Name that Drug

In the game show Name that Tune, contestants had to identify song titles correctly in order to win cash prizes. In criminal pleadings in North Carolina, the state must identify drugs correctly in order to win convictions.

The latest illustration of this principle is State v. LePage, a decision rendered by the court of appeals last week. The defendant invited a teenage girl over to help with a craft project, drugged her food, and sexually assaulted her. He was charged with and convicted of several sex crimes, but he was also convicted of possession of a controlled substance with the intent to distribute; contaminating food or drink with a controlled substance; and delivery of a controlled substance to a minor. The indictments for the drug charges described the controlled substance at issue as “benzodiazepenes,” which the indictments categorized as falling under Schedule IV. (For more on the scheduling of drugs, see this post.)

In fact, the evidence suggested that the drug was clonazepam, one of a class of drugs known as benzodiazepenes. On appeal, the defendant argued that the indictment was fatally defective for failing to identify the specific controlled substance involved. The court of appeals agreed and vacated the drug convictions. (It affirmed the sexual assault convictions, which carried the heaviest sentences.) It noted that the term “benzodiazepenes” does not appear in Schedule IV, and that although many benzodiazepenes are Schedule IV drugs, some, like phenazepam, do not appear on the controlled substance schedules at all.

This isn’t the first time our appellate courts have demanded precision in charging drug crimes. See, e.g., State v. Ahmadi-Turshizi, 175 N.C. App. 783 (2006) (indictments for drug offenses involving “methylenedioxymethamphetamine” insufficient because Schedule I refers only to “3, 4-Methylenedioxymethamphetamine”; State v. Ledwell, 171 N.C. App. 328 (2005) (similar). And these rulings are reminiscent of the court of appeals’ recent cases rejecting lay opinion testimony about the identity of controlled substances. (See this post for an analysis of these cases.) The common theme is a demand for exactitude: just as winning Name that Tune required that the contestant’s answer was an “exact match” for the song title, under North Carolina law, the description of the substance in the criminal pleading must be an exact match for a substance listed in the appropriate schedule.

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