State v Freeman, (04-1617) 11/01/2005

Appeal by defendant from judgments entered 28 July 2004 by Judge Jack W. Jenkins in Lenoir County Superior Court. Heard in the Court of Appeals 17 October 2004.

Roy A. Cooper, III, Attorney General, by Sandra Wallace-Smith, Assistant Attorney General, for the State.

M. Jason Williams for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant was convicted of possession with intent to sell and deliver a controlled substance and sale of a controlled substance in violation of N.C. Gen. Stat. § 90-95(a)(1) (2003), and pled guilty to being an habitual felon. He appeals from judgments sentencing him to concurrent terms of 90 to 117 months.
    At trial, the State presented evidence tending to show the following: On 1 July 2003 Officer George (Jorge) Lewis of the Nash County Sheriff's Department was working as an undercover officer, assisting the Kinston Police Department. Lewis met with an informant and discussed areas where they could purchase narcotics. Lewis was part of a team that included Officers Keith L. Goyette and Russell W. Flint of the Kinston Police Department. Because itwas an ongoing investigation, they planned a “controlled buy” and did not make arrests in an effort to maintain Lewis' undercover status. While driving down a street in Kinston, Lewis and the informant met a man and a woman who conversed with the informant. The informant requested “two dimes,” which is equal to roughly twenty dollars' worth of cocaine. The man and woman departed, while Lewis and the informant remained in the automobile with the understanding that someone would return with the drugs. An individual, whom Lewis identified as defendant, returned to the car. Lewis gave defendant twenty dollars and received two green baggies containing an off-white substance in exchange. These baggies were transferred to Officer Flint who placed them in the evidence locker at the police department. Laboratory tests later revealed this substance to be crack cocaine.
    Officer Goyette testified about other details of the operation, explaining that once the narcotics were purchased by Lewis, who provided a description of a suspect, Goyette's role was to identify the suspect, speak with him, and get his name. In this case, however, he recognized defendant, knew his name and who he was, without needing to speak with him. At the end of the investigation, the officers obtained a warrant for defendant's arrest.
    At the close of the State's evidence, defendant's motion to dismiss was denied. Defendant offered no evidence.
    On appeal, defendant argues the trial court erred in denying his motion to dismiss the indictment for the sale of a controlledsubstance because it alleged that he sold to “J. Lewis, a Nash County Sheriff's Deputy” and the evidence presented at trial was that the Nash County Sheriff Deputy's name was George Lewis.
    “The law is settled in North Carolina that an indictment for the sale and/or delivery of a controlled substance must name the person to whom the defendant allegedly sold or delivered.” State v. Pulliam, 78 N.C. App. 129, 131-32, 336 S.E.2d 649, 651 (1985). The purpose of an indictment is to provide the defendant with notice of the charges against him, and to allow him to prepare his defense. State v. Lorenzo, 147 N.C. App. 728, 734, 556 S.E.2d 625, 628 (2001). Spelling names with absolute accuracy, however, is not required under the doctrine of idem sonans. State v. Wilson, 135 N.C. App. 504, 508, 521 S.E.2d 263, 265 (1999). “Names are used to identify people and if the spelling used, though inaccurate, fairly identifies the right person and the defendant is not misled to his prejudice, he has no complaint.” Id.
    At a minimum, the indictments here put defendant on notice that he was charged with selling cocaine to Officer Lewis of the Nash County Sheriff's Office. The indictment fairly identifies Officer Lewis, and it is unlikely defendant was misled to his prejudice as to Lewis' identity. Moreover, we note that while the transcript refers to Officer Lewis as George Lewis, the jury instructions contained in the record on appeal refer to him as Jorge Lewis. This assignment of error is without merit and is overruled.    In his remaining arguments, defendant contends that prosecution for both possession with intent to sell or deliver and sale of controlled substance put the defendant twice in jeopardy for the same offense, and that subsequently, the trial court erroneously instructed the jury on both of these offenses.
    N.C. Gen. Stat. § 90-95(a)(1) makes it “unlawful . . . [t]o manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance.” N.C. Gen. Stat. § 90-95(a)(1) (2003). It has been long settled in North Carolina that possession with intent to sell and sale “are separate offenses and defendant may be charged with both as a result of the same transaction without violating his right of double jeopardy.” State v. Fletcher, 92 N.C. App. 50, 58, 373 S.E.2d 681, 686 (1988). Accordingly, the trial court did not err in failing to dismiss one of the charges.
    Defendant's final contention is that the trial court erroneously instructed the jury as to both charges. Defendant did not object to the jury instructions before the trial court, and so we review for plain error. N.C. R. App. P. 10(b)(2); State v. Cummings, 326 N.C. 298, 315, 389 S.E.2d 66, 75 (1990). Plain error either amounts to the denial of a fundamental right or is “so lacking in its elements that justice cannot have been done.” State v. Carpenter, 147 N.C. App. 386, 397, 556 S.E.2d 316, 323 (2001), cert. denied, 536 U.S. 967, 153 L. Ed. 2d 851 (2002) (citation omitted). Because we have already held that both of these charges were properly before the jury, the defendant has not demonstratedthat had the instructions been different the jury would have reached a different result. Accordingly, this assignment of error is also overruled.
    No error.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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