State v. Church , 73 N.C. App. 645 ( 1985 )

327 S.E.2d 33 (1985)

STATE of North Carolina
v.
Dennis Lee CHURCH.

No. 8423SC680.

Court of Appeals of North Carolina.

March 19, 1985.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender David W. Dorey, Raleigh, for defendant-appellant.

HEDRICK, Chief Judge.

The bill of indictment in which defendant was charged was drawn from G.S. 90-108(a)(10) (Cum.Supp.1983) which states:

(a) It shall be unlawful for any person:

. . . . .

(10) To acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.

G.S. 90-108(b) (Cum.Supp.1983) states:

(b) Any person who violates this section shall be guilty of a misdemeanor. Provided, that if the criminal pleading alleges that the violation was committed intentionally, and upon trial it is specifically found that the violation was committed intentionally, such violations shall be a Class I felony.

The verdict purported to find defendant guilty of a misdemeanor under G.S. 90-108(a)(10). In its instructions to the jury the court differentiated between the felony and the misdemeanor under the statute by saying, "Nonfeloniously obtaining possession of a controlled substance differs from feloniously obtaining possession in that the State need not prove that he did so intentionally."

The legal definitions of the statutory terms "misrepresentation, fraud, forgery, deception or subterfuge" have in common a requirement that the person acting in a dishonest manner do so intentionally. Stated another way, these actions involve not only some behavior that tends to deceive others, but also a specific intention to deceive. Because any commission of the offense set out in G.S. 90-108(a)(10) is by definition intentional, and because G.S. 90-108(b) provides that intentional violations of G.S. 90-108 are felonies, a misdemeanor offense under G.S. 90-108(a)(10) does not exist. Thus, the misdemeanor described in the instructions to the jury is not a lesser included offense of the felony described in the bill of indictment and the statute. Because defendant was convicted of a crime which does not exist, the judgment of the trial court must be vacated.

Judgment vacated.

JOHNSON and COZORT, JJ., concur.