State v. McKinney , 288 N.C. 113 ( 1975 )

215 S.E.2d 578 (1975)

STATE of North Carolina
v.
Jimmy McKINNEY.

No. 104.

Supreme Court of North Carolina.

June 26, 1975.

Story, Hunter & Goldsmith, P. A., by C. Frank Goldsmith, Jr., Marion, for defendant appellant.

Rufus L. Edmisten, Atty. Gen., and Raymond L. Yasser, Associate Atty. Gen., Raleigh, for the State.

HUSKINS, Justice:

The record discloses that defendant's motion for nonsuit at the close of the State's evidence was denied. Defendant thereupon offered evidence in his own behalf, and the State examined a witness in rebuttal. Both the State and the defendant then rested, but defendant's motion for dismissal or judgment as of nonsuit was not renewed. Nevertheless, failure to nonsuit is assigned as error and argued in the briefs filed in the Court of Appeals and in this Court.

G.S. § 15-173 provides that the failure of the defendant to renew his motion for nonsuit at the close of all the evidence constitutes a waiver of his motion for nonsuit made prior to the introduction of his evidence. Numerous decisions of this Court applying G.S. § 15-173 hold that a motion for judgment as of nonsuit upon the evidence will not be considered on appeal when it is not renewed at the conclusion of all the evidence. State v. Howell, 261 N.C. 657, 135 S.E.2d 625 (1964); State v. Chapman, 221 N.C. 157, 19 S.E.2d 250 (1942); State v. Kiziah, 217 N.C. 399, 8 S.E.2d 474 (1940); State v. Helms, 181 N.C. 566, 107 S.E. 228 (1921).

Chapter 762 of the 1967 Session Laws, codified as G.S. § 15-173.1, reads as follows: "The sufficiency of the evidence of the State in a criminal case is reviewable upon appeal without regard to whether a motion has been made pursuant to G.S. § 15-173 in the trial court." Since the effective date of this enactment, 13 June 1967, the sufficiency of the State's evidence in a criminal case, if challenged by assignment of error and argued in the briefs, is reviewable upon appeal regardless of whether a motion for judgment of nonsuit was made by defendant in the trial court. We must therefore determine whether the evidence was sufficient to carry the case to the jury. We proceed as if the proper motion had been made under G.S. § 15-173 and denied by the trial judge. State v. Everette, 284 N.C. 81, 199 S.E.2d 462 (1973).

A motion to nonsuit in a criminal case requires consideration of the evidence in the light most favorable to the State, and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). Contradictions and discrepancies are for the jury to resolve and do not warrant nonsuit. State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972); State v. Greene, 278 N.C. 649, 180 S.E.2d 789 (1971). All of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is considered by the Court in ruling upon the motion. State v. Cutler, supra; State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1966). If there is substantial evidence—whether direct, circumstantial, or both—to support a finding that the offense charged has been committed and that defendant committed it, a case for the jury is made and nonsuit should be denied. State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968); State v. Norggins, 215 N.C. 220, 1 S.E.2d 533 (1939).

Applying these governing principles to the evidence offered in this case, we hold the evidence was insufficient to carry the case to the jury for the reasons which follow.

Each bill of indictment charged defendant with 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 (1974 Cum.Supp.). The fact in issue between the State and the defendant is whether defendant violated the North Carolina Controlled Substances Act by distributing the drug tetrahydrocannabinols.

There must be legal evidence of the fact in issue, and evidence which only raises a suspicion or conjecture is insufficient. State v. Bass, 253 N.C. 318, 116 S.E.2d 772 (1960). Evidence which merely shows that defendant might have distributed tetrahydrocannabinols, or raises a suspicion that he did, is insufficient to support a verdict and should not be left to the jury. State v. Guffey, 252 N.C. 60, 112 S.E.2d 734 (1960); State v. Glenn, 251 N.C. 156, 110 S.E.2d 791 (1959).

To prove that defendant distributed tetrahydrocannabinols, the State offered the testimony of two schoolboys, Benjamin Franklin and John Peppers, and Dr. George Ellis. Franklin testified that he paid defendant $10.00 for a white substance in a small plastic bag which defendant represented to be "THC." The substance was white and looked like sugar. He swallowed "a pinch" of the substance and threw the remainder in a trash can. He became dizzy, suffered blackouts and hallucinations, and was treated by Dr. Ellis. Franklin testified he had never seen, taken or purchased THC before and did not, in fact, know that the substance was THC.

John Peppers testified that he tasted the substance sold to Benjamin Franklin; that the substance was white, like sugar crystals, and had a bitter taste. The next night Peppers paid defendant $10.00 for a substance represented by defendant to be "THC" and gave it to two of his friends at school. Peppers stated that he had not taken THC before or since and that he still doesn't know what it looks like "except for that one occasion."

Dr. George Ellis, a medical expert, testified that he examined Ben Franklin on 10 December 1973 at his office; that Franklin was acutely psychotic and completely incoherent, a condition caused most likely by "a hallucination drug." Dr. Ellis stated that tetrahydrocannabinols "can be a hallucinogenic drug" and that a sufficient quantity of that drug could have caused Franklin's symptoms. Dr. Ellis said he was familiar with the abbreviation THC. He was then asked: "What chemical substance does those abbreviations represent?" Dr. Ellis replied: "It's a substance similar to marijuana like drugs." He stated on cross-examination that other drugs can cause hallucinations as described in Franklin's case and that people have hallucinations who have never taken drugs. He said he did not know what Franklin took or that he took anything.

When the foregoing evidence is considered in the light most favorable to the State, giving the State every reasonable intendment and every reasonable inference to be drawn therefrom, it fails to show that defendant distributed tetrahydrocannabinols as charged in the bills of indictment. Defendant represented to Franklin and Peppers that the substance was THC— whatever that is. No witness testified that THC was an abbreviation for tetrahydrocannabinols. The testimony of Dr. Ellis that THC is "a substance similar to marijuana like drugs" leaves unanswered the basic question whether THC is the abbreviation for tetrahydrocannabinols. This is so because there may be many substances "similar to marijuana like drugs," and tetrahydrocannabinols may or may not be one of them. Did defendant sell tetrahydrocannabinols to Franklin and Peppers? The witnesses do not say. Before there can be a lawful conviction the State must prove (1) that the crime charged has been committed and (2) that it was committed by the person charged. 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); State v. Norggins, 215 N.C. 220, 1 S.E.2d 533 (1939). The State's evidence fails to meet these requirements.

To withstand a motion for judgment as of nonsuit there must be substantial evidence of all material elements of the offense charged. Whether the State has offered such substantial 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, 279 N.C. 398, 183 S.E.2d 553 (1971). The evidence here is insufficient to support a verdict and should not have been left to the jury.

Since the insufficiency of the State's evidence requires dismissal, it becomes unnecessary to discuss other errors assigned.

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

Reversed and remanded.