State v. James, 240 N.C. App. 456 (Apr. 7, 2015)

(1) In this opium trafficking case where the State’s witness was accepted by the trial court as an expert witness without objection from defendant and the defendant did not cross-examine the expert regarding the sufficiency of the sample size and did not make the sufficiency of the sample size a basis for his motion to dismiss, the issue of whether the two chemically analyzed pills established a sufficient basis to show that there were 28 grams or more of opium was not properly before this Court. (2) Assuming arguendo that the issue had been properly preserved, it would fail. The court noted: “[a] chemical analysis is required . . . , but its scope may be dictated by whatever sample is sufficient to make a reliable determination of the chemical composition of the batch of evidence under consideration.” (quotation omitted). It noted further that “[e]very pill need not be chemically analyzed, however” and in State v. Meyers, 61 N.C. App. 554, 556 (1983), the court held that a chemical analysis of 20 tablets selected at random, “coupled with a visual inspection of the remaining pills for consistency, was sufficient to support a conviction for trafficking in 10,000 or more tablets of methaqualone.” Here, 1 pill, physically consistent with the other pills, was chosen at random from each exhibit and tested positive for oxycodone. The expert testified that she visually inspected the remaining, untested pills and concluded that with regard to color, shape, and imprint, they were “consistent with” those pills that tested positive for oxycodone. The total weight of the pills was 31.79 grams, exceeding the 28 gram requirement for trafficking. As a result, the State presented sufficient evidence to conclude that the defendant possessed and transported 28 grams or more of a Schedule II controlled substance.