Opinion
No. COA10-836
Filed 15 February 2011 This case not for publication
Appeal by defendant from judgments entered 16 February 2010 by Judge Paul Gessner in Alamance County Superior Court. Heard in the Court of Appeals 13 December 2010.
Roy Cooper, Attorney General, by Daniel S. Hirschman, Assistant Attorney General, for the State. James N. Freeman, Jr., for defendant-appellant.
Alamance County Nos. 09 CRS 55739, 09 CRS 55740.
Defendant was indicted upon charges of trafficking in cocaine by possession of more than 28 grams and less than 200 grams of cocaine, possession with intent to sell or deliver cocaine, and possession of up to 1/2 ounce of marijuana. He pled not guilty. A jury found him guilty of each of the offenses, and the trial court arrested judgment on the charge of possession with intent to sell and deliver cocaine. Defendant appeals from the judgments entered upon his conviction of the remaining charges.
The evidence at trial tended to show that, on 23 July 2009, Graham Police Department Officers Dwayne Flood and Robert Lovett received information from a narcotics investigator that an individual in the area was possibly in possession of drugs. The officers spotted a vehicle which matched the description given to them and, upon noticing an equipment violation, they initiated a traffic stop. Defendant informed the officers that he did not have a valid license. While Officer Flood ran defendant's information through communications in order to determine the status of his license, Officer Lovett walked his drug-detection-trained dog, Nero, around the exterior of the vehicle. Nero was trained to detect four narcotics: marijuana, methamphetamine, cocaine, and heroin. Nero alerted Officer Lovett to the presence of one of those four substances as he sniffed the driver's side door of defendant's vehicle.
Officer Lovett informed Officer Flood that the dog had alerted to the presence of narcotics in the vehicle. The two officers requested that defendant get out of the vehicle, and advised him that the dog had alerted to the presence of narcotics. Defendant pulled a small bag of marijuana out of his pants, handed it to Officer Flood, and stated that the marijuana was all he had.
Officer Flood testified that he identified the substance as marijuana "[t]hrough [his] training and experience." He explained that, over his twelve years working in law enforcement, he had been involved in "quite a few drug cases" and had come into contact with marijuana "up in the thousands" of times. He further explained that marijuana has a unique smell and is "very identifiable," that he was familiar with the smell and texture of marijuana, and that it was his "full belief" that the substance was in fact marijuana.
Officer Flood placed defendant under arrest and conducted a frisk and pat-down in order to search for other narcotics or weapons. In doing so, he felt a large "unusual" mass in defendant's pants between his legs which Officer Flood believed was more narcotics. Officer Flood asked defendant if he had narcotics in his pants, but defendant did not respond. For safety and privacy reasons, Officer Flood decided to secure defendant in his patrol car, leaving the suspected drugs where they were in defendant's pants until he could safely retrieve them at the jail. A search was conducted of defendant's vehicle and no additional contraband was found.
Upon reaching the jail, defendant was searched and a large plastic sandwich bag with a number of smaller sized sandwich bags inside it was found between defendant's legs. Inside the bag, Officer Flood identified what he recognized as a number of crack cocaine rocks. Some of the rocks were individually wrapped, while some were not wrapped.
Once defendant was placed in custody at the jail, Officer Flood took the seized suspected cocaine to the Graham Police Department, where he photographed and weighed it. It weighed 40.5 grams in its packaging. He then counted the rocks and found that there were 131 rocks, some of which were individually wrapped and some of which were not. At trial, Officer Flood testified that, based on his experience and training, this amount of crack cocaine would be intended for sale.
After counting and photographing the cocaine, Officer Flood sealed it and its packaging in an evidence bag, which cannot be reopened without being cut open. Officer Flood then signed the chain of custody ledger sheet and placed the suspected cocaine and the marijuana into the custody of the technician at the Graham Police Department evidence locker. The suspected cocaine was then sent to the State Bureau of Investigation ("SBI") laboratory in order to be analyzed and tested for its chemical identity.
At trial, Lauren Boehm, a forensic chemist from the SBI laboratory, testified as an expert in the field of forensic chemistry. Ms. Boehm testified that she received the substance in a sealed package which could not have been opened without being cut. The seal on the evidence bag was intact and Ms. Boehm testified that, to her knowledge, it had not been tampered with prior to her receiving it. Ms. Boehm cut open the packaging and counted sixty-six individually wrapped knotted plastic bag corners and also noted that there was some additional loose, off-white, hard material inside the evidence bag. Ms. Boehm did not count individual rocks specifically. Instead, she counted "the packaging however things are packaged." She then conducted a series of tests upon the substance, including general screening color tests and microcrystalline tests. These general screening tests indicated the presence of cocaine. She then conducted an instrumental analysis, which indicated the presence of cocaine as well as bicarbonate of soda, a cutting agent commonly found in cocaine base.
Finally, Ms. Boehm weighed the substance without any packaging. It weighed 30.2 grams. Ms. Boehm recorded all her results in a lab report. She then placed and sealed the substance in an SBI plastic evidence bag, placed that bag along with all the original packaging into the original evidence bag from the Graham Police Department, and sealed the evidence bag with her initials and the date.
At the close of the State's evidence, defendant moved to dismiss the charges based on the insufficiency of the evidence. The motion was denied. Defendant offered no evidence at trial. Prior to closing arguments, defendant informed the trial court that he intended to acknowledge his guilt as to the charge of possession of marijuana. The trial court then asked defendant a series of questions before finding that defendant "freely, voluntarily and knowingly and intelligently waived his rights with respect to his counsel acknowledging responsibility to the offense of misdemeanor possession of marijuana." Defendant, through his counsel, then acknowledged that he possessed marijuana in his closing statement to the jury.
Defendant appeals, contending the trial court erred in admitting the cocaine and marijuana into evidence and, in addition, that the trial court erred in denying his motion to dismiss the charges against him.
I.
Defendant first asserts that the trial court erred when it admitted State's Exhibit 1, the cocaine, into evidence and permitted Ms. Boehm to testify as to its chemical composition. Specifically, defendant argues that the State's evidence was insufficient to establish that the substance seized from his person by Officer Flood was the same substance tested by Ms. Boehm at the SBI laboratory. He contends that the substance seized from him was materially different from that tested by Ms. Boehm, and that the chain of custody of the substance was not sufficiently established because not all of the individuals listed on the chain of custody ledger appeared as witnesses. We disagree.
To be admissible, it must be established that the object sought to be admitted is the same object involved in the incident, State v. Winford, 279 N.C. 58, 62-63, 181 S.E.2d 423, 426 (1971), and that it has not undergone a material change in condition since it was initially seized. State v. Harbison, 293 N.C. 474, 483, 238 S.E.2d 449, 454 (1977). The trial court possesses discretion in determining the standard of certainty required to show that the object offered is the same as the object involved in the incident giving rise to the trial and that it is in an unchanged condition. Id. at 484, 238 S.E.2d at 454. Once the trial court exercises its discretion to admit the evidence, any weak links in a chain of custody relate only to the weight to be given evidence and not to its admissibility. E.g., State v. Campbell, 311 N.C. 386, 388-89, 317 S.E.2d 391, 392 (1984).
Defendant bases his contention that the substance underwent a material change upon asserted inconsistencies in the testimony of Officer Flood as to the number of rocks which he placed in the evidence envelope and their weights and the testimony of Ms. Boehm as to the number of rocks she received and their weights. We do not believe, however, that the testimony of Officer Flood and Ms. Boehm is necessarily inconsistent. Officer Flood testified that he did not separately count the wrapped and unwrapped rocks. Ms. Boehm testified that she counted sixty-six plastic bag corners as well as loose off-white hard material. Officer Flood testified that he weighed the plastic bag which contained the rocks and all of the packaging and that the total was 40.5 grams. Ms. Boehm, on the other hand, weighed the substance without any packaging and determined the weight to be 30.2 grams. The 10.3 gram difference in weight may be reasonably attributable to the weight of the packaging material, which neither Officer Flood nor Ms. Bloom weighed alone.
Defendant also challenges the evidence's chain of custody because the State did not offer the testimony of Mr. Watkins, who was one of the people listed on the custody ledger. Defendant acknowledges that the testimony of each and every individual listed on a custody ledger is not normally necessary for a showing of a sufficient chain of custody. See State v. Kistle, 59 N.C. App. 724, 726, 297 S.E.2d 626, 627 (1982) ("A detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration"), disc. review denied, 307 N.C. 471, 298 S.E.2d 694 (1983). But, defendant argues that, in this instance, every person in the chain of custody should have been called to testify in order to insure that the substance tested by Ms. Boehm and found to be cocaine was actually the same substance Officer Flood seized from defendant.
In the present case, the chain of custody ledger was introduced into evidence. The first person in the chain of custody, Officer Flood, testified, as did the last person in the chain, Ms. Boehm. They both explained the procedures which they followed when handling, analyzing, and then packaging the evidence. Their testimony as to the condition of the material was consistent. Thus, we hold the trial court did not abuse its discretion in determining that an adequate chain of custody had been established to prove that the substance seized from defendant was the same substance which Officer Flood placed in the envelope and deposited in the evidence locker, and which Ms. Boehm thereafter received in an unchanged condition and tested. State's Exhibit 1 was properly admitted into evidence.
II.
State's Exhibit 2 was not submitted to the SBI for analysis, and the only evidence with respect to the exhibit was the testimony of Officer Flood. Defendant contends the trial court committed plain error when it admitted State's Exhibit 2 into evidence and when it permitted Officer Flood to testify, without objection, that the substance was, in fact, marijuana. "Plain error" is error so grave as to deny a fundamental right to the defendant so that, absent the error, the jury would probably have reached a different result. E.g., State v. Robinson, 330 N.C. 1, 22, 409 S.E.2d 288, 300 (1991).
Citing State v. Llamas-Hernandez, 189 N.C. App. 640, 643, 659 S.E.2d 79, 81 (2008), rev'd per curiam, 363 N.C. 8, 673 N.C. 658 (2009), and State v. Ward, 364 N.C. 133, 142-43, 694 S.E.2d 738, 743-44 (2010), defendant contends that Officer Flood's testimony identifying the substance as marijuana was inadequate to establish the identity of the substance because, he asserts, visual inspection alone, even by a trained officer, without chemical analysis, is insufficient to determine that a substance is a controlled substance chemically defined by our legislature. See State v. Williams, ___ N.C. App. ___, ___, 702 S.E.2d 233, 238 (2010); but see State v. Ferguson, ___ N.C. App ___, ___, 694 S.E.2d 470, 475 (2010) (holding that, notwithstanding Llamas-Hernandez, it was not error to permit officer to testify that substance was marijuana).
Even if we were to assume that Officer Flood should not have been permitted to testify that the substance contained in State's Exhibit 2 was marijuana, we reject defendant's contention that the admission of the testimony and the exhibit amounted to "plain error" necessitating a new trial because of defendant's own admission, first to the arresting officer and subsequently to the trial court, through counsel and after questioning by the court pursuant to State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 508 (1985), cert. denied, 476 U.S. 1123, 90 L.Ed.2d 672 (1986), of his guilt of misdemeanor possession of marijuana. Defendant has advanced no argument challenging the validity or voluntariness of his admission and, in light of his acknowledgment of guilt, we see no reasonable possibility that the jury would have reached a different result had the challenged evidence been excluded.
III.
Finally, relying essentially upon his previous arguments challenging the admissibility of State's Exhibits 1 and 2 and the testimony relating thereto, defendant contends his motion to dismiss the charges should have been granted because of the insufficiency of the evidence. Our standard of review of a trial court's ruling on a motion to dismiss is de novo.
"When ruling on a defendant's motion to dismiss, the trial court must: (1) determine whether the evidence presented is substantial, which is a question of law for the court, and (2) consider the evidence in the light most favorable to the State." State v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d 172, 174 (citing State v. Turner, 168 N.C. App. 152, 607 S.E.2d 19, 22 (2005); State v. Tisdale, 153 N.C. App. 294, 296, 569 S.E.2d 680, 682 (2002)), disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Furthermore, when ruling on a motion to dismiss, the trial court is to consider "all of the evidence actually admitted, whether competent or incompetent." State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
In this case, the State presented substantial evidence of defendant's guilt. In addition to State's Exhibits 1 and 2 and the testimony of Officer Flood and Ms. Boehm, the State's evidence showed that, after the officers stopped defendant, the drug detection dog alerted to the presence of narcotics. When defendant was questioned, he handed Officer Flood a bag containing a substance which he acknowledged was marijuana. A search of defendant's person subsequent to his arrest revealed a substance which was later analyzed and determined to be cocaine. Thus, the trial court properly denied defendant's motion to dismiss.
No Error.
Judges McGEE and ERVIN concur.
Report per Rule 30(e).