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1. Constitutional Law--right to confrontation--nontestimonial evidence
The trial court did not commit plain error in a possession with intent to sell and deliver marijuana, sale and delivery of marijuana, and possession of cocaine with intent to sell case by allegedly violating defendant's right to confrontation arising from the use of expert testimony based on chemical analyses conducted by a nontestifying chemist, because: (1) defendant had an opportunity to cross-examine the expert; (2) the analyses on which the expert testimony was based were not hearsay since it was not offered for the truth of the matter asserted, but rather to demonstrate the basis of the expert's testimony; and (3) it is well-established that an expert may base an opinion on tests performed by others in the field.
2. Drugs--possession of cocaine with intent to sell--motion to dismiss--sufficiency of
The trial court did not err by denying defendant's motion to dismiss the charge of possession of cocaine with intent to sell, because: (1) there was substantial evidence to establish that defendant possessed the controlled substance of cocaine including testimony from undercover officers in conjunction with the video surveillance tape of the drug transaction; and (2) any discrepancy in the State's evidence, such as the color of the baggie containing the cocaine defendant sold to the undercover officers, is properly considered by the jury in weighing the reliability of the evidence.
3. Appeal and Error--preservation of issues--failure to argue
The remaining assignments of error that defendant failed to argue are deemed abandoned under N.C. R. App. P. 28(b).
Attorney General Roy Cooper, by Assistant Attorney General
Scott K. Beaver, for the State.
Jarvis John Edgerton, IV, for the defendant-appellant.
The admission into evidence of expert opinion based upon information not itself admissible into evidence does not violatethe Sixth Amendment guarantee of the right of an accused to confront his accusers where the expert is available for cross-examination. State v. Huffstetler, 312 N.C. 92, 108, 322 S.E.2d 110, 120 (1984) (citations omitted). In this case, Defendant contends that expert testimony based on analyses conducted by someone other than the testifying expert violated his right to confrontation under the rationale of Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). Because Defendant had an opportunity to cross-examine the expert, and because the analyses on which the expert testimony was based were not hearsay, we affirm the trial court's admission of the expert testimony. We also uphold the trial court's denial of Defendant's motion to dismiss his conviction of possession of cocaine with intent to sell.
The State presented evidence tending to show that on 13 November 1999, two undercover Rocky Mount Police Officers approached Defendant Wayne Antonio Bunn and asked if they could get hooked up with drugs. Defendant advised the undercover officers that he could get them marijuana or cocaine if they gave him some of the money for the drugs first. The officers gave Defendant thirty or forty dollars, and Defendant returned with two bags of marijuana and one bag of cocaine. Video surveillance equipment in the officers' vehicle recorded the drug transaction with Defendant.
After the drug transaction, the undercover officers secured the drugs in the bags they came in, and gave them to Officer GregBrown who testified that he put the drugs into evidence bags and placed them in a secure evidence bin inside the police department. Testing by the State Bureau of Investigation showed the drugs to be cocaine.
At trial, the State presented as an exhibit a green baggie containing cocaine _ State's Exhibit Number Two. When asked about the green thing in State's Exhibit Number Two, one of the undercover officers testified that [the green thing is] the baggie that it [the cocaine] was sold in. However, in his earlier testimony, the undercover officer said that he received cocaine from Defendant in a clear pink type baggie. Moreover, the undercover officer's supplemental police report states that the officers received cocaine from Defendant in a small pink plastic bag. Defendant did not present any evidence.
Defendant was found guilty of possession with intent to sell and deliver marijuana, sale and delivery of marijuana, and possession with intent to sell and deliver cocaine. The jury deadlocked on the charge of selling cocaine. The trial court consolidated the marijuana convictions and sentenced Defendant to two consecutive sentences of eight to ten months imprisonment. Defendant appealed.
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