State v. Fleming

• Decision Date: 16 June 1981
• Docket Number: No. 8125SC87,8125SC87
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Joseph Berry FLEMING

Page 29

279 S.E.2d 29

52 N.C.App. 563

STATE of North Carolina v. Joseph Berry FLEMING

No. 8125SC87.

Court of Appeals of North Carolina.

June 16, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., Sandra M. King, Raleigh, for the State.

Triggs & Mull by John R. Mull, Morganton, for defendant.

HARRY C. MARTIN, Judge.

Defendant moved to quash the bill of indictment and assigns as error the court's failure to allow the motion. The pertinent parts of the bill are:

THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 21st day of June, 1980, in Burke County Joseph Berry Fleming unlawfully and wilfully did feloniously and intentionally attempt to acquire and obtain possession of Dilaudid (Hydromorphone), a controlled Substance included in Schedule II of the North Carolina Controlled Substances Act, from William Andrew Merrill, Pharmacist, by forgery in that defendant presented to William Andrew Merrill, a registered Pharmacist at Revco Discount Drug Store, Inc., a Corporation, 464 E. Fleming Drive, Morganton, North Carolina, a forged prescription dated 6/19/80 made out to Dave Conley, for sixty (60) Dilaudid 4 mg tablets; said prescription being written on a prescription form from the North Carolina Memorial Hospital, University of North Carolina, Chapel Hill, North Carolina with the forged signature of Mark Dellasega, M.D., appearing thereon, in violation of GS 90-98; 90-108(a)(10).

The standard to be applied in testing a bill of indictment is stated in State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953):

The authorities are in unison that an indictment, whether at common law or under a statute, to be good must allege lucidly and accurately all the essential elements of the offense endeavored to be charged. The purpose of such constitutional provisions is: (1) such certainty in the statement of the accusation as will identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice 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 nolo contendere or guilty to pronounce sentence according to the rights of the case.

We hold the present indictment meets the standard established by Greer. The language of the statute is followed, and it is supplemented by particular allegations of specific facts that set out all the elements of the offense and describe how defendant is alleged to have committed the crime. N.C.G.S. 90-108(a)(10) may be violated by attempting to acquire a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge. The illegal means by which defendant attempted to procure the controlled substance is alleged with particularity: "defendant presented to William Andrew Merrill, a registered Pharmacist at Revco Discount Drug Store, Inc., a Corporation, 464 E. Fleming Drive, Morganton, North Carolina, a forged prescription dated 6/19/80 made out to Dave Conley, for sixty (60) Dilaudid 4 mg tablets ... with the forged signature of Mark Dellasega, M.D., appearing thereon ...." This assignment of error is controlled by State v. Booze, 29 N.C.App. 397, 224 S.E.2d 298 (1976), where the Court held that it was not necessary to incorporate the forged prescription in the bill. The assignment of error is overruled.

Defendant contends the court erred in admitting evidence of previous occasions when defendant presented prescriptions for Dilaudid to pharmacist Merrill. Defendant argues this was an attack upon his character when it had not been placed in issue in the case. We disagree. The evidence was competent on at least two grounds: (1) to show Merrill's ability to recognize and identify defendant as being the person who presented the prescription at the time in question, State v. Tate, 210 N.C. 613, 188 S.E. 91 (1936); 1 Stansbury's N.C. Evidence § 92 (Brandis rev. 1973), and (2) to show guilty knowledge or intent or a plan or design. State v. Grace, 287 N.C. 243, 213 S.E.2d 717 (1975) (plan, identity); State v. Painter, 265 N.C. 277, 144 S.E.2d 6 (1965) (intent); State v. Boynton, 155 N.C. 456, 71 S.E. 341 (1911) (plan or design); State v. Wilkerson, 98 N.C. 696, 3 S.E. 683 (1887) (intent); State v. Twitty, 9 N.C. 248 (1822) (guilty knowledge). The assignments of error with respect to this evidence are overruled.

Defendant contends that the prescription in question in this case, and two prescriptions that defendant had previously presented at the store, were improperly admitted as evidence. He argues the state failed to show a proper chain of custody of the exhibits. The purpose of showing a chain of custody of a document is to prove that it is in the same condition with respect to its material parts as at the time of the event. See State v. Coble, 20 N.C.App. 575, 202 S.E.2d 303, appeal dismissed, 285 N.C. 236, 204 S.E.2d 21 (1974); State v. Brooks, 15 N.C.App. 367, 190 S.E.2d 338 (1972). The witness Merrill properly identified the prescription in question in this case. He testified that he saw defendant give it to Debbra Ramsuer, his cashier, and that she wrote the address on the prescription and gave it to Merrill. SBI agent Readling testified that he saw defendant give a paper to the cashier, who gave it to the pharmacist, and that after defendant was arrested Readling received the prescription from the pharmacist. Readling retained the exhibit in his possession until the court trial. The evidence complained of was properly identified and received in accord with the rule in State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971). Although some of the evidence showing the chain of custody of the exhibit was produced after the exhibit was admitted into evidence, no prejudicial error results. See id. The...