Opinion
NO. COA12-884
01-15-2013
IN THE MATTER OF: J.D.O.
Roy Cooper, Attorney General, by Phyllis A. Turner, Assistant Attorney General, for the State. Michelle FormyDuval Lynch, for juvenile-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Stanly County
No. 11 JB 76
Appeal by juvenile from order entered 16 February 2012 by Judge Amanda Wilson in Stanly County District Court. Heard in the Court of Appeals 10 December 2012.
Roy Cooper, Attorney General, by Phyllis A. Turner, Assistant Attorney General, for the State.
Michelle FormyDuval Lynch, for juvenile-appellant.
MARTIN, Chief Judge.
Juvenile J.D.O. appeals from an order adjudicating him delinquent for the misdemeanor offenses of possession of drug paraphernalia and simple possession of one-half ounce or less of marijuana, which is recognized as a Schedule VI controlled substance under N.C.G.S. § 90-94(1). After careful review, we reverse the trial court's order.
On the morning of 19 October 2011, a student at Stanly Academy—a high school in Albemarle, North Carolina, for "alternative students" who have had academic, attendance, or behavioral issues—approached the school's principal, Chris Murray. The student told the principal that J.D.O., who was also a student at Stanly Academy, "has some marijuana on campus" which "he hid . . . behind a metal storage building behind the school." Upon hearing this information, Principal Murray immediately walked to the metal storage building, which is located near the entrance to the school cafeteria "where the students gather in the mornings" and where J.D.O. is known to frequent. The principal looked behind the building and saw a little mesh bag in which he "found what looked to be like a make-shift pipe, a smoking pipe that was fashioned out of some kind of nozzle off of an air hose," as well as a small plastic Tic Tac box. When he looked inside the Tic Tac box, Principal Murray saw "a very minute amount" of a substance that he described as a brown, leafy, dried-out component of a plant which had an odor.
Principal Murray attempted to offer testimony that, in his opinion, the leafy, dried substance was marijuana. After sustaining each of the juvenile's objections to such testimony, the court allowed counsel's request for voir dire on the issue of whether Principal Murray's training and experience qualified him to render an opinion identifying the substance in the Tic Tac box as marijuana. Principal Murray testified that he holds a master's degree in education, that he is two months away from earning his doctorate in the same discipline, and that he learned "quite a bit about search and seizure" during his studies. Principal Murray then admitted that he has had no formal law enforcement training, and has had no formal training or certification with respect to drug identification. Principal Murray further testified that, throughout his thirteen years as both a teacher and a school administrator, he has investigated allegations of drugs—marijuana, in particular—on ten or twelve occasions. On each of those occasions, Principal Murray said that he handled and smelled the recovered substances "[m]any times," and that, in one of the ten or twelve occasions, the investigation resulted in a conviction for possessing marijuana and drug paraphernalia. Principal Murray also said that he "found several what [he] call[s] bongs or pipes for smoking drugs" during his thirteen-year career. After determining that Principal Murray "does have more than the average juror [sic] information on marijuana," the court allowed Principal Murray to testify that, in his opinion, the substance he found in the Tic Tac box was marijuana and the other item found in the little mesh bag was a "make-shift pipe . . . used to smoke marijuana."
Principal Murray also testified that, on the day he found the black mesh bag near the cafeteria entrance, he invited J.D.O. into his office for questioning. According to Principal Murray, his conversation with J.D.O. lasted about fifteen or twenty minutes, during which time Principal Murray "gave [J.D.O.] the guilt trip" and "urge[d]" the juvenile to tell him the truth. Although the juvenile first denied that the items found in the mesh bag belonged to him, according to the principal, the juvenile then admitted that the items did belong to him. Principal Murray then contacted the Albemarle Police Department and turned over the seized materials to the officer dispatched to the school.
On 18 November 2011, juvenile petitions were filed against J.D.O. alleging that he committed the offenses of willfully and knowingly possessing drug paraphernalia described as "a homemade pipe" to "introduce into the body a controlled substance which it would be unlawful to possess," in violation of N.C.G.S. § 90-113.22, and of possessing one-half ounce of marijuana or less, in violation of N.C.G.S. § 90-95(a)(3). When the matter was heard, the State presented testimony from Principal Murray; the juvenile did not present any evidence. According to the record, the dried, leafy substance that Principal Murray found in the Tic Tac box was not chemically analyzed by a laboratory, and the Albemarle police officer who had collected the seized items did not appear at the juvenile's adjudication hearing. At the close of the State's evidence, the juvenile moved to dismiss on the grounds that Principal Murray's opinion was not sufficient to establish the identity of the substance as marijuana, and that the juvenile's admission that the recovered items belonged to him was not sufficient to establish that he "ever possessed any drug paraphernalia and drugs." The court denied the motion. The court then adjudicated J.D.O. as delinquent for committing the charged offenses, placed him on supervised probation for a period of six months, and ordered him to complete fifty hours of community service. The juvenile appeals.
The juvenile first contends the trial court abused its discretion by allowing Principal Murray to testify that the dried, brown, leafy substance found in the Tic Tac box was marijuana. Specifically, the juvenile argues that Principal Murray's training and experience did not provide a sufficient basis to render him capable of identifying the recovered substance as marijuana, a Schedule VI controlled substance under N.C.G.S. § 90-94(1), based solely upon the principal's visual inspection of the substance. We must agree.
Both expert and lay opinion testimony may be offered as evidence for consideration by the trier of fact. Expert opinion testimony is testimony offered "in the form of an opinion" by "a witness qualified as an expert by knowledge, skill, experience, training, or education" who has "scientific, technical or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue." See N.C. Gen. Stat. § 8C-1, Rule 702(a) (2011). Lay witness opinion testimony, on the other hand, "is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." N.C. Gen. Stat. § 8C-1, Rule 701 (2011). In order to evaluate the admissibility of proffered expert opinion testimony under N.C.G.S. § 8C-1, Rule 702, a court must undertake the following three-step inquiry: "(1) Is the expert's proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert's testimony relevant?" Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citations omitted) (citing State v. Goode, 341 N.C. 513, 527-29, 461 S.E.2d 631, 639-41 (1995)). In contrast, evidence proffered through lay opinion testimony under N.C.G.S. § 8C-1, Rule 701 is admissible "[a]s long as the lay witness has a basis of personal knowledge for his opinion . . . ." State v. Bunch, 104 N.C. App. 106, 110, 408 S.E.2d 191, 194 (1991). Whether a trial court properly admitted either expert or lay opinion testimony is reviewed for an abuse of discretion, see State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001), which "results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). In the present case, the juvenile states that it is "unclear" whether the trial court admitted the principal's testimony as lay witness opinion testimony under Rule 701 or as expert witness opinion testimony under Rule 702. After reviewing the record, we agree, and so review the admissibility of Principal Murray's testimony regarding the identity of the recovered substance under both rules, beginning with Rule 702.
We first address whether the identification of a substance as marijuana solely based on visual inspection, without corroborative chemical analysis, is a "sufficiently reliable" method by which one qualified as an expert in the area could establish the identity of the substance. "The appellate courts in this jurisdiction have addressed the admissibility of evidence identifying particular items as containing controlled substances on the basis of visual inspection on several occasions." State v. Ward, 199 N.C. App. 1, 23, 681 S.E.2d 354, 369 (2009), aff'd and remanded, 364 N.C. 133, 694 S.E.2d 738 (2010); see also id. at 20-26, 681 S.E.2d at 368-71 (chronicling the development of this area of jurisprudence, identifying the applicable three-step inquiry for evaluating the admissibility of expert testimony, and noting the admissibility of lay opinion testimony in selected cases with respect to specified controlled substances).
In State v. Fletcher, 92 N.C. App. 50, 373 S.E.2d 681 (1988), this Court considered whether the trial court properly allowed two officers—one with five years' experience in law enforcement who worked as a narcotics investigator, and one with over sixteen years' experience in law enforcement and special training in drug identification—to testify as experts that a recovered substance was marijuana. See Fletcher, 92 N.C. App. at 56-57, 373 S.E.2d at 685-86. The officers' testimony was based solely on their visual inspection of the substance; no chemical analysis of the substance was submitted to the jury. See id. at 57, 373 S.E.2d at 686. Our Court noted that "it would have been better for the State to have introduced evidence of chemical analysis of the substance" and that such "direct evidence may be entitled to much greater weight with the jury." Id. Nevertheless, with respect to the sufficiency of this evidence to definitively establish the identity of the recovered substance as marijuana, we concluded that "the absence of such evidence does not render the opinion testimony insufficient to show the substance was marijuana," and determined that the trial court did not err by admitting the officers' testimony identifying the substance as marijuana based solely on their visual inspection of the substance. See id.
However, in recent cases, when considering the admissibility of expert or lay opinion testimony that purports to identify other controlled substances—e.g., cocaine and prescription pills—based solely on visual inspection, our courts have held that such testimony is not admissible for the purpose of establishing the identity of the substance alleged to be a controlled substance. See, e.g., Ward, 199 N.C. App. at 5-6, 28, 681 S.E.2d at 359, 373 (holding the trial court abused its discretion by allowing a forensic chemist to testify as an expert that recovered pills were prescription pills solely "on the basis of a visual examination of the size, shape, color of and markings on the tablets in question"); State v. Llamas- Hernandez, 189 N.C. App. 640, 651, 654, 659 S.E.2d 79, 86, 87-88 (2008) (Steelman, J., dissenting) (concluding the trial court abused its discretion by allowing law enforcement officers to testify as lay witnesses that a "non-descript white powder" that lacked "any distinguishing characteristics" was cocaine, because there was no chemical analysis offered to establish the chemical composition of the substance), rev'd per curiam for reasons stated in dissent, 363 N.C. 8, 673 S.E.2d 658 (2009). Rather, "existing precedent suggests that controlled substances defined in terms of their chemical composition can only be identified through the use of a chemical analysis rather than through the use of lay testimony based on visual inspection." Ward, 199 N.C. App. at 26, 681 S.E.2d at 371; see also Llamas-Hernandez, 189 N.C. App. at 652, 659 S.E.2d at 86 (Steelman, J., dissenting) ("By enacting such a technical, scientific definition of cocaine, it is clear that the General Assembly intended that expert testimony be required to establish that a substance is in fact a controlled substance.").
Nevertheless, this Court has also recognized that "nothing in [the] dissent in Llamas-Hernandez or our subsequent decision in [Ward, 199 N.C. App. at 24, 681 S.E.2d at 370] (stating that the identification of marijuana is different in both degree and kind from the identification of prescription medications), casts any doubt on the continued vitality of Fletcher." State v. Ferguson, 204 N.C. App. 451, 457, 694 S.E.2d 470, 475 (2010) (internal quotation marks omitted). Thus, because "marijuana is distinguishable from other controlled substances that require more technical analyses for positive identification, . . . the State is not required to submit marijuana for chemical analysis" in order to establish its identity. State v. Mitchell, No. COA12-499, _ N.C. App. _, _, _ S.E.2d _, _ (filed Dec. 4, 2012). Therefore, the identification of the substance in the present case as marijuana based solely on a visual inspection is a "sufficiently reliable" method by which one qualified as an expert in the area could establish the identity of the substance. Consequently, we must now examine whether the trial court could properly admit Principal Murray as an expert qualified to make such an identification.
Principal Murray testified that he has had no formal law enforcement training and no formal training or certification with respect to drug identification. Although law enforcement training and experience may not necessarily be the only avenue by which a person could gain experience sufficient to become "qualified as an expert" in the area of controlled substances identification, Principal Murray's experience in this area is limited to ten or twelve investigations into allegations of marijuana possession over a thirteen-year period with only one such investigation, to his knowledge, resulting in a conviction for possessing marijuana and drug paraphernalia. In light of the prevailing case law, we are not persuaded that Principal Murray's limited training and experience qualifies him to render an opinion as an expert with sufficient "specialized knowledge" that the substance in the Tic Tac box was marijuana based solely on his visual inspection of the substance. Cf. Mitchell, _ N.C. App. at _, _ S.E.2d at _ (holding no abuse of discretion to allow expert opinion testimony identifying a substance as marijuana from a law enforcement officer who had six years' experience in the field and had been "involved in numerous marijuana investigations, and received training in the identification of marijuana both in basic law enforcement training and in specialized training as a K-9 officer"); Ferguson, 204 N.C. App. at 456-58, 694 S.E.2d at 475-76 (holding no abuse of discretion to allow expert opinion testimony identifying a substance as marijuana from a law enforcement officer who had eight years' experience in the field and "had received drug interdiction training from the State Highway Patrol, the Drug Enforcement Agency, and the Bureau of Alcohol, Tobacco, and Firearms, during which he had received instruction in the identification of marijuana"); Fletcher, 92 N.C. App. at 56, 373 S.E.2d at 685 (holding no abuse of discretion to allow expert opinion testimony identifying a substance as marijuana from one law enforcement officer with five years' experience in the field who worked as a narcotics investigator, and from one officer with over sixteen years' experience in the field and special training in drug identification).
Yet, because "our appellate courts have never held that an officer must be tendered as an expert before identifying a particular substance as marijuana," Ferguson, 204 N.C. App. at 456, 694 S.E.2d at 475, the inadmissibility of Principal Murray's opinion testimony under N.C.G.S. § 8C-1, Rule 702 does not, in and of itself, control whether the State could establish that Principal Murray has a basis of personal knowledge to offer lay witness opinion testimony under N.C.G.S. § 8C-1, Rule 701 identifying the recovered substance as marijuana. Nevertheless, because of the limitations in Principal Murray's training and experience described above, we conclude that the trial court could not have found the principal's opinion helpful in determining whether the substance recovered in the Tic Tac box had been shown to be marijuana. Therefore, we hold the trial court abused its discretion by admitting Principal Murray's opinion testimony that identified the recovered substance as marijuana.
The juvenile next contends the trial court erred by denying his motion to dismiss because the State failed to present sufficient evidence establishing that the juvenile either actually or constructively possessed the items that were found near the cafeteria entrance. The juvenile argues that, because the State presented no corroborative evidence—independent from the juvenile's extrajudicial confession—to establish that the recovered items belonged to him, based on the corpus delicti rule, the State failed to present sufficient evidence that the juvenile possessed the recovered items. However, because we have already determined that the State failed to present admissible evidence identifying the dried, brown, leafy substance in the Tic Tac box as a controlled substance, and because the State never offered the "make-shift pipe" into evidence and relied solely on the principal's opinion testimony identifying the item as a "make-shift pipe . . . used to smoke marijuana" to establish that the recovered item was drug paraphernalia as described in N.C.G.S. § 90-113.21, we need not consider whether there was sufficient evidence to establish that the juvenile actually or constructively possessed either the unidentified substance or the accompanying item. Accordingly, we reverse the trial court's order adjudicating the juvenile delinquent for possessing drug paraphernalia and possessing one- half ounce or less of marijuana.
Reversed.
Judges McGEE and ERVIN concur.
Report per Rule 30(e).