State v. StithÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-615
Filed: 5 April 2016
Johnston County, No. 13CRS051137
STATE OF NORTH CAROLINA
v.
MORRIS LEAVETT STITH, Defendant.
Appeal by Defendant from judgment entered 24 September 2014 by Judge
Claire V. Hill in Johnston County Superior Court. Heard in the Court of Appeals 4
November 2015.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General
Charles G. Whitehead, for the State.
Kimberly P. Hoppin for the Defendant.
DILLON, Judge.
Morris Leavett Stith (“Defendant”) appeals from a judgment entered upon jury
verdicts finding him guilty of (1) possession with intent to sell or deliver an opium
derivative and (2) trafficking in an opium derivative by sale. For the following
reasons, we find no error.
I. Background
On 21 November 2012, Defendant sold fifteen (15) pills containing a controlled
substance (hydrocodone) combined with a non-controlled substance (acetaminophen)
to a confidential police informant for $75.
STATE V. STITH
Opinion of the Court
Defendant was subsequently indicted by a Johnston County grand jury with
(1) possession with intent to sell or deliver a Schedule II controlled substance and (2)
trafficking in an opium derivative by sale. The matter came on for a two-day trial in
superior court.
The jury found Defendant guilty of (1) possession with intent to sell or deliver
a Schedule III (as opposed to a Schedule II) controlled substance and (2) trafficking
in an opium derivative by sale. Defendant stipulated to his status as an habitual
felon. The trial court consolidated the charges for judgment, sentencing Defendant
to prison for ninety (90) to 120 months based on certain mitigating factors. Defendant
entered notice of appeal in open court.
II. Analysis
Defendant makes a number of arguments that the judgments should be
vacated based on his contentions that the drug was misidentified in the indictments
and that the trial court erred in allowing the prosecutor to amend the indictments.
We address each conviction in turn.
A. Possession of Controlled Substance with Intent to Sell or Deliver
1. The Indictment
The original indictment returned by the grand jury charged Defendant the
possession of the controlled substance “hydrocodone” (combined with a non-narcotic,
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STATE V. STITH
Opinion of the Court
acetaminophen) and stated that this substance was a Schedule II drug. Specifically,
the indictment stated, in relevant part, as follows:
Offense: Possession of a SCH II CS [Schedule II Controlled
Substance] with Intent to Sell or Deliver
. . . Defendant . . . did [feloniously] possess
acetaminophen and hydrocodone bitartrate[.]
Acetaminophen and hydrocodone bitartrate [] is a
controlled substance which is included in Schedule II
of the North Carolina Controlled Substance Act[.]
2. The Amendment to the Indictment and the Evidence at Trial
Hydrocodone is a drug listed in Schedule II, the possession of which (with the
intent to sell or deliver) is a Class H felony. N.C. Gen. Stat. §§ 90-90(1)(a)(10), 90-
95(b)(1) (2012). However, by the start of the trial, it became apparent to the State
that its evidence would show that the hydrocodone possessed by Defendant was
combined with a non-narcotic such that the hydrocodone is considered under our law
to be a Schedule III controlled substance, the possession of which (with the intent to
sell or deliver) is only a Class I felony. Id. §§ 90-91(d)(3)-(5), 90-95(b)(2). Accordingly,
the State made a request that it be allowed to strike through the phrase “Schedule II
of” in the indictment, which the trial court granted.
During the trial, the State’s evidence tended to show that Defendant possessed
pills containing hydrocodone bitartrate1 combined with acetaminophen, but that the
1As stated in Defendant’s brief, the term “bitartrate” in the indictment does not refer to any
controlled substance but merely modifies “hydrocodone” as being in a certain salt form.
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STATE V. STITH
Opinion of the Court
pills were of such weight and combination to bring the hydrocodone within Schedule
III. Defendant was convicted of possessing Schedule III hydrocodone with the intent
to sell or deliver, a Class I felony.
3. Holding
We hold that the original indictment, as returned by the grand jury, was
sufficient to charge the crime of possessing hydrocodone, a Schedule II controlled
substance (and noting that the hydrocodone was combined with the non-narcotic,
acetaminophen). We hold that the indictment was sufficient to allow the jury to
convict Defendant of possessing hydrocodone under Schedule III, based on its
determination that the hydrocodone pills were under a certain weight and combined
with acetaminophen within a certain ratio to bring it within Schedule III. That is,
the jury did not convict Defendant of possessing an entirely different controlled
substance than that which the grand jury had found Defendant to have possessed
when it returned the original indictment. Finally, we hold that the strikethrough of
the words “Schedule II of” from the indictment allowed at the start of trial was not
reversible error and was not otherwise prejudicial to Defendant.
It is true that amending an indictment is statutorily prohibited. See N.C. Gen.
Stat. § 15A-923(e) (2014). However, our Supreme Court has held that not all change
to an indictment is error. Specifically, the Court interpreted the term “amendment”
in the statute to mean “any change in the indictment which would substantially alter
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STATE V. STITH
Opinion of the Court
the charge set forth in the indictment.” State v. Price, 310 N.C. 596, 598, 313 S.E.2d
556, 558 (1984). Therefore, as our Court has held, while “amending an indictment to
add an essential element to the allegations contained therein constitutes a
substantial alteration[,] . . . an amendment that simply corrects an error unconnected
and extraneous to the allegations of the essential elements . . . is not[.]” State v.
Williams, ___ N.C. App. ___, ___, 774 S.E.2d 880, 883 (2015).
It is true that the identity of the controlled substance is an essential element of
the crime of possession of a controlled substance with the intent to sell or deliver.
State v. Board, 296 N.C. 652, 657, 252 S.E.2d 803, 806 (1979). However, as our
Supreme Court has observed, the controlled substance need not be identified by the
identical language used in the statute, but rather, the controlled substance may be
identified “by whatever official name, common or usual name, chemical name, or
trade name[.]”2 Id. at 658, 252 S.E.2d at 807. See also State v. Sullivan, ___ N.C.
App. ___, ___, 775 S.E.2d 23, 27 (2015) (holding that an indictment was fatal because
the name employed to identify the controlled substance was not the name used in the
statute nor was there evidence that the name was the trade name); State v. Newton,
21 N.C. App. 384, 386, 204 S.E.2d 724, 725 (1974) (holding that indictment was
sufficient where the controlled substance was identified by its trade name rather than
by the name used in the statutory language).
2This quoted language is the same language used in each of the statutes which identifies the
schedules of controlled substances. Compare N.C. Gen. Stat. § 90-90 with id. § 90-89.
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STATE V. STITH
Opinion of the Court
In the present case, the original indictment identified the controlled substance
possessed by Defendant as hydrocodone, and the jury ultimately convicted Defendant
of possessing hydrocodone. The “change” in the indictment did not change the
identity of the controlled substance. It only eliminated one of the two references to
Schedule II. (Even with the strikethrough, the face of the indictment still contained
a reference to Schedule II in its heading, identifying the offense charged as
“Possession of SCH II CS [Schedule II controlled substance] with Intent to Sell or
Deliver.”) In any case, even changing “Schedule II” to “Schedule III” would not have
changed the identity of the controlled substance (hydrocodone) combined with
acetaminophen in this case, but rather it would have merely changed the maximum
weight of hydrocodone and ratio of hydrocodone with acetaminophen in each pill such
that each pill would be considered a Schedule III drug.
4. Schedule II Hydrocodone vs. Schedule III Hydrocodone
The State’s expert described the pills possessed by Defendant as Schedule III
hydrocodone. Some clarification is necessary since “hydrocodone” is referred to by its
synonym “dihydrocodeinone” in Schedule III of our statutes, which is provided below:
“Hydrocodone” is a controlled substance and is listed on Schedule II. N.C. Gen.
Stat. § 90-90(1)(a)(10) (2012). However, hydrocodone can also be a Schedule III
substance when it is at or below a certain dosage weight and combined within a
certain ratio with a “nonnarcotic ingredient,” such as acetaminophen. Id. § 90-
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STATE V. STITH
Opinion of the Court
91(d)(4). In other words, hydrocodone, whether by itself or combined with a non-
narcotic, is a Schedule II drug unless it is below a certain amount and combined
within a certain ratio with the non-narcotic, in which case it is considered a Schedule
III drug, the possession of which carries a lighter punishment.
In Schedule III, “hydrocodone” is actually referred to by its synonym
“dihydrocodeinone.” See id. Our Court has observed that, as discussed above,
Schedule III hydrocodone (or dihydrocodeinone) is differentiated from Schedule II
hydrocodone “by the quantitative ratio of dihydrocodeinone to nonnarcotic
ingredients [such as acetaminophen] per dosage unit.” State v. Johnson, 214 N.C.
App. 436, 441, 714 S.E.2d 502, 506 (2011) (emphasis in original). Our Supreme Court
has referred to “dihydrocodeinone” as “dihydrocodeinone (hydrocodone).” State v.
Ward, 364 N.C. 133, 138 n. 2, 694 S.E.2d 738, 741 n. 2 (2010). Other jurisdictions
also recognize that hydrocodone and “dihydrocodeinone” are the same controlled
substance. See State v. Benedict, 887 So.2d 649, 651 (2004) (observing that the
substances are equivalent under Louisiana law); N.Y. CLS Pub. Health § 3306 (2015)
(referring to hydrocodone as “hydrocodone (also known as dihydrocodeinone)” under
Schedule II of New York’s controlled substances law); State v. Pewitte, 2014 Tenn.
Crim. App. LEXIS 261, *14, n. 3 (2014) (unpublished opinion) (noting the use of
“hydrocodone” and “dihydrocodeinone” interchangeably); State v. Pagan, 2011 Wash.
App. LEXIS 88, *6 n. 3 (2011) (unpublished opinion) (explaining that “hydrocodone”
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STATE V. STITH
Opinion of the Court
and “dihydrocodeinone” are synonyms, citing a number of medical sources); United
States v. McKinney, 2009 U.S. Dist. LEXIS 35825, *13 (2009) (unpublished opinion)
(citing 21 C.F.R. § 1308.13(e)(1)(iii)-(iv)).
Likewise, the term “dihydrocodeinone” does not appear in Schedule II, but is
referred to by its synonym “hydrocodone,” but “dihydrocodeinone” is not to be confused
with an entirely different Schedule II controlled substance, “dihydrocodeine”
referenced in N.C. Gen. Stat. § 90-90(2)(f).
5. This Case is Distinguishable from Recent Cases Cited by Defendant
Defendant argues that we are compelled to find that the indictment was
insufficient to convict him of possessing Schedule III hydrocodone, citing a number of
cases. See, e.g., State v. Ahmadi-Turshizi, 175 N.C. App. 783, 784-85, 625 S.E.2d 604,
605 (2006) (“When a defendant has been charged with possession of a controlled
substance, the identity of the controlled substance that defendant allegedly possessed
is considered to be an essential element which must be alleged properly in the
indictment.”). Indeed, our Court has required that controlled substances be identified
with precision, noting that “the legal definition of these [controlled] substance[s] is
itself technical and requires precision.” State v. Ledwell, 171 N.C. App. 328, 332, 614
S.E.2d 412, 415 (2005). However, we hold that the present case is distinguishable.
In Ledwell, a 2005 case, our Court held that an indictment identifying the drug
as “Methylenedioxyamphetamine (MDA)” was fatal because this term did not refer to
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STATE V. STITH
Opinion of the Court
the same substance as the controlled substance listed in our statutes as “3,4 –
Methylenedioxyamphetamine (MDA).” Id. at 331-33, 614 S.E.2d at 414-15. The next
year, our Court relied on Ledwell to reach an identical holding. Ahmadi-Turshizi,
175 N.C. App. at 786, 625 S.E.2d at 605-06. These cases were based on the fact that
MDA is not identical to 3,4-methylenedioxyamphetamine. See Board, 296 N.C. at
657-58, 252 S.E.2d at 806-07.
In 2010, our Court held that an indictment identifying the controlled substance
as “Benzodiazepines, which is included in Schedule IV” was defective because
“benzodiazepines” is not found in Schedule IV but refers to a category of drugs, some
of which are named in Schedule IV. State v. LePage, 204 N.C. App. 37, 54, 693 S.E.2d
157, 168 (2010). The actual drug at issue was clonazepam, which is a Schedule IV
drug. N.C. Gen. Stat. § 90-92(a)(1)(i) (2012). The LePage Court based its holding on
the fact that “benzodiazepines,” (the term used in the indictment) is not the same
controlled substance as “clonazepam” (the drug actually possessed), but rather
clonazepam is a particular controlled substance within the benzodiazepines category
of controlled substances. 204 N.C. App. at 54, 693 S.E.2d at 168. Accordingly, based
on LePage, our Court is compelled to conclude that a drafter of an indictment has
failed to use sufficient technical precision by identifying clonazepam as
“benzodiazepines, a Schedule IV drug.” See id.-9-
STATE V. STITH
Opinion of the Court
In 2015, our Court held that the trial court erred by allowing the State to
amend an indictment by adding the prefix “4-” to the word “methylethcathinone.”
Williams, ___ N.C. App. at ___, 774 S.E.2d at 885-87. The Court essentially held that
adding the numeric prefix changed the identity of the controlled substance and
therefore “added an essential element [to the indictment] that was previously absent,
[] constitut[ing] a substantial alteration[.]” Id. at ___, 774 S.E.2d at 885-86.
However, unlike the above cases, in the present case the indictment was not
changed such that the identity of the controlled substance was changed. Rather, it
was changed to reflect that the controlled substance was below a certain weight and
mixed with a non-narcotic (the identify of which was also contained in the indictment)
to lower the punishment from a Class H felony to a Class I felony. The grand jury
returning the indictment and the jury convicting Defendant both concluded that the
controlled substance possessed by Defendant was hydrocodone.
Moreover, we believe that the indictment adequately apprised Defendant of
the controlled substance that he possessed, hydrocodone. The indictment also alleged
that the hydrocodone was combined with acetaminophen. The fact that the evidence
at trial showed that the ratio of hydrocodone to acetaminophen and the weight of
hydrocodone contained in each pill was sufficient to bring it within Schedule III did
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STATE V. STITH
Opinion of the Court
not render the indictment invalid, nor does it create a fatal variance.3 Further, the
amendment allowed by the trial court was not material because the strikethrough of
certain language did not alter the identity of the controlled substance which
Defendant was alleged to have possessed; and, in any case, even with the
strikethrough, the face of the indictment still charged Defendant with possessing
Schedule II hydrocodone.
Though not controlling, we find the case Graham v. State of Mississippi, 935
So.2d 1119 (2006), persuasive. In that case, the Mississippi intermediate appellate
court held that an amendment to an indictment for the sale of hydrocodone which
changed the Schedule from “II” to “III” did not prejudice the defendant. Id. at 1121-
22. The Court specifically distinguished the case from another Mississippi opinion
finding the omission of the numeric prefix from a drug name (similar to the omission
which rendered the indictments fatal in Ledwell and Ahmadi-Turshizi) to be fatal.
Id. at 1121. See also State v. Toddy, 2000 Ohio App. LEXIS 5736, *10-11 (2000)
(unpublished opinion) (allowing amendment of indictment for trafficking in
hydrocodone by changing Schedule III to Schedule II).
B. Trafficking in an Opium Derivative
3The present situation is similar to a situation where a defendant is indicted with felonious
larceny of certain tools valued at over $1,000 (a felony because the value of the tools is over $1,000).
See N.C. Gen. Stat. § 14-72(a) (2012). There is no fatal variance merely because the jury determines
that the value of the tools was under $1,000 and convicts the defendant of a misdemeanor. See State
v. Jones, 275 N.C. 432, 437-38, 168 S.E.2d 380, 384 (1969).
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STATE V. STITH
Opinion of the Court
Defendant was also indicted for trafficking an opium derivative, for selling the
hydrocodone pills. The indictment identifies the controlled substance using the same
language as the language used in the indictment charging Defendant with possession
with the intent to sell.
On appeal, Defendant makes the same arguments concerning the change to
the indictment allowed by the trial court (namely, striking the words “Schedule II of”
as was allowed with the other indictment). For the same reasons, we hold that the
actions of the trial court did not constitute reversible error. Further, we hold that
there was no fatal variance between the indictment and the evidence at trial. The
indictment alleged that Defendant was trafficking in hydrocodone, and the evidence
tended to show that Defendant was trafficking in hydrocodone. Accordingly, this
argument is overruled.
NO ERROR.
Judge GEER concurs.
Judge HUNTER, JR., dissents by separate opinion.
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No. COA15-615 – State v. Stith
HUNTER, JR., Robert N., Judge, Dissenting.
I dissent. An indictment is the sine qua non of criminal jurisdiction as required
by Article I, Section 22 of the Constitution of North Carolina. To indict, twelve to
eighteen persons sitting as a grand jury have to concur in the indictment. N.C. Gen.
Stat. § 15A-621. The language of an indictment is presented to the grand jury by a
District Attorney pursuant to N.C. Gen. Stat. § 15A-627. The purpose of
Constitutional provisions for indictments is: “(1) to provide certainty so as to identify
the offense, (2) to protect the accused from twice being put in jeopardy for the same
offense, (3) to enable the accused to prepare for trial, and (4) to enable the court, on
conviction or plea of guilty or Nolo contendere, to pronounce sentence according to
the rights of the case.” State v. Foster, 10 N.C. App. 141, 142–43, 177 S.E.2d 756, 757
(1970) (citation omitted); see also State v. Stokes, 274 N.C. 409, 411, 163 S.E.2d 770,
772 (1968). In my view, the language of the indictment fails under our precedents to
meet these standards.
On 1 April 2013, the grand jury indicted Morris Leavett Stith on two counts,
as follows:
Count I
Offense: Possession of SCH II CS with Intent to Sell or
Deliver
Date of Offense: November 21, 2012
In violation of: N.C.G.S. 90-95(a)(1)
I. The jurors for the State upon their oath present that on
or about November 21, 2012, in the county of Johnston, the
STATE V. STITH
HUNTER, JR., Robert N., J., dissenting
Defendant named above, unlawfully, willfully, and
feloniously did possess acetaminophen and hydrocodone
bitartrate (Percocet), with the intent to sell or deliver said
acetaminophen and hydrocodone bitartrate (Percocet).
Acetaminophen and hydrocodone bitartrate (Percocet) is a
controlled substance which is included in Schedule II of the
North Carolina Controlled Substances Act. The act is in
violation of N.C.G.S. § 90-95(a)(1).
Count II
Offense: Trafficking in Opiates, Synthetic Opiates and
Opiate Derivatives by Sale
Date of Offense: November 21, 2012
In violation of: N.C.G.S. 90-95(h)(4)(a)
II. The jurors for the State upon their oath further present
that on or about November 21, 2012, in the county of
Johnston, the Defendant named above intentionally,
unlawfully, willfully, and feloniously did traffick in opium
or opiates or a derivative or preparation of opium or opiate
or any mixture containing such substances, by selling four
(4) grams or more but less than fourteen (14) grams of
Acetaminophen and Hydrocodone Bitartrate (Percocet), a
controlled substance which is included in Schedule II of the
North Carolina Controlled Substances Act, to Selma
Jerome. This act was in violation of North Carolina
General Statues Section 90-95(h)(4)(a).
Count One of this indictment is jurisdictionally deficient under settled law of
this court consistently applied in State v. Ledwell, 171 N.C. App. 328, 331, 614 S.E.2d
412, 414 (2005), State v. Turshizi, 175 N.C. App. 783, 625 S.E.2d 604 (2006), and State
v. Sullivan, ___ N.C. App. ___, 775 S.E.2d 23 (2015). See also State v. Barnes, 213
N.C. App. 424, 714 S.E.2d 274 (2011) (unpublished). Count Two of the indictment is
2
STATE V. STITH
HUNTER, JR., Robert N., J., dissenting
also jurisdictionally deficient because its language fails to meet all four of the
standards set forth in Foster and Stokes.
Realizing under our holdings in Ledwell, Turshizi, and Sullivan that this
indictment did not confer jurisdiction to the trial court, the State moved to “amend”
the indictment, which the court granted, and the Assistant District Attorney struck
through “Schedule II” in Counts I and II. It is apparent the State did this in an
attempt to cure fatal defects in the indictment.
Because only a grand jury can indict a defendant, a court is prohibited by
statute from amending an indictment in a material way. N.C. Gen. Stat. § 15A-
923(e); State v. White, 202 N.C. App. 524, 527, 689 S.E.2d 595, 596–97 (2010) (“[O]ur
appellate courts have interpreted [section 15A-923(e)] to mean that a bill of
indictment may not be amended in a manner that substantially alters the charged
offense.”) (citations and quotation marks omitted). Because the original indictment
was defective, one cannot tell whether the amended version would have been
concurred by twelve grand jurors or not. The defects could have been cured in
advance of the trial had the Assistant District Attorney sought a superseding
indictment, but she did not. The court lacked jurisdiction to both hear the matter or
to amend the indictment.
The trafficking statute charged in Count II, N.C. Gen. Stat. § 90-95(h)(4)(a),
punishes “[a]ny person who sells, manufactures, delivers, transports, or possesses
3
STATE V. STITH
HUNTER, JR., Robert N., J., dissenting
four grams or more [but less than fourteen grams] of opium or opiate, or any salt,
compound, derivative or preparation of opium or opiate (except apomorphine,
nalbuphine, analoxone and naltrexone and their respective salts), including heroin,
or any mixture containing such substance . . . .” N.C. Gen. Stat. § 90-95(h)(4)(a).
Count II alleges Defendant trafficked “a controlled substance which is included in
Schedule II of the North Carolina Controlled Substances Act.” Our statutes define a
“controlled substance” as a “drug, substance, or immediate precursor included in
Schedules I through VI” of the North Carolina Controlled Substances Act. N.C. Gen.
Stat. § 90-87(5).
Reviewing the indictment, it is unclear whether the grand jury concurred in
finding Defendant trafficked “opiates, synthetic opiates, or opiate derivatives,”
“Acetaminophen and Hyrdrocodone Bitartrate,” “Percocet,” or “a controlled substance
which is included in Schedule II of the North Carolina Controlled Substances Act.”
Schedule II includes “opium and opiate, and any salt, compound, derivative, or
preparation of opium and opiate,” N.C. Gen. Stat. § 90-90(1)(a), and “Hydrocodone,”
N.C. Gen. Stat. § 90-90(1)(a)(10), but it does not enumerate Acetaminophen,
Hydrocondone Bitartrate, Percocet, or the substance proven at trial,
“Hydrocodeinone,” which appears as “dihydrocodeinone” in Schedule III. N.C. Gen.
Stat. § 90-91(d)(3)–(4). This flaw poses jurisdictional problems for the trial court.
4
STATE V. STITH
HUNTER, JR., Robert N., J., dissenting
Under the long standing jurisprudence of this Court, and our Supreme Court,
it is apparent the trial court did not have jurisdiction to act under the indictment. “It
is elementary that a valid bill of indictment is essential to the jurisdiction of the trial
court to try an accused for a felony.” Ledwell, 171 N.C. App. at 331, 614 S.E.2d at414 (citing State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719 (1981)). “An
‘indictment must allege all of the essential elements of the crime sought to be
charged.’” Ledwell, 171 N.C. App. at 331, 614 S.E.2d at 414 (citing State v.
Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996)). “Identity of a controlled
substance allegedly possessed is such an essential element.” Ledwell, 171 N.C. App.
at 331, 614 S.E.2d at 414 (citation omitted). “An indictment is invalid where it fails
to state some essential and necessary element of the offense of which the defendant
is found guilty.” Id. (citations and quotation marks omitted).
Punishment for trafficking opiates depends upon drug weight, not drug
scheduling. N.C. Gen. Stat. §§ 90-95(h)(4)(a)–(c). The State was not required to cite
Schedule II, or any specific controlled substance schedule, when it indicted Defendant
for violating N.C. Gen. Stat. § 90-95(h)(4)(a). Nonetheless, the State incorrectly
identified the controlled substance, hydrocodeninone, with the “Schedule II”
language. This identification is essential to the indictment, and it marks a fatal flaw
that deprives the court of jurisdiction. Ledwell, 171 N.C. App. at 331, 614 S.E.2d at
414 (citation omitted).
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STATE V. STITH
HUNTER, JR., Robert N., J., dissenting
Further, the State changed the identity of the controlled substance alleged in
Count II by striking the “Schedule II” language, which is an inherently statutory
matter. Our statutes prevent trial courts from making these kinds of amendments
precisely so only a grand jury can indict a defendant as provided in our Constitution.
N.C. Gen. Stat. § 15A-923(e); N.C. Const. art. I, § 22. With a fatally flawed indictment
and no jurisdiction to impose a felony judgment, the trial court should have dismissed
the case. I am not persuaded by the majority’s attempts to distinguish the controlling
decisions. We are bound to follow these decisions. In re Civil Penalty, 324 N.C. 373,
384, 379 S.E.2d 30, 37 (1989). Nor am I persuaded by the law of Louisiana in this
matter. Believing that a certain result should obtain in this case does not follow the
law. Therefore, I must respectfully dissent and I would vacate the judgment imposed
on Counts I and II. See Ledwell, 171 N.C. App. 328, 614 S.E.2d 412; Turshizi, 175
N.C. App. 783, 625 S.E.2d 604; Sullivan, ___ N.C. App. ___, 775 S.E.2d 23.
6