Appeal by defendant from judgment and commitment entered 6
October 1999 by Judge William H. Freeman in Cabarrus County
Superior Court. Heard in the Court of Appeals 16 May 2001.
Attorney General Michael F. Easley, by Assistant Attorney
General Donald W. Laton, for the State.
Scott C. Robertson, for defendant-appellant.
CAMPBELL, Judge.
On 14 December 1998 defendant was indicted on one count offelony possession with intent to sell and deliver cocaine
and one
count of felony sale and delivery of cocaine in violation of N.C.
Gen. Stat. § 90-95(a)(1). The trial court's instructions to the
jury indicate that it treated the sale and delivery count as two
separate offenses. Defendant was tried at the 4 October 1999
Criminal Session of Cabarrus County Superior Court. Defendant was
found guilty of possession of cocaine with the intent to sell and
deliver, sale of cocaine, and delivery of cocaine. Defendant was
sentenced to a minimum of 16 months and a maximum of 20 months
imprisonment for the selling cocaine conviction, and a minimum of
10 months and a maximum of 12 months imprisonment for the
possession with the intent to sell and deliver conviction. The
trial court ordered that these terms be served consecutively. The
trial court arrested judgment on the delivery of cocaine
conviction.
The State's evidence at trial tended to show that on 21
October 1998 Detective Rodriquez of the Concord Police Department
was working as an undercover officer on Operation UC-98, an ongoing
investigation to combat street level drug sales in the City of
Concord. On this particular day the officers altered their
strategy, deciding to acquire drugs in exchange for shirts and
video games, instead of purchasing the drugs through a money
transaction. Detective Rodriquez and his partner, a confidential
informant, drove down Winecoff Avenue (“Winecoff”), stopping at the
house located at 244 Winecoff, a known site of drug activity.
Detective Rodriquez approached the window of the house, displayed
the video games he was carrying and asked the occupants of thehouse if they were interested in trading drugs for the video games.
Defendant and Robert Ford came out of the house, approached
Detective Rodriquez' car, and indicated that they were interested
in making a trade. Detective Rodriquez testified that defendant
traded three rocks of crack cocaine in exchange for three shirts
and a video game. Detective Rodriquez made a separate trade with
Robert Ford involving two rocks of crack cocaine. As Detective
Rodriquez was leaving 244 Winecoff, he placed the cocaine he had
acquired from the two men in separate evidence bags, which were
marked and sent to the State Bureau of Investigation (“SBI”) for
laboratory analysis.
Detective Lentz testified that on 21 October 1998 he gave
Detective Rodriquez the money used to purchase the merchandise for
that day's drug operation. Detective Lentz also provided Detective
Rodriquez with plastic evidence bags and a felt pen to be used to
mark the evidence bags. Detective Lentz received the evidence from
Detective Rodriquez following the exchange with defendant, filled
out an evidence sheet, and submitted the evidence to the Concord
Police Department's evidence technician, Gloria Hopkins. On direct
examination, Detective Lentz was shown the SBI Lab Report and
testified that the report indicated that the substances were
cocaine base, Schedule II. Defendant moved to dismiss the charges
at the close of the State's evidence. The trial court denied
defendant's motion.
Robert Ford testified for the defense that he exchanged
cocaine for video games with Detective Rodriquez on 21 October
1998, but that defendant was not involved in any way in exchangingcocaine with Detective Rodriquez. Defendant renewed his motion to
dismiss at the close of all the evidence, which was again denied by
the trial court.
On appeal, defendant assigns error to (1) the trial court's
denial of defendant's motion in limine, (2) the trial court's
denial of defendant's motions to dismiss for insufficiency of the
evidence, and (3) the trial court's jury instructions on the issue
of sale of a controlled substance.
I.
[1]We begin by addressing defendant's argument related to the
issue that arose at the outset of the trial. During jury selection
and the State's opening statement, counsel for the State indicated
that the witnesses for the State would be Officers Rodriquez and
Lentz, and Sergeant Stikeleather of the Concord Police Department.
In response, defendant filed a motion
in limine, seeking to prevent
the State's witnesses from making any reference, directly or
indirectly, that the items allegedly received from defendant on 21
October 1998 were or looked like cocaine or any derivation thereof,
without scientific proof of the chemical contents of the alleged
substance. Specifically, defendant argued that the State had not
given defendant sufficient notice under N.C. Gen. Stat. § 90-95(g)
of its intention to introduce into evidence the SBI Lab Report,
which identified the substances allegedly transferred by defendant
as cocaine. Defendant further argued that the State had failed to
give sufficient notice under N.C. Gen. Stat. § 90-95(g1) of its
intention to introduce into evidence the statement establishing thechain of custody of the actual alleged controlled substances. The
State argued that appropriate notices had been given to defendant's
former attorney. After conducting an evidentiary hearing, the
trial court made findings of fact, which included the factual
finding that defendant's former attorney had received a copy of the
notice of the State's intent to use the SBI Lab Report, as well as
a copy of the report itself. Based on its findings of fact, the
trial court concluded that the State had complied with N.C.G.S. §
90-95(g). The trial court likewise concluded that the State had
complied with N.C.G.S. § 90-95(g1).
We begin by noting that the North Carolina appellate courts
have consistently held that rulings on motions
in limine are not
appealable.
State v. Hayes, 350 N.C. 79, 511 S.E.2d 302 (1999);
Southern Furn. Hdwe., Inc. v. Branch Banking & Tr. Co., 136 N.C.
App. 695, 526 S.E.2d 197 (2000);
Nunnery v. Baucom, 135 N.C. App.
556, 521 S.E.2d 479 (1999). In reaffirming this rule in
Hayes, the
Supreme Court stated:
This Court has consistently held that “'[a]
motion
in limine is insufficient to preserve
for appeal the question of the admissibility
of evidence if the defendant fails to further
object to that evidence at the time it is
offered at trial.'” (citations omitted).
Rulings on motions
in limine are preliminary
in nature and subject to change at trial,
depending on the evidence offered, and “thus
an objection to an order granting or denying
the motion 'is insufficient to preserve for
appeal the question of the admissibility of
the evidence.'” (citations omitted).
Hayes, 350 N.C. at 80, 511 S.E.2d at 303. Therefore, we must
examine the record to determine whether defendant objected when theevidence that was the subject of defendant's motion
in limine was
offered at trial.
The record indicates that the only objection made by defense
counsel was made while Detective Lentz was being questioned about
the SBI Lab Report. Defendant's objection was overruled by the
trial court, and Detective Lentz proceeded to testify that the SBI
Lab Report identified the substances allegedly received from
defendant as cocaine base, Schedule II. The SBI Lab Report was
then admitted into evidence. Therefore, we examine defendant's
argument that the trial court erred in denying his motion
in limine
only as it relates to the admissibility of the SBI Lab Report.
N.C. Gen. Stat. § 90-95(g) establishes a procedure through
which the State may introduce into evidence the lab report of the
chemical analysis conducted on alleged controlled substances
without further authentication. N.C.G.S. § 90-95(g) reads in
pertinent part:
(g) Whenever matter is submitted to the North
Carolina State Bureau of Investigation
Laboratory, the Charlotte, North Carolina,
Police Department Laboratory or to the
Toxicology Laboratory, Reynolds Health Center,
Winston-Salem for chemical analysis to
determine if the matter is or contains a
controlled substance, the report of that
analysis certified to upon a form approved by
the Attorney General by the person performing
the analysis shall be admissible without
further authentication in all proceedings in
the district court and superior court
divisions of the General Court of Justice as
evidence of the identity, nature, and quantity
of the matter analyzed. Provided, however,
that a report is admissible in a criminal
proceeding in the superior court division or
in an adjudicatory hearing in juvenile court
in the district court division only if:
(1) The State notifies the defendant at
least 15 days before trial of its intention to
introduce the report into evidence under this
subsection and provides a copy of the report
to the defendant, and
(2) The defendant fails to notify the
State at least five days before trial that the
defendant objects to the introduction of the
report into evidence.
Nothing in this subsection precludes the
right of any party to call any witness or to
introduce any evidence supporting or
contradicting the evidence contained in the
report.
N.C. Gen. Stat. § 90-95(g) (1999).
In the instant case, after holding an evidentiary hearing, the
trial court made the following findings of fact:
the Court would find as a fact that the
Defendant was originally represented by
Attorney Steve Grossman; that when he entered
the case in January of 1999, he was given a
copy of the file, a copy of the lab report,
and a copy of the notice of intent to use the
lab report without calling the SBI laboratory
personnel; and that since that time Mr.
Grossman has been permitted to withdraw from
the case and Mr. White now represents the
Defendant; that there is no copy of the notice
of intent in the file; that Mr. Grossman does
not remember whether or not he got the notice
of intent but that it was not in his file that
he turned over to Mr. White; and that no
objection has been made before trial, five
days before trial, that the Defendant objects
to the introduction of the report; and that
Mr. White, who is now the attorney, has not
seen the notice of intent.
Based on its findings of fact, the trial court concluded that the
State had complied with N.C.G.S. § 90-95(g)(1) and denied
defendant's motion
in limine. The trial court then later allowed
the State to introduce the SBI Lab Report into evidence without
further authentication. The record indicates that defense counsel had in fact received
a copy of the SBI Lab Report, as required by N.C.G.S. § 90-
95(g)(1). However, defense counsel disputed whether defendant's
former attorney had received notice of the State's intention to
introduce the SBI Lab Report into evidence without further
authentication. After conducting the evidentiary hearing, the
trial court determined that defendant's former attorney had in fact
received a copy of the SBI Lab Report, as well as notice of the
State's intention to introduce the report into evidence without
further authentication. We believe defense counsel's admission
that he had received a copy of the SBI Lab Report itself, coupled
with the contentions of the State's attorney that defendant's
former attorney had been sent notice of the State's intention to
introduce the report into evidence without further authentication
pursuant to N.C.G.S. § 90-95(g)(1) and the lack of any specific
denial of receipt of this notice by defendant's former attorney,
are sufficient to support the trial court's factual finding that
defendant received notice under N.C.G.S. § 90-95(g)(1). We stress
that this determination is strictly limited to the facts of this
case, and had defendant not actually received a copy of the SBI Lab
Report itself, we would be faced with a much different situation.
Having received notice under N.C.G.S. § 90-95(g)(1), defendant
failed to notify the State at least five days prior to trial that
defendant objected to introduction of the report into evidence.
Thus, the State was permitted to introduce the report into evidence
without further authentication pursuant to N.C.G.S. § 90-95(g), and
defendant's objection at trial was properly overruled.
II.
[2]Defendant next contends that the trial court erred in
denying his motions to dismiss brought at the close of the State's
evidence and at the close of all the evidence. “In ruling on a
motion to dismiss, the issue before the trial court is whether
substantial evidence of each element of the offense charged has
been presented, and that defendant was the perpetrator of the
offense.”
State v. Carr, 122 N.C. App. 369, 371-72, 470 S.E.2d 70,
72 (1996). Substantial evidence is that relevant evidence which a
reasonable mind might accept as adequate to support a conclusion.
State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585
(1994). “All the evidence, whether direct or circumstantial, must
be considered by the trial court in the light most favorable to the
State, with all reasonable inferences to be drawn from the
evidence, being drawn in favor of the State.”
Carr, 122 N.C. App.
at 372, 470 S.E.2d at 72.
The offense of possession with intent to sell or deliver has
the following three elements: (1) possession of a substance; (2)
the substance must be a controlled substance; (3) there must be
intent to sell or distribute the controlled substance.
See N.C.
Gen. Stat. § 90-95(a)(1);
State v. Fletcher, 92 N.C. App. 50, 55,
373 S.E.2d 681, 685 (1988);
State v. Casey, 59 N.C. App. 99, 116,
296 S.E.2d 473, 483-84 (1982). To prove sale and/or delivery of a
controlled substance, the State must show a transfer of a
controlled substance by either sale or delivery, or both.
State v.
Moore, 327 N.C. 378, 382, 395 S.E.2d 124, 127 (1990). Taken in the light most favorable to the State, the evid
ence
shows that defendant exchanged cocaine for three sweatshirts and a
video game. This evidence is sufficient to withstand defendant's
motions to dismiss as to both counts of the indictment.
III.
[3]By his final assignment of error, defendant argues that
the trial court committed plain error in instructing the jury that
exchanging cocaine for clothing or video games would constitute a
sale of a controlled substance. We disagree.
N.C. Gen. Stat. § 90-95(a)(1) makes it unlawful “[t]o
manufacture, sell or deliver, or possess with intent to
manufacture, sell or deliver, a controlled substance.” N.C.G.S. §
90-95(a)(1) (2000). The intent of the legislature in enacting
N.C.G.S. § 90-95(a)(1) was twofold: “(1) to prevent the manufacture
of controlled substances, and (2) to prevent the transfer of
controlled substances from one person to another.”
State v.
Creason, 313 N.C. 122, 129, 326 S.E.2d 24, 28 (1985). Pursuant to
this legislative intent, the North Carolina Supreme Court has
concluded that the language of N.C.G.S. § 90-95(a)(1) creates the
following 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.”
Moore, 327 N.C. at 381, 395
S.E.2d at 126 (emphasis in original). “By phrasing N.C.G.S. § 90-
95(a)(1) to make it unlawful to . . .
sell or deliver . . . 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.”
Id. at 382, 395 S.E.2d at
126-27 (emphasis in original). Therefore, count two of the
indictment in the instant case properly charged defendant with
transfer of a controlled substance by both sale and delivery.
(See footnote 1)
The North Carolina Controlled Substances Act defines
“'[d]eliver' or '[d]elivery'” to mean “the actual constructive, or
attempted transfer from one person to another of a controlled
substance, whether or not there is an agency relationship.” N.C.
Gen. Stat. § 90-87(7) (2000). It is thus apparent that the
Legislature intended the crime of transfer of a controlled
substance by
delivery to be complete upon the transfer or attempted
transfer from one person to another of a controlled substance,
regardless of whether the two persons entered into an exchange of
the controlled substance for another item of value, such as money,
goods, or services. Consequently, this Court has held that “[t]o
prove delivery, the [S]tate is not required 'to prove that
defendant received remuneration for the transfer.'”
State v.
Thrift, 78 N.C. App. 199, 201, 336 S.E.2d 861, 862 (1985) (quoting
State v. Pevia, 56 N.C. App. 384, 387, 289 S.E.2d 135, 137,
cert.
denied, 306 N.C. 391, 294 S.E.2d 218 (1982)).
Unlike the terms “deliver” and “delivery,” the term “sale” is
not defined under the North Carolina Controlled Substances Act.
Therefore, in order to determine the meaning of the term “sale,” we
must interpret its meaning in the context of the North Carolina
Controlled Substances Act. “Statutory interpretation properly
begins with an examination of the plain words of the statute.”
Correll v. Division of Social Services, 332 N.C. 141, 144, 418
S.E.2d 232, 235 (1992). “When the language of a statute is clear
and unambiguous, there is not room for judicial construction and
the courts must give the statute its plain and definite meaning,
and are without power to interpolate, or superimpose, provisions
and limitations not contained therein.”
State v. Jarman, 140 N.C.
App. 198, 205, 535 S.E.2d 875, 880 (2000) (citing
In re Banks, 295
N.C. 236, 239, 244 S.E.2d 386, 388-89 (1978)). The plain meaning
of “sale” is “a contract transferring the absolute or general
ownership of property from one person or corporate body to another
for a price (as a sum of money or any other consideration).”
Webster's Third New International Dictionary 2003 (1966).
Therefore, we hold that the term “sale,” in the context of the
North Carolina Controlled Substances Act, means the exchange of a
controlled substance for money or any other form of consideration.
We believe that this interpretation of the term “sale” is
consistent with the legislative intent behind N.C.G.S. § 90-
95(a)(1) to prevent the manufacture and transfer of controlledsubstances. Having defined the terms “deliver” and “delivery&
#148; to
mean the mere transfer or attempted transfer of a controlled
substance, we believe the Legislature intended “sale” to encompass
any such transfer in exchange for consideration.
We also find support for our interpretation in the statutory
meaning given the term “sale” in the context of this State's
regulation of alcoholic beverages. Under Chapter 18B of the North
Carolina General Statutes, entitled “Regulation of Alcoholic
Beverages,” the Legislature has defined “sale” to mean “any
transfer, trade, exchange, or barter, in any manner or by any
means, for consideration.” N.C. Gen. Stat. § 18B-101(13) (2000).
We cannot believe the Legislature intended the term “sale” to have
a different meaning in these two similar contexts. Therefore, in
the context of the Controlled Substances Act, we interpret the term
“sale” to include any barter or other exchange of a controlled
substance for consideration.
Defendant argues that “[a] sale is a
transfer of property for
a specified price payable in money.”
Creason, 313 N.C. at 129, 326
S.E.2d at 28 (citing
State v. Albarty, 238 N.C. 130, 76 S.E.2d 381
(1953)). In support of his argument, defendant relies on the
Supreme Court's decisions in
Creason and
Albarty. While we
recognize that the Supreme Court did state in both
Creason and
Albarty that a sale was “a transfer of property for a specified
price payable in money,” we do not feel that the language used by
the Supreme Court in those two cases mandates the conclusion that
a “sale,” in the context of the Controlled Substances Act,encompasses only transfers of controlled substances for money, to
the exclusion of transfers for other forms of consideration.
In
Albarty, the defendant was charged with violating N.C. Gen.
Stat. § 14-291.1, which made it a misdemeanor to “sell, barter or
cause to be sold or bartered, any ticket, token, certificate, or
order for any number or shares in any lottery, . . . .”
Albarty,
238 N.C. at 132, 76 S.E.2d at 382-83 (quoting N.C. Gen. Stat. § 14-
291.1). On appeal, the Supreme Court held that the words “barter”
and “sell” were not used as synonyms for the purposes of N.C.G.S.
§ 14-291.1. The Supreme Court proceeded to define “barter” as “a
contract by which parties exchange one commodity for another,” and
“sale” as “a transfer of goods for a specified price, payable in
money.”
Id. While we agree with the Court's decision in
Albarty
and acknowledge its precedential effect on this Court, we do not
believe that the distinction drawn in
Albarty between “barter” and
“sale” is relevant in the context of the Controlled Substances Act
because the General Assembly did not use the term “barter” in
N.C.G.S. § 90-95(a)(1). Therefore, the Court's reasoning in
Albarty does not compel the conclusion that the term “sale,” in the
context of the Controlled Substances Act, only encompasses
transfers of controlled substances for money.
In
Creason and
Moore, two cases dealing with the
interpretation of N.C.G.S. § 90-95(a)(1), the Court cited the
definition of “sale” set forth in
Albarty. While both
Creason and
Moore deal with the Controlled Substances Act, in neither case was
the Court presented with the question of the meaning of the term“sale” in that context. Consequently, we believe that the Court's
use in
Creason and
Moore of the definition of sale set forth in
Albarty is dicta and thus not binding on this Court in its
consideration of the issue presented here.
See Trustees of Rowan
Tech. v. Hammond Assoc., 313 N.C. 230, 242, 328 S.E.2d 274, 281
(1985) (“Language in an opinion not necessary to the decision is
obiter dictum and later decisions are not bound thereby.”).
Having concluded that the term “sale,” in the context of the
Controlled Substances Act, encompasses barter or any other exchange
for consideration, we hold that the trial court's instructions to
the jury in the instant case were a correct statement of the law.
Thus, defendant's final assignment of error is overruled.
Based on the foregoing reasons, we conclude that defendant
received a trial free from prejudicial error.
No error.
Judges WYNN and BIGGS concur.
Footnote: 1