State v. Board ( 1979 )

252 S.E.2d 803 (1979) 296 N.C. 652

STATE of North Carolina
v.
Bryan BOARD.

No. 95.

Supreme Court of North Carolina.

March 16, 1979.

Rufus L. Edmisten, Atty. Gen., by James Peeler Smith, Asst. Atty. Gen., Raleigh, for the State.

Robert M. Davis, Salisbury, for defendant appellant.

HUSKINS, Justice:

Since we dispose of the case on other grounds, the question of entrapment, vigorously debated in the briefs, is not reached.

For reasons which follow, we hold that defendant's motion for judgment of nonsuit at the close of all the evidence should have been allowed.

To withstand a motion for nonsuit there must be substantial evidence against the accused of all material elements of the offense. State v. Lee, 294 N.C. 299, 240 S.E.2d 449 (1978), and cases cited therein; State v. Allred, 279 N.C. 398, 183 S.E.2d 553 (1971), and cases cited therein. Evidence which is sufficient only to raise a suspicion or conjecture of guilt is insufficient to withstand nonsuit. State v. Lee, supra; State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975).

Defendant was tried upon four separate bills of indictment charging him with possession with intent to sell and selling, on two separate occasions, 3, 4-methylenedioxyamphetamine, a Schedule I controlled substance. See G.S. 90-89(c)1. A material element common to the offenses charged is the identity of the substance possessed and sold by defendant. In the present case the crucial question is whether the State offered substantial evidence that the drug possessed and sold by defendant was 3, 4-methylenedioxyamphetamine.

The only proof that the drug possessed and distributed by defendant was 3, 4-methylenedioxyamphetamine, as charged, is found in the cross-examination of J. R. Adcox, Special Agent, as follows: "Two of the three substances that I purchased from Mr. Board were MDA. The third was not a controlled substance." This testimony tends to show that Adcox purchased "MDA," a "controlled substance," from defendant. This testimony, however, does not constitute substantial evidence that the drug possessed and sold by defendant was in fact 3, 4-methylenedioxyamphetamine as charged in the bills of indictment.

Schedule I controlled substances include those listed in G.S. 90-89 "by whatever official name, common or usual name, chemical name, or trade name designated." (Emphasis added.) At all times pertinent to this case that list embraced forty-three substances enumerated in G.S. 90-89(a), twenty-three additional substances enumerated in subsection (b), and eighteen additional substances enumerated in subsection (c). The designation "MDA" nowhere appears in Schedule I or any of the other schedules of controlled substances. See G.S. 90-89 through 90-94. The significance of the designation "MDA" is thus left to conjecture and the jury is left to speculate whether "MDA" refers to the controlled substance named in the bills of indictment.

Is "MDA" an abbreviation, common or usual name, chemical name, trade name or even the "street" name for the drug 3, 4-methylenedioxyamphetamine? The witnesses do not say. The record tends to show that the white powdery substances purchased from defendant on February 8 and February 14, 1975 (State's Exhibits 1 and 2) were mailed to the Chemical Laboratory of the State Bureau of Investigation for analysis and were duly returned. The exhibits were then turned over to the Clerk of Superior Court of Rowan County and were offered in evidence at trial. For reasons not readily apparent the chemical analysis was never offered in evidence. Did the analysis show that the substances possessed and sold by defendant were 3, 4-methylenedioxyamphatamine? The record provides no answer.

In State v. McKinney, supra, we stressed that identification of a controlled substance by an abbreviation not designated by the schedules of controlled substances does not constitute substantial evidence that the substance distributed by defendant was the controlled substance alleged in the indictments. McKinney was indicted for the felonious sale and distribution of tetrahydrocannabinols, a controlled substance included in Schedule VI of the North Carolina Controlled Substances Act. See G.S. 90-94. The State's evidence tended to show that defendant distributed a substance identified as "THC, a substance similar to marijuana like drugs." The abbreviation THC was not used in Schedule VI. The State never established whether THC was an abbreviation for tetrahydrocannabinols. We concluded that the State's evidence was insufficient to establish that the substance distributed by defendant was in fact tetrahydrocannabinols. Held: Defendant's motion for nonsuit should have been granted.

To withstand a motion for judgment as of nonsuit there must be substantial evidence of all material elements of the offense charged, and whether the State has offered such evidence is a question of law for the trial court. State v. Everette, 284 N.C. 81, 199 S.E.2d 462 (1973); State v. Evans, 279 N.C. 447, 183 S.E.2d 540 (1971); State v. Allred, supra. Here, the State has failed to offer substantial evidence that the substance distributed by defendant was in fact 3, 4-methylenedioxyamphetamine, as charged in the bills of indictment. This failure requires dismissal. State v. McKinney, supra; State v. Bass, 253 N.C. 318, 116 S.E.2d 772 (1960); State v. Edwards, 224 N.C. 577, 31 S.E.2d 762 (1944).

For the reasons stated the decision of the Court of Appeals is reversed. The case is remanded to that court for further remand to the Superior Court of Rowan County for entry of judgment dismissing the charges in accordance with this opinion.

REVERSED AND REMANDED.

BRANCH, Justice, concurring.

For the reasons stated in State v. Stanley, 288 N.C. 19, 215 S.E.2d 589 (1975), I concur in result.

BRITT and COPELAND, JJ., join in this concurring opinion.

BROCK, Justice, dissenting.

The majority dismisses these charges against the defendant because no witness testified that MDA was in fact an abbreviation for 3, 4-methylenedioxyamphetamine. The majority then reasons that testimony that defendant possessed and delivered MDA "does not constitute substantial evidence that the drug possessed and sold by defendant was in fact 3, 4-methylenedioxyamphetamine as charged in the bills of indictment."

I disagree with the majority opinion for what I consider to be two substantial reasons.

First: The Courts are not required nor expected to be more blind than other segments of society to facts which are commonly known or to facts which are readily verifiable. "Many facts . . . are so indisputable, and so generally known or so readily verifiable that it would be a waste of time and a perversion of the judicial function to require them to be proved. A court will take judicial notice of facts of this character, I. e., it will assume or declare them to exist without requiring the production of evidence to establish them." 1 Stansbury's North Carolina Evidence, Judicial Notice, § 11, p. 24 (Brandis Rev. 1973). Drug Laws of North Carolina (Including Regulations) issued by North Carolina Drug Authority (now North Carolina Drug Commission) sets out on page 121 the Common or Trade Name for the Statutory or Legal name of Schedule 1 Controlled Substances. MDA is listed as the Common or Trade Name for 3, 4-methylenedioxyamphetamine. This source is readily available and the abbreviation is readily verifiable. The trial judge took judicial notice of this fact when he instructed the jury as follows:

"Now, the defendant in these cases has been accused of possession of methylenedioxyamphetamine, a controlled substance, with the intent to sell it, and sale of this same controlled substance. Now, for the purposes of clarification, I will refer to that alleged substance by the term, MDA, which is the common way that it is referred to. It is the common abbreviation for the controlled substance, methylenedioxyamphetamine. In these instructions, when I use the abbreviations MDA, you will know that that is the alleged substance to which I refer."

The State's witnesses, the district attorney, counsel for defendant, and the defendant himself referred to the drug as MDA. No objection or exception was taken by the defendant to the trial judge's taking notice, and instructing the jury, that MDA was the common abbreviation for 3, 4-methylenedioxyamphetamine. If defendant had objected, I think it would have been without merit. But the point is that defendant himself is satisfied with the trial judge's action in this regard. For this Court to say the evidence of defendant's possession and delivery of MDA does not constitute substantial evidence that the drug possessed and sold by defendant was in fact 3, 4-methylenedioxyamphetamine is tantamount to saying that the trial judge abused his discretion in judicially noticing this fact. In my opinion the trial judge was correct.

Second: The primary argument of defendant, both in the Court of Appeals and in this Court, is that the evidence establishes entrapment as a matter of law. At no point does defendant argue that the evidence that he possessed and delivered MDA does not constitute substantial evidence that he sold and delivered 3, 4-methylenedioxyamphetamine as charged in the bills of indictment. He, in effect, took notice of that fact himself.