Appeal by defendant from a judgment dated 16 September 2005 by
Judge Judson D. DeRamus, Jr. in Forsyth County Superior Court.
Heard in the Court of Appeals 30 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Brian Paxton, for the State.
Mercedes O. Chut for defendant-appellant.
BRYANT, Judge.
On 16 September 2005, Eugene Hairston, Jr. (defendant) was
found guilty of possession of cocaine, driving while license
revoked, and of having attained the status of an habitual felon.
The trial court entered, consistent with the jury verdict, a
judgment dated 16 September 2005, sentencing defendant to 116 to
149 months imprisonment. Defendant appeals. For the reasons set
forth below, we find no error in defendant's trial.
Facts
The State's evidence at trial tended to show the following:
On 21 June 2004, North Carolina State Highway Patrol Trooper
Carlton Ray Wilson was in his patrol car facing “east in the median
on Interstate 40.” Shortly after 5:00 a.m., he observed a whiteDodge Intrepid traveling west at approximately 85 miles per hour.
Trooper Wilson pulled onto the interstate after the vehicle passed
him, activated his blue lights and siren, and stopped the vehicle.
Defendant was the driver of the Dodge Intrepid. After
observing and questioning defendant, Trooper Wilson placed
defendant under arrest for driving while impaired and drove him to
the Forsyth County Detention Center. When attempting to remove the
handcuffs on defendant, Trooper Wilson noticed “a small piece of
plastic sticking out” from defendant's right hand. Defendant then
attempted to raise his hands up, bent his body over to the side,
and opened his mouth as if he was attempting to put the object in
his mouth. Trooper Wilson slapped defendant's right hand and saw
a small plastic bag containing two small, white rocks fall onto the
floor. The plastic bag containing the white rocks was identified
and subsequently introduced at trial as State's Exhibit 3. Trooper
Wilson then asked defendant whether he was under the influence of
alcohol, marijuana, or any other drugs. Defendant admitted he used
cocaine the night before.
Thereafter, Trooper Wilson placed the plastic bag containing
the two rocks into a temporary storage locker at the district's
office in Winston-Salem. Later that day, the evidence was placed
into a permanent storage locker. Trooper Wilson testified the
evidence was later removed from the permanent storage locker to be
sent to the North Carolina State Bureau of Investigation (“SBI”)
laboratory for analysis. Before the evidence was sent to the SBI
laboratory, Trooper Wilson placed it inside a second plastic bag,and then placed it into another larger plastic bag. He placed a
piece of evidence tape across the top of the plastic bag where he
wrote his initials. In addition, defendant's name, a description
of the evidence, and the date of offense was placed on the front of
the plastic bag. Trooper Wilson then placed the evidence, which
was inside three sealed plastic bags, into a manila folder to be
sent to the SBI laboratory. He received the evidence back from the
SBI laboratory sometime after 4 May 2005, gave the evidence to the
evidence supervisor at the district office, and the evidence was
again placed in the permanent evidence locker. The evidence
remained in the permanent evidence locker until it was removed for
defendant's trial.
Special Agent Hope Copeland, a forensic drug chemist assigned
to the SBI crime laboratory in Raleigh, testified that State's
Exhibit 3 was assigned SBI laboratory number R2004-22325, and she
received it in a sealed condition in its first-class mail packaging
on 4 May 2005. Agent Copeland testified that she removed the
substance, which was located inside three sealed plastic bags, to
weigh and analyze it. She determined it to be 0.2 grams of cocaine
base Schedule II. Although she crushed the rocks to make it easier
to test the substance, she testified that crushing the rocks did
not in any way change their chemical composition. After she
analyzed State's Exhibit 3, she returned the material to its
original packaging and sealed it. Agent Copeland then placed the
SBI laboratory number, date and her initials on it. The evidence
remained in her custody until it was mailed back to Trooper Wilson. At trial, Agent Copeland identified State's Exhibit 3 as 0.2 grams
of cocaine base Schedule II and noted it was marked with SBI
laboratory number R2004-22325, as well as her initials and the date
on which she received it.
_________________________
Defendant presents three arguments on appeal. First,
defendant argues the trial court erred by allowing the State's
motion to amend the habitual felon indictment. Second, defendant
argues the trial court erred by admitting State's Exhibit 3 (the
cocaine) into evidence on the ground the State failed to establish
a sufficient chain of custody. Third, defendant argues the trial
court erred by denying his motion to dismiss at the close of the
State's evidence and at the close of all the evidence.
I
Defendant contends the trial court erred by allowing the
State's motion to amend the habitual felon indictment to include
the correct date of offense for one of defendant's prior felony
convictions. We disagree. Section 15A-923(e) of the North
Carolina General Statutes provides that “[a] bill of indictment may
not be amended.” N.C. Gen. Stat. § 15A-923(e) (2005). This
statute, however, has been construed to mean only that an
indictment may not be amended in a way which “'would substantially
alter the charge set forth in the indictment.'”
State v. Brinson,
337 N.C. 764, 767, 448 S.E.2d 822, 824 (1994) (quoting
State v.
Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478,
disc. rev.
denied, 294 N.C. 737, 244 S.E.2d 155 (1978)). Furthermore, “[a]change in an indictment does not constitute an amendment where the
variance was inadvertent and defendant was neither misled nor
surprised as to the nature of the charges.”
State v. Campbell, 133
N.C. App. 531, 535-36, 515 S.E.2d 732, 735,
disc. review denied,
351 N.C. 111, 540 S.E.2d 370 (1999).
In the instant case, the habitual felon indictment against
defendant was supported by three prior felony convictions,
including a conviction in Forsyth County on 23 June 1992 for
possession with intent to sell and deliver cocaine. The habitual
felon indictment correctly listed the date of the conviction of
this offense, however, the habitual felon indictment incorrectly
listed the date of the offense as 12 February 1992 rather than 14
February 1992. The trial court brought this variance to the
parties' attention and the State moved to amend the indictment to
correct the variance. Over defendant's objection, the trial court
allowed the correction.
The variance in the habitual felon indictment in the instant
case was inadvertent. Furthermore, defendant has not asserted he
was surprised or misled by the charge in the original indictment.
As this Court has stated, “it was the fact that another felony was
committed, not its specific date, which was the essential question
in the habitual felon indictment.”
State v. Locklear, 117 N.C.
App. 255, 260, 450 S.E.2d 516, 519 (1994);
see also State v.
Hargett, 148 N.C. App. 688, 693, 559 S.E.2d 282, 286 (holding that
an amendment of a conviction date on an habitual felon indictment
does not constitute a substantial change to the indictment),
disc.review improvidently allowed, 356 N.C. 423, 571 S.E.2d 583 (2002).
Therefore, we conclude the trial court did not err in allowing the
State's motion to amend the habitual felon indictment.
II
Next, defendant contends the trial court erred by admitting
State's Exhibit 3, the cocaine, into evidence on the ground the
State failed to establish a sufficient chain of custody. It is
well-settled that a two-pronged test must be met before real
evidence may be admitted into evidence: (1) the evidence offered
must be identified as the same object in question, and (2) it must
be established that the evidence has not undergone a material
change.
State v. Zuniga, 320 N.C. 233, 255, 357 S.E.2d 898, 912-13
(citation omitted),
cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384
(1987). The trial court has sound discretion to determine the
standard of certainty required to show that the evidence offered is
the same as the one involved in the incident and has not been
changed materially.
Id. “A detailed chain of custody need be
established only when the evidence offered is not readily
identifiable or is susceptible to alteration and there is reason to
believe that it may have been altered.”
Id.
Here, Trooper Wilson testified that after he retrieved the
small plastic bag containing what appeared to be “two small white
rocks,” he placed it into a temporary storage locker at the
district's office in Winston-Salem. Later that day, the evidence
was placed into a permanent storage locker. Only the evidence
supervisor at the district office and the first sergeant had accessto this locker. Before the evidence was sent to the SBI
laboratory, Trooper Wilson placed it inside a second plastic bag,
and then placed it into another larger plastic bag. He placed a
piece of evidence tape across the top of the plastic bag where he
wrote his initials. In addition, defendant's name, a description
of the evidence, and the date of offense was placed on the front of
the plastic bag. Trooper Wilson then placed the evidence, which
was inside three sealed plastic bags, into a manila folder to be
mailed to the SBI laboratory.
Agent Copeland, who was tendered as an expert in forensic
chemistry without objection, testified that State's Exhibit 3 was
sealed and marked with the case information when she received it on
4 May 2005. She further testified she analyzed and weighed the
substance contained in the plastic bags and determined it to be 0.2
grams of cocaine base Schedule II. The evidence remained in Agent
Copeland's custody until it was mailed back to Trooper Wilson.
Trooper Wilson received the evidence back from the SBI laboratory
sometime after 4 May 2005, gave the evidence to the evidence
supervisor at the district office, and the evidence was again
placed in the permanent evidence locker until it was removed for
defendant's trial.
There is no evidence suggesting the seal on the plastic bag
was tampered with before it reached Agent Copeland. Indeed, she
testified that in order for the SBI to receive evidence into the
crime laboratory, it had to be in a sealed and initialed state.
Agent Copeland further testified the evidence was in three sealedplastic bags when she received it. Defendant argues that because
there was no evidence about when State's Exhibit 3 was sent to the
SBI laboratory, Agent Copeland did not analyze the evidence until
nearly one year after it was seized from defendant, and because
there was a weight discrepancy, the State was required to provide
a detailed chain of custody. We disagree.
Any discrepancy in the weight of the evidence may be explained
by the use of different scales by Trooper Wilson and Agent
Copeland. Trooper Wilson testified that he weighed the evidence
with a small, portable scale and determined it weighed 0.3 grams.
Trooper Wilson also testified that he did not remember whether he
weighed the two rocks by themselves or in the plastic bag and that
he did not know whether the scale at the district office was
checked for accuracy. Agent Copeland testified that she removed
the evidence from the plastic bags before weighing it on a
calibrated, electronic balance. Unlike the scale used by Trooper
Wilson, Agent Copeland testified the SBI laboratory maintained a
log of the balance's calibration dates and she checks the weights
of the balance everyday to ensure it is weighing properly.
Furthermore, if there are weak links in the chain of custody, these
links relate to the weight of the evidence, not its admissibility.
Zuniga, 320 N.C. at 255, 357 S.E.2d at 913. Accordingly, this
assignment of error is overruled.
III
Finally, defendant contends the trial court erred by denying
his motion to dismiss at the close of the State's evidence and atthe close of all 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 being the perpetrator
of such offense.”
State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d
914, 918 (1993) (citation and quotations 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 or circumstantial or both.
Id. at 75, 430
S.E.2d at 918-19.
Here, defendant makes three arguments in support of his
contention the trial court erred in denying his motion to dismiss.
First, defendant argues there was insufficient evidence
establishing the chain of custody of the cocaine and, thus, the
State failed to establish the substance in defendant's possession
was cocaine. A motion to dismiss challenges the sufficiency of
all
the evidence, not just one particular piece of evidence.
See
Barnes, 334 N.C. at 75-76, 430 S.E.2d at 918-19. In this 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. As stated above, the
determination 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.
Zuniga, 320 N.C.
at 255, 357 S.E.2d at 913. Accordingly, this argument is without
merit.
Second, defendant argues the trial court erred by failing to
dismiss the habitual felon indictment because the incorrect date
was listed for the offense date for defendant's 23 June 1992
conviction for possession with intent to sell and deliver cocaine.
Because the trial court allowed the State to amend the indictment
to correct this date, we conclude this argument is without merit.
Third, defendant argues the evidence was inadequate to support
defendant's conviction of the habitual felon charge because of
variances between the indictment and the evidence. In particular,
defendant argues the documents relied upon by the State to prove
this charge are inadequate because one of the documents supporting
one of the underlying felony convictions shows defendant's date of
birth as 13 April 1971 and his date of birth is 15 April 1971.
Further, although defendant's correct name is “Eugene Hairston,
Jr.,” documents supporting two of the convictions set forth in the
habitual felon indictment refer to defendant as “Eugene Hairston.”
The evidence, considered in the light most favorable to the
State and giving the State the benefit of every reasonableinference that may be drawn from the evidence, shows that the State
presented documents supporting the habitual felon indictment
including arrest warrants, plea transcripts, and judgments relating
to defendant's previous felony convictions. With respect to
defendant's 15 October 1996 conviction, the judgment correctly
identifies defendant as “Eugene Hairston, Jr.” but incorrectly
lists his date of birth as 13 April 1971. However, the transcript
of plea for that conviction, which was signed by defendant,
correctly lists defendant's date of birth as 15 April 1971.
Further, although the judgment for one of the underlying
convictions (02 CRS 9295) identifies defendant as “Eugene
Hairston,” the transcript of plea relating to that conviction is
signed “Eugene Hairston, Jr.” Accordingly, we conclude there was
sufficient evidence from which the jury could find that defendant
was convicted of the offenses set forth in the habitual felon
indictment. This assignment of error is overruled.
No error.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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