Opinion
No. COA10-1226
Filed 17 May 2011 This case not for publication
Appeal by defendant from judgments entered 10 February 2010 by Judge Charles H. Henry in Carteret County Superior Court. Heard in the Court of Appeals 8 March 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General B. LeAnn Martin, for the State. William D. Spence for defendant-appellant.
Carteret County Nos. 07 CRS 6050, 07 CRS 55096, 07 CRS 55097, 07 CRS 55099
Defendant Walton Gillikin, Sr. appeals his convictions for trafficking in methadone by sale, trafficking in methadone by possession, trafficking in methadone by transportation, and having attained habitual felon status. After careful review, we find no error.
Facts
At trial, the State's evidence tended to establish the following facts: On 3 October 2007, narcotics investigators with the Morehead City Police Department and Carteret County Sheriff's Department set up a "controlled buy," in which Angela Lofton, a confidential informant, was to purchase methadone from defendant. After Ms. Lofton called defendant and arranged to meet him in a KFC parking lot in Morehead City, officers "wired" Ms. Lofton's car with an "audio device" so that they could remotely monitor the transaction. They also recorded the serial numbers on the bills to be used in the controlled purchase. Ms. Lofton then drove her car to the KFC parking lot, followed by police officers and sheriff's deputies who set up surveillance of the parking lot. Defendant got into Ms. Lofton's vehicle and sold her five methadone pills for $30 each. After completing the transaction, defendant got out of Ms. Lofton's car, got into his vehicle, and drove away. Ms. Lofton also left the parking lot and drove to a predetermined location where she turned over five methadone pills to the officers.
Officers followed defendant, who, after making several turns, eventually pulled back into the KFC parking lot. Defendant was then arrested and the police found the "buy" money in his shirt pocket. Defendant's car was also searched and the officers found two "pill bottles" with defendant's name on them. Officers also went to defendant's residence, where they obtained consent from defendant's girlfriend to search the home. As a result of the search, officers found "[n]umerous" prescription bottles, some empty, some containing pills. Several of the prescription bottles had defendant's name on them.
Based on the controlled buy, defendant was charged with trafficking in methadone by sale (07 CRS 55096), trafficking in methadone by possession (07 CRS 55097), trafficking in methadone by transportation (07 CRS 55099), and being a habitual felon (07 CRS 6050). Prior to trial, defendant filed a motion in limine to prevent the State from presenting any evidence regarding the drugs seized from defendant's car and home. The trial court denied the motion. At the close of the State's evidence, defendant moved to dismiss the trafficking by possession and trafficking by transportation charges, arguing that defendant legally possessed the methadone pills pursuant to a valid medical prescription and thus he was exempt from prosecution. After defendant's motion was denied, defendant presented the testimony of a pharmacist who stated that methadone pills had been dispensed to defendant pursuant to a valid medical prescription. At the close of all the evidence, defendant renewed his motion to dismiss the charges, and, again, the motion was denied. The jury convicted defendant of (1) trafficking in methadone by sale of more than four grams but less than 14; (2) trafficking in methadone by possession of more than four grams but less than 14; and (3) trafficking in methadone by transportation of more than four grams but less than 14. Defendant subsequently pled guilty to having attained habitual felon status. The trial court sentenced defendant as a Class C felon to three concurrent terms of 107 to 138 months imprisonment for each of the trafficking convictions. Defendant gave notice of appeal in open court.
From the trial transcript it appears that defendant was indicted on other drug-related charges. Neither the indictments nor the verdict sheets relating to these charges are included in the record on appeal.
I
Defendant first contends that the trial court should have granted his motion to dismiss the charges of trafficking in methadone by possession (07 CRS 55097) and trafficking in methadone by transportation (07 CRS 55099) due to insufficient evidence. A defendant's motion to dismiss should be denied if there is substantial evidence: (1) of each essential element of the offense charged and (2) of defendant's being the perpetrator of the offense. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). "Substantial evidence" is that amount of relevant evidence that a "reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). In determining the sufficiency of the evidence, "the trial court is required to view the evidence in the light most favorable to the State, making all reasonable inferences from the evidence in favor of the State." State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). "Whether [the] evidence presented constitutes substantial evidence is a question of law for the court[,]" State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991), "which this Court reviews de novo," State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007).
Defendant does not challenge on appeal the sufficiency of the evidence to support his conviction for trafficking in methadone by sale (07 CRS 55096).
Pertinent here, defendant was charged with trafficking in methadone by possession as well as trafficking in methadone by transportation in violation of N.C. Gen. Stat. § 90-95(h)(4) (2009). Defendant does not contend that he did not possess or transport the methadone purchased by the confidential informant in the controlled buy. Instead, defendant contends that the possession and transportation charges should have been dismissed because the evidence shows that he lawfully possessed and transported the methadone pursuant to a valid medical prescription.
The North Carolina Controlled Substances Act "makes the possession, transportation or delivery of a controlled substance a crime." State v. Beam, ___ N.C. App. ___, ___, 688 S.E.2d 40, 44 (2010); N.C. Gen. Stat. § 90-95. Methadone, an opium derivative, is a Schedule II controlled substance. N.C. Gen. Stat. § 90-90(2)(n) (2009). A person may nevertheless be "exempt from State prosecution" for the possession or transportation of a controlled substance if that person is "authorized" by the Controlled Substances Act to possess or transport that substance. State v. McNeil, 47 N.C. App. 30, 38, 266 S.E.2d 824, 829, appeal dismissed and disc. review denied, 301 N.C. 102, 273 S.E.2d 306 (1980), cert. denied, 450 U.S. 915, 67 L. Ed. 2d 339 (1981).
While the State bears "the burden of proof — beyond a reasonable doubt — in all criminal cases[,]" State v. Little, 191 N.C. App. 655, 661, 664 S.E.2d 432, 436-37, disc. review denied, 362 N.C. 685, 671 S.E.2d 326 (2008), "in a prosecution under N.C. Gen. Stat. § 90-95, it is the defendant's burden to establish that an exemption from its provisions is applicable[,]" Beam, ___ N.C. App. at ___, 688 S.E.2d at 44-45.
It shall not be necessary for the State to negate any exemption or exception set forth in this Article in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this Article, and the burden of proof of any such exemption or exception shall be upon the person claiming its benefit.
N.C. Gen. Stat. § 90-113.1(a) (2009). This statute "does not shift the burden of proof from the State to establish all the necessary elements of an offense under Chapter 90; it merely places the burden of proof on [the] defendant to establish that [he or] she is entitled to an exemption under its provisions." Beam, ___ N.C. App. at ___, 688 S.E.2d at 45 (citing McNeil, 47 N.C. App. at 40, 266 S.E.2d at 829). Whether the defendant's evidence establishes an exemption under N.C. Gen. Stat. § 90-113.1(a) is "a question of fact to be decided by the court or a jury" as the fact-finder. State v. Richardson, 23 N.C. App. 33, 38, 208 S.E.2d 274, 277, appeal dismissed and cert. denied, 286 N.C. 213, 209 S.E.2d 317 (1974).
Here, defendant contends that he is exempt from prosecution under N.C. Gen. Stat. § 90-95(h)(4) because he "was in possession of the methadone pills through a valid prescription. . . ." The Controlled Substances Act provides that a person "may lawfully possess controlled substances" if that person is "[a]n ultimate user or a person in possession of any controlled substance pursuant to a lawful order of a practitioner[.]" N.C. Gen. Stat. § 90-101(c)(3) (2009).
The evidence presented at trial, viewed in the light most favorable to the State, fails to establish that defendant is entitled, as a matter of law, to an exemption from prosecution under N.C. Gen. Stat. §§ 90-101(c)(3) and-113.1(a). Although defendant presented the testimony of pharmacist Jeffrey Williams, who stated that the pharmacy at which he worked had dispensed to defendant 120 methadone pills pursuant to valid prescriptions on 27 July 2007, 24 August 2007, and again on 25 September 2007, this Court explained in Beam, ___ N.C. App. at ___, 688 S.E.2d at 45, that "[i]t [i]s within the province of the jury to weigh the credibility of the [evidence regarding N.C. Gen. Stat. § 90-101(c)(3)'s exemption] and decide whether [the] defendant [i]s authorized to possess [the controlled substance]." The trial court, therefore, properly denied defendant's motion to dismiss and submitted the possession and transportation charges to the jury.
II
Defendant next argues that the trial court erred in permitting Jennifer West, a forensic drug chemist with the SBI lab, to give her expert opinion that the five pills defendant sold to the informant in the controlled buy contained the controlled substance methadone. Because defendant did not object to Ms. West's testimony at trial, review of the trial court's admission of this evidence is limited to plain error analysis. N.C. R. App. P. 10(a)(4). Under this standard, defendant bears the burden of demonstrating that: (1) "a different result probably would have been reached but for the error" or (2) "the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial." State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
Defendant argues that the State's evidence, consisting of Ms. West's testimony regarding her "laboratory testing and analysis" of the pills, is insufficient under our Supreme Court's holding in State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010), to establish that the pills did, in fact, contain methadone. We disagree.
Expert opinion testimony is admissible under Rule 702 of the Rules of Evidence if the testimony consists of "scientific, technical or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue. . . ." N.C. R. Evid. 702(a). Admissibility of expert testimony is evaluated according to a three-step inquiry into whether: (1) "the method of proof is sufficiently reliable as an area for expert testimony"; (2) the witness is "qualified as an expert to apply this method to the specific facts of the case"; and (3) the expert's testimony is relevant. State v. Goode, 341 N.C. 513, 529, 461 S.E.2d 631, 640-41 (1995).
The "issue for . . . review" in Ward, 364 N.C. at 134, 694 S.E.2d at 739, pertained to the first step of the inquiry under Rule 702: "whether the trial court abused its discretion by permitting the State's expert witness to identify certain pills when the expert's methodology consisted solely of a visual inspection process." Rejecting "mere visual inspection" as a sufficiently reliable method of proof, id. at 142, 694 S.E.2d at 744, the Court in Ward held that "[u]nless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required[,]" id. at 147, 694 S.E.2d at 747.
Here, after Ms. West summarized her credentials and work experience at the SBI lab, and explained the general chain of custody and testing procedures at the lab, the prosecutor asked Ms. West about her testing of the five pills recovered from Ms. Lofton after the controlled buy:
Q. Okay. And did you in fact run tests on State's Exhibit #[2]?
A. I did, yes.
Q. Tell me how you went about doing that.
A. Okay. For State's Exhibit #[2], these tablets, although looking at them today a few of them are crushed, when I received them they were five white whole tablets.
They had an imprint code of methadose 40, which I was able to look up in the database that I was speaking about earlier, and determine the substance that was in these tablets, and that was my first step.
Q. Okay. What did you do next?
A. Next, after that was determined I — I put it, I took some of the tablet, did some chemical work up and put it on an instrument in order to analyze and to get actual data to, to confirm that that controlled substance was in fact present.
Q. And were you able to retrieve actual data?
A. I was.
Q. And were you able to draw [a] conclusion from that data what State's Exhibit #[2] was?
A. Yes, I was.
Q. And what was your conclusion?
A. State's Exhibit #[2] contains the Schedule II controlled substance methadone, with a weight of 8.3 gram[s].
The prosecutor mistakenly referred to the exhibit containing the five pills as State's Exhibit #4; the record indicates that it is actually State's Exhibit #2.
Ms. West's testimony that, in addition to conducting a visual inspection, she "did [a] chemical work up," and "analyze[d]" the chemical composition of the pills to obtain "actual data" to "confirm" the presence of methadone shows that a "scientifically valid chemical analysis" was performed, as required by Ward, to "establish the identity of the controlled substance beyond a reasonable doubt. . . ." Id. As defendant does not argue that the pills were not subjected to chemical analysis, or that the method of testing was unreliable, defendant's reliance on Ward is misplaced. The trial court did not commit error, much less plain error, in permitting Ms. West to testify that the pills from the controlled buy contained methadone. This argument is overruled.
III
Defendant next challenges the admission of evidence regarding the methadone and oxycodone pills found in defendant's car immediately after the controlled buy as well as those found later in his home pursuant to a consent search. Defendant first argues that the pills were "legally possessed" pursuant to a valid medical prescription, "not evidence of a crime," and thus were "not relevant" to the trafficking offenses with which he was charged.
Rule 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. R. Evid. 401. Rule 402 establishes that "relevant evidence is generally admissible, but evidence that is irrelevant or incompetent must be excluded." Westbrooks v. Bowes, 130 N.C. App. 517, 524, 503 S.E.2d 409, 414 (1998). Although a trial court's determination regarding the relevance of evidence is reviewed de novo, the appellate court gives the trial court's relevancy rulings "great deference on appeal." State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991), appeal dismissed and disc. review denied, 331 N.C. 290, 416 S.E.2d 398, cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241 (1992).
Our Supreme Court has explained that
in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible. It is not required that evidence bear directly on the question in issue, and evidence is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known, to properly understand their conduct or motives, or if it reasonably allows the jury to draw an inference as to a disputed fact.
State v. Arnold, 284 N.C. 41, 47-48, 199 S.E.2d 423, 427 (1973).
"Evidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and set-up of the crime, is properly admitted if linked in time and circumstances with the charged crime, or [if it] forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury."
State v. Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990) (quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)).
Here, the State presented evidence that defendant's car was searched immediately after he was arrested in connection with the controlled purchase and that the police found two "medicine bottle[s]," with one containing 21 "yellow tablets" later identified as oxycodone, and the other containing 14 "white tablets" identified as methadone. Later, two "[p]lastic medicine bottle[s]," one containing 80 methadone tablets and the other containing 20 oxycodone tablets were seized from defendant's residence. The evidence that defendant had quantities of oxycodone and methadone pills split up into multiple containers found in his car and at his residence and that he drove to the location of the controlled purchase with multiple containers of controlled substances tends to make it more probable that defendant was trafficking.
This evidence, moreover, was admissible as it "'forms part of the history of the event [and] serves to enhance the natural development of the facts.'" Agee, 326 N.C. at 547, 391 S.E.2d at 174 (quoting Crozier v. State, 723 P.2d 42, 49 (Wyo. 1986)). A central issue at trial was whether defendant legally possessed the methadone pills that formed the basis of his trafficking charges through a valid prescription. This evidence tended to "'complete the story of the crime for the jury[,]'" id. at 548, 391 S.E.2d at 174 (quoting Williford, 764 F.2d at 1499), or, as the prosecutor stated in arguing for denial of defendant's motion in limine, the evidence enabled the jury to "look at the whole picture of what[] [was] going on." Defendant's relevancy argument is overruled.
Defendant also claims that the evidence of the pills found in his car and at his home should have been excluded under Rule 403, contending that "the admission of the prescription pills resulted in a confusion of the issues. . . ." Defendant acknowledges that he did not object to the admission of the evidence on the basis of Rule 403, but nonetheless "asserts plain error." As this Court explained in State v. Cunningham, 188 N.C. App. 832, 837, 656 S.E.2d 697, 700 (2008) (quoting State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001)), "[t]he balancing test of Rule 403 is reviewed by this [C]ourt for abuse of discretion, and we do not apply plain error 'to issues which fall within the realm of the trial court's discretion.'" Accord State v. Jones, 176 N.C. App. 678, 687, 627 S.E.2d 265, 271 (2006) (refusing, based on Steen, to review "defendant's Rule 403 argument" for plain error). We, therefore, do not address defendant's Rule 403 argument.
IV
Defendant's final argument on appeal is that the trial court erred in allowing Ms. West to testify regarding the chemical composition and weight of the pills seized from defendant's car and home. Defendant contends that, because Ms. West did not conduct the chemical analysis of these pills, and the chemists who did perform the tests did not testify at trial and were not shown to be unavailable, the admission of Ms. West's testimony violates defendant's constitutional right to confrontation and entitles him to a new trial. Where, as here, the defendant does not challenge at trial the admission of evidence on the basis of the confrontation clause, review of the defendant's contention is limited to plain error analysis. State v. Lemons, 352 N.C. 87, 96, 530 S.E.2d 542, 547-48 (2000), cert. denied, 531 U.S. 1091, 148 L. Ed. 2d 698 (2001).
"The Confrontation Clause of the Sixth Amendment bars admission of testimonial evidence unless the declarant is unavailable to testify and the accused has had a prior opportunity to cross-examine the declarant." State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 304 (2009) (citing Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 203 (2004)). Assuming, without deciding, that the admission of this testimony violated defendant's right to confrontation, we fail to see how defendant was prejudiced by its admission given that defendant presented evidence at trial that he had a valid medical prescription for both the oxycodone and methadone pills. As defendant's defense at trial was that he had a prescription for the controlled substances that were confiscated as a result of the post-arrest searches, the evidence tending to show that the pills did, in fact, contain the controlled substances for which he had a prescription did not have a probable impact on the jury's finding defendant guilty. See State v. Carter, 335 N.C. 422, 431, 440 S.E.2d 268, 273 (1994) (concluding that any error in admission of handgun used in shooting was harmless beyond a reasonable doubt where "[d]efendant's defense to the charge of [victim's] murder was self defense, not that he was not the killer"); State v. Jones, 97 N.C. App. 189, 199, 388 S.E.2d 213, 219 (1990) ("In this case, the defendant testified that she owned the currency in question, so no possible prejudice could have resulted from the admission of other evidence concerning the currency.").
No Error.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).