Opinion
No. COA12–851.
2013-02-19
STATE of North Carolina v. Garnel Wade FRANKLIN, Defendant.
Roy Cooper, Attorney General, by Daniel S. Hirschman, Special Deputy Attorney General, for the State. John R. Mills, for defendant-appellant.
Appeal by defendant from judgments entered 21 March 2012 by Judge Paul C. Ridgeway in Person County Superior Court. Heard in the Court of Appeals 10 January 2013. Roy Cooper, Attorney General, by Daniel S. Hirschman, Special Deputy Attorney General, for the State. John R. Mills, for defendant-appellant.
DAVIS, Judge.
Garnel Wade Franklin (“defendant”) appeals from his convictions for manufacturing a Schedule VI controlled substance, trafficking in marijuana, and possession of drug paraphernalia. After careful review, we find no error.
Factual Background
The State's evidence at trial tended to show the following: On 31 August 2011, Investigator Mark Massey (“Massey”) of the Person County Sheriff's Office received information from a Crime Stoppers' operator of an anonymous tip from a female caller that defendant was “growing marijuana plants in his home, at his home, a lot of them.” The caller provided both defendant's name and home address. Massey and his supervisor, Chief Deputy Rhew (“Rhew”), went to the residence to investigate. The deputies were met by defendant's wife, Faye Sissy Flynn (“Ms.Flynn”), who was leaving the residence. Ms. Flynn confirmed that she and her husband owned the residence and consented—both orally and in writing—to a search of the property.
Massey and Rhew entered the residence and found defendant inside. Defendant likewise gave oral consent to a search of the residence, which was a double-wide trailer consisting of two bedrooms and a common area. The deputies found a set of digital scales in the kitchen and two sets of digital scales in the laundry room. They also found a set of mechanical scales, a small baggie containing marijuana and marijuana seeds, and a firearm in the far right bedroom.
Massey and Rhew then proceeded to search the outside area of the property. They noticed a water hose next to the water spigot and followed the hose to a “woodline,” which was past the “well-kept area” of the backyard. Approximately 15 to 20 yards past the woodline, the deputies found 90 marijuana plants growing in black plastic pots. There were clear paths leading from the woodline to several plots of land where the marijuana plants were located, and the plants appeared healthy, well-kept, and regularly watered. The deputies found a large pile of similar black plastic planting pots near a shed on defendant's property.
Massey and Rhew also noticed in the parking area of the residence a fairly large camper that appeared to be uninhabited. Ms. Flynn informed the deputies that the camper had been occupied but was recently vacated. Defendant later testified at trial that he had rented the camper to Janet Jones in July of 2010 but that she moved out approximately 13 months later after falling behind on her rent.
Defendant was charged with manufacturing a Schedule VI controlled substance, trafficking in marijuana, and possession of drug paraphernalia. A jury trial was held during the 20 March 2012 Criminal Session of Person County Superior Court. Defendant admitted at trial that he owned the small bag of marijuana and marijuana seeds found in the rear bedroom of the residence but denied growing the marijuana plants found in the plots of land behind his residence. Defendant also testified that he did not know that marijuana was being grown near his property. He claimed that the scales found by the deputies were used in his former produce business and that he had intended to use the black planting pots found by the shed to grow Leyland Cypress trees before his diabetes prevented him from doing so.
The jury found defendant guilty of manufacturing a Schedule VI controlled substance, trafficking in marijuana, and possession of drug paraphernalia. The trial court arrested judgment on the manufacturing charge and combined the trafficking and drug paraphernalia charges into one judgment and sentenced defendant to 25 to 30 months imprisonment. Defendant gave timely written notice of appeal.
Analysis
I. Hearsay
At trial, Massey gave specific testimony regarding the anonymous tip to Crime Stoppers. Defendant objected to this testimony on the grounds that “the person that made these statements is not present in court.” The trial court overruled defendant's objection, ruling that the statement “was made out of court not under oath, so it would be hearsay, but [the court is] allowing it for the limited purpose of explaining what the officers did.” The trial court proceeded to give the jury a limiting instruction that it could consider the statement “solely for the limited purpose of explaining what the officers did in response to this statement.”
Defendant first argues that Massey's testimony regarding the anonymous tip was inadmissible in that it contained two levels of hearsay: (1) the out-of-court statement of the informant to the Crime Stoppers operator; and (2) the out-of-court statement of the operator to Massey. Defendant's argument is without merit.
Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. R. Evid. 801(c). While hearsay is generally inadmissible, an out-of-court statement offered for some purpose other than to prove the truth of the matter asserted is admissible as non-hearsay evidence. State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (2002). “Specifically, statements are not hearsay if they are made to explain the subsequent conduct of the person to whom the statement was directed.” Id. Such statements are admissible not because they are exceptions to the hearsay rule, but because they “simply are not hearsay—they do not come within the ... legal definition of the term.” State v. Castaneda, ––– N.C.App. ––––, ––––, 715 S .E.2d 290, 293 (quoting Long v. Paving Co., 47 N.C.App. 564, 569, 268 S.E.2d 1, 5 (1980)), appeal dismissed and disc. review denied,365 N.C. 354, 718 S.E.2d 148 (2011). We review de novo a trial court's determination as to whether an out-of-court statement constitutes hearsay. Id.
Here, Massey's testimony regarding the statements of the anonymous, non-testifying tipster and the Crime Stoppers operator was not hearsay because it was not offered for the truth of the matter asserted by the declarants. Instead, this testimony was admitted to provide context for the deputies' subsequent course of conduct and explain why they chose to investigate defendant's residence. Moreover, the trial court gave a limiting instruction to the jury, directing it to consider the statement “solely for the limited purpose of explaining what the officers did in response” to the statement. “The law presumes that the jury heeds limiting instructions that the trial judge gives regarding the evidence.” State v. Riley, 202 N.C.App. 299, 303, 688 S.E.2d 477, 480 (2010).
This Court addressed similar facts in State v. Alexander, 177 N.C.App. 281, 628 S.E.2d 434 (2006). In Alexander, we concluded that an officer's testimony about an out-of-court statement of a second officer who relayed the statements of another individual was not hearsay because the statements were offered solely to explain the testifying officer's subsequent actions. Id . at 284, 628 S.E.2d at 436. The same is true here.
Even assuming arguendo that Massey's testimony regarding the anonymous tip was hearsay, defendant cannot show that he was prejudiced by the testimony. “[T]he failure of a trial court to admit or exclude ... evidence will not result in the granting of a new trial absent a showing by defendant that a reasonable possibility exists that a different result would have been reached absent the error.” State v. Hernandez, 202 N.C.App. 359, 363, 688 S.E.2d 522, 525 (2010) (quoting State v. Weeks, 322 N.C. 152, 170, 367 S.E.2d 895, 906 (1988) (internal citations omitted)). Here, the State presented overwhelming evidence of defendant's guilt. Ninety healthy and well cared for marijuana plants were found in plots of land behind defendant's residence. In addition, trails and a water hose led from defendant's residence to the plots where the plants were found. Finally, defendant admitted to owning the bag of marijuana and marijuana seeds, the multiple sets of digital scales, and the black plastic planting pots found by the shed that looked similar to those containing the marijuana plants. For these reasons, defendant cannot show prejudicial error.
II. Confrontation Clause
Defendant also argues that Massey's testimony regarding the anonymous tip violated his constitutional right to confront witnesses against him under the Confrontation Clause. This argument, however, is not properly before this Court.
It is well established that “[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.” State v. Lloyd, 354 N.C. 76, 86–87, 552 S.E.2d 596, 607 (2001). Defendant's objection to this testimony failed to expressly reference the Confrontation Clause or otherwise apprise the trial court that he was objecting on constitutional grounds as required by the North Carolina Rules of Appellate Procedure. N.C. R.App. P. 10(a)(1).
At trial, defendant objected to the introduction of this testimony solely on the ground that “the person that made these statements is not present in court.” The trial court solely addressed defendant's objection as a hearsay issue, and defense counsel made no further objection. Thus, no objection based on the Confrontation Clause was properly preserved. See MelendezDiaz v. Massachusetts, 557 U.S. 305, 327, 129 S.Ct. 2527, 2541, 174 L.Ed.2d 314, 331 (2009) (“The defendant always has the burden of raising his Confrontation Clause objection[.]”); see also State v. Mobley, 200 N.C.App. 570, 572, 684 S.E.2d 508, 510 (2009) (holding that an objection on hearsay grounds did not invoke the Confrontation Clause).
Moreover, even assuming arguendo that defendant's objection was sufficiently specific to preserve his constitutional claim on appeal, the “admission of nonhearsay raises no Confrontation Clause concerns.” Gainey, 355 N.C. at 87–88, 558 S.E.2d at 473 (internal quotation marks omitted). As discussed above, Massey's testimony constituted non-hearsay. “[A] witness under oath, [who is] subject to cross-examination, and whose demeanor can be observed by the trier of fact, is a reliable informant not only as to what he has seen, but also as to what he has heard.” Id. (alteration in original) (citations omitted). Therefore, defendant's Confrontation Clause argument fails for this reason as well.
III. Jury Instructions
Defendant's final argument is that the trial court's jury instructions violated his due process rights. Specifically, he contends that the instructions “created a mandatory presumption of mens rea ” because the jurors were instructed that even if they found that he was unaware of the marijuana, they were still required to find that defendant acted with a common purpose to commit the crimes of manufacturing and trafficking in marijuana. We disagree.
Defendant correctly states that “[m]andatory presumptions which conclusively prejudge the existence of an elemental issue or actually shift to [the] defendant the burden to disprove the existence of an elemental fact violate the Due Process Clause.” State v. White, 300 N.C. 494, 507, 268 S.E.2d 481, 489 (1980). In determining whether a presumption is mandatory or permissive, the reviewing court must carefully examine “the actual words spoken to the jury by the trial judge in the light of whatever definition of the presumption may be provided by applicable statute or case law and in the context of how a reasonable juror might interpret the words.” Id. at 506, 268 S.E.2d at 489. If the jury instruction “describe[s] an inference which must be drawn upon the proof of basic facts, then the presumption is mandatory in nature” and violates due process. Id. at 507, 268 S.E.2d at 489.
If, however, the instruction expresses only a permissive inference, it does not violate due process as long as there is: (1) “a rational connection between the basic and elemental facts such that upon proof of the basic facts, the elemental facts are more likely than not to exist”; and (2) “other evidence in the case which, taken together with the inference of presumption, is sufficient for a jury to find the elemental facts beyond a reasonable doubt.” Id. at 506, 268 S.E.2d at 489.
Here, the trial court's jury instruction relating to the charge of manufacturing a Schedule VI controlled substance stated in pertinent part:
The defendant has been charged with [the] manufacturing of a Schedule VI controlled substance. For you to find the defendant guilty of this offense, the State must prove to you beyond a reasonable doubt that the defendant manufactured marijuana. Growing marijuana would be the manufacture of a controlled substance and marijuana is a Schedule VI controlled substance.
For a person to be guilty of a crime, it is not necessary that he personally do all the acts necessary to constitute the crime. If two or more persons join in a common purpose to commit the manufacture of a controlled substance, each of them, if actually or constructively present, is guilty of that crime if the other person commits the crime and also guilty of any other crime committed by the other in pursuance of the common purpose to commit manufacture of marijuana or as a natural or probable consequence thereof.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant acting either by himself or acting together with another person grew marijuana, it would be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt, it would be your duty to return a verdict of not guilty.
The trial court repeated the language explaining concerted action in its instruction to the jury on the charge of trafficking in marijuana.
In State v. Golphin, 352 N.C. 364, 456, 533 S.E.2d 168, 229 (2000), our Supreme Court rejected the defendants' argument that the trial court's instructions on acting in concert in that case allowed the jury to find them guilty without finding the required intent to commit the crimes. In the present case, as in Golphin, the trial court's instructions did not create a mandatory presumption as to defendant's state of mind. The record belies defendant's contention that the instructions permitted the jury to find him guilty merely because he lived at the residence where the marijuana was found. Instead, the trial court directed the jury that it could find defendant guilty only if it found beyond a reasonable doubt that defendant had manufactured and trafficked in marijuana “either by himself or acting together with another person.”
Moreover, an instruction on acting in concert was appropriate because of the evidence at trial showing that (1) defendant jointly owned the property where the plants were found; (2) two other people were living on the property while the marijuana was growing; and (3) those two people maintained the yard and cut the grass near where the marijuana was grown. Accordingly, the trial court did not err in so instructing the jury.
Conclusion
For the reasons stated above, we conclude that defendant received a trial free from error.
NO ERROR. Judges STROUD and HUNTER, Jr., concur.
Report per Rule 30(e).