An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
                                           -2-
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
                                               -3-
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
                                          -4-
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).
