Opinion
No. COA09-1359
Filed 6 July 2010 This case not for publication
On writ of certiorari to review judgments entered 6 August 2008 by Judge Benjamin G. Alford in Carteret County Superior Court. Heard in the Court of Appeals 22 June 2010.
Attorney General Roy Cooper, by Assistant Attorney General Vanessa N. Totten, for the State. Mills Economos, L.L.P., by Larry C. Economos for Defendant.
Carteret County Nos. 07 CRS 2291-95, 2298.
Defendant appeals convictions for drug offenses, arguing that there was a flawed chain of custody by law enforcement officers concerning the controlled substances. We find no error.
On 6 August 2008, judgment was entered pursuant to jury verdicts finding Defendant guilty of two counts of selling cocaine, two counts of possession of cocaine with the intent to manufacture, sell or deliver it, and two counts of conspiracy to commit the felony of selling or delivering cocaine. The trial court consolidated Defendant's convictions into three judgments for sentencing. The trial court sentenced Defendant to an active term of 13-16 months imprisonment in each of the judgments, but suspended the sentence entered in two of the judgments and ordered that Defendant be placed on supervised probation for thirty-six months at the end of her active prison term. Defendant did not timely file notice of appeal of her convictions. However, on 23 April 2009, this Court allowed Defendant's petition for writ of certiorari, filed 6 April 2009, for the purpose of reviewing the judgments.
On 17 April 2007, a confidential informant working with local police officers went to Defendant's residence to purchase cocaine. The informant made two controlled purchases of cocaine from Defendant wherein the officers searched the informant and then gave the informant money to purchase narcotics from Defendant. On the first purchase, Grant Sanders left the residence and returned with cocaine in a small plastic bag. On the second purchase, Defendant called Jason Fuller to come to her residence with cocaine. After both purchases, the informant gave the cocaine to the investigating officers. Subsequent chemical analyses of the substances purchased from Defendant confirmed that the substance in the first buy was 0.1 grams of cocaine and the substance in the second buy was 0.7 grams of cocaine. Defendant did not testify at trial.
Defendant now argues the trial court erred in denying her motion to dismiss all of the charges against her due to the insufficiency of the evidence presented at trial by the State. Defendant contends that the State did not offer evidence of any substance alleged to have been cocaine that was directly linked to Defendant. Defendant's argument is misplaced.
"In ruling on a defendant's motion to dismiss, the trial court must determine whether the State has presented substantial evidence (1) of each essential element of the offense and (2) of the defendant's being the perpetrator." State v. Boyd, 177 N.C. App. 165, 175, 628 S.E.2d 796, 804 (2006) (citing State v. Robinson, 355 N.C. 320, 561 S.E.2d 245 (2002)).
The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.
State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980) (citing State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978)). "The trial court . . . is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight." Id. (citing State v. McNeill, 280 N.C. 159, 185 S.E.2d 156 (1971)). This Court reviews the trial court's denial of a motion to dismiss for insufficient evidence de novo. State v. Robledo, 193 N.C. App. 521, 525, 668 S.E.2d 91, 94 (2008).
Here, Defendant is attempting to challenge the admissibility of the evidence establishing that the substances given by the informant to the officers were actually cocaine because there was not sufficient evidence of the chain of custody for the substances. However, a motion to dismiss does not just challenge one particular piece of evidence, but is rather a challenge to the sufficiency of all of the evidence presented at trial in support of the charges against a defendant. "Further, any weak links in a chain of custody relate only to the weight to be given evidence and not to its admissibility." State v. Zuniga, 320 N.C. 233, 255, 357 S.E.2d 898, 913 (1987) (quoting State v. Campbell, 311 N.C. 386, 388-89, 317 S.E.2d 391, 392 (1984)).
At trial, the State presented evidence showing that, after completing the first buy from Defendant, the informant immediately exited Defendant's residence with a small plastic bag containing a substance, and handed it directly to Detective Jeff Covington. Detective Covington placed the bag in a sealed container with his initials. The police laboratory determined the bag and its contents weighed 0.2 grams, and it was kept in the evidence locker until it was sent to the SBI laboratory for testing. Detective Covington testified he had kept the bag in his complete custody and control since the bag had been returned from the SBI after testing. The SBI report on the substance in the bag identified it as cocaine weighing 0.1 grams.
The State also presented evidence that, after the second buy from Defendant, the informant left Defendant's residence with the substance unpackaged and carried in the informant's hand. The informant gave the substance to Detective Covington, and he placed it in a package. The police laboratory determined the package weighed 0.8 grams, and it too was sent to the SBI laboratory for testing. Detective Covington testified he kept the package in the evidence locker after it had been returned from the SBI, but the package was accidentally destroyed pursuant to a court order prior to trial. The SBI report on the substance in the package identified it as cocaine weighing 0.7 grams.
This evidence is sufficient to establish the substances purchased by the informant from Defendant were cocaine. Any problems with the chain of custody of the cocaine go to the weight of the evidence, which is a matter for the jury to decide. Defendant does not challenge the sufficiency of the evidence on any of the other elements of the charges against her, and we hold the trial court did not err in denying her motion to dismiss. Defendant's remaining assignments of error, set forth in the record on appeal to this Court but not argued on appeal, are deemed abandoned. N.C.R. App. P. 28(b)(6).
No Error.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).