Opinion
No. COA11–1413.
2012-07-17
STATE of North Carolina v. Marlon Rasheem PARKER.
Attorney General Roy Cooper, by Assistant Attorney General Kevin G. Mahoney, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Mary Cook, for Defendant–Appellant.
Appeal by Defendant from judgment entered 1 July 2011 by Judge Robert Hobgood in Superior Court, Durham County. Heard in the Court of Appeals 22 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Kevin G. Mahoney, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Mary Cook, for Defendant–Appellant.
McGEE, Judge.
Marlon Rasheem Parker (Defendant) was indicted on 1 November 2010 on charges of trafficking in cocaine by possession, trafficking in cocaine by transportation, and possession with intent to sell and deliver controlled substances. These substances are included in Schedule II of the North Carolina Controlled Substances Act.
I. Factual Background
The evidence presented at trial tended to establish the following facts. Sergeant John Pinner (Sergeant Pinner) of the Durham County Sheriff's Office testified that, acting on information that there would be a controlled delivery of illegal drugs at an apartment located at 324 Woodcrest Street, Durham (the apartment), he conducted surveillance of the apartment on 30 June 2010. During the surveillance, Sergeant Pinner observed the apartment through binoculars from approximately 100 to 150 yards away. Sergeant Pinner was one of several law enforcement officers in the area.
During the surveillance, Sergeant Pinner observed Defendant enter and exit the apartment several times and stand around a black passenger vehicle (the vehicle). Sergeant Pinner testified that he watched Defendant pull a plastic bag out of the back seat of the vehicle and then enter the front passenger area of the vehicle. Sergeant Pinner testified that “it appeared that [Defendant] was putting something in [the] vehicle and maneuvering around the center console of the vehicle.” Sergeant Pinner testified that the bag “wasn't solid white” and that it “appeared to have some kind of writing on it.” Defendant then left in the vehicle.
Sergeant Pinner testified that he followed Defendant in the vehicle, which turned onto Highway 98, and then onto Highway 70, before abruptly turning onto Muldee Street, which was a service road. Sergeant Pinner indicated that he believed that this turn was part of a “countersurveillance” maneuver.
The surveillance team knew that Defendant was driving without a license. While approaching a curve on Muldee Street, Sergeant Pinner slowed to allow Officer Grabarek to pass him and conduct a traffic stop. During this time, both Officer Grabarek and Sergeant Pinner lost sight of Defendant for two to three seconds. Officer Grabarek then activated his lights and conducted a traffic stop, at which time he placed Defendant under arrest for driving with a suspended license.
Several detectives from the Durham County Narcotics Unit arrived shortly after Officer Grabarek conducted the stop. Defendant's person was searched, but no drugs were found on him. A K–9 unit arrived about two minutes after the traffic stop. The K–9 dog gave positive indications for the presence of drugs on both the driver's side and the passenger's side doors of the vehicle. However, a search of the vehicle revealed no drugs.
Sergeant Pinner walked to the curve on Muldee Street, where he had previously lost sight of Defendant while following him. Sergeant Pinner located a white plastic bag on the side of the road which had markings on it. Sergeant Pinner testified that the bag “was not dirty in any way or anything like that.” He further testified that the bag “didn't look like it was laying there very long at all. There was some other trash on the road that was dirty and kind of matted down like it had been there for awhile.” The State presented evidence that indicated that the bag contained approximately 32.5 grams of cocaine-based schedule 2 controlled substances.
The State called as its witness Lee Summer Maffett (Ms. Maffett), an employee in the latent evidence section of the North Carolina State Crime Laboratory. Defendant objected to Ms. Maffett being tendered as an expert in processing and comparing fingerprints, and the trial court held a voir dire hearing. Defendant argued during voir dire that Ms. Maffett was unqualified to testify. Specifically, Defendant stated that, because Ms. Maffett was not internationally certified, she was not qualified to testify as an expert.
The trial court overruled Defendant's objection, and Ms. Maffett was allowed to testify. Ms. Maffett testified that she was able to identify a single latent fingerprint on the bag. Ms. Maffett concluded that “this latent print came from the right middle finger of [Defendant].”
At the close of all the evidence, Defendant made a general motion to dismiss based on the insufficiency of evidence on the element of possession. Defendant's motion was denied. Defendant was found guilty of trafficking in cocaine by possession, trafficking in cocaine by transportation, and possession of cocaine, a lesser-included offense of possession with intent to sell and deliver controlled substances. The possession of cocaine conviction was merged into Defendant's trafficking by possession conviction. Having pled guilty to obtaining habitual felon status, Defendant was sentenced to 120 to 153 months in prison. Defendant appeals.
II. Issues on Appeal
Defendant argues that the State “failed to present sufficient evidence connecting [Defendant] to the drugs in the white plastic bag.”
“In ruling on a motion to dismiss, the trial court need determine only whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator.” Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.
State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002) (citation omitted). “When ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor.” State v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594 (2009) (citation omitted).
At trial, Defendant objected to the State's tender of Ms. Maffett as an expert in processing and comparing fingerprints. Defendant also made a general motion to dismiss based on insufficient evidence on the element of possession. Defendant argued during voir dire that Ms. Maffett lacked the credentials needed to assist the jury in understanding the evidence. Specifically, Defendant argued that, because Ms. Maffett was not internationally certified, she could not testify as to latent fingerprinting techniques.
Defendant, in his brief, asserts that Ms. Maffett employed the Analysis, Comparison, Evaluation and Verification (ACE–V) method in analyzing Defendant's fingerprints. Defendant argues for the first time on appeal that “the analysis used [by Ms. Maffett] was unreliable.”
Defendant's argument was not preserved for appellate review. “In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R.App. P. 10(a)(1); see also State v. Sharpe, 344 N.C. 190, 195, 473 S.E.2d 3, 6 (1996) (“[I]t is well settled in this jurisdiction that [a] defendant cannot argue for the first time on appeal this new ground for admissibility that he did not present to the trial court.”); State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988) (“Defendant may not swap horses after trial in order to obtain a thoroughbred upon appeal.”). The concerns about the methodology employed by Ms. Maffett were “not apparent from the context” of Defendant's objection. SeeN.C.R.App. P. 10(a)(1). Defendant cannot question the methodology employed by Ms. Maffett for the first time on appeal. We therefore decline to review the appropriateness of Ms. Maffett's application of the ACE–V method.
In his brief, Defendant makes only passing references to Ms. Maffett's lack of certification, and does not argue on appeal that the trial court erred in denying his motion to suppress based upon Ms. Maffett's lack of certification. Defendant has not preserved this argument for appellate review. N.C.R.App. P. 28(b)(6) (2012); see also Belk v. Belk, ––– N.C.App. ––––, ––––, –––S.E.2d ––––, –––– (June 5, 2012). Even assuming arguendo that Defendant properly preserved this issue for appellate review, we hold that the trial court did not err in denying Defendant's motion to dismiss. Defendant provides no authority, and we can find no authority, for the proposition that international certification is required in order for a witness to testify about latent fingerprinting techniques. In other unpublished opinions, this Court has concluded that it was not an abuse of discretion for the trial court to allow a witness to testify as to latent fingerprinting analysis before obtaining international certification. See State v. Hudson, ––– N.C.App. ––––, 721 S.E.2d 763, 2012 WL 379936, *3 (2012) (unpublished); State v. Sullivan, 177 N.C.App. 463, 628 S.E.2d 867, 2006 WL 1147260, *3 (2006) (unpublished). Likewise, we conclude that, under the present circumstances, it was not an abuse of discretion to allow Ms. Maffett to testify about the fingerprint analysis she conducted.
“[U]nder our Rules of Evidence, when a trial court is faced with a proffer of expert testimony, it must determine whether the expert is proposing to testify to scientific, technical, or other specialized knowledge that will assist the trier of fact to determine a fact in issue.” State v. Goode, 341 N.C. 513, 527, 461 S.E.2d 631, 639 (1995). “[T]his requires a preliminary assessment of whether the reasoning or methodology underlying the testimony is sufficiently valid and whether that reasoning or methodology can be properly applied to the facts in issue.” Id. “[T]he trial judge is afforded wide latitude of discretion when making a determination about the admissibility of expert testimony.” State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984). “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion[.]” N.C.R. Evid. § 8C–1, Rule 702(a) (2011).
The trial court made several findings of fact with respect to the qualifications of Ms. Maffett. These findings included, inter alia, that Ms. Maffett: (1) “received a BS degree in chemistry and a Masters degree in chemistry from the University of North Carolina at Charlotte;” (2) “completed a 16 month in-house training course with the State Bureau of Investigation in fingerprint identification and analysis;” (3) “completed a course with the Federal Bureau of Investigation on the science of fingerprints and advanced comparison techniques;” (4) “attended yearly conferences with training classes on the subject of fingerprint analysis and identification and has completed yearly proficiency testing;” (5) “demonstrated a knowledge of the process of processing fingerprints on porous and nonporous surfaces;” (6) “qualified as an expert and testified as an expert three times in the State courts of North Carolina;” and (7) “is not now certified but is in the process of obtaining certification.”
On these facts, we conclude that the trial court did not abuse its discretion in allowing Ms. Maffett to testify. Ms. Maffett was in a position to “assist the trier of fact to understand the evidence or to determine a fact in issue,” based on her “knowledge, skill, experience, training, or education.” N.C.R. Evid. § 8C–1, Rule 702(a).
We further conclude that there was sufficient evidence presented at trial for the charges against Defendant to be presented to the jury. Sargent Pinner testified that he observed Defendant handling a bag with markings on it and placing that bag in the front of the vehicle; and that he recovered a bag consistent with his prior observation in the area where he lost visual contact with Defendant. The State further presented evidence that the bag contained cocaine; and Ms. Maffett testified that she identified a single latent fingerprint on the recovered bag belonging to Defendant. When viewed in the light most favorable to the State, this evidence could “persuade a rational juror” that Defendant was in possession of cocaine. Mann, 355 N.C. at 301, 560 S.E.2d at 781. Defendant's argument is without merit.
No error. Judges STEELMAN and ERVIN concur.
Report per Rule 30(e).