State v. Board

HUSKINS, Justice.

Since we dispose of the case on other grounds, the question of entrapment, vigorously debated in the briefs, is not reached.

For reasons which follow, we hold that defendant’s motion for judgment of nonsuit at the close of all the evidence should have been allowed.

To withstand a motion for nonsuit there must be substantial evidence against the accused of all material elements of the offense. State v. Lee, 294 N.C. 299 , 240 S.E. 2d 449 (1978), and cases cited therein; State v. Allred, 279 N.C. 398 , 183 S.E. 2d 553 (1971), and cases cited therein. Evidence which is sufficient only to raise a suspicion or conjecture of guilt is insufficient to withstand non-suit. State v. Lee, supra; State v. McKinney, 288 N.C. 113 , 215 S.E. 2d 578 (1975).

Defendant was tried upon four separate bills of indictment charging him with possession with intent to sell and selling, on two separate occasions, 3, 4-methylenedioxyamphetamine, a Schedule I controlled substance. See G.S. 90-89(c)l. A material element common to the offenses charged is the identity of the substance possessed and sold by defendant. In the present case the crucial question is whether the State offered substantial evidence that the drug possessed and sold by defendant was 3, 4-methylenedioxyamphetamine.

*658 The only proof that the drug possessed and distributed by defendant was 3, 4-methylenedioxyamphetamine, as charged, is found in the cross-examination of J. R. Adcox, Special Agent, as follows: “Two of the three substances that I purchased from Mr. Board were MDA. The third was not a controlled substance.” This testimony tends to show that' Adcox purchased “MDA,” a “controlled substance,” from defendant. This testimony, however, does not constitute substantial evidence that the drug possessed and sold by defendant was in fact 3, 4-methylenedioxyamphetamine as charged in the bills of indictment.

Schedule I controlled substances include those listed in G.S. 90-89 “by whatever official name, common or usual name, chemical name, or trade name designated.” (Emphasis added.) At all times pertinent to this case that list embraced forty-three substances enumerated in G.S. 90-89(a), twenty-three additional substances enumerated in subsection (b), and eighteen additional substances enumerated in subsection (c). The designation “MDA” nowhere appears in Schedule I or any of the other schedules of controlled substances. See G.S. 90-89 through 90-94. The significance of the designation “MDA” is thus left to conjecture and the jury is left to speculate whether “MDA” refers to the controlled substance named in the bills of indictment.

Is “MDA” an abbreviation, common or usual name, chemical name, trade name or even the “street” name for the drug 3, 4-methylenedioxyamphetamine? The witnesses do not say. The record tends to show that the white powdery substances purchased from defendant on February 8 and February 14, 1975 (State’s Exhibits 1 and 2) were mailed to the Chemical Laboratory of the State Bureau of Investigation for analysis and were duly returned. The exhibits were then turned over to the Clerk of Superior Court of Rowan County and were offered in evidence at trial. For reasons not readily apparent the chemical analysis was never offered in evidence. Did the analysis show that the substances possessed and sold by defendant were 3, 4-methylene-dioxyamphetamine? The record provides no answer.

In State v. McKinney, supra, we stressed that identification of a controlled substance by an abbreviation not designated by the schedules of controlled substances does not constitute substantial evidence that the substance distributed by defendant was the controlled substance alleged in the indictments. McKin *659 ney was indicted for the felonious sale and distribution of tetrahy-drocannabinols, a controlled substance included in Schedule VI of the North Carolina Controlled Substances Act. See G.S. 90-94. The State’s evidence tended to show that defendant distributed a substance identified as “THC, a substance similar to marijuana like drugs.” The abbreviation THC was not used in Schedule VI. The State never established whether THC was an abbreviation for tetrahydrocannabinols. We concluded that the State’s evidence was insufficient to establish that the substance distributed by defendant was in fact tetrahydrocannabinols. Held: Defendant’s motion for nonsuit should have been granted.

To withstand a motion for judgment as of nonsuit there must be substantial evidence of all material elements of the offense charged, and whether the State has offered such evidence is a question of law for the trial court. State v. Everette, 284 N.C. 81 , 199 S.E. 2d 462 (1973); State v. Evans, 279 N.C. 447 , 183 S.E. 2d 540 (1971); State v. Allred, supra. Here, the State has failed to offer substantial evidence that the substance distributed by defendant was in fact 3, 4-methylenedioxyamphetamine, as charged in the bills -of indictment. This failure requires dismissal. State v. McKinney, supra: State v. Bass, 253 N.C. 318 , 116 S.E. 2d 772 (1960); State v. Edwards, 224 N.C. 577 , 31 S.E. 2d 762 (1944).

For the reasons stated the decision of the Court of Appeals is reversed. The case is remanded to that court for further remand to the Superior Court of Rowan County for entry of judgment dismissing the charges in accordance with this opinion.

Reversed and remanded.

Justice BRANCH