State v. Banks

• Court: Court of Appeals of North Carolina
• Decided: March 4, 2026
• Docket: 25-432
• Status: Published
• Author: Judge Allegra Collins

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-432

Filed 4 March 2026

Yancey County, No. 23CR431977-990

STATE OF NORTH CAROLINA

v.

DAVID BROWN BANKS

Appeal by Defendant from judgment entered 17 September 2024 by Judge

Gary M. Gavenus in Yancey County Superior Court. Heard in the Court of Appeals

11 February 2026.

Attorney General Jeff Jackson, by Assistant Attorney General Nathan D. Childs, for the State-Appellee.

Blau & Hynson, PLLC, by Daniel M. Blau, for Defendant-Appellant.

COLLINS, Judge.

Defendant, David Brown Banks, appeals from judgments entered upon jury

verdicts of guilty of trafficking in opioids by possession; possession with intent to sell

or deliver a schedule II controlled substance; and maintaining a dwelling for keeping

or selling controlled substances. Defendant argues that the trial court plainly erred

by failing to give a jury instruction on the “ultimate user” exemption to the trafficking

charge or, in the alternative, that counsel’s assistance was ineffective because he

failed to request such instruction. Additionally, Defendant argues that the court STATE V. BANKS

Opinion of the Court

erred by denying his motion to dismiss the trafficking charge for insufficient evidence.

We find no error, much less plain error.

I. Background

Defendant was indicted on one count of trafficking in opioids; one count of

possession with intent to sell or deliver a schedule II controlled substance; and one

count of maintaining a dwelling for keeping or selling controlled substances.1 The

evidence at trial tended to show the following:

In September 2023, the Yancey County Sherriff’s Office received information

from an informant that Defendant was soliciting women for sexual favors in exchange

for money and prescription pills. Defendant was a long-time employee of the Sheriff’s

Office in the Yancey County jail. The Sherriff’s office sent the informant to

Defendant’s home as part of its investigation. The informant obtained one lorazepam

pill, a schedule IV controlled substance, from Defendant’s home.

Sherriff’s Office detectives contacted Defendant, and Defendant voluntarily

appeared and gave a videotaped interview in October 2023. During the interview,

Defendant confessed that he had paid cash to the informant and another female for

sexual favors approximately twenty times in the last year, and he had attempted to

trade medication for sexual favors approximately three or four times. Defendant also

stated that “if somebody said they had a headache and I had a pill that could help

1 Defendant was indicted on other charges which were subsequently dismissed.

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with their headache, I’d let them have it.” Defendant specifically stated that he had

given pills to people for their headaches “maybe three or four” times. When asked

what kind of pills, Defendant answered, “Percocet,” which is a mixture of

acetaminophen and the schedule II controlled substance oxycodone. See N.C. Gen.

Stat. § 90-90(1)(a)(14) (2024). When asked where he obtained Percocet, Defendant

admitted that it had not been prescribed to him but stated that he had leftover pills

from his late wife’s illness. Defendant’s wife passed away in December 2021,

approximately two years before the detectives interviewed him.

Following the interview, detectives accompanied Defendant to his home. They

found two prescription pill bottles containing acetaminophen/oxycodone pills, the

generic equivalent of Percocet, on Defendant’s kitchen counter and six prescription

pill bottles containing the oxycodone mixture in a kitchen cabinet. Each bottle had a

label indicating it was prescribed to Defendant’s late wife, contained oxycodone, and

was filled between August 2019 and December 2021. Detectives recovered sixty-five

pills in total from Defendant’s home.

At trial, a forensic scientist testified that she conducted the standard procedure

for determining whether the pills recovered from Defendant’s home contained

opioids. She confirmed that forty-one of the recovered pills contained oxycodone, an

opioid, and that those pills’ net weight was 14.99 grams, plus or minus 0.03 grams.

Defendant moved to dismiss all charges at the close of the State’s evidence,

which the trial court denied. Defendant did not present evidence and renewed his

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motion to dismiss, which the trial court denied. Defendant did not object to the jury

instructions or request an instruction on the ultimate user exemption for the

trafficking charge. The jury found Defendant guilty on all three counts, and the court

entered judgment on each conviction.

Defendant gave timely oral notice of appeal.

II. Discussion

Defendant challenges only his conviction for trafficking in opioids. He argues

that the trial court erred by failing to instruct the jury on the ultimate user exemption

to the charge or, in the alternative, that Defendant received ineffective assistance of

counsel for counsel’s failure to request such an instruction. Additionally, Defendant

argues that the trial court erred by denying his motion to dismiss the charge for

insufficient evidence.

A. Trafficking in Opioids

Any person who “sells, manufactures, delivers, transports, or possesses” more

than fourteen but less than twenty-eight grams of “opium, opiate, or opioid,” can be

found guilty of trafficking that substance by possession. N.C. Gen. Stat. §

90-95(h)(4)(b) (2024). Oxycodone, an opioid, is a schedule II controlled substance. Id.

§ 90-90(1)(a)(14) (2024). A defendant unlawfully possesses an opioid “if he or she

knowingly possesses it with both the power and intent to control the disposition or

use of that substance.” State v. Bice, 261 N.C. App. 664, 674 (2018) (citation omitted).

A person may, however, lawfully possess a controlled substance if that person

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is “[a]n ultimate user or a person in possession of any controlled substance pursuant

to a lawful order of a practitioner[.]” N.C. Gen. Stat. § 90-101(c)(3) (2024). An

“ultimate user” is “a person who lawfully possesses a controlled substance for his own

use, or for the use of a member of his household . . . .” Id. § 90-87(27) (2024).

In a prosecution under N.C. Gen. Stat. § 90-95, proof of an exemption must be

provided by the defendant. State v. McNeil, 47 N.C. App. 30, 38 (1980). The State is

not required to “negate any exemption or exception . . . in any trial, hearing, or other

proceeding under [the North Carolina Controlled Substances Act], and the burden of

proof of any such exemption . . . shall be upon the person claiming its benefit.” N.C.

Gen. Stat. § 90-113.1(a) (2024).

B. Jury Instruction

Defendant first argues that the trial court plainly erred by failing to instruct

the jury on the ultimate user exemption to his trafficking in opioids by possession

charge, pursuant to N.C. Gen. Stat. § 90-101(c)(3).

Plain error arises when an error is “so basic, so prejudicial, so lacking in its

elements that justice cannot have been done.” State v. Odom, 307 N.C. 655, 660

(1983) (citation omitted). To establish plain error, “a defendant must establish

prejudice – that, after examination of the entire record, the error had a probable

impact on the jury’s finding that the defendant was guilty.” State v. Lawrence, 365

N.C. 506, 518 (2012) (citations omitted).

“[I]t is the duty of the trial court to instruct the jury on all of the substantive

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features of a case.” Bice, 261 N.C. App. at 673 (citation omitted). “All defenses arising

from the evidence presented during the trial constitute substantive features of a case

and therefore warrant the trial court’s instruction thereon.” Id. (citation omitted).

“For a jury instruction to be required on a particular defense, there must be

substantial evidence of each element of the defense when the evidence is viewed in

the light most favorable to the defendant.” Id. at 673 (citation omitted). “Substantial

evidence is evidence that a reasonable person would find sufficient to support a

conclusion.” Id. at 673-74 (citation omitted). “Whether the evidence presented

constitutes substantial evidence is a question of law.” Id. at 674 (citation omitted).

The record evidence in the light most favorable to Defendant shows the

following: Forty-one pills weighing approximately 14.99 grams and containing

oxycodone were recovered from Defendant’s home. The pills were located in

prescription bottles with labels indicating they were prescribed to Defendant’s late

wife. Defendant’s late wife had passed away approximately two years prior to

Defendant’s arrest. Defendant admitted that the pills were not prescribed to him.

Defendant confessed to providing oxycodone pills prescribed to his late wife to other

individuals and attempting to exchange prescription medication for sexual favors on

multiple occasions. Because the record does not contain evidence that a reasonable

person would find sufficient to support a conclusion that Defendant lawfully

possessed the oxycodone pills “for his own use, or for the use of a member of his

household,” N.C. Gen. Stat. § 90-87(27), Defendant was not entitled to an ultimate

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user exemption instruction under Section 90-101(c)(3). Thus, Defendant cannot show

error, much less plain error, by the trial court’s failure to sua sponte instruct the jury

on the ultimate user exemption.

In light of this conclusion, Defendant’s argument that he received ineffective

assistance of counsel because his counsel failed to request a jury instruction on the

ultimate user exemption lacks merit.

C. Motion to Dismiss

Defendant next argues that the trial court erred by denying his motion to

dismiss the trafficking in opioids charge because the State failed to present sufficient

evidence that he possessed a trafficking amount of oxycodone. Defendant argues that

he only “admitted that he had given a few of his wife’s old [o]xycodone pills to people

who asked for something for a headache” and was authorized to possess the

remaining pills as an ultimate user under N.C. Gen. Stat. §§ 90-101(c) and 90-87(27).

Even assuming Defendant preserved his argument under the ultimate user

exemption for appellate review, it lacks merit.

“When ruling on a motion to dismiss for insufficient evidence, the trial court

must consider the evidence in the light most favorable to the State, drawing all

reasonable inferences in the State’s favor.” State v. Miller, 363 N.C. 96, 98 (2009).

“Any contradictions or conflicts in the evidence are resolved in favor of the State, and

evidence unfavorable to the State is not considered.” Id. (citations omitted). “The

trial court must decide only whether there is substantial evidence of each essential

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element of the offense charged and of the defendant being the perpetrator of the

offense.” Id. (citation omitted). “Substantial evidence is relevant evidence that a

reasonable mind might accept as adequate to support a conclusion.” Id. at 99 (citation

omitted).

Defendant concedes that the evidence presented at trial was sufficient to show

he possessed the pills and that the pills contained oxycodone. That is the end of the

analysis. The State was not required to negate the ultimate user exemption in this

case, see N.C. Gen. Stat. § 90-113.1(a); the State was only required to present

substantial evidence of each essential element of the offense charged and of

Defendant being the perpetrator of the offense. See Miller, 363 N.C. at 98. The trial

court thus did not err by denying Defendant’s motion to dismiss.

III. Conclusion

For the reasons stated above, Defendant received a fair trial free of error.

NO ERROR.

Judges WOOD and STADING concur.

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