State v Hamlin, (04-1271) 09/20/2005

Appeal by defendant from judgments entered 19 February 2004 by Judge Lindsay R. Davis, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 17 August 2005.

Attorney General Roy Cooper, by Assistant Attorney General John A. Payne, for the State.

Brannon Strickland, PLLC, by Marlet M. Edwards and Anthony M. Brannon, for defendant appellant.

McCULLOUGH, Judge.

    Defendant Carvon Lamont Hamlin was charged with trafficking by possession in methylenedioxymethamphetamine (hereinafter “MDA/MDMA”), trafficking by transportation in MDA/MDMA, and maintaining a vehicle for the purposes of drug trafficking. At trial, the State presented evidence which tended to show the following: During the early morning hours of 28 March 2003, Officer R.C. Monge of the Greensboro Police Department stopped defendant's vehicle after noticing that the license plate on the vehicle had been flagged for insurance purposes. After pulling his vehicle over into a parking lot, defendant exited the vehicle and fled the scene. Officer Monge then pursued defendant on foot. Officer R.R.Neal, Jr., was also in the area and responded to the scene upon hearing over the radio that Officer Monge was pursing the defendant on foot.
    The two officers subsequently caught defendant and, after a struggle, arrested him. Once defendant was secured in the back of a patrol car, Officer Monge surveyed the area and found two separate plastic bags in the location where defendant had struggled with the officers. One of the bags contained 96 to 100 small pills, and the other bag contained marijuana. A pat-down of defendant yielded a third bag containing approximately the same number of small pills in defendant's pocket. The pills were later tested by the State Bureau of Investigation (SBI) lab, and found to be 3,4-MDA/MDMA, also known as Ecstacy.
    Defendant did not present any evidence. At the close of the evidence, defendant moved to dismiss the charges. The trial court dismissed the charge of maintaining a vehicle for the purpose of drug trafficking, but declined to dismiss the charges of trafficking by possession in MDA/MDMA and trafficking by transportation in MDA/MDMA. The jury convicted defendant of both trafficking charges, and the trial court imposed consecutive sentences of thirty-five to forty-two months' imprisonment. Defendant now appeals.

    In his first argument on appeal, defendant contends that the trafficking indictments were fatally defective such that the trial court lacked jurisdiction to try him and enter judgments on thesecharges. Specifically, defendant contends that the indictments merely recited language from N.C. Gen. Stat. § 90-95(h) without making any factual allegations. We disagree.
    It is well settled that a valid warrant or indictment is essential to jurisdiction. See State v. Partridge, 157 N.C. App. 568, 570, 579 S.E.2d 398, 399, disc. review improvidently allowed, 357 N.C. 572, 597 S.E.2d 673 (2003). To be valid under our General Statutes, an indictment must contain “[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.” N.C. Gen. Stat. § 15A-924(a)(5)(2003). “[T]he language in a statutorily prescribed form of criminal pleading is sufficient if the act or omission is clearly set forth so that a person of common understanding may know what is intended.” State v. Coker, 312 N.C. 432, 435, 323 S.E.2d 343, 346 (1984). An indictment will only be considered fatally defective “if it 'wholly fails to charge some offense . . . or fails to state some essential and necessary element of the offense of which the defendant is found guilty.'” State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (citation omitted), disc. review improvidently allowed, 349 N.C. 289, 507 S.E.2d 38-39 (1998).
    In the instant case, defendant was charged with trafficking in MDA/MDMA both by possession and by transportation. These offensesare made unlawful by the following statutory provision:
        Any person who . . . transports[] or possesses 100 or more tablets, capsules, or other dosage units, or 28 grams or more of 3,4-methylenedioxyamphetamine (MDA), including its salts, isomers, and salts of isomers, or 3,4-methylenedioxymethamphetamine (MDMA), including its salts, isomers, and salts of isomers, or any mixture containing such substances, shall be guilty of a felony, which felony shall be known as “trafficking in MDA/MDMA.” If the quantity of the substance or mixture involved . . . [i]s 100 or more tablets, capsules, or other dosage units, but less than 500 tablets, capsules, or other dosage units, or 28 grams or more, but less than 200 grams, the person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 42 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000) . . . .

N.C. Gen. Stat. § 90-95(h)(4b)(a)(2003).
    The following language was used in the indictments charging the present defendant with trafficking in MDA/MDMA:
             The jurors for the State upon their oath present that on the date of offense shown [28 March 2003] and in the county named above [Guilford] the defendant . . . unlawfully, willfully and feloniously did possess 100 or more tablets but less than 500 tablets (27.1 grams) of 3,4-methylenedioxymethamphetamine (MDMA), a substance which is included in Schedule I of the North Carolina Controlled Substances Act.

             And the jurors for the State upon their oath present that on the date of offense shown and in the county named above the defendant . . . unlawfully, willfully and feloniously did transport 100 or more tablets but less than 500 tablets (27.1 grams) of 3,4-methylenedioxymethamphetamine (MDMA), a substance which is included in Schedule I of the North Carolina Controlled Substances Act.Our review indicates that the language in the indictment tracked the language of N.C. Gen. Stat. § 90-95(h)(4b)(a). As such, the indictment contained all of the essential elements of the crime. Defendant insists that the indictment must also allege how he possessed and/or transported the MDA/MDMA. However, defendant has not referenced, and we have not found, any authority for such a proposition. Accordingly, defendant cannot show any fatal defect in the charging instrument.
    The corresponding assignment of error is overruled.

Defendant next argues that the trial court erred by admitting into evidence a report from the SBI, which contained an analysis of the pills recovered during the arrest of defendant. Specifically, defendant contends (A) that the report contained inadmissible hearsay evidence, and (B) that its admission violated the Sixth Amendment of the Federal Constitution by denying him the right to confront his accusers. We do not agree.
The challenged report was prepared by former SBI Analyst Eric Morris. It included the results of certain lab tests performed by Agent Morris, such as the raw data from the color test, gas chromatograph analysis, and mass spectrometer analysis, and also the conclusions reached by Agent Morris based on these results. At the time of defendant's trial, Agent Morris no longer worked with the SBI, and Special Agent Aaron Johnsitch testified as an expert witness concerning the report. Agent Johnsitch stated that it is “standard practice within the [SBI] Laboratory to maintain notes ofall the analyses that are done on any evidence, any charts or printouts from instruments that are used during that analysis, and also a copy of the report that has been prepared based upon that analysis.” Agent Johnsitch offered specific testimony as to the nature of analysis of the evidence, and explained the process under which the report was created. Notably, he identified the techniques used in the laboratory report as common techniques that he would “perform [him]self on this type of evidence.” He opined that the scientific community as a whole accepted these techniques as producing valid data. Agent Johnsitch further testified that he had reviewed the lab test results and the graphs and printouts contained in Morris' report and had formed his own opinion as to the composition of the substance procured during defendant's arrest. According to Agent Johnsitch, he could reasonably rely on the data in the report to conclude that the pills recovered during defendant's arrest “contain[ed] the substance MDMA . . . , which is also known as Ecstacy, a Schedule I controlled substance.” Over defendant's objection, the trial court allowed the lab report to be admitted as evidence.

    “Hearsay is not admissible except as provided by statute or by [the North Carolina Rules of Evidence]” N.C. Gen. Stat. § 8C-1, Rule 802 (2003). Pursuant to the Rules of Evidence, an exception to the prohibition against hearsay applies to “records of regularly conducted activity”:
        A memorandum, report, record, or datacompilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
N.C. Gen. Stat. § 8C-1, Rule 803(6) (2003). “'The authenticity of [business records made in the ordinary course of business] may . . . be established by circumstantial evidence.' 'There is no requirement that the records be authenticated by the person who made them.'” State v. Scott, 343 N.C. 313, 333, 471 S.E.2d 605, 617 (1996) (citations omitted).
    In the instant case, Agent Johnsitch provided testimony from which the trial court could find and conclude that the challenged SBI report was a record of regularly conducted activity that was admissible pursuant to N.C. Gen. Stat. § 8C-1, Rule 803(6). As such, the court did not err by overruling defendant's hearsay objection. The corresponding assignments of error are overruled.

    “[E]ven if an out-of-court statement properly falls within an exception to the hearsay rule, it nonetheless must be excluded at a criminal trial if it infringes upon the defendant's constitutional right to confrontation.” State v. Rogers, 109 N.C.App. 491, 499, 428 S.E.2d 220, 224-25, cert. denied, 334 N.C. 625, 435 S.E.2d 348 (1993), cert. denied, 511 U.S. 1008, 128 L. Ed. 2d 54, reh'g denied, 511 U.S. 1102, 128 L. Ed. 2d 495 (1994). However, “where evidence is admitted for a purpose other than the truth of the matter asserted, the protection afforded by the Confrontation Clause against testimonial statements is not at issue. Thus, where the evidence is admitted for, inter alia, corroboration or the basis of an expert's opinion, there is no constitutional infirmity.” State v. Walker, __ N.C. App. __, __, 613 S.E.2d 330, 333 (2005). Under such circumstances, the defendant is afforded an opportunity to cross examine the testifying witness. Id.
    In the instant case, we conclude the evidence was properly admissible for non-testimonial purposes because it helped form the basis of an expert's opinion. Agent Johnsitch testified that he independently analyzed the raw data contained in the challenged report. As Agent Johnsitch was qualified as an expert in forensic chemistry, he was entitled to use the report for the purpose of forming his opinion as to the nature of the substance recovered during defendant's arrest. See N.C. Gen. Stat. § 8C-1, Rule 703 (2003) (“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing.”). Our review indicates that the trial court properly admitted the evidence for this permissible non-testimonial purpose. Defendant could have but failed to request a limiting instruction that would have clarifiedthe appropriate evidentiary use of the report. State v. Noble, 326 N.C. 581, 585, 391 S.E.2d 168, 171 (1990).
    Accordingly, defendant's right to confront the witnesses against him was not violated by the admission of the SBI Lab report. The corresponding assignments of error are overruled.
    No error.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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