STATE of North Carolina
v.
Reuben Carl WALL.
No. 8920SC4.
Court of Appeals of North Carolina.
October 17, 1989.*582 Atty. General Thornburg by Asst. Atty. Gen. Thomas G. Meacham, Jr., Raleigh, for the State.
Henry T. Drake, Wadesboro, for defendant-appellant.
EAGLES, Judge.
Defendant's arguments regarding the guilt phase of his trial can be reduced to two contentions. First, defendant contends there is a fatal variance between the allegations in the indictment and proof of the sale and delivery charges because the indictment names McPhatter as the purchaser of the cocaine from Wall on the sale and delivery charges while the proof tends to show that Riley was the purchaser. Defendant also argues there was no evidence presented to show defendant knew Riley was buying and receiving the cocaine as agent for another. Defendant argues that for this reason the trial court erred in: (1) failing to dismiss the sale and delivery charges; (2) instructing the jury regarding *583 agency; and (3) failing to arrest judgment. Defendant also argues that, because the substantive crimes were so "intertwined" factually, if the sale and delivery conviction is vacated, the possession conviction must be vacated as well.
We agree in part with defendant's argument regarding his motion to dismiss. Accordingly, we vacate the judgment on the sale and delivery charges. We are not persuaded that we must also vacate the judgment on the possession charge.
Second, defendant contends that the indictment charging possession states that defendant possessed cocaine with the intent to "sell and deliver" while the trial court's charge to the jury allowed a conviction if the jury found defendant possessed cocaine with the intent to "sell or deliver." Defendant argues that the instructions given by the trial court impermissibly lowered the State's burden of proof. We disagree.
Defendant also asserts that the trial court erred when it found as a non-statutory aggravating factor that: "[d]efendant operated the Midnight Express where beer is sold and dance hall is maintained under conditions rendering his possession of controlled substances for purpose of sale, particularly aggravating because of large public dependence and exposure to opportunity for abuse of controlled substances." We agree that the trial court erred and accordingly remand for re-sentencing.
I. Guilt Phase
The two counts of the indictment in question charged the defendant with selling and delivering cocaine to McPhatter. The evidence showed, however, that the sale and delivery was to Riley. The law is settled in this state that an indictment for the sale and/or delivery of a controlled substance must accurately name the person to whom the defendant allegedly sold or delivered, if that person is known. State v. Ingram, 20 N.C.App. 464, 466, 201 S.E.2d 532, 534 (1974), citing State v. Bennett, 280 N.C. 167, 185 S.E.2d 147 (1971). A defendant must be convicted, if at all, of the particular offense charged in the indictment. State v. Faircloth, 297 N.C. 100, 107, 253 S.E.2d 890, 894, cert. denied, Faircloth v. North Carolina, 444 U.S. 874, 100 S. Ct. 156, 62 L. Ed. 2d 102 (1979). The State's proof must conform to the specific allegations contained in the indictment. If the evidence fails to do so, it is insufficient to convict the defendant of the crime as charged. Id. Therefore, a challenge to a fatal variance between the indictment and proof may be raised by a motion to dismiss for insufficient evidence. Id.; State v. Law, 227 N.C. 103, 40 S.E.2d 699 (1946).
In order to survive defendant's motion to dismiss the charges of selling and delivering cocaine to McPhatter, at a minimum, the evidence would have to show two things: (1) that defendant had knowledge Riley was buying or taking delivery of the cocaine for another person; and (2) that the person named in the indictment was that other person. See State v. Pulliam, 78 N.C.App. 129, 132, 336 S.E.2d 649, 652 (1985); State v. Black, 34 N.C.App. 606, 608, 239 S.E.2d 276, 277 (1977), disc. rev. denied, 294 N.C. 362, 242 S.E.2d 632 (1978). Defendant's guilty knowledge may be shown by circumstantial evidence. State v. Rozier, 69 N.C.App. 38, 50, 316 S.E.2d 893, 901, cert. denied, 312 N.C. 88, 321 S.E.2d 907 (1984). In reviewing the denial of a motion to dismiss we examine the evidence in the light most favorable to the State to determine if there is substantial evidence of every essential element of the crime. Evidence is "substantial" if a reasonable person would consider it sufficient to support the conclusion that the essential element exists. State v. McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982). Our review of the transcript reveals there is no substantial evidence that defendant knew Riley was acting on behalf of another. Therefore, defendant's motion to dismiss the sale and delivery charges should have been allowed.
Here there is evidence that McPhatter approached defendant and asked for cocaine. There is also some evidence that defendant knew Riley had been with McPhatter. However, this is insufficient basis to submit to the jury the issue of whether defendant knew Riley was acting on behalf of McPhatter. The State's argument that a transaction that occurs in a crowded night club is in the "presence" of one located at the other end of the building *584 is unpersuasive. We note that the State is at liberty to obtain another bill of indictment charging defendant with sale and delivery to Riley. See State v. Sealey, 41 N.C.App. 175, 176, 254 S.E.2d 238, 240 (1979); State v. Ingram, 20 N.C.App. at 466, 201 S.E.2d at 534.
We find defendant's argument regarding the effect of a dismissal of the sale and delivery charges on the possession charge unpersuasive. These alleged offenses are not so factually "intertwined" that the conviction for possession with intent to sell or deliver must be vacated as well. Defendant's reliance on State v. Creason, 313 N.C. 122, 326 S.E.2d 24 (1985) is misplaced. Defendant asserts that if the sale and delivery charges fail, the charge of possession with intent to sell or deliver must fail as well. However, in Creason the court stated that "[i]t is the intent of the defendant that is the gravamen of the offense" of possession with intent to sell or deliver. Id. at 129, 326 S.E.2d at 28 [emphasis in original]. Therefore, a completed sale or delivery of controlled substances need not be shown in order to convict defendant of possession with intent to sell or deliver. Defendant's arguments to the contrary are without merit.
Defendant next argues that the discrepancy between the offense alleged in the indictment and the instruction given the jury requires reversal. The indictment alleged that defendant "unlawfully, willfully and feloniously did possess with intent to sell and deliver cocaine." [Emphasis added.] The trial court instructed the jury on the possible verdict of guilty of possession of cocaine with intent to sell or deliver. Defendant asserts that the difference between the indictment and the court's instruction impermissibly lowered the State's burden of proof. We disagree.
As this court has stated before,
[i]t is proper for a jury to return a verdict of possession with intent to sell or deliver under G.S. 90-95(a)(1). Such a verdict is no less proper when the indictment charges possession with intent to sell and deliver since the conjunctive "and" is acceptable to specify the exact bases for the charge.
State v. Mercer, 89 N.C.App. 714, 715-16, 367 S.E.2d 9, 10-11 (1988). For these reasons, defendant's assignment of error is overruled.
II. Sentencing Phase
The trial court found as a non-statutory aggravating factor that
defendant operated the Midnight Express where beer is sold and dance hall is maintained under conditions rendering his possession of controlled substances for purpose of sale, particularly aggravating because of large public dependence and exposure to opportunity for abuse of controlled substances.
Defendant asserts that this non-statutory factor includes an inherent element of the offense of possession with intent to sell or deliver. "[C]ircumstances that are inherent in the crime convicted of may not be used as aggravating factors." State v. Coffey, 65 N.C.App. 751, 760, 310 S.E.2d 123, 129 (1984). Defendant argues that the trial court used possession of a controlled substance as one aspect of the aggravating factor. Defendant also argues that the judge's reference to "abuse of controlled substances has to mean a sell [sic] or delivery" and charges of sale and delivery of cocaine were joined offenses. Defendant argues this was an improper reference to defendant's "course of conduct." See State v. Flowers, 84 N.C.App. 696, 354 S.E.2d 240, disc. rev. denied, 319 N.C. 675, 356 S.E.2d 782 (1987). We disagree. However, we conclude that the trial court erred in finding the aggravating factor.
The court's basis for finding the aggravating factor was the place where defendant was located when he possessed cocaine with intent to sell or deliver. The gist of the trial court's finding is that defendant was more culpable because he was in a crowded nightclub which he owned and operated. The trial court concluded that these circumstances gave defendant access to more potential customers. "Evidence which increases a defendant's culpability may properly be considered as an aggravating factor." State v. McKinney, 88 N.C.App. 659, 665, 364 S.E.2d 743, 747 (1988), citing State v. Perry, 316 N.C. 87, 110-11, 340 S.E.2d 450, 464-65 (1986); G.S. *585 15A-1340.3. We do not agree that increased access to potential customers increases the defendant's culpability. Because the trial court erred in making this finding, we remand for a new sentencing hearing. See State v. Chatman, 308 N.C. 169, 180-81, 301 S.E.2d 71, 78 (1983).
For the reasons stated, defendant's conviction of sale and delivery of cocaine is vacated. In defendant's conviction for possession with intent to sell or deliver, we find no error but because of error in the sentencing, we remand for re-sentencing.
The results are:
As to charges of sale and delivery of cocainevacated.
As to charge of possession with intent to sell or deliverno error in the conviction but remanded for re-sentencing.
JOHNSON and GREENE, JJ., concur.