____________ COUNTY                                  SUPERIOR COURT DIVISION

                                                                        FILE NO.: 

STATE OF NORTH CAROLINA                            


             v.                                                                                MEMORANDUM OF LAW IN SUPPORT OF

                                                                                               DEFENDANT'S MOTION TO DISMISS



              NOW COMES the Defendant, through counsel, and respectfully submits the following Memorandum of Law in Support of the Defendant’s Motion to Dismiss.

Statement of Facts

              The Defendant was indicted under N.C.G.S. § 90-95(h)(4), “Trafficking in Opium or Heroin”, on 13 November 2007.  The indictment alleged that the Defendant “did unlawfully, willfully and feloniously traffic in Opium by possessing 28 grams or more.” 

The basis of the charge against the Defendant was the possession of ninety and one half pills of alleged Percocet.  The total weight of the pills was determined by the SBI to be 79.3 grams and the pills were determined to be “oxycodone-hydrochloride”, a schedule II controlled substance pursuant to NCGS§ 90-90(1)(a)(14)&(b). (See SBI lab report attached as Exhibit A.)

Percocet is a prescription medication manufactured in pill form, each of which contains 10 milligrams of oxycodone hydrochloride and 650 milligrams of acetaminophen, more commonly known as Tylenol. The laboratory report from the SBI crime lab furnished to the defendant by the State notes that the pills in question are “ENDOCET” which contain active ingredients as follows: Acetaminophen-650 MG, Oxycodone-10 MG. The report further notes that the pills contained the following excipient ingredients: silicon dioxide, colloidal; croscarmellowse sodium; crospovidon; microcrystalline cellulose; povidon; pre-gelatinized starch; steric acid; D&C yellow No. 10 Lake.

Prosecution of the Defendant Under 90-95 is Improper

and is the Incorrect Statutory Violation.

The defendant submits that the State’s prosecution of the defendant pursuant to a violation of N.C.G.S. § 90-95 (h)(4)(c), known as “trafficking in opium or heroin” is wrong. This statute does not apply to the facts relative to the alleged possession of Percocet by the defendant. Percocet or Endocet are prescription pills manufactured by pharmaceutical companies. The legislature never intended for N.C.G.S. § 90-95 (h)(4) to apply to pharmaceutical prescription pills. As one studies the other statutory provisions of N.C.G.S. § 90-95 (h), one quickly concludes that this particular section deals solely with street drugs. This argument is further bolstered by the fact that the legislature enacted N.C.G.S. § 90-95 (d)(2) which provides that a controlled substance classified in the Schedule II list in N.C.G.S. § 90-90 establishes a Class 1 Misdemeanor for violation of N.C.G.S. § 90-95 (a)(3). The statute further provides that “if the controlled substance exceeds four (4) tablets, capsules or other dosage units or equivalent quantity of hydro-morphine or if the quantity to the controlled substance, or combination of the controlled substances exceeds 100 tablets, capsules or other dosage units or equivalent quantity, the violation shall be punishable as a Class I Felony”. A reading of N.C.G.S. § 90-95 (d)(2) and a reading of N.C.G.S. § 90-95 (h)(4) clearly leaves one confused as to which of these two subsections apply in the case at bar.  N.C.G.S. § 90-95 (d)(2) unequivocally describes a unit of measure consistent with pharmaceutical prescription pills. The unit of measure that is referred to in the aforementioned statute is tablets, capsules, or other dosage units. The language of this particular statute, the statute that the defendant contends applies to his case at bar, leads one to the logical conclusion that N.C.G.S. § 90-95 (h)(4) was never intended to apply to pharmaceutical prescription medications.

It is abundantly obvious from a reading of N.C.G.S. § 90-95 that at no time did the legislature ever contemplate or intend for pharmaceutical prescription medications to be prosecuted under N.C.G.S. § 90-95 (h)(4). As one reads the other subsections contained within N.C.G.S. § 90-95 (h), the types of drug described are exclusively street drugs: marijuana as set forth in N.C.G.S. § 90-95 (h)(1); methaqualone which is N.C.G.S. § 90-95 (h)(2); cocaine N.C.G.S. § 90-95 (h)(3); methamphetamine in N.C.G.S. § 90-95 (3b), and Lysergic Acid Diethylamide (commonly referred to as LSD) which is §90-95 (h)(4a).

              For the legislature to intend that N.C.G.S. § 90-95 (h)(4)(c) was to apply to all opiates, then cough medication containing codeine such a Robitussin AC would fall within the realm of prosecution under this particular statute and would result in an individual being exposed to going to prison for a minimum term of 225 months for the illegal possession of one fluid ounce of liquid Robitussin AC which weighs approximated 28 grams. Robitussin AC is a behind-the-counter medication which contains three ingredients; codeine, pheniramine and guaifenesin. Codeine is clearly a Schedule II substance from the opium family but to apply this particular statute to the illegal possession of Robitussin AC would result in a prosecution that is obviously ridiculous and patently and one that the legislature never intended.

              As one examines the punishment aspect of the various controlled substances set forth in §90-95(h)(4), the argument that §90-95(h)(4) was never intended to apply to Percocet or Endocet is further bolstered. For example, under §90-95(h)(2) a person must possess 10,000 dosage units of methaqualone in order to receive the 175 month minimum mandatory sentence. Or even a more striking comparison is the punishment for possession 1,000 dosage units of LSD which would result in a minimum mandatory punishment of 175 months. In comparison, it is the State’s contention that Austin Bennett should be imprisoned for a minimum mandatory sentence of 225 months for allegedly possessing 97 pills of Percocet/Endocet! Under §90-95(h)(4) one need only possess about 31 pills of Percocet to rise above the 28 gram weight level and receive the harshest of sentences contained within all of  §90-95(h).

              A reading of N.C.G.S. § 90-95 (a)(3) and N.C.G.S. § 90-95 (d)(2) and cross-referenced with N.C.G.S. § 90-95 (h)(4), it is clearly ambiguous and contradictory on its face. The state will attempt to rely on the North Carolina Court of Appeals decision of State v. McCracken to assert the applicability of  N.C.G.S. § 90-95 (h)(4) in the prosecution of the case at bar. McCracken focused exclusively on weight measurement and add mixture and the Court was never faced with the argument that N.C.G.S. § 90-95 (h) should have never applied in the first place and was never intended to apply to pharmaceutical prescription medications.

              It is clear and unequivocal that a reading of N.C.G.S. § 90-95 (d)(2) and N.C.G.S. § 90-95 (h)(4) are contradictory and as such unduly ambiguous.  

Prosecution of the Defendant under N.C.G.S. § 90-95

Violates the Defendant’s Due Process rights

The Defendant argues that N.C.G.S. § 90-95 is unconstitutional as applied to the Defendant in this matter for two reasons:  (1) it violates the Defendant’s right to due process; and (2) it violates the Constitutional prohibition against cruel and unusual punishment.  The essential concern of both arguments is the treatment of the weight of pills containing a mixture of substances as being attributable solely as a controlled substance.

              “The Fifth and Fourteenth Amendments to the United States Constitution, together with the Law of the Land Clause of Article I, § 19 of the North Carolina Constitution, provide that no person shall be deprived of life, liberty or property without due process of law.”  State v. McCleary, 65 N.C. App. 174, 180, 308 S.E.2d 883 (1983), aff’d, 311 N.C. 397, 316 S.E.2d 870 (1984).  “Due process of law formulates a flexible concept, to insure fundamental fairness in judicial or administrative proceedings which may adversely affect the protected rights of an individual.  Due process means simply a procedure which is fair and does not mandate a single, required set of procedures for all occasions.  It is necessary to consider the specific factual context…involved…At a minimum, due process requires adequate notice of the charges and a fair opportunity to meet them, and the particulars of notice and hearing must be tailored to the capacities and circumstances of those who are to be heard.”  In re Lamm, 116 N.C. App. 382, 384-86, 448 S.E.2d 380 (1998).

              Here, the law as applied to this Defendant violates his due process rights both because of the fundamental unfairness of the law as applied to the Defendant and because of the lack of notice to the Defendant that his alleged conduct rises to the extreme level of punishment in the instant case.  First, the application of this statute is simply unfair.  Each of the Percocet pills involved here contains only a small quantity of a controlled substance – approximately 10 milligrams of oxycodone hydrochloride compared to 650 milligrams of acetaminophen.  The portion of the manufactured pill that constitutes a controlled substance, and thereby illegal to possess without a prescription, is only 1.54% of the entire pill. The remaining 98.46% of each pill’s weight is nothing more than TYLENOL!!  However, pursuant to State v. McCracken, 157 N.C. App. 524, 579 S.E.2d 492 (2003) the Court ruled that the term mixture as used by N.C. Gen. Stat. § 90-95(h) goes to the total weight of the dosage unit and is sufficient to establish trafficking. The Court in State v. McCracken began with the assumption that the trafficking statute in 90-95 (h) (4) did apply to the possession of prescription pills. The issue that the North Carolina Legislature never intended the statute to apply to prescription pills was never raised or considered. The only issue considered by the McCracken court was the issue of mixture/weight/disposal units.

              In the McCracken case the Court considered a situation in which 1.6 grams of a total substance weight of 5.4 grams consisted of the controlled substance.  In the case at bar the differential is significantly, grossly and overwhelmingly more disproportionate with the controlled substance accounting for less than two percent of the total weight of each pill.

              It is the State’s contention that the Defendant be punished pursuant to NCGS §90-95 (h) (4) (c) which provides in pertinent part

“Any person who sales, manufactures, delivers, transports or possesses 4 grams or more of opium or opiate, or any salt, compound, derivative, or preparation of opium or opiate… including heroin or any mixture containing such substance shall be guilty of a felony…and if the quantity of such controlled substance or mixture involved: Is 28 grams or more, such person shall be punished as a Class C Felon, and shall be sentenced to a minimum term of 225 months and a maximum term of 275 months in the State’s prison and shall be fined not less that five hundred thousand dollars ($500,000.00).”

It is further the State’s contention that by allegedly possessing 97 Percocet pills, the Defendant should be punished under the aforementioned statute because the total weight of the 97 pills exceeded the metric weight of 28 grams thereby exposing the Defendant to a mandatory minimum term of imprisonment of over eighteen (18) years in the custody of the North Carolina Department of Correction and a fine of not less that one-half million dollars. It is the State’s contention that this punishment should be given to the Defendant based upon the facts at bar when admittedly the total weight of the controlled substance translates to 10MG of oxycodone hydrochloride per pill. Truthfully, the total weight of the illegal controlled substance is significantly less than 1 gram.

Clearly this was never the intent of the legislature when it passed this law relating to “Trafficking in Opium or Heroin” as it is known and defined. It is interesting and bears careful scrutiny to read NCGS § 90-95(d)(2) which defines violations and penalties in a manner much more in keeping with the idea of due process. Under NCGS §90-95(d) (2), this statute provides in pertinent part ..

“A controlled substance classified in Schedule II, III, or IV, shall be guilty of a Class 1 misdemeanor. If the controlled substance exceeds four (4) tablets, capsules or other dosage units or equivalent quantity of hydro morphine or if the quantity of the controlled substance or combination of the controlled substances, exceeds one hundred (100) tablets, capsules or other dosage units, or equivalent quantity the violation shall be punishable as a Class I Felony”             

To apply NCGS §90-95(h)(4)(c) to the facts in the case at bar, a Defendant would receive a punishment significantly greater than a Defendant charged under NCGS §90-95(4a) which is known as “Trafficking and Lysergic Acid Diethylamide” where the level of punishment for possession of one hundred (100) dosage units but less than five hundred (500) dosage units is punishable at a greatly disproportionate level of thirty-five (35) months (approximately sixteen (16) years less that the case at bar).

An examination of other sections within NCGS §90-95 reveals clear examples of the excessive punishment levied upon the Defendant in the case at bar and proves the grossly disproportionate, exceedingly unusual and the inherent unfairness and injustice which offends and shocks our public sense of fair play. Other examples from NCGS §90-95 reveals that under NCGS §90-95 (4b) a person who possesses one hundred (100) or more tablets, capsules or other dosage units but less than five hundred (500) tables, capsules or other dosage units of MDA or MDMA, said Defendant would be sentenced only to a minimum mandatory term of less than three (3) years in prison. The absurdity of the application of the punishment statute in the case at bar is further revealed when one examines the punishment statute related to “trafficking in cocaine”. The minimum mandatory punishment for possession of four hundred (400) grams or more of cocaine is fifty (50) months less than the minimum mandatory sentence in the case at bar and the fine is a quarter of a million dollars less. Thus, under the State’s argument and theory of prosecution, an individual who possessed a bottle of cough syrup which contains coedine, an opiate derivative (which would easily weigh more than twenty-eight (28) grams) would be subject to a greater minimum mandatory punishment than an individual who possessed four (4) tons of cocaine. The application of this statute in the prosecution of illegal possession of Percocet patently results in punishment that us so outlandish that one must conclude that 90-95(h)(4) was never intended to be applied in the prosecution of prescription medications containing Oxycodone. To assume otherwise results in the application of the statute (90-95(h)(4) for the purpose of either Percocet (an opium derivative) or Robitussin AC (an opium derivative), and the maximum mandatory punishment results in manifest injustice and grossly disproportionate as it relates to the sentence.

This valid analogy clearly exposes the manifest inherent unfairness and injustice described in State v. Todd and also exposes the sentence under the statute in the case at bar is so grossly disproportionate that it violates the Eighth Amendment’s prohibition of cruel and unusual punishment as espoused in State v. Ysaguire.

Furthermore, as noted above, due process requires “adequate notice” with respect to the alleged criminality.  The Court of Appeals has stated that substantive due process, therefore, provides ‘a guaranty against arbitrary legislation, demanding that the law be substantially related to the valid object sought to be obtained.’”  State v. Guice, 141 N.C. App. 177, 187, 541 S.E.2d 474 (2002), Opinion Adhered to as Modified on ReconsiderationState v. Guice, 151 N.C. App. 293, 564 S.E.2d 925 (2002), quotingLowe v. Tarble, 313 N.C. 460, 461, 329 S.E.2d 648 (1985).  The Guice Court noted that Fourteenth Amendment substantive due process could not be used to overturn a statute if there was some rational basis for the enactment.

              The Defendant does not argue that the General Assembly did not have a rational basis for outlawing trafficking in heroin.  Clearly, that is something that is in the public interest.  However, it is beyond the scope of imagination to believe that the legislature intended harsher penalties for the possession of a small amount of a controlled substance in a prescription medicine that for large quantities of serious, street drugs.  In that sense it was unreasonable for this Defendant – or any similarly situated individual – to have expected that possession of prescription Percocet pills could result in being charged with trafficking in an opiate and being responsible for the entire weight of the pills.

              The application of N.C.G.S. 90-95(h) to the facts of this case is unconstitutional because it violates the Defendant’s due process rights both because of the lack of adequate notice to the Defendant but also because of the substantive unfairness of its application.

              Another aspect of “adequate notice” under the due process clause of the United States Constitution and the North Carolina Constitution must be examined in light of the State’s contention in the case at bar. Under the due process clause, a Defendant must have adequate notice that his conduct is illegal. In the case at bar, the State by contending that N.C.G.S. § 90-95(h)(4) applies to the facts in the case at bar involving prescription pills, the State is relying on a measurement in the form of grams. Although prescription medication is distributed in tablets or pills, the State asserts that the proper measurement is that of grams thus a Defendant is charged with understanding and appreciating that the possession of a Percocet translates to approximately 875 milligrams which is the total weight of the pill and as such, although the Percocet may contain only 8-10 milligrams of the Schedule II substance Oxycodone Hydrochloride, said Defendant is placing himself in harms way to fall within the grossly disproportionate sentence as set forth in paragraph C of N.C.G.S. § 90-95(h)(4). The Defendant submits that this statute should not apply to prescription medication and this argument is bolstered by the fact that contained within N.C.G.S. § 90-95 there are numerous sections which define and set forth the punishment for the possession of controlled substances which are commonly found in pill or tablet form. It is the Defendant’s contention that N.C.G.S. § 90-95(h)(4) was never intended by any stretch of the imagination to apply to prescription medication but was rather meant to apply to true opium or heroin. There is no way a Defendant could ever be apprised and appreciate that the possession of over-the-counter cough medication containing codine would subject one to a minimum mandatory term of 225 months in prison. On its face the application of N.C.G.S. § 90-95(h)(4) violates due process.

Prosecution of the Defendant under N.C.G.S. § 90-95

Violates the Defendant’s Protection Against Cruel or Unusual Punishment

              As previously noted, under the facts of this case the Defendant is facing a minimum mandatory sentence of two hundred twenty-five (225) months for possession of Percocet.  This unfair, unjust and grossly disproportionate punishment is a severe violation of both Article One, Section 27 of the North Carolina Constitution and the Eighth Amendment to the United States Constitution.  Admittedly, this is ordinarily a difficult standard to meet but not in the case before this Court.  “Only in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment’s proscription of cruel and unusual punishment.” Ewing v. California, 538 U.S. 11,155 L. Ed. 108 (2003); State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436 (1983); see alsoState v. LaPlanche, 349 N.C. 279, 284, 507 S.E.2d 34 (1998).  The Defendant respectfully submits, though, that this is such a case and, in fact, if this is not a case of a grossly disproportionate sentence one probably doesn’t exist.

              As argued above with respect to the due process violations apparent in this indictment, prosecution is both fundamentally unfair and procedurally improper due to the lack of notice that the Defendant had. It is evident from the numerous statutes setting forth degrees of punishment for controlled substances distributed in tablet or pill form that the proper measurement to determine levels of criminality and punishment is that of specific, numeric units, not metric weight as is the case with cocaine or marijuana. Thus, the number of pills should be measured in pill form and other controlled substances in non-pill form by metric weight.

To do otherwise, fails to give the Defendant proper due process notice that his conduct is illegal or amounts to certain distinct, defined levels of punishment. For example, a defendant who deals in cocaine has ample due process notice that if he possesses 28 grams of cocaine, then he is subject to the minimum mandatory punishment of thirty-five (35) months. Cocaine is measured, weighed and distributed by metric weight. The same is not true with prescription medication distributed in pill or dosage units. This only aggravates the Constitutional infirmities of the case.  It is cruel and/or unusual punishment when the Defendant was never placed on proper, Constitutional notice of what conduct on their part clearly and unequivocally shifts the punishment to an escalated level.

              Furthermore, the mandatory minimum sentence at issue is grossly disproportionate the offense.  The Defendant is facing sentencing for the possession of thirty-two (32) grams of an illegal substance spread over ninety-seven (97) pills greater than that of a Defendant possession a ton of pure cocaine worth millions of dollars.

              Admittedly, the case law of North Carolina places a high burden on establishing a grossly disproportionate defense to prosecution.  But it is clearly justified in this case.  The Defendant is facing a substantial mandatory minimum punishment which is cruel and/or unusual.


The prosecution of the Defendant in this matter is unconstitutional as it violates his Due Process protections and his protection from cruel and/or unusual punishment.  The Defendant respectfully requests that this court quash the indictment and dismiss the charges pending.

This the ___ day of February, 20____.


Attorney for Defendant