An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA11-1197-2

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Nash County

No. 09 CRS 51601

GLENN EDWARD WHITTINGTON

Appeal by Defendant from judgment entered 7 April 2011 by 

Judge Quentin T. Sumner in Superior Court, Nash County. Heard 

originally in the Court of Appeals 6 March 2012, and opinion 

filed 19 June 2012. Remanded to the Court of Appeals for 

consideration of remaining issues by judgment and opinion 

rendered by the North Carolina Supreme Court on 24 January 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Kimberly N. Callahan, for the State.

Currin & Currin, by George B. Currin, for Defendant.

McGEE, Judge.

Glenn Edward Whittington (“Defendant”) was indicted on 

three counts of trafficking in opium on 11 May 2009: Count I, 

trafficking in opium by sale; Count II, trafficking in opium by 

delivery; and Count III, trafficking in opium by possession. 
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Defendant appealed and this Court vacated the convictions on 

Counts I and II, and ordered a new trial on Count III. State v. 

Whittington, __ N.C. App. __, __, 728 S.E.2d 385, 388–90 (2012)

(“Whittington I”). The basis for granting a new trial on Count 

III was this Court’s holding that the State had failed in its 

burden of showing that Defendant had waived his constitutional 

right to confront the analyst who prepared the lab report 

introduced as evidence at trial to show that the substance 

Defendant possessed was an opium derivative as defined in N.C. 

Gen. Stat. § 90–95. Whittington I, __ N.C. App. at __, 728 

S.E.2d at 388–90. Our Supreme Court granted the State’s 

petition for discretionary review challenging this Court’s

reversal and remand for a new trial on Count III. State v. 

Whittington, __ N.C. __, 753 S.E.2d 320 (2014) (“Whittington 

II”). The Supreme Court reversed this Court’s decision on Count 

III, trafficking by possession, holding that Defendant had not 

preserved that argument for appellate review. Id. at __, 753 

S.E.2d at 325. Whittington II left unchanged this Court’s

holdings in Whittington I vacating the convictions for Counts I 

and II. Id. Our Supreme Court remanded the case for 

consideration by this Court of Defendant’s remaining arguments. 

Id. Because the convictions for Counts I and II have been 

vacated, we address the remaining arguments only as they pertain 
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to Count III. Additional relevant facts can be found in 

Whittington I and Whittington II.

In Defendant’s third argument, he contends the trial court 

erred in denying his motion to dismiss the trafficking by 

possession charge in violation of N.C. Gen. Stat. § 90-95(h)(4)

(2013), which states in part: “Any person who . . . possesses 

four grams or more of opium or opiate, or any . . . derivative

. . . of opium or opiate . . . shall be guilty of a felony which 

felony shall be known as “trafficking in opium or heroin[,]”

because there was a fatal variance between the offense charged 

in the indictment and the evidence presented at trial. We 

disagree.

Specifically, Defendant contends that, because the 

indictment charged Defendant with possessing “4 grams but less 

than 14 grams of Opium, a controlled substance[,]” but the 

evidence at trial was that Defendant possessed Oxycondone, an 

opium derivative, there existed a fatal variance between the 

indictment and the evidence presented at trial. This Court 

rejected the same argument in State v. Davis, __ N.C. App. __,

733 S.E.2d 191 (2012), where we held that “the plain language of

[N.C. Gen. Stat. § 90–95(h)(4)] does not create a separate crime 

of possession . . . of an opium derivative, but rather specifies 

that possession . . . of an opium derivative is trafficking in 
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opium or heroin, precisely as alleged in the indictment. Based 

on the statutory language, defendant has shown no fatal variance 

between the indictment and the evidence.” Davis, __ N.C. App. 

at __, 733 S.E.2d at 193 (emphasis added). Defendant’s argument 

is without merit.

In Defendant’s fourth argument, he contends the trial court 

erred in instructing the jury that “they could find Defendant 

guilty of trafficking in opium if they found he . . . ‘knowingly 

possessed’ an opium derivative, on the grounds that the

indictment did not allege that Defendant had trafficked in an 

‘opium derivative,’ but rather only opium.” We again disagree.

Because we hold there was no fatal variance between the 

indictment and the evidence presented at trial, we further hold 

that the trial court did not err in using the “opium derivative” 

language in instructing the jury. Defendant’s argument is 

without merit.

Therefore, the ultimate outcome of Whittington I, 

Whittington II, and the present opinion is: (1) Defendant’s 

convictions on Counts I and II are vacated and, (2) no error in

Defendant’s conviction on Count III.

Vacated in part, no error in part.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).