State v. Bivens, 204 N.C. App. 350 (Jun. 1, 2010)

For purposes of the counterfeit controlled substance offenses, a counterfeit controlled substance is defined, in part, by G.S. 90-87(6) to include any substance intentionally represented as a controlled substance. The statute further provides that “[i]t is evidence that the substance has been intentionally misrepresented as a controlled substance” if certain factors are established. The court rejected the defendant’s argument that for a controlled substance to be considered intentionally misrepresented, all of the factors listed in the statute must be proved, concluding that the factors are evidence that the substance has been intentionally misrepresented as a controlled substance, not elements of the crime. The court also concluded that the evidence was sufficient to establish that the defendant misrepresented the substance at issue—calcium carbonate—as crack cocaine where the defendant approached a vehicle, asked its occupants what they were looking for, departed to fill their request for “a twenty,” and handed the occupants a little baggie containing a white rock-like substance. Finally, the court held that the statute does not require the State to prove that the defendant had specific knowledge that the substance was counterfeit.