State v. Whittington

• Court: Court of Appeals of North Carolina
• Decided: March 18, 2014
• Docket: 11-1197-2
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA11-1197-2 NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Nash County No. 09 CRS 51601 GLENN EDWARD WHITTINGTON

Appeal by Defendant from judgment entered 7 April 2011 by

Judge Quentin T. Sumner in Superior Court, Nash County. Heard

originally in the Court of Appeals 6 March 2012, and opinion

filed 19 June 2012. Remanded to the Court of Appeals for

consideration of remaining issues by judgment and opinion

rendered by the North Carolina Supreme Court on 24 January 2014.

Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State.

Currin & Currin, by George B. Currin, for Defendant.

McGEE, Judge.

Glenn Edward Whittington (“Defendant”) was indicted on

three counts of trafficking in opium on 11 May 2009: Count I,

trafficking in opium by sale; Count II, trafficking in opium by

delivery; and Count III, trafficking in opium by possession. -2- Defendant appealed and this Court vacated the convictions on

Counts I and II, and ordered a new trial on Count III. State v.

Whittington, __ N.C. App. __, __, 728 S.E.2d 385, 388–90 (2012)

(“Whittington I”). The basis for granting a new trial on Count

III was this Court’s holding that the State had failed in its

burden of showing that Defendant had waived his constitutional

right to confront the analyst who prepared the lab report

introduced as evidence at trial to show that the substance

Defendant possessed was an opium derivative as defined in N.C.

Gen. Stat. § 90–95. Whittington I, __ N.C. App. at __, 728

S.E.2d at 388–90. Our Supreme Court granted the State’s

petition for discretionary review challenging this Court’s

reversal and remand for a new trial on Count III. State v.

Whittington, __ N.C. __, 753 S.E.2d 320 (2014) (“Whittington

II”). The Supreme Court reversed this Court’s decision on Count

III, trafficking by possession, holding that Defendant had not

preserved that argument for appellate review. Id. at __, 753

S.E.2d at 325. Whittington II left unchanged this Court’s

holdings in Whittington I vacating the convictions for Counts I

and II. Id. Our Supreme Court remanded the case for

consideration by this Court of Defendant’s remaining arguments.

Id. Because the convictions for Counts I and II have been

vacated, we address the remaining arguments only as they pertain -3- to Count III. Additional relevant facts can be found in

Whittington I and Whittington II.

In Defendant’s third argument, he contends the trial court

erred in denying his motion to dismiss the trafficking by

possession charge in violation of N.C. Gen. Stat. § 90-95(h)(4)

(2013), which states in part: “Any person who . . . possesses

four grams or more of opium or opiate, or any . . . derivative

. . . of opium or opiate . . . shall be guilty of a felony which

felony shall be known as “trafficking in opium or heroin[,]”

because there was a fatal variance between the offense charged

in the indictment and the evidence presented at trial. We

disagree.

Specifically, Defendant contends that, because the

indictment charged Defendant with possessing “4 grams but less

than 14 grams of Opium, a controlled substance[,]” but the

evidence at trial was that Defendant possessed Oxycondone, an

opium derivative, there existed a fatal variance between the

indictment and the evidence presented at trial. This Court

rejected the same argument in State v. Davis, __ N.C. App. __,

733 S.E.2d 191 (2012), where we held that “the plain language of

[N.C. Gen. Stat. § 90–95(h)(4)] does not create a separate crime

of possession . . . of an opium derivative, but rather specifies

that possession . . . of an opium derivative is trafficking in -4- opium or heroin, precisely as alleged in the indictment. Based

on the statutory language, defendant has shown no fatal variance

between the indictment and the evidence.” Davis, __ N.C. App.

at __, 733 S.E.2d at 193 (emphasis added). Defendant’s argument

is without merit.

In Defendant’s fourth argument, he contends the trial court

erred in instructing the jury that “they could find Defendant

guilty of trafficking in opium if they found he . . . ‘knowingly

possessed’ an opium derivative, on the grounds that the

indictment did not allege that Defendant had trafficked in an

‘opium derivative,’ but rather only opium.” We again disagree.

Because we hold there was no fatal variance between the

indictment and the evidence presented at trial, we further hold

that the trial court did not err in using the “opium derivative”

language in instructing the jury. Defendant’s argument is

without merit.

Therefore, the ultimate outcome of Whittington I,

Whittington II, and the present opinion is: (1) Defendant’s

convictions on Counts I and II are vacated and, (2) no error in

Defendant’s conviction on Count III.

Vacated in part, no error in part.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).