The preceding entries discussed a variety of defects and omissions which may occur in many different types of pleadings.

This entry focuses on particular charging errors that regularly happen with controlled substance offenses.

I. Prior Convictions

A. Generally

Allegations of previous convictions are subject to G.S. 15A-928. G.S. 15A-924(c). When a prior conviction raises an offense of lower grade to one of higher grade and thereby becomes an element, an indictment or information may not allege the previous conviction. G.S. 15A-928(a). The pleading for the offense must be accompanied by a “special indictment or information” alleging the prior conviction, or the prior conviction may be incorporated in the principal indictment as a separate count. G.S. 15A-928(b). Even before State v. Singleton, 386 N.C. 183 (2024) (defects no longer jurisdictional), failure to comply with the separate indictment provision of G.S. 15A-928 did not render an indictment fatally defective. State v. Brice, 370 N.C. 244, 253 (2017). In alleging and proving a prior conviction, it is sufficient to state that the defendant was at a certain time and place convicted of the previous offense, without otherwise fully alleging all the elements. G.S. 15A-924(d).

B. Prior Drug Convictions

Punishment and degree of any drug offense are subject to the following conditions:

(3) If any person commits a Class 1 misdemeanor under this Article and if he has previously been convicted for one or more offenses [here or elsewhere] which offenses are punishable under any provision of this Article, he shall be punished as a Class I felon.

(4) If any person commits a Class 2 misdemeanor, and if he has previously been convicted for one or more offenses [here or elsewhere] which offenses are punishable under any provision of this Article, he shall be guilty of a Class 1 misdemeanor.

. . . .

(7) If any person commits an offense under this Article for which the prescribed punishment requires [a suspended sentence], and if he has previously been convicted for one or more offenses [here or elsewhere], which offenses are punishable under any provision of this Article, he shall be guilty of a Class 2 misdemeanor.

G.S 90-95(e). For (e)(3) and (e)(4), previous convictions are counted by the number of separate trials, and not the number of charges at a single trial. Id. at (e)(6). Section 90-95(e) creates substantive felonies that will support habitual felon status. State v. Howell, 370 N.C. 647, 655 (2018). Failure to allege a prior drug conviction by indictment precludes the use of the prior conviction to enhance a sentence pursuant to G.S. 90-95(e). State v. Williams, 93 N.C. App. 510, 512 (1989); State v. Moore, 27 N.C. App. 245, 246 (1975).

II. Naming Names

A. Who? – Identifying the Participants

1. The defendant must be named in the indictment. G.S. 15A-924(a)(1) (criminal pleading must name defendant); State v. Simpson, 302 N.C. 613, 616 (1981).
2. An indictment for sale/delivery must name the person to whom the controlled substance was sold/delivered, if known. State v. Bennett, 280 N.C. 167, 169 (1971) (allegation of sale of LSD without naming buyer); State v. Calvino, 179 N.C. App. 219, 222 (2006) (allegation of sale to confidential informant was inadequate); State v. Martindale, 15 N.C. App. 216, 218 (1972) (omission of buyer’s name was fatal defect).
3. An indictment for trafficking by sale/delivery must also name the recipient. State v. Whittington, 221 N.C. App. 403, 405 (2012), rev'd in part on other grounds, 367 N.C. 186 (2014); State v. Wynn, No. COA09-1208, 2010 WL 2163766 (N.C. Ct. App. June 1, 2010) (unpub); State v. Esquivel, No. COA06-1342, 2007 WL 1892837 (N.C. Ct. App. July 3, 2007) (unpub).
4. Abbreviation of the buyer’s name will not render a pleading defective. See State v. Hill, No. COA16-744 (N.C. Ct. App. April 18, 2017) (unpub) (T. Shiver for Terrell Shiver); State v. Royster, COA10-290 (N.C. Ct. App. Dec. 7, 2010) (T. Ross for Terry Ross). When two names are alleged to relate to the same person, question of identity is for the jury. See State v. Sullivan, 242 N.C. App. 230, 236 (2015) (no fatal variance where indictment alleged sale to A. Simpson and evidence showed Cedric Simpson); State v. Johnson, 202 N.C. App. 765, 768 (2010) (no fatal variance when indictment alleged sale to Detective Dunabro, her married name, but evidence showed sale to Agent Amy Gaulden, her maiden name).
5. A fatal variance may arise if the evidence shows a different recipient than that alleged in the indictment. See State v. Smith, 155 N.C. App. 500, 513 (2002) (indictment alleged sale to Berger and evidence showed sale to Chadwell); State v. Wall, 96 N.C. App. 45, 49 (1989) (indictment alleged sale to McPhatter and evidence showed sale to Riley); State v. Ingram, 20 N.C. App. 464, 466 (1974) (indictment alleged sale to Clarence Gooche and evidence showed sale to Hiawatha Hairston); State v. Shipp, 155 N.C. App. 294, 301 (2002) (allegation of sale to Mulhall and Marlow allowed conviction upon evidence of sale to either Mulhall or Marlow or both); State v. Redd, 144 N.C. App. 248, 257 (2001) (no fatal variance when indictment alleged sale to Dixon and evidence showed sale to Dixon and Zolastowski); State v. Cotton, 102 N.C. App. 93, 97 (1991) (no fatal variance where indictment alleged sale to Todd and evidence showed sale to Morrow who defendant knew was acting as a middleman for Todd).
6. A pleading for PWIMSD need not name the buyer. State v. Campbell, 18 N.C. App. 586, 589 (1973); State v. Scarborough, No. COA03-626 (N.C. Ct. App. Sept. 21, 2004) (unpub). Intent may be inferred from: (1) packaging, labeling, and storage, (2) defendant's activities, (3) quantity found, and (4) presence of cash or drug paraphernalia. State v. Blagg, 377 N.C. 482, 490 (2021). Still, an indictment for trafficking (absent allegation of intent) will not support conviction for PWIMSD. State v. McCain, 212 N.C. App. 157, 160 (2011) (cocaine).
7. Generally, aiding & abetting need not be alleged in the indictment. Even if pleading alleges aiding and abetting, it is not necessary to identify the party whom the defendant aided and abetted (so long as buyer is named). State v. Poplin, 56 N.C. App. 304, 309 (1982).
8. Conspiracy is the same class of offense as the drug offense that the defendant conspired to commit. G.S. 90-98. An indictment for conspiracy to sell or deliver need not name the person to whom the defendant conspired to sell or deliver. State v. Lorenzo, 147 N.C. App. 728, 734 (2001); State v. McLamb, 71 N.C. App. 220, 222 (1984), rev'd in part on other grounds, 313 N.C. 572 (1985). A conspiracy indictment need not name coconspirators, but if it does the State is bound by the allegations. State v. Gallimore, 272 N.C. 528 (1968) (indictment need not name coconspirators); State v. Minter, 111 N.C. App. 40, 43 (1993) (error in instruction that defendant was guilty if he conspired with named coconspirators or others).

B. What? – Identifying the Controlled Substance

1. Identity of the controlled substance must be alleged. See State v. Board, 296 N.C. 652, 657 (1979) (identity of controlled substance is elemental); see also State v. Garrett, 277 N.C. App. 493, 500 (2021) (sufficient for trafficking in opiates to name ‘fentanyl’); State v. Simmons, 256 N.C. App. 347, 352 (2017) (impermissible amendment from ‘heroin’ to ‘opiates’); State v. Stith, 246 N.C. App. 714, 717, (2016) (permissible amendment to strike ‘Schedule II’), aff'd per curiam, 369 N.C. 516 (2017); State v. Davis, 223 N.C. App. 296, 299 (2012) (no fatal variance when indictment alleged trafficking in opium and evidence showed trafficking in oxycodone).
2. Controlled substances may be identified by chemical name, but chemical name must be alleged precisely. State v. Hills, 278 N.C. App. 308, 318 (2021) (substances alleged did not appear in Schedule I as alleged); State v. Sullivan, 242 N.C. App. 230, 235 (2015) (indictment was defective which alleged ‘Uni-Oxidrol,’ ‘Oxidrol 50,’ ‘Sustanon,’ not named in Schedule III as alleged); State v. LePage, 204 N.C. App. 37 (2010) (alleging benzodiazepines, a category, was insufficient); State v. Ahmadi-Turshizi, 175 N.C. App. 783 (2006) (missing prefix); State v. Ledwell, 171 N.C. App. 328 (2005) (same).
3. A trade name may be sufficient. State v. Stith, 246 N.C. App. 714, 717 (2016) (“controlled substance need not be identified by the identical language used in the statute”); State v. Newton, 21 N.C. App. 384 (1974) (no fatal variance between allegation of ‘Desoxyn’ and evidence of methamphetamine). It is not entirely clear, however, what qualifies as a trade name. See Jeff Welty, What’s In a (Trade) Name, UNC Criminal Law Blog (July 7, 2015).
4. Controlled substance analogue is treated as a Schedule I controlled substance. CS. G.S. 90-89.1. Expert testimony may be necessary to establish that a substance is a controlled substance analogue. See State v. Parker, 277 N.C. App. 531, 549 (2021). Indictment is not defective which names substance, albeit not listed in Schedule I, where an expert testified that substance is a controlled substance analogue. See State v. Morgan, No COA18-575 (2019) (unpub); State v. Williams, 242 N.C. App. 361, 370 (2015) (same for controlled substance in catch-all provision, G.S. 90-89(5)(j)).
5. Regardless of the passage of the Industrial Hemp Act, THC concentration is not element of PWISD that must be alleged in the indictment. State v. Teague, 286 N.C. App. 160, 180 (2023).

C. Where? – Identifying the Location

1. In general, location must be alleged when it is an element of the offense. G.S. 15A-924(a)(5).
2. Any person who possesses a controlled substance on the premises of a penal institution or local confinement facility is guilty of a Class H felony. G.S. 90-95(e)(9). Local confinement facility is defined to include a county or city jail, a local lockup, a regional or district jail, a juvenile detention facility, a detention facility for adults operated by a local government, and any other facility operated by a local government for confinement of persons awaiting trial or serving sentences. G.S. 153A-217. State need not show defendant was in a secured area accessible only to officers and detainees. State v. Moncree, 188 N.C. App. 221, 229 (2008). Simple possession is a lesser included offense of possession on the premises. State v. Barnes, 229 N.C. App. 556, 569 (2013), aff'd per curiam, 367 N.C. 453, 756 S.E.2d 38 (2014); State v. Moncree, 188 N.C. App. 221, 230 (2008).
3. Any person 21 or older who manufactures, sells/delivers, or PWIMSD a controlled substance, at or near a school, child care center, or public park is guilty of a Class E felony. G.S. 90-95(e)(8) & (10). A child care center is an arrangement where, at any one time, there are three or more preschool-age children or nine or more school-age children receiving child care. G.S. 110-86(3)a. Indictment must allege the defendant’s age. State v. Culbertson, 255 N.C. App. 635, 643 (2017) (indictment for PWSD marijuana near playground was defective for failure to allege age). State must present evidence of location. See State v. Piland, 263 N.C. App. 323, 337 (2018) (insufficient evidence of child care center as statutorily defined). Sale is a lesser included offense of sale on school property. State v. Alston, 111 N.C. App. 416, 421 (1993).
4. Address need not be alleged when charging maintaining a vehicle/dwelling. G.S. 90-108(a)(7); State v. Grady, 136 N.C. App. 394, 398 (2000) (no error in allowing amendment of address); State v. Garnett, 209 N.C. App. 537, 549 (2011) (allegation of maintaining a dwelling for keeping and selling controlled substance did not require State to prove both keeping and selling).

III. Weights & Measures

A. How much? Identifying the quantity.

1. Amount must be alleged when offense classification (punishment) depends on the amount, e.g., felony possession of marijuana, felony possession of certain Schedule II-V drugs, trafficking. See State v. Trejo, 163 N.C. App. 512, 515 (2004) (weight essential to trafficking in marijuana); State v. Partridge, 157 N.C. App. 568, 571 (2003) (weight essential to felony possession of marijuana); State v. Perry, 84 N.C. App. 309, 311 (1987) (indictment alleging PWISD more than one ounce of marijuana supported conviction for felony possession).
2. Amount need not be alleged when quantity has no bearing on culpability, e.g., PWISM, felony possession Schedule I and certain Schedule II drugs, possession of controlled substance at jail/prison. See State v. Toler, No. COA07-337 (N.C. Ct. App. March 4, 2008) (unpub) (weight essential to trafficking but not to manufacture). When amount is irrelevant, any amount will support conviction. See State v. Williams, 149 N.C. App. 795 (2002) (residue); State v. Glenn, 221 N.C. App. 143, 148, (2012) (no fatal variance when indictment alleged possession of .1 grams of cocaine and evidence showed possession of 0.03 grams of cocaine).
3. Transfer of less than 5 grams of marijuana for no remuneration does not constitute delivery. G.S. 90-95(b)(2). But indictment need not allege remuneration for delivering less than five grams. State v. Land, 223 N.C. App. 305, 312, aff'd per curiam, 366 N.C. 550 (2013).
4. Conspiracy depends on amount agreed to, not on amount actually involved in transaction. State v. Rozier, 69 N.C. App. 38 (1984). But indictment for conspiracy to traffic must allege weight sufficient to constitute trafficking. State v. De la Sancha Cobos, 211 N.C. App. 536, 541 (2011); State v. Outlaw, 159 N.C. App. 423, 428 (2003); State v. Epps, 95 N.C. App. 173, 175 (1989).

B. What about Mixtures?

1. Trafficking amount may be determined by weight (or dosage unit) of substance “or any mixture containing such substance.” g., G.S. 90-90(h)(1a).
2. When drug is mixed with cutting agent, e.g., flour, the total weight of the mixture determines whether amount qualifies for trafficking. State v. Miranda, 235 N.C. App. 601 (2014) (State not required to prove cocaine concentration in mixture); State v. Broome, 136 N.C. App. 82, 86 (1999) (27 grams of cocaine in 273-gram mixture supported trafficking conviction); State v. Tyndall, 55 N.C. App. 57, 61 (1981) (5.5 grams of cocaine in 37-gram mixture).
3. Pills constitute mixtures, making it easier to reach trafficking weight. See State v. Ellison, 366 N.C. 439, 442 (2013) (pills are, by definition, a mixture); State v. McCracken, 157 N.C. App. 524, 528 (2003) (trial court did not err in treating tablets as mixtures); State v. Jones, 85 N.C. App. 56, 68 (1987) (total weight of dosage unit is sufficient for trafficking).
4. If a single mixture contains two or more controlled substances, the defendant may be convicted of both. See State v. Hall, 203 N.C. App. 712 (2010) (pill contained ketamine & MDMA); State v. Williams, 252 N.C. App. 231, 235 (2017) (same bag contained two Schedule 1 controlled substances).

C. How Many? Determining the Number of Charges

1. It is unlawful: (1) to manufacture, sell or deliver, or PWIMSD a controlled substance, (2) to create, sell or deliver a controlled substance, or (3) to possess a controlled substance. G.S. 90-95(a). Subsection (a)(1) creates three separate offenses: manufacture, transfer (by sale or delivery), and PWIMSD. State v. Moore, 327 N.C. 378, 381 (1990). Accordingly, a defendant may be charged in one count with transfer by sale and delivery. See State v. Carr, 145 N.C. App. 335, 342 (2001). Alternatively, sale and delivery may be charged separately, but a defendant may not be convicted of both sale and delivery arising from a single transfer. Moore, 327 N.C. at 382; see also State v. Ruffin, 913 S.E.2d 454, 465 (N.C. Ct. App. 2025) (error in sentencing for both sale and delivery albeit harmless); State v. Rogers, 186 N.C. App. 676, 678 (2007) (error in sentencing for both sale and delivery); State v. Wooten, 104 N.C. App. 125, 130 (1991) (same).
2. A defendant may be convicted for possession and sale of the same controlled substance. State v. Cameron, 283 N.C. 191 (1973); State v. Dickerson, 152 N.C. App. 714 (2002); State v. Stoner, 59 N.C. App. 656 (1982). The Court of Appeals has said that possession is a lesser included offense of delivery. State v. Clark, 71 N.C. App. 55, 59 (1984), disapproved of by State v. Moore, 327 N.C. 378, 395 S.E.2d 124 (1990).
3. In general, possession is a lesser included offense of PWIMSD. State v. Gooch, 307 N.C. 253, 257 (1982) (remanding for entry of judgment on lesser included); State v. Wilkins, 208 N.C. App. 729, 733 (2010) (same). A defendant probably may not be sentenced for both PWIMSD and the lesser included offense of possession. See State v. Williams, 98 N.C. App. 405, 407 (1990) (prohibiting double punishment); State v. Oliver, 73 N.C. App. 118, 122 (1985) (same); both called into doubt by State v. Pipkins, 337 N.C. 431, 446 S.E.2d 360 (1994). A defendant may, however, be convicted of both felony possession of marijuana and PWIMSD marijuana. State v. Springs, 200 N.C. App. 288, 294 (2009); State v. Spencer, 192 N.C. App. 143, 149 (2008); State v. McGill, 296 N.C. 564, 568 (1979) (recognizing disparate elements).
4. Trafficking by possession, by manufacturing, and by transportation are separate and distinct offenses, and a defendant may be convicted for each even when the same drugs were involved. State v. Steward, 330 N.C. 607 (1992) (cocaine); State v. Perry, 316 N.C. 87, 104 (1986) (heroin). Possession is a lesser included offense of trafficking by possession. State v. Wilder, 124 N.C. App. 136, 141 (1996) (no error in failure to instruct on lesser included). Nevertheless, a defendant may be convicted for both possession and trafficking by possession of the same drugs. State v. Pipkins, 337 N.C. 431, 434 (1994) (cocaine); State v. Doe, 190 N.C. App. 723, 732 (2008) (PWISD and trafficking by possession); State v. Boyd, 154 N.C. App. 302, 311 (2002) (same); cf. State v. McCain, 212 N.C. App. 157 (2011) (PWIMSD is not a lesser included offense of trafficking by possession).
5. Simultaneous possession of multiple caches is one possession when all caches arose from one continuous act of possession. State v. Moncree, 188 N.C. App. 221 (2008). Evidence may support multiple counts of possession if evidence shows some caches are for personal use and some for distribution. State v. Rozier, 69 N.C. App. 38 (1984) (upholding multiple convictions)
6. Multiple caches may be combined to reach possession or trafficking threshold, even if caches are in different locations. See State v. Hazel, 226 N.C. App. 336, 345 (2013) (different location, trafficking); State v. Huerta, 221 N.C. App. 436 (2012) (same location, trafficking); State v. Johnson, 217 N.C. App. 605 (2011) (different location); State v. Smith, 99 N.C. App. 67 (1990); State v. Worthington, 84 N.C. App. 150 (1987). Aggregation of multiple cashes may be mandatory. See Jeff Welty, Combining Drug Quantities, CLB, Feb 9, 2015.
7. In conspiracy cases, it is the number of separate agreements, rather than the number of substantive offenses, that determines the number of conspiracies. State v. Howell, 169 N.C. App. 741, 749 (2005) (arresting judgment on conspiracy to traffic in heroin); State v. Griffin, 112 N.C. App. 838, 842 (1993) (finding insufficient evidence to support four convictions for conspiracy to deliver drugs to women’s prison).

IV. Particular Offenses

1. Continuing Criminal Enterprise (CCE). G.S. 90-95.1; State v. Cornwell, No. COA23-36-2 (N.C. Ct. App. June 18, 2025) (indictment was defective but defendant failed to show prejudice); State v. Guffey, 292 N.C. App. 179, (2024) (indictment was defective because it failed to allege underlying offenses comprising the CCE).

2. Possession of Drug Paraphernalia (PDP). G.S. 90-113.22; cf. G.S. 90-113.21 (definitions); see also State v. Lu, 268 N.C. App. 431, 436 (2019). Specific items alleged to be paraphernalia must be enumerated in the indictment. State v. Satterthwaite, 234 N.C. App. 440, 443 (2014). Variance between allegations and evidence may warrant dismissal. Id. (indictment alleged baggies, evidence showed bottles); cf. State v. Moore, 162 N.C. App. 268, 274 (2004) (error in allowing amendment from “can designed as smoking device” to “a brown paper container”). Enhancement for prior conviction under G.S. 90-95(e) does not apply to PDP. State v. Stevens, 151 N.C. App. 561, 564 (2002).

3. Manufacture of a controlled substance, G.S. 90-95(a)(1). See State v. Oxendine, 246 N.C. App. 502, 508 (2016) (indictment need not allege type of manufacturing activity); State v. Miranda, 235 N.C. App. 601, 607 (2014) (same). For manufacture by preparing or compounding, elements include intent to distribute. See State v. Lofton, 372 N.C. 216, 222 (2019) (declining to address whether indictment had to allege intent to distribute where it also alleged other types of manufacturing). Indictment for PWISD might not support conviction for PWIMSD. See State v. Turner, 237 N.C. App. 388, 393 (2014) (trial court erred by instructing on intent to manufacture when indictment alleged only possession with intent to sell or deliver).