An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA11-1197-2
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
STATE OF NORTH CAROLINA
v. Nash County
No. 09 CRS 51601
GLENN EDWARD WHITTINGTON
Appeal by Defendant from judgment entered 7 April 2011 by
Judge Quentin T. Sumner in Superior Court, Nash County. Heard
originally in the Court of Appeals 6 March 2012, and opinion
filed 19 June 2012. Remanded to the Court of Appeals for
consideration of remaining issues by judgment and opinion
rendered by the North Carolina Supreme Court on 24 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Kimberly N. Callahan, for the State.
Currin & Currin, by George B. Currin, for Defendant.
McGEE, Judge.
Glenn Edward Whittington (“Defendant”) was indicted on
three counts of trafficking in opium on 11 May 2009: Count I,
trafficking in opium by sale; Count II, trafficking in opium by
delivery; and Count III, trafficking in opium by possession.
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Defendant appealed and this Court vacated the convictions on
Counts I and II, and ordered a new trial on Count III. State v.
Whittington, __ N.C. App. __, __, 728 S.E.2d 385, 388–90 (2012)
(“Whittington I”). The basis for granting a new trial on Count
III was this Court’s holding that the State had failed in its
burden of showing that Defendant had waived his constitutional
right to confront the analyst who prepared the lab report
introduced as evidence at trial to show that the substance
Defendant possessed was an opium derivative as defined in N.C.
Gen. Stat. § 90–95. Whittington I, __ N.C. App. at __, 728
S.E.2d at 388–90. Our Supreme Court granted the State’s
petition for discretionary review challenging this Court’s
reversal and remand for a new trial on Count III. State v.
Whittington, __ N.C. __, 753 S.E.2d 320 (2014) (“Whittington
II”). The Supreme Court reversed this Court’s decision on Count
III, trafficking by possession, holding that Defendant had not
preserved that argument for appellate review. Id. at __, 753
S.E.2d at 325. Whittington II left unchanged this Court’s
holdings in Whittington I vacating the convictions for Counts I
and II. Id. Our Supreme Court remanded the case for
consideration by this Court of Defendant’s remaining arguments.
Id. Because the convictions for Counts I and II have been
vacated, we address the remaining arguments only as they pertain
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to Count III. Additional relevant facts can be found in
Whittington I and Whittington II.
In Defendant’s third argument, he contends the trial court
erred in denying his motion to dismiss the trafficking by
possession charge in violation of N.C. Gen. Stat. § 90-95(h)(4)
(2013), which states in part: “Any person who . . . possesses
four grams or more of opium or opiate, or any . . . derivative
. . . of opium or opiate . . . shall be guilty of a felony which
felony shall be known as “trafficking in opium or heroin[,]”
because there was a fatal variance between the offense charged
in the indictment and the evidence presented at trial. We
disagree.
Specifically, Defendant contends that, because the
indictment charged Defendant with possessing “4 grams but less
than 14 grams of Opium, a controlled substance[,]” but the
evidence at trial was that Defendant possessed Oxycondone, an
opium derivative, there existed a fatal variance between the
indictment and the evidence presented at trial. This Court
rejected the same argument in State v. Davis, __ N.C. App. __,
733 S.E.2d 191 (2012), where we held that “the plain language of
[N.C. Gen. Stat. § 90–95(h)(4)] does not create a separate crime
of possession . . . of an opium derivative, but rather specifies
that possession . . . of an opium derivative is trafficking in
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opium or heroin, precisely as alleged in the indictment. Based
on the statutory language, defendant has shown no fatal variance
between the indictment and the evidence.” Davis, __ N.C. App.
at __, 733 S.E.2d at 193 (emphasis added). Defendant’s argument
is without merit.
In Defendant’s fourth argument, he contends the trial court
erred in instructing the jury that “they could find Defendant
guilty of trafficking in opium if they found he . . . ‘knowingly
possessed’ an opium derivative, on the grounds that the
indictment did not allege that Defendant had trafficked in an
‘opium derivative,’ but rather only opium.” We again disagree.
Because we hold there was no fatal variance between the
indictment and the evidence presented at trial, we further hold
that the trial court did not err in using the “opium derivative”
language in instructing the jury. Defendant’s argument is
without merit.
Therefore, the ultimate outcome of Whittington I,
Whittington II, and the present opinion is: (1) Defendant’s
convictions on Counts I and II are vacated and, (2) no error in
Defendant’s conviction on Count III.
Vacated in part, no error in part.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).