An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA05-1361


Filed: 05 July 2006


         v.                        Surry County
                                No. 05 CRS 1619

    Appeal by defendant from judgment entered 20 July 2005 by Judge Catherine C. Eagles in Surry County Superior Court. Heard in the Court of Appeals 19 June 2006.
    Attorney General Roy Cooper, by Assistant Attorney General James M. Stanley, Jr., for the State.

    Mary Exum Schaefer for defendant-appellant.

    STEELMAN, Judge.

    On 20 July 2005, a jury found defendant, Jack Lee Joyner, Sr., guilty of possession with intent to sell cocaine and sale of cocaine. The trial court sentenced defendant to twelve to fifteen months imprisonment for the sale of cocaine conviction and arrested judgment on the possession with intent to sell cocaine conviction. Defendant appeals.
    The State's evidence at trial tended to show the following: On 9 May 2002, Winston-Salem Police Officer Allison Trivette was working as an undercover officer in the vice and narcotics unit. On this particular day, she was working in Surry County assistingits detectives in attempting to purchase narcotics from known drug dealers. Officer Trivette drove to a specific residence looking for a person named “Jack.” When she arrived, she observed two people outside the residence, one of whom was later identified as defendant. Defendant approached Officer Trivette's vehicle and she informed him she wanted to purchase $40.00 of crack. Defendant entered the residence. Upon exiting the residence, he stopped by a vehicle in the front yard before returning to her vehicle. Defendant handed Officer Trivette the crack cocaine, which was wrapped in aluminum foil, and she paid him $40.00.
    Officer Trivette then met Surry County Detectives Matt Darisse, Tracey Hyson, and another detective at a prearranged location. Officer Trivette gave the suspected crack cocaine to Detective Hyson, who placed it in a plastic bag. Officer Trivette and Detective Hyson both initialed the bag, which was then sealed. Detective Hyson marked the case number, the date, and the suspect's name on the front of the bag. Officer Trivette thereafter gave Detective Darisse a description of defendant and identified defendant from a photograph as the person who sold her the crack cocaine.
    Detective Darisse, a detective sergeant in the narcotics division of the Surry County Sheriff's Department, testified he had arranged for Officer Trivette to come to Surry County on 9 May 2002to attempt to purchase narcotics from a list of individuals known for selling or using controlled substances. The name Jack Joyner was on the list. He further testified he observed Officer Trivette deliver the substance she purchased from defendant to Detective Hyson, who subsequently moved to Florida. Detective Darisse also observed Detective Hyson place the substance into a plastic bag and mark it. At Detective Darisse's instruction, Detective Hyson sent the sealed plastic bag containing the substance to the State Bureau of Investigation (SBI) laboratory for analysis. The envelope in which the substance was sent to the SBI was marked with the case number. When the envelope containing the substance was returned to the Surry County Sheriff's Department, Detective Darisse opened it and placed it in an evidence locker.
    Special Agent Nancy Gregory, a forensic drug chemist at the SBI crime laboratory in Raleigh, testified she received the suspected controlled substance from the Surry County Sheriff's Department on 14 May 2002 in a sealed plastic bag that arrived in an envelope. The envelope was introduced into evidence as State's Exhibit 4-A. Agent Gregory testified the suspect's name written on the plastic bag containing the controlled substance was “Jack Joyner.” She further testified she analyzed the substance and determined it to be 0.3 grams of a schedule two controlled substance, cocaine base, which is commonly known as crack cocaine. After completing her analysis, Agent Gregory sealed State's Exhibit 4-A with her initials, date, and case number. Agent Gregory also prepared a laboratory report of her analysis. Information regarding the case, including the submitting officer's name, the suspect's name, the case number, and date of the offense, was located at the top of the laboratory report. There was also a subject line on the laboratory report, which identified the suspect as “Jack Joyner, Jr.” Agent Gregory testified the information contained in the subject line of the laboratory report was taken directly from the subject line of a “Request for Information of Physical Evidence,” which is an internal document that is submitted to the SBI laboratory when evidence is analyzed.
    Defendant made four assignments of error in this case. However, he only argued his fourth assignment of error in his brief. Pursuant to Rule 28(b)(6) of the Rules of Appellate Procedure, the other three assignments of error are deemed abandoned.
    In his forth assignment of error, defendant contends the trial court erred in denying his motions to dismiss at the close of the State's evidence and at the close of all the evidence based on insufficiency of the evidence. A motion to dismiss should be denied if “there is substantial evidence '(1) of each essential element of the offense charged . . ., and (2) of defendant's beingthe perpetrator of such offense.'” State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citations omitted). When reviewing a motion to dismiss based on insufficiency of the evidence, this Court must:
        view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. . . . Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.

Id. at 75-76, 430 S.E.2d at 918-19 (internal citations and quotations omitted)(emphasis and alteration in original). The test for sufficiency of the evidence is the same whether the evidence is direct, circumstantial, or both. Id. at 75, 430 S.E.2d at 918-19.
    Defendant makes two arguments in support of his position. First, he argues there was insufficient evidence to establish he was the perpetrator of the crimes charged. Defendant argues that suspicions were raised about the identity of the perpetrator because the name of the suspect on the subject line of the SBI laboratory report was “Jack Joyner, Jr.” and not “Jack Joyner, Sr.” In support of his argument, defendant also cites to Detective Darisse's testimony that Jack Joyner, Jr., defendant's son, wasknown by Detective Darisse to be involved in narcotics.
     The evidence, considered in the light most favorable to the State and giving the State the benefit of every reasonable inference that may be drawn from the evidence, shows that Officer Trivette positively identified defendant as the person who sold her the cocaine immediately after the transaction and again at trial. Officer Trivette also gave a description of defendant to Detective Darisse immediately after the transaction and identified defendant's photograph on the date of the offenses. Further, the name of the suspect listed on the evidence itself is “Jack Joyner[.]” Accordingly, we conclude there was sufficient evidence from which the jury could find that defendant, and not his son, was the perpetrator of the offenses charged. Any conflict in the evidence regarding the name of the suspect as “Jack Joyner, Jr.” on the SBI laboratory report was an issue for the jury to resolve.
     Defendant next contends the trial court erred in denying his motion to dismiss because there was insufficient evidence establishing the chain of custody of the cocaine. The basis for this argument is that the State allegedly failed to establish a detailed chain of custody of the cocaine because Detective Hyson, the detective who sent the cocaine to the SBI laboratory, did not testify at trial and the State did not submit a statement from her.
    A motion to dismiss challenges the sufficiency of all theevidence, not just one particular piece of evidence. See Barnes, 334 N.C. at 75-76, 430 S.E.2d at 918-19. In the instant case, defendant essentially challenges the admissibility of a particular piece of evidence on the basis of the chain of custody, not the sufficiency of all the evidence. The matter of whether there are weak links in the chain of custody relate to the weight of the evidence, not its admissibility, and is for the jury to determine. State v. Zuniga, 320 N.C. 233, 255, 357 S.E.2d 898, 913 (1987). The proper basis for such an objection and appeal would have been that the evidence was improperly admitted, not a motion to dismiss.
    At trial, defendant did not object to the admission of the plastic bag, which contained a piece of aluminum foil and the crack cocaine Officer Trivette purchased from defendant. Therefore, our review is limited to plain error. N.C. R. App. P. 10(c)(4). Although defendant asserts in the correlating assignment of error contained in the record on appeal that the error amounted to plain error, defendant failed to argue in his brief that admission of the evidence amounted to plain error. N.C. R. App. P. 28(a), (b)(6). Accordingly, defendant has waived appellate review of this assignment of error.
    Judges MCCULLOUGH and HUDSON concur.
    Report per Rule 30(e).

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