Opinion
No. COA16-426
12-20-2016
STATE OF NORTH CAROLINA, v. DEBORAH LYNN GLISSON, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine Jane Allen, for Defendant-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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Jones County, Nos. 12 CRS 50869-72, 78-79 Appeal by Defendant from judgment entered 12 September 2014 by Judge Kenneth F. Crow in Jones County Superior Court. Heard in the Court of Appeals 2 November 2016. Attorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine Jane Allen, for Defendant-Appellant. INMAN, Judge.
Deborah Lynn Glisson ("Defendant") appeals from a judgment finding her guilty of, inter alia, felonious conspiracy to traffic opium by sale and delivery and possession of oxycodone with intent to sell and deliver. Defendant contends the trial court erred by denying her motion to dismiss the conspiracy charge related to the controlled buy on 13 September 2012 for insufficiency of the evidence. After careful review, we dismiss Defendant's appeal.
Factual and Procedural History
Defendant was indicted on 5 August 2013, 28 April 2014, and 4 August 2014 for eighteen drug-related offenses arising from three separate controlled buys arranged by the Jones County Sheriff's Department between August and December 2012. The evidence at trial tended to show the following:
On or about August 2012, an informant with the Jones County Sheriff's Department contacted detective Timothy Corey ("Detective Corey") and informed him that a couple, believed to be husband and wife, were selling oxycodone. At Detective Corey's direction, the informant arranged for a controlled buy from Defendant.
On 16 August 2012, Detective Corey and the informant met Defendant, who was accompanied by James Adkins ("Adkins"), in a parking lot in Pottersville, North Carolina. Defendant and Adkins arrived in a Ford Focus, which Defendant was driving. Defendant exited the Ford and walked over to the informant's vehicle to talk with him. The informant introduced Detective Corey as a family member from out of town who wanted to buy oxycodone. After a short conversation, Detective Corey requested oxycodone and paid Defendant $140. Defendant then turned to the passenger side front seat of the Ford and spoke with Adkins, who produced a pill bottle. Defendant counted out a number of pills and gave them to Detective Corey. The pills were later confirmed to be oxycodone.
Detective Corey and the informant then arranged for a second controlled buy from Defendant. On or about 13 September 2012, Detective Corey met the informant in an unfinished subdivision, and shortly thereafter, at dusk, Defendant and Adkins arrived in the same Ford Focus Defendant had driven to the initial controlled buy. Defendant told Detective Corey that she did not like the meeting location "because it's a subdivision that, you know, she don't know where anybody is coming from." Defendant gave Detective Corey twenty oxycodone pills in exchange for $80.
There were several errors made at trial as to the date of the second controlled buy. However, Defense counsel raised no objections and did not offer an alibi defense for the events of 13 September 2012 or any of the other mistaken dates.
Detective Corey set up a third controlled buy to take place on 7 December 2012 in the same unfinished subdivision as the second controlled buy. Defendant told Detective Corey that she had to pick up Adkins before the meeting. Detective Corey met Defendant and Adkins and paid Defendant $200. Adkins then handed Detective Corey thirty-four oxycodone pills. Defendant was arrested immediately after delivering the pills to Detective Corey.
At the close of the State's evidence, Defendant made an oral motion to dismiss all charges. Defendant's trial counsel argued that the State's evidence and testing methods were insufficient to satisfy the minimum weight requirement element for the charge of trafficking opium. The trial court dismissed one trafficking in opium by possession charge and reduced the other two charges from trafficking in opium to sale and delivery of opium. The trial court reviewed the jury instructions with Defendant's trial counsel, who agreed with the proposed instructions regarding each conspiracy charge. The jury returned a guilty verdict on all remaining charges, and Defendant gave oral notice of appeal.
Analysis
On appeal, Defendant challenges the sufficiency of the evidence for the charge of felonious conspiracy to traffic opium by sale and delivery and possession of oxycodone with intent to sell and deliver related to the events of the second controlled buy on 13 September 2012. The State argues that Defendant failed to preserve this issue for appeal. We agree.
It is well established that "where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts." State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (internal quotation marks omitted) (citing State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5-6 (1996)). "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 . . . ." N.C. R. App. P. 10(a)(1) (2015).
Here, defense counsel presented to the trial court specific grounds for dismissal on the charge of trafficking opium as related to the 16 August 2012 controlled buy. Defense counsel argued that "the aggregate weight of the pills at issue" was not sufficient to satisfy the statutory threshold for a trafficking offense. Defense counsel also argued that the evidence related to the other trafficking charges was insufficient because the testing methods used to test the pills were unreliable. Immediately after defense counsel's arguments, the following colloquy occurred:
The Court: Anything else that you want to say?
Mr. Avery: Not with regards to that motion. The trial court dismissed one trafficking charge and reduced the other two charges from trafficking in opium to sale and delivery of opium. Other than the argument about the weight threshold for trafficking, defense counsel presented no argument regarding any of the charges, including the conspiracy charge at issue in this appeal.
Because defense counsel at trial failed to argue with specific grounds that there was insufficient evidence to support the charge of conspiracy to traffic opium by sale and delivery and possession of oxycodone with intent to sell and deliver related to the 13 September 2012 controlled buy, we dismiss Defendant's appeal.
DISMISSED.
Judges DAVIS and ENOCHS concur.
Report per Rule 30(e).