              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-592

                                Filed: 7 March 2017

Iredell County, No. 15 CRS 3580

STATE OF NORTH CAROLINA

             v.

TEON JAMELL WILLIAMS, Defendant.


      Appeal by Defendant from judgment entered 1 February 2016 and order

entered 3 February 2016 by Judge Julia Lynn Gullett in Iredell County Superior

Court. Heard in the Court of Appeals 11 January 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Thomas O.
      Lawton, III, for the State.

      Meghan Adelle Jones for the Defendant.


      DILLON, Judge.


      Teon Jamell Williams (“Defendant”) entered an Alford plea to possession with

intent to manufacture, sell, or deliver (“PWIMSD”) a Schedule I controlled substance

and attaining habitual felon status. Defendant reserved the right to appeal the trial

court’s denial of his motion to suppress evidence obtained during a search of his

residence. For the following reasons, we affirm.

                                   I. Background
                                  STATE V. WILLIAMS

                                   Opinion of the Court



      In 2013, during a routine search of Defendant’s residence, Defendant’s

probation officer discovered a bag containing a white, powdery substance. Laboratory

results determined that the bag contained two separate Schedule I substances,

Methylone and 4-Methylethcathinone. See N.C. Gen. Stat. § 90-89(5)(j) (2013).

      Defendant was indicted for PWIMSD “Methylethcathinone,” where the prefix

“4” was inadvertently omitted from the drug name, and for PWIMSD Methylone.

Prior to his trial, Defendant filed a motion to suppress, which was denied by the trial

court. He was convicted on both counts and given consecutive sentences. In the first

appeal to this Court, we affirmed Defendant’s conviction for PWIMSD Methylone;

however, we vacated Defendant’s conviction for PWIMSD “Methylethcathinone”

because the name of the controlled substance, an essential element of the crime, was

not properly alleged in the indictment. State v. Williams, ___ N.C. App. ___, ___, 774

S.E.2d 880, 885-86 (2015) (unpublished).

      In 2015, the State indicted Defendant for PWIMSD “4-Methylethcathinone”

rather than simply “Methylethcathinone.” Defendant filed a motion to suppress

which was functionally identical to the motion to suppress he filed prior to his first

trial. The trial court denied the second motion to suppress based on the doctrine of

collateral estoppel, stating that the motion “relate[d] to the same chain of events and

same transaction and occurrence . . . and relate[d] to the same issues” as Defendant’s

first motion to suppress heard prior to the first appeal.



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                                         Opinion of the Court



        Following the denial of his second suppression motion, Defendant was found

guilty PWIMSD of 4-Methylethcathinone, a Schedule I substance, and was sentenced

accordingly. Defendant gave notice of appeal in open court.1

                                            II. Analysis

        On appeal, Defendant argues that the trial court erred in sentencing him a

second time for possession of what he contends was a single Schedule I substance.

Alternatively, Defendant argues that the trial court erred in denying his motion to

suppress. We shall address each argument in turn.

                                           A. Sentencing

        Defendant first argues that the trial court improperly convicted him of

PWIMSD 4-Methylethcathinone where he had already been convicted and sentenced

for PWIMSD Methylone because both substances were mixed together in the same

bag.    Defendant’s argument is one of statutory interpretation, specifically the

language in N.C. Gen. Stat. § 90-89.

        N.C. Gen. Stat. § 90-89 is the statute which classifies certain substances as

Schedule I controlled substances. N.C. Gen. Stat. § 90-89(5) defines the relevant class

of Schedule I substances as “[a]ny material, compound, mixture, or preparation that

contains any quantity of the [listed] substances[.]”                 N.C. Gen. Stat. § 90-89(5)


        1 To the extent that it may be necessary to correct any jurisdictional defect due to Defendant’s
failure to properly preserve grounds for his appeal, we hereby invoke Rule 2 of the North Carolina
Rules of Appellate Procedure to address the merits of Defendant’s appeal. Defendant’s petition for
certiorari is therefore denied.

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                                   Opinion of the Court



(emphasis added). Methylone and 4-Methylethcathinone, the substances found in the

bag in Defendant’s residence, are included in Subsection (5)(j) of N.C. Gen. Stat. § 90-

89 as Schedule I controlled substances.

      Defendant argues that, based on the words used by the General Assembly in

subsection (5) of N.C. Gen. Stat. § 90-89, it is the mixture that is the Schedule I

substance, not the individual listed substances therein.       Essentially, Defendant

contends that because the “Methylone” and “4-Methylethcathinone” were found in

the same mixture, they constitute a single Schedule I controlled substance for

purposes of criminal prosecution. As Defendant’s argument goes, had the General

Assembly intended for these two substances found in the same mixture to be

punishable as two separate offenses, the General Assembly would have described a

Schedule I substance to include “any of the following substances found in a mixture,”

rather than to include “any mixture [] that contains” the listed substances. While

Defendant’s argument may have some logical appeal, we hold that Defendant was

properly subject to prosecution for two separate offenses.

      We note that our Court has already rejected the argument advanced by

Defendant in another case where our Court affirmed a defendant’s convictions of

possession of ecstasy and possession of ketamine, where the ecstasy and ketamine

were in the same pill. State v. Hall, 203 N.C. App. 712, 716-18, 692 S.E.2d 446, 450-

51 (2010).   In Hall, the defendant argued that she could not be sentenced for



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                                   Opinion of the Court



possession of both ecstasy and ketamine because the statutes in question “[did] not

allow the State to charge separate offenses when there is a mixture.” Id. at 717, 692

S.E.2d at 450. We rejected this argument, reasoning as follows:

             Defendant’s argument misses the mark. The quantity of
             ecstasy and ketamine contained in each pill found in
             Defendant’s possession was irrelevant to Defendant’s
             convictions. Any amount of ecstasy and any amount of
             ketamine found in Defendant’s possession would have been
             sufficient to charge Defendant with possession of both
             controlled substances. . . . A person will be deemed “to
             possess” ecstasy if that person is in possession of “[a]ny . . .
             mixture . . . which contains any quantity of [ecstasy].”
             Likewise, a person is considered “to possess” ketamine if
             that person is in possession of “[a]ny . . . mixture . . . which
             contains any quantity of . . . Ketamine.” Neither the
             presence nor the amount of ecstasy contained in each pill
             had any bearing on Defendant’s conviction for possession
             of ketamine, and vice versa. Accordingly, the double
             jeopardy protections of the Fifth Amendment were not
             implicated in this instance.

Id. at 717-18, 692 S.E.2d at 451 (internal citations omitted).

      As in the present case, the applicable statutes in Hall both defined the

controlled substance as “any . . . mixture . . . which contains any quantity of [the

relevant substance]”; however, we nonetheless concluded that the defendant could be

punished for two offenses where two different drugs are found in the same “material,

compound, mixture, or preparation.” Id. Defendant’s argument, while creative,

ignores the quantitative element of the statute: possession of “[a]ny material,

compound, mixture, or preparation that contains any quantity” of a Schedule I



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                                    STATE V. WILLIAMS

                                     Opinion of the Court



controlled substance is sufficient to charge a defendant with possession of the

particular substance and to support a conviction for possession of the substance. N.C.

Gen. Stat. § 90-89(5); see Hall, 203 N.C. App. at 717-18, 692 S.E.2d at 451.

       Defendant contends that Hall is distinguishable because the defendant in Hall

was convicted of possession of a Schedule I substance and a Schedule III substance,

rather than two Schedule I substances. However, we do not believe that the Court’s

reasoning in Hall is limited to a situation where a person may be convicted for

possession of two controlled substances listed in separate schedules – it is equally

applicable where a defendant is convicted of possession of two separate, distinct

Schedule I substances. Applying the reasoning in Hall to the present case, we must

conclude that “neither the presence nor the amount of [Methylone] contained in [the

bag]   had   any   bearing    on    Defendant’s      conviction   for   possession   of   [4-

Methylethcathinone], and vice versa.” See id. at 718, 692 S.E.2d at 451.

                                   B. Motion to Suppress

       Defendant’s second argument on appeal relates to the trial court’s denial of his

second motion to suppress based on the doctrine of collateral estoppel.

       After Defendant was indicted for PWIMSD 4-Methylethcathinone following his

first appeal to this Court, he filed a motion to suppress in the trial court which was

practically identical to the motion to suppress he filed after he was first – incorrectly

– indicted for PWIMSD Methylethcathinone. When Defendant filed the first motion



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                                   Opinion of the Court



to suppress, the trial court held a full hearing, during which it received evidence and

ultimately denied the motion. In its ruling on Defendant’s second motion to suppress,

the trial court noted that the second motion “relate[d] to the same chain of events and

same transaction and occurrence as [the first motion to suppress] and relate[d] to the

same issues.”

      Collateral estoppel precludes parties from “retrying fully litigated issues that

were decided in any prior determination and were necessary to the prior

determination.” King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973)

(internal marks omitted). The doctrine of collateral estoppel applies to both civil and

criminal actions.   Sealfon v. United States, 332 U.S. 575, 578 (1948).         Proper

application of collateral estoppel requires: (1) the same parties, (2) the same issue,

(3) that the issue was raised and actually litigated in the prior action, (4) that the

issue was material and relevant to the disposition of the prior action, and (5) that the

determination of the issue was necessary and essential to the prior judgment. State

v. Dial, 122 N.C. App. 298, 306, 470 S.E.2d 84, 89 (1996) (citing King, 284 N.C. at

358, 200 S.E.2d at 806).

      It may be true, as Defendant argues, that the trial court had no jurisdiction

over the PWIMSD 4-Methylethcathinone charge during the suppression hearing held

prior to the first appeal to this Court. However, “collateral estoppel” involves “issue

preclusion,” not “claim preclusion.” The issue in the second suppression hearing was



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                                  STATE V. WILLIAMS

                                   Opinion of the Court



the same as the issue decided in the first suppression hearing regarding Defendant’s

possession of Methylone; namely, whether the bag was lawfully discovered. When

our Court vacated Defendant’s conviction for PWIMSD Methylethcathinone, it left

Defendant’s conviction for PWIMSD Methylone undisturbed, which included the trial

court’s conclusion that the bag was lawfully discovered.

      Therefore, the trial court properly applied the doctrine of collateral estoppel

when it denied Defendant’s second motion to suppress because: (1) the parties were

the same, (2) the issues raised by the motion to suppress were the same – whether

the bag containing the powdery substance was lawfully obtained from Defendant’s

residence, (3) the issues raised were raised and fully litigated during the trial court’s

hearing on Defendant’s first motion to suppress, (4) the issue was material and

relevant to the disposition of the prior action, and (5) the trial court’s determination

was necessary and essential to the final judgment – Defendant’s conviction of

PWIMSD Methylone.

      Accordingly, we conclude that the trial court properly denied Defendant’s

second motion to suppress based on collateral estoppel.

      AFFIRMED.

      Judges ELMORE and ZACHARY concur.




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