Appeal by defendant from Godwin, Judge. Judgment entered 26 March 1981 in Superior Court, Wake County. Heard in the Court of Appeals 17 November 1981.
Vaughn, Judge. Judges Webb and Hill concur.
At issue is the construction of G.S. 90-95(h)(3)(a). Defendant contends that the provision does not prohibit the sale of a mixture unless that mixture contains 28 grams of cocaine. We disagree.
Article 5 of Chapter 90 is the North Carolina Controlled Substances Act. It was amended in 1979 to include G.S. 90-95(h). Prior to that time, G.S. 90-95(a) made it unlawful to manufacture, sell or deliver, or possess with the intent to manufacture, sell, or deliver, a controlled substance. G.S. 90-95(h) added penalties for "trafficking" in certain type controlled substances. The present defendant was indicted under G.S. 90-95(h)(3)(a). It states the following:
"(3) Any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of coca leaves or any salts, compound, derivative, or preparation thereof which is chemically equivalent or identical to any of these substances (except decocainized coca leaves or any extraction of coca leaves which does not contain cocaine or ecgonine) or any mixture containing any such substance, shall be guilty of a felony which felony shall be known as 'trafficking in cocaine' and if the quantity of such substances or mixture involved:
a. Is 28 grams or more, but less than 200 grams, such person shall, upon conviction, be punished by imprisonment for not less than three years nor more than 10 years in the
State's prison and shall be fined not less than fifty thousand dollars ($50,000). . . ."
The evidence shows that defendant sold an undercover agent a powdery mixture weighing 37.1 grams. Of that mixture, 5.565 grams were cocaine. The remainder consisted of noncontrolled substances. Defendant argues that since he did not deliver 28 grams or more of cocaine, he cannot be guilty of violating G.S. 90-95(h)(3)(a). At most, the evidence supports a conviction for unlawful possession and sale under G.S. 90-95(a)(1).
To so conclude, defendant focuses on the statute's phrase "any mixture containing any such substance." Defendant argues that "such substance" refers to the previously stated "28 grams or more of coca leaves." He, therefore, interprets G.S. 90-95 (h)(3)(a) to state that any person who delivers 28 grams or more of cocaine or any mixture containing 28 grams or more of cocaine is guilty of the felony of "trafficking in cocaine."
Upon close reading of the statute, we cannot agree with defendant's construction. The remainder of the subsection quoted by defendant provides that "if the quantity of such substances or mixture involved is 28 grams or more . . ., such person shall be punished by imprisonment. . . ." (Emphasis added). It appears, therefore, that the quantity of the mixture containing cocaine may be sufficient in itself to constitute a violation of G.S. 90-95 (h)(3)(a).
Defendant persuasively argues that such a construction creates anomalous results. If the amount of cocaine in the mixture is not determinative of a violation of G.S. 90-95(h)(3)(a), then the person who sells 2 grams of cocaine in a mixture of more than 28 grams of noncontrolled substances will receive a harsher penalty than the person who sells 28 grams of pure cocaine and therefore violates the lesser offense of G.S. 90-95(a)(1). The penalty would seem to increase not because the individual sold a greater quantity of cocaine but because he sold a greater amount of a noncontrolled substance.
Defendant, however, overlooks the purpose behind G.S. 90-95(h)(3)(a) of deterring "trafficking" in controlled substances. Our legislature has determined that certain amounts of controlled substances ...