Opinion
No. COA11–1597.
2012-06-5
STATE of North Carolina v. Kimberly A. FLOYD.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard H. Bradford, for the State. Haral E. Carlin for Defendant.
Appeal by Defendant from judgments dated 13 July 2011 by Judge Jack W. Jenkins in Wayne County Superior Court. Heard in the Court of Appeals 24 April 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Richard H. Bradford, for the State. Haral E. Carlin for Defendant.
STEPHENS, Judge.
Defendant Kimberly A. Floyd was indicted on one count each of (1) trafficking in opium by possession, (2) trafficking in opium by selling, (3) trafficking in opium by transporting, (4) trafficking in opium by delivering, (5) possession with intent to sell and deliver dihydrocodeinone, a controlled substance, (6) delivery of dihydrocodeinone, (7) sale of dihydrocodeinone, and (8) maintaining a motor vehicle for the use of controlled substances. Floyd pled not guilty to the charges and was tried by a jury in Wayne County Superior Court, the Honorable Jack W. Jenkins presiding. The evidence presented to the jury tended to show the following: Law enforcement officers received information from a confidential informant that a “black female” named “Kim” was selling drugs. Thereafter, the confidential informant and law enforcement officers purchased 50 dihydrocodeinone pills from “Kim,” later identified as Floyd. Approximately one month later, law enforcement officers and the confidential informant purchased from Floyd four hundred pills of Morphine, an opium derivative. Floyd was subsequently arrested.
Following the presentation of evidence, the jury returned verdicts finding Floyd guilty of all the charges. The trial court sentenced Floyd to 70 to 84 months imprisonment for each trafficking charge, consolidated the remaining charges, and sentenced Floyd to 11 to 14 months imprisonment for the remaining charges. Floyd appeals.
On appeal, Floyd first argues that the trial court committed reversible error by precluding defense counsel from naming and describing the confidential informant in the opening statement. We disagree. Assuming arguendo (and dubitante ) that defense counsel should not have been precluded from naming and describing the informant, Floyd has failed to satisfy her burden of showing that the error was prejudicial. See State v. Murphy, 100 N.C.App. 33, 41, 394 S.E.2d 300, 305 (1990) (noting that the burden is on the defendant not only to show error but to show that the error was prejudicial); see alsoN.C. Gen.Stat. § 15A–1443(a) (2011) (providing that an error is prejudicial if there is a reasonable possibility that, had the error not been committed, a different result would have been reached at trial). Beyond her unsupported assertion that the trial court's ruling resulted in “prejudicial error warranting a new trial,” Floyd presents nothing to this Court showing any prejudice from the alleged error. Indeed, the opening statements were not recorded and there is nothing in the transcript to indicate (1) what information defense counsel wished to present in his opening statement, and (2) the relevance of that information. In the absence of such information and of any support for Floyd's position, we cannot conclude that Floyd was prejudiced by the trial court's decision to preclude defense counsel from naming and describing the confidential informant during opening statements. This argument is overruled.
Floyd next argues that it was plain error for the trial court to allow testimony by a law enforcement officer allegedly showing that the confidential informant “was reliable and truthful.” This argument is meritless. During a line of questioning regarding general use of confidential informants, an officer testified as follows:
[Prosecutor:] And is there a process that you go through to assure that these [confidential informants] that give you information are reliable?
[Officer:] We check the reliability of the person, see how truthful they are.
Contrary to Floyd's contention, the officer's testimony was not attesting to the reliability and truthfulness of the confidential informant used in this case. Rather, the officer testified only that, as a matter of general practice, law enforcement officers assess the reliability of confidential informants. There is no indication that (1) the reliability of the informant in this case was “checked,” or (2) the informant was determined to be reliable. Accordingly, the testimony was not an improper opinion as to the confidential informant's reliability. Because we find no error in the trial court's admission of the challenged testimony, Floyd's plain error argument is unavailing and, accordingly, overruled. State v. Baker, 338 N.C. 526, 554, 451 S.E.2d 574, 591 (1994) (“Since there was no error, there could be no plain error.”).
Floyd next argues that the trial court plainly erred by allowing improper hearsay testimony by law enforcement officers regarding “information they received from [the] confidential informant.” This argument is also meritless. The challenged testimony—essentially, statements that the informant identified a “black female” named “Kim” as someone who was selling drugs—was offered to explain the actions of the law enforcement officers and not to prove the matter asserted, i.e., that Floyd was a drug dealer. Accordingly, these statements did not constitute improper hearsay testimony. See State v. Batchelor, 202 N.C.App. 733, 735–37, 690 S.E.2d 53, 55–56 (2010) (holding that testimony regarding officers' actions was not hearsay); see also State v. Leyva, 181 N.C.App. 491, 500, 640 S.E.2d 394, 399 (same), disc. review denied and appeal dismissed, 361 N.C. 573, 651 S.E.2d 370 (2007). Floyd's argument is overruled.
To the extent Floyd also raises constitutional arguments on this issue, those arguments are not properly before us as they were not raised before the trial court. See State v. Anthony, 354 N.C. 372, 389, 555 S.E.2d 557, 571 (2001) (stating rule that constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal).
Floyd next argues that the trial court erred by sentencing her for sale of dihydrocodeinone and delivery of dihydrocodeinone arising from a single transaction. We agree, and the State concedes the error. These offenses are violations of section 90–95(a)(1) of our General Statutes, which makes it unlawful for a person “[t]o manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance.” N.C. Gen.Stat. § 90–95(a)(1) (2011) (emphasis added). Our Supreme Court has interpreted that subsection as follows:
Having examined the statute, we now conclude that the language of [section] 90–95(a)(1) creates three offenses: (1) manufacture of a controlled substance, (2) transfer of a controlled substance by sale or delivery, and (3) possession with intent to manufacture, sell or deliver a controlled substance.... By phrasing [section] 90–95(a)(1) to make it unlawful to manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance[ ], the legislature, solely for the purpose of this statutory subsection, has made each single transaction involving transfer of a controlled substance one criminal offense, which is committed by either or both of two acts—sale or delivery.
State v. Moore, 327 N.C. 378, 381–82, 395 S.E.2d 124, 126–27 (1990) (emphasis in original) (internal quotation marks omitted). Accordingly, “[a] defendant may be indicted and tried under [section] 90–95(a)(1) [ ] for the transfer of a controlled substance, whether it be by selling the substance, or by delivering the substance, or both,” but “[that] defendant may not [ ] be convicted under [section] 90–95(a)(1) of both the sale and the delivery of a controlled substance arising from a single transfer.” Id. at 382, 395 S.E.2d at 127 (emphasis in original). As the trial court in this case improperly convicted and sentenced Floyd for both sale and delivery arising from the single transfer of dihydrocodeinone, we remand for resentencing upon a single conviction for transfer by sale or delivery.
Finally, in a related argument, Floyd contends the trial court erred by sentencing her for both the trafficking in opium by selling and the trafficking in opium by delivering offenses that “arose from a single transaction.” This argument is unavailing for these charges. As noted in the previous discussion, our Supreme Court's interpretation of sale or delivery under section 90–95(a)(1) as a single offense applies “ solely for the purpose of [that] statutory subsection.” Id. at 382, 395 S.E.2d at 126–27 (emphasis in original). Floyd's charges for sale and delivery of opium were not violations of section 90–95(a)(1), but, rather, were violations of section 90–95(h)(4), which provides that “[a]ny person who sells, manufactures, delivers, transports, or possesses four grams or more of opium or opiate ... shall be guilty of a felony which felony shall be known as ‘trafficking in opium or heroin.’ “ N.C. Gen.Stat. § 90–95(h)(4). These five “trafficking offenses”—selling, manufacturing, delivering, transporting, and possessing four grams or more—are “separate and distinct offenses” for which a defendant “may be convicted and punished separately.” State v. Perry, 316 N.C. 87, 103–04, 340 S.E.2d 450, 461 (1986). Therefore, the trial court did not err in sentencing Floyd for both trafficking offenses of sale and delivery of opium. Floyd's argument is overruled.
NO ERROR at trial; REMANDED for resentencing. Judges McGEE and HUNTER, ROBERT N., JR., concur.
Report per Rule 30(e).