction be given only
when the evidence
warrants such an instruction. The jury's discretion is thus
channelled so that it may convict a defendant of any crime fairly
supported by the evidence.' Id
. (quoting Hopper v. Evans
U.S. 605, 611, 72 L. Ed. 2d 367, 373 (1982)) (citation omitted).
The sole factor determining the judge's obligation to give such an
instruction is the presence, or absence, of any evidence in the
record which might convince a rational trier of fact to convict the
defendant of a less grievous offense. State v. Peacock
, 313 N.C.
554, 558, 330 S.E.2d 190, 193 (1985) (quotation and citation
The crime of conspiracy is an agreement to commit a
substantive criminal act, here trafficking by possession of
cocaine. State v. Griffin
, 112 N.C. App. 838, 840, 437 S.E.2d 390,
392 (1993) (The essence of the crime of conspiracy is the
agreement to commit a substantive crime. (citation omitted)). The
crime is complete when the agreement is made; no overt act in
furtherance of the agreement is required. State v. Rozier
, 69 N.C.
App. 38, 49-50, 316 S.E.2d 893, 900-01 (1984).
Despite Defendant's contention, there is
evidence in the record as to the amount of cocaine Defendant
entered into an agreement, i.e.
, a conspiracy, to traffic. Garcia
testified that Defendant called me and he told me to bring him
that amount [of cocaine]. And that's what I did. Garciatestified that Defendant had three of four times bought 500
grams of cocaine from him. When asked if all the drugs he had when
arrested were for Defendant, Garcia responded affirmatively, and
the State's laboratory report, to which Defendant stipulated,
proved that the white powder found on Garcia was cocaine and that
the weight of the cocaine was 592.2 grams. Defendant himself
presented no evidence at trial. The fact that not all of the
$11,500 Garcia was to be paid for the cocaine was on Defendant's
person at the time of Defendant's arrest ($8690.00 was found on
Defendant's person, $3000.00 was found in the back center console
of the Expedition, and $2417.00 was found on Walden's person) and
that the cocaine was packaged in three bags contained in one larger
grocery bag could not convince a rational trier of fact to convict
the defendant of a less grievous offense. Peacock
, 313 N.C. at
558, 330 S.E.2d at 193. The trial court therefore did not err in
not giving jury instructions for conspiracy to traffic in cocaine
by possession of 200 to 400 grams of cocaine and conspiracy to
feloniously possess cocaine.
 Defendant failed to argue his second assignment of error.
It is therefore deemed abandoned. N.C. R. App. 28(b).
No Error in part, Vacated in part.
Chief Judge MARTIN and Judge TIMMONS-GOODSON concur.