Opinion
No. 06-1377.
Filed June 19, 2007.
Haywood County No. 05 CRS 1366.
Appeal by Defendant from judgment dated 11 May 2006 by Judge James U. Downs in Superior Court, Haywood County. Heard in the Court of Appeals 23 May 2007.
Attorney General Roy Cooper, by Assistant Attorney General James M. Stanley, Jr., for the State. James N. Freeman, Jr., for Defendant-Appellant.
Defendant was indicted on 28 March 2005 for possession/distribution of a precursor chemical in violation of N.C. Gen. Stat. § 90-95(d1)(2). The indictment alleged that on or about 19 January 2005, Defendant "did possess or distribute an immediate precursor chemical, Pseudoephedrine, with the intent to manufacture a controlled substance or having reasonable cause to believe that the immediate precursor chemical will be used to manufacture a controlled substance, Methamphetamine." The jury found Defendant guilty of "possession of immediate precursor chemical/chemicals" on 11 May 2006. The trial court sentenced Defendant to a term of twenty-one months to twenty-six months in prison. Defendant appeals.
At trial, Trooper Travis Crisp of the North Carolina Highway Patrol testified that on 19 January 2005, he stopped a Nissan Sentra (the Nissan) in Haywood County because the driver was not wearing a seatbelt. Trooper Crisp testified that he approached the Nissan and saw two women sitting in the front seat, and a man sitting in the back. Trooper Crisp identified Defendant as the man sitting in the back of the Nissan. Trooper Crisp testified that he "ran the tag, [and] the DMV system returned a response . . . that that tag belonged on a 1987 Plymouth and not a Nissan [S]entra." Trooper Crisp then entered the Nissan's identification number into his computer and a "screen popped up" indicating the Nissan was stolen. Trooper Crisp called for backup.
Trooper Crisp testified that Defendant said his name was Harold Baker, and that he was from Jackson County. Trooper Crisp then testified as follows:
Q When were you able to determine [Defendant's] real identity?
A I was able to determine [Defendant's] real identity at the Haywood County Sheriff's Office, which was sometime later, when Officer Mark Mease came into the Sheriff's Office.
[DEFENSE COUNSEL]: Objection, Your Honor; nonresponsive.
THE COURT: Overruled.
TROOPER CRISP: When Deputy Mark Mease came in the Sheriff's Office and knew [Defendant] from many previous encounters with him.
BY [THE STATE]:
Q Can you describe [Defendant's] demeanor during this time?
A [Defendant] was —
[DEFENSE COUNSEL]: We object, Your Honor. I think this is going to run afoul of 404.
. . .
THE COURT: Overruled. Go ahead. What was his demeanor.
TROOPER CRISP: [Defendant] was extremely uncooperative. He cussed me, cussed Lieutenant Henline, cussed everyone there, would not give us his correct name. I think just an overall very uncooperative person, very loud, very insulting that day. Just as many cuss words as you can think he probably said it that day.
[DEFENSE COUNSEL]: We move to strike that, Your Honor, as irrelevant, in addition to being 404.
THE COURT: Denied.
Lieutenant Dean Henline with the Haywood County Sheriff's Department testified that he responded to Trooper Crisp's call for backup on 19 January 2005. Lieutenant Henline testified that when he arrived on the scene, the two women and the man were no longer in the Nissan. He saw cold tablets in the passenger area of the Nissan, batteries under the passenger seat, and coffee filters in the trunk of the Nissan.
Investigator Bruce Warren with the Haywood County Sheriff's Department testified that he searched the Nissan on 19 January 2005. Investigator Warren found a lithium battery under the front passenger seat. He also found a red Actifed box in the front passenger area of the Nissan and testified that the active ingredient of the pills inside the box was pseudoephedrine. Investigator Warren also found nineteen boxes in the trunk of the Nissan, and the active ingredient listed on those boxes was also pseudoephedrine. Investigator Warren testified pseudoephedrine was recognized as a precursor chemical to methamphetamine. He further testified that he found coffee filters, two digital scales, and a syringe in the trunk of the Nissan.
Deputy Mark Mease of the Haywood County Sheriff's Department testified that he had been in law enforcement almost five years and that in 2003, he attended methamphetamine clandestine laboratory investigation school in Nashville, Tennessee, through the Drug Enforcement Administration (DEA). Deputy Mease further testified that in February 2006, he was certified in Quantico, Virginia, to enter and investigate clandestine methamphetamine laboratories. In March 2006, he took a basic two-week DEA class for the investigation of drug activity, in Atlanta, Georgia. Deputy Mease testified that in his capacity as a law enforcement officer, he had worked in twelve or more methamphetamine laboratories, and that as part of his training, he had learned how to manufacture methamphetamine. Deputy Mease testified that the coffee filters, the lithium battery, and the pseudoephedrine found in the Nissan were items that were customarily used in the manufacture of methamphetamine.
Deputy Mease also testified as follows:
Q Were you at the Sheriff's Office?
A I actually came in after [Defendant] . . . [was] brought in and [I] identified [Defendant].
Q So you were the deputy that Trooper Crisp had said identified [Defendant] for the first time?
A Yes, ma'am.
. . .
Q Can you describe [Defendant's] demeanor at the time you saw him?
[DEFENSE COUNSEL]: Objection, and the same objection I had previously, 404, Your Honor.
THE COURT: Overruled. Go ahead.
A [Deputy] Mease: [Defendant] was very aggressive, belligerent, hostile toward all the officers that were there.
BY [THE STATE]:
Q In what ways was he being belligerent and hostile?
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Overruled.
[Deputy] Mease: He was cursing us, every officer that came near him, cursed us, threatened us, wanted to fight with us. Just very aggressive toward us and any officer that was in there wearing a uniform.
I.
Defendant argues the trial court erred by failing to qualify Deputy Mease as an expert in the presence of the jury prior to Deputy Mease's opinion testimony. However, Defendant concedes that the trial court indicated out of the presence of the jury that it was going to qualify Deputy Mease as an expert. In State v. White, 340 N.C. 264, 457 S.E.2d 841, cert. denied, White v. North Carolina, 516 U.S. 994, 133 L. Ed. 2d 436 (1995), our Supreme Court recognized: While the better practice may be to make a formal tender of a witness as an expert, such a tender is not required. Further, absent a request by a party, the trial court is not required to make a formal finding as to a witness' qualification to testify as an expert witness. Such a finding has been held to be implicit in the court's admission of the testimony in question. Id. at 293-94, 457 S.E.2d at 858 (internal citations omitted). In White, the Court held that by overruling the defendant's objections to the testimony of the three witnesses, the trial court implicitly accepted them as expert witnesses. Id. at 294, 457 S.E.2d at 858.
Likewise, in the present case, although the trial court did not make a formal finding that Deputy Mease was qualified to testify as an expert witness, the trial court implicitly accepted him as an expert. After Deputy Mease was examined as to his qualifications, the State sought to tender him as an expert in the manufacture of methamphetamine, and the trial court conducted a voir dire hearing outside the presence of the jury. Defendant concedes that at the close of the voir dire hearing, the trial court indicated it was going to qualify Deputy Mease as an expert. Defendant argues, however, that the trial court did not qualify Deputy Mease as an expert in the presence of the jury. Nevertheless, by overruling Defendant's objections to Deputy Mease's subsequent opinion testimony in the presence of the jury, the trial court implicitly accepted Deputy Mease as an expert witness. See White, 340 N.C. at 294, 457 S.E.2d at 858.
Defendant also argues that Deputy Mease was not qualified to give expert opinion testimony. We disagree. "[A] trial court's rulings under Rule 702 will not be reversed on appeal absent an abuse of discretion." State v. Morgan, 359 N.C. 131, 160, 604 S.E.2d 886, 904 (2004), cert. denied, Morgan v. North Carolina, ___ U.S. ___, 163 L. Ed. 2d 79 (2005). In the present case, Deputy Mease testified that he had been in law enforcement almost five years. Deputy Mease testified that through the DEA, he attended methamphetamine clandestine laboratory investigation school in Nashville, Tennessee in 2003. In February 2006, he was certified in Quantico, Virginia, to enter and investigate clandestine methamphetamine laboratories. He also stated that in March 2006, he attended a DEA school for the investigation of drug activity in Atlanta, Georgia. Deputy Mease testified that in his capacity as a law enforcement officer, he had worked in twelve or more methamphetamine laboratories, and that as part of his training, he had learned how to manufacture methamphetamine. We hold that, based upon Deputy Mease's training and experience, the trial court did not abuse its discretion by allowing him to testify as an expert regarding whether certain items found in the Nissan in which Defendant was a passenger could be used in the manufacture of methamphetamine. We overrule these assignments of error.
II.
Defendant next argues the trial court erred by allowing Trooper Crisp and Deputy Mease to testify as to Defendant's demeanor at the Sheriff's Office. Defendant argues this testimony was irrelevant, was improper character evidence under N.C. Gen. Stat. § 8C-1, Rule 404(b), and was inadmissible pursuant to N.C.Gen. Stat. § 8C-1, Rule 403. However, because Defendant did not challenge or assign error to this testimony under Rule 403, we do not address this portion of Defendant's argument. See N.C.R. App. P. 10(b)(1); N.C.R. App. P. 10(c)(1).
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2005). "`[I]n a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible.'" State v. Bruton, 344 N.C. 381, 386, 474 S.E.2d 336, 340 (1996) (quoting State v. Collins, 335 N.C. 729, 735, 440 S.E.2d 559, 562 (1994)). The determination of the weight of such evidence is a matter properly left to the jury. State v. Smith, 357 N.C. 604, 614, 588 S.E.2d 453, 460 (2003), cert. denied, Smith v. North Carolina, 542 U.S. 941, 159 L. Ed. 2d 819 (2004). Although a trial court's rulings on relevancy are not discretionary and we do not review them for an abuse of discretion, we give them great deference on appeal. State v. Streckfuss, 171 N.C. App. 81, 88, 614 S.E.2d 323, 328 (2005).
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
Rule 404(b) is "`a clear, general rule of inclusion of relevant evidence of other crimes, wrongs, or acts.'" State v. Rannels, 333 N.C. 644, 657, 430 S.E.2d 254, 261 (1993) (quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)). "Under the rule, `evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused.'" Id. (quoting State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986)). We review the admission of evidence under Rule 404(b) for an abuse of discretion. State v. Summers, 177 N.C. App. 691, 697, 629 S.E.2d 902, 907, disc. review denied, 360 N.C. 653, 637 S.E.2d 192 (2006).
In the present case, we hold the challenged testimony was admissible to show Defendant's consciousness of his own guilt. In State v. Parker, 45 N.C. App. 276, 262 S.E.2d 686 (1980), the defendant argued that the trial court erred by allowing evidence regarding the defendant's behavior and the defendant's resisting arrest more than one hour after the alleged rape occurred. Id. at 279, 262 S.E.2d at 688-89. The State's evidence showed that after the alleged rape occurred, the "defendant returned to his dormitory room and refused to cooperate with police officers who subsequently arrived." Id. at 279, 262 S.E.2d at 689. Our Court held:
It is our opinion that this evidence was properly admitted as bearing upon the issue of guilt to the rape charge, as well as the assault offense. . . . It having been established that [the] defendant left the scene of the incident and later attempted to evade arresting officers, it was for the jury to determine whether those facts, together with the surrounding circumstances, evidenced [the] defendant's guilt of the offenses charged.
Id. at 279-80, 262 S.E.2d at 689.
Our Court followed Parker in State v. McNeil, 99 N.C. App. 235, 393 S.E.2d 123 (1990), where the trial court allowed evidence that the defendant fought with law enforcement officers when they arrested him. Id. at 244, 393 S.E.2d at 127. We held that the "defendant's resisting arrest [was] properly viewed as bearing upon the issue of guilt, similar to evidence of flight." Id. (citing Parker, 45 N.C. App. 276, 262 S.E.2d 686).
In the present case, Trooper Crisp testified that Defendant provided him with a false name. However, both Trooper Crisp and Deputy Mease testified that when Deputy Mease arrived at the Sheriff's Office, Deputy Mease recognized Defendant from previous encounters. Directly following this testimony, both officers testified that Defendant was belligerent and hostile. It is a reasonable inference that Defendant was belligerent and hostile, at least in part, because Deputy Mease recognized him at the Sheriff's Office. We hold that under McNeil and Parker, this evidence was relevant to Defendant's guilt of the possession charge, given that Defendant had first provided a false name and was then identified.
Moreover, we also hold that under Rule 404(b), the challenged testimony in the present case was relevant to a "`fact or issue other than the character of the accused.'" See Rannels, 333 N.C. at 657, 430 S.E.2d at 261 (quoting State v. Weaver, 318 N.C. at 403, 348 S.E.2d at 793). Specifically, the challenged testimony in the present case tended to show Defendant's consciousness of his own guilt. See State v. Bagley, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (2007) (holding that pursuant to Rule 404 and Rule 403, the trial court did not abuse its discretion by allowing evidence that the defendant hid when police entered the building he was in because it "tended to show [the] defendant's guilty conscience."). Accordingly, we hold the trial court did not err or abuse its discretion by admitting the challenged evidence.
III.
Defendant also argues there was a fatal variance between the indictment and the verdict sheet. Specifically, Defendant argues that while the indictment only charged Defendant with the possession of the precursor material, pseudoephedrine, the verdict sheet allowed the jury to find Defendant guilty of "possession of immediate precursor chemical/chemicals[.]" Because there was evidence that a lithium battery, also a precursor material under the statute, was in the Nissan, Defendant argues the variance allowed the jury to convict Defendant of possession of a precursor material that was not listed in the indictment.
However, our Court has recognized that "a verdict sheet is sufficient `if the verdict can be properly understood by reference to the indictment, evidence and jury instructions.'" State v. Floyd, 148 N.C. App. 290, 296, 558 S.E.2d 237, 241 (2002) (quoting State v. Connard, 81 N.C. App. 327, 336, 344 S.E.2d 568, 574 (1986), aff'd per curiam, 319 N.C. 392, 354 S.E.2d 238 (1987)). In the present case, the trial court instructed the jury that to find Defendant guilty, the State must prove two things and both these things from the evidence to the extent of beyond a reasonable doubt.
First, the State must prove that . . . [D]efendant knowingly . . . possessed pseudoephedrine. Pseudoephedrine is an immediate precursor chemical.
. . .
Now that being said, the State must also prove in addition to the first element that . . . [D]efendant . . . knew or had reasonable cause to believe that the immediate precursor chemical alleged to be pseudoephedrine would be used to manufacture methamphetamine, which is defined as a controlled substance under the laws of this State.
Moreover, in the final mandate, the trial court charged, inter alia, as follows:
[I]f you find from the evidence and beyond a reasonable doubt that on or about the [alleged] date in January 2005, that [Defendant] knowingly possessed pseudoephedrine and knew or had reasonable cause to believe that it would be used to manufacture a controlled substance, to wit methamphetamine, it would be your duty to return a verdict of guilty of possession of immediate precursor chemical as to [Defendant].
While there was evidence that a lithium battery was also found in the Nissan, it is clear from the indictment and the jury instructions that the jury could only find Defendant guilty if it found that he possessed pseudoephedrine with the requisite knowledge it would be used to manufacture the controlled substance methamphetamine. Therefore, the verdict was proper and there was no fatal variance between the verdict sheet and the indictment.
Defendant agues that State v. Outlaw, 159 N.C. App. 423, 583 S.E.2d 625, disc. review denied, 357 N.C. 510, 588 S.E.2d 380 (2003), is analogous to the present case. We disagree. In Outlaw, our Court held that because the indictment "did not include the weight of the cocaine possessed and that fact was an essential element of the offense charge, judgment as relates to the conspiracy charge must be arrested." Id. at 428, 583 S.E.2d at 629. However, as demonstrated by its holding, Outlaw only dealt with the insufficiency of the indictment to charge the offense of conspiracy to traffic in cocaine. See id. at 427-28, 583 S.E.2d at 628-29. Outlaw did not address a variance between the indictment and the verdict sheet, and is therefore inapposite. We hold the trial court did not err.
Defendant failed to set forth argument pertaining to his remaining assignments of error, and we therefore deem them abandoned. See N.C.R. App. P. 28(b)(6).
No error.
Judges LEVINSON and JACKSON concur.
Report per Rule 30(e)