State v. Rozier, 8316SC528

• Decision Date: 19 June 1984
• Docket Number: No. 8316SC528,8316SC528
• Citation: 69 N.C.App. 38,316 S.E.2d 893
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Carey Preston ROZIER and Harold Dean Carter.

Page 893

316 S.E.2d 893

69 N.C.App. 38

STATE of North Carolina v. Carey Preston ROZIER and Harold Dean Carter.

No. 8316SC528.

Court of Appeals of North Carolina.

June 19, 1984.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., Elizabeth C. Bunting, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Lorinzo L. Joyner, Raleigh, for defendant-appellant Carter.

Regan & Regan by John C.B. Regan III, Lumberton, for defendant-appellant Rozier.

JOHNSON, Judge.

Defendant Rozier has adopted the brief of defendant Carter. Therefore, the two defendants' appeals are treated herein as one, except where defendant Carter has raised questions pertinent only to his own appeal.

I

Certain of the indictments charged sale or delivery of cocaine, and conspiracy to sell or deliver. The conspiracy indictment against defendant Carter arising out of the 15 June 1982 transactions charged only "trafficking," without specifying which specific form of trafficking Carter conspired to commit. These deficiencies, contend defendants, rendered the indictments fatally defective and therefore the court erred in denying their motions to quash.

A

G.S. 90-95(a)(1) provides that it is unlawful for any person "To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance," including cocaine. Sale and delivery are separate offenses. State v. Dietz, 289 N.C. 488, 223 S.E.2d 357 (1976). Ordinarily, an indictment which charges separate offenses in the alternative is defective and defendants may properly move to quash or compel the State to make an election. Defendants moved to quash because of the above duplicity and their motions were denied.

The rule against disjunctive pleading is not absolute, however. State v. Jones, 242 N.C. 563, 89 S.E.2d 129 (1955), provides an apt example. There, defendant challenged an indictment as duplicitous which alleged that he "did unlawfully and wilfully build or install a septic tank" (emphasis supplied) without first obtaining a permit. The Court held that the terms "build" and "install" were synonymous and the disjunctive pleading was therefore irrelevant. Even if the words were not synonymous, held the Court, the gist of the offense lay not in the manner in which the tank reached completion, but in defendant's failure to obtain a permit, and therefore no prejudice could result. Id. at 565, 89 S.E.2d at 131. Here, the only difference between "sell" and "deliver" is the fact that money changes hands in a sale. The gist of both offenses, the act which the General Assembly intended to punish, is the transfer of controlled substances. The statutes define trafficking offenses in terms of the amount of illicit drugs involved, not the amount of money. Defendants were clearly on notice which transfers were the subject of the indictments.

[I]t is not the function of an indictment to bind the hands of the State with technical rules of pleading; rather, its purposes are to identify clearly the crime being charged, thereby putting the accused on reasonable notice to defend against it and prepare for trial, and to protect the accused from being jeopardized by the State more than once for the same crime.

State v. Sturdivant, 304 N.C. 293, 311, 283 S.E.2d 719, 731 (1981). Therefore, we hold that the indictments charging "sale or delivery" were not fatally defective and that the court did not abuse its discretion in denying defendants' motions to quash. Id.; State v. Jones, supra.

B

The conspiracy to traffic indictment against Carter based on the transaction of 15 June 1982, case number 82CRS9749, presents a similar question. The indictment, tracking the statute, charged the single felony of trafficking. See G.S. 90-95(h)(3). However, trafficking may be committed in various ways; one who "sells, manufactures, delivers, transports, or possesses" more than the statutory minimum has committed the offense. Id. These are separate offenses. State v. Anderson, 57 N.C.App. 602, 292 S.E.2d 163, disc. review denied, 306 N.C. 559, 294 S.E.2d 372 (1982). The failure to specify which denounced act was conspired to renders the indictment fatally defective, argues Carter.

Before trial Rozier moved to quash the parallel indictment against him, which charged a conspiracy to sell or deliver. The motion was grounded on the alleged duplicity; Carter joined in the motion, even though the indictment against him did not include the language complained of. He did not raise the omission orally. It is well established that failure to move to quash waives the defect in the indictment. See e.g., State v. Turner, 8 N.C.App. 541, 174 S.E.2d 863 (1970). By failing to move to quash for the alleged omission defendant Carter waived the defect; moreover, by joining in defendant Rozier's motion he admitted that he in fact had notice of the nature of the charge against him.

The Supreme Court has routinely held that indictments simply charging murder with malice aforethought suffice to support felony-murder convictions, and that defendants desiring more information must exercise their right to request a bill of particulars. See G.S. 15A-925; State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976); State v. Mays, 225 N.C. 486, 35 S.E.2d 494 (1945). This Court has held that a defendant charged with failing to disperse could not complain of the failure of the charging document to disclose the underlying disorderly conduct where no bill was requested. State v. Clark, 22 N.C.App. 81, 206 S.E.2d 252, appeal dismissed, 285 N.C. 760, 208 S.E.2d 380 (1974), cert. denied, 420 U.S. 977, 95 S.Ct. 1403, 43 L.Ed.2d 658 (1975). Assuming arguendo that Carter had not otherwise waived the defect, his failure to request a bill of particulars to an indictment which clearly informed him of the felony charged precludes him from raising the omission here. Id.; State v. Swift, supra; see generally 41 Am.Jur.2d, Indictments and Informations § 303 (1968). This assignment is overruled.

II

Defendants, particularly Carter, contend that the evidence against them did not suffice to go to the jury on the felony charges. It is elementary that there must be substantial evidence of all material elements of the offenses charged for the case to reach the jury. State v. LeDuc, 306 N.C. 62, 291 S.E.2d 607 (1982). In applying this test,

[t]he evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court....

State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). "In addition to producing substantial evidence of each of the material elements of the particular offense, the State must produce substantial evidence that the defendant committed it." State v LeDuc, supra, 306 N.C. at 75, 291 S.E.2d at 615. If the evidence suffices only to raise a suspicion or conjecture that defendant committed the offense, it is insufficient. Id.

A

Defendant Carter contends that the evidence did not suffice to support his convictions of possession of cocaine with intent to sell or deliver on either 9 June or 15 June 1982. Carter admitted that the trailer where the deals took place was his and admitted that he was there when the State's evidence showed the transactions to have occurred. The State presented evidence that Carter had used and distributed cocaine in the past and knew of the subject transactions, by telephone conversations and conversation with the accomplice in person. In State v. Tate and State v. Tate, 58 N.C.App. 494, 294 S.E.2d 16 (1982) aff'd, 307 N.C. 464, 298 S.E.2d 386 (1983) (per curiam), this Court ruled that similar evidence sufficed to support a possession conviction. There narcotics were found in an apartment rented by defendant and apparently used by his sister in her dealing operations. Following Tate, there was sufficient evidence here for the jury to conclude that Carter at least constructively possessed the cocaine involved. See also United States v. DeLeon, 641 F.2d 330 (5th Cir.1981) (various otherwise inconclusive circumstances combined to permit inference of possession); Cleveland v. State, 155 Ga.App. 267, 270 S.E.2d 687 (1980) (husband constructively possessed drugs found with wife, owner of house, and another in closed room). Compare United States v. Williams, 569 F.2d 823 (5th Cir.1978) (owner not criminally liable for allowing others to use his property when he does not know of their criminal purpose).

Defendant Rozier was also convicted of two charges of possession. There was eyewitness testimony (1) that he personally handed the cocaine to the accomplice on 9 June 1982 and (2) that he directed Kinlaw to turn over the cocaine to the accomplice on 15 June 1982. This sufficed to take these cases to the jury. State v. Lofton, 42 N.C.App. 168, 256 S.E.2d 272 (1979).

B

The amount of cocaine which actually changed hands on 9 June 1982 was 27.71 grams, although the amount agreed on was an ounce (an ounce equals 28.349 grams). The minimum amount which will support a trafficking conviction is 28 grams. G.S. 90-95(h)(3). Therefore, argue defendants, the evidence did not support their convictions for trafficking on 9 June 1982; they contend that the State improperly used the conspiracy indictment for a chance at the mandatory seven year sentence for trafficking.

A criminal conspiracy is an agreement by two or more persons to perform an unlawful act or to perform a lawful act in an unlawful manner. State v. Hammette, 58 N.C.App. 587, 293 S.E.2d 824 (1982). It is a separate crime from the underlying substantive offense. State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980). The crime is complete once the agreement has been reached; no overt act is...