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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. JOHN JOSEPH MANNING
Filed: 19 June 2007
1. Drugs--weight of marijuana--foundation for scales
The trial court did not abuse its discretion in a trafficking in marijuana, possession with
intent to sell or distribute marijuana, maintaining a dwelling for the purpose of keeping
controlled substances, and double possession of drug paraphernalia case by admitting evidence of
the weight of the marijuana allegedly without adequate foundation that the instrument used to
weigh the marijuana was properly assembled, calibrated, and tested, because: (1) the State's
evidence tended to show that ordinary scales, common procedures, and reasonable steps to
ensure accuracy were utilized when the marijuana was weighed; (2) the testimony of two
witnesses established an adequate foundation that the scale used to weigh the marijuana was
properly functioning; and (3) the weight element upon a charge of trafficking in marijuana
becomes more critical if the State's evidence of the weight approaches the minimum weight
charged, and the weight recorded at Toledo Scales was 25.5 pounds which exceeded the
minimum weight charged by 15.5 pounds.
2. Drugs_-trafficking in marijuana--motion to dismiss--sufficiency of evidence--weight
The trial court did not err by failing to dismiss the charge of trafficking in marijuana
based on alleged insufficient evidence of the weight of the marijuana, because: (1) although
defendant was allowed to present evidence that the State's offered weight of marijuana included
substances not within the definition such as mature stalk, it then becomes the jury's duty to
accurately weigh the evidence; and (2) the State presented sufficient evidence tending to show
the weight of the marijuana exceeded the minimum ten pounds.
Appeal by defendant from judgment entered 2 March 2006 by
Judge John E. Nobles, Jr., in New Hanover County Superior Court.
Heard in the Court of Appeals 4 June 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Harriet F. Worley, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott
Holmes, for defendant-appellant.
John Joseph Manning (defendant) appeals from judgment
entered after a jury found him to be guilty of trafficking inmarijuana pursuant to N.C. Gen. Stat. § 90-95(H)(1), possession
with intent to sell or distribute marijuana pursuant to N.C. Gen.
Stat. § 90-95(A), maintaining a dwelling for the purpose of keeping
controlled substances pursuant to N.C. Gen. Stat. § 90-108(A)(7),
and two counts of possession of drug paraphernalia pursuant to N.C.
Gen. Stat. § 90-113.22. We find no error.
Around April 2001, Brian Gonzales (Gonzales) approached
defendant and offered to pay him $1,000.00 per month to use
defendant's property to grow marijuana. Defendant agreed.
Gonzales acquired two metal shipping containers and placed them on
defendant's property. One of the metal shipping containers
measured approximately forty feet long, and the other was
approximately twenty feet long. Both containers extended eight
Over a period of time covering three to five months, Gonzales,
with defendant's assistance, constructed marijuana growing
facilities inside the containers. Gonzales testified defendant
assisted in the construction and operation of the growing
facilities inside the containers by: (1) installing the electrical
lines for lighting; (2) installing water pumps; (3) diverting water
from a well on defendant's property to water the marijuana plants;
(4) planting seeds; (5) picking out strains of marijuana that were
sufficient for the operation; (6) growing seeds; and (7) harvesting
the plants to sell. On 3 April 2002, officers with the New Hanover County
Sheriff's Office obtained a search warrant and searched defendant's
residence and shipping containers. The officers cut locks off the
container doors to gain access. Inside the containers, the
officers discovered 731 marijuana plants in various stages of
growth, lights, a sprinkler system, fertilizer, soil, and growth
charts for the marijuana.
The officers called narcotics officers to the scene to collect
and preserve the evidence found inside the containers. The
narcotics officers collected the plants by cutting each plant above
the root ball and placing them inside two thirty-gallon black
plastic bags. The officers took the bags to the vice and narcotics
office where they transferred the plants into more breathable brown
On the following morning, 4 April 2002, Lieutenant Barney
Lacock (Lieutenant Lacock) transported the brown paper bags
containing the marijuana to Toledo Scales to determine the
marijuana's green weight -- the plant material's weight at the time
it is harvested. James Martin (Martin), service manager at
Toledo Scales, weighed the bags. The total green weight of the
bags and their contents was 25.5 pounds.
During cross-examination Martin testified: (1) he did not
possess personal knowledge about whether the scales were properly
assembled; (2) the scale used to weigh the marijuana was newly
assembled; (3) if the scale was not properly assembled, it would
not balance at zero; (4) if the scale balances at zero, it iscorrectly calibrated; (5) when he weighed the marijuana, the scales
balanced at zero; (6) he had checked approximately 100 scales, and
of those scales, only one was incorrectly calibrated, and it was
manufactured by a different company than the scale in question; (7)
the particular scale in question was sold sometime after the day it
was used to weigh the marijuana; and (8) since that date, he had
not received any service calls on that particular scale.
Lieutenant Lacock testified that he observed Martin zero the scale.
After being weighed, the bags containing marijuana were
transferred into three boxes and stored inside a drug vault at the
New Hanover County Sheriff's Office. Some of the plant material
decomposed while being stored. On 19 April 2002, the evidence was
sent to the SBI laboratory, where it was analyzed and weighed
again. On 7 May 2002, an SBI chemist recorded the marijuana's dry
weight to be 6.9 pounds.
On 25 August 2005, the marijuana was examined by Charles
Williams (Williams), an expert for the defense in the fields of
agronomy and horticulture. Williams agreed with the State that the
only way to determine the true weight of the plant material,
including stalks, roots, leaves, and flowers was to determine its
green weight. Williams testified: (1) the plant material was
significantly decomposed at the time he examined it; (2)
approximately thirty to forty percent of the plant material was
mature stalks; (3) approximately ten percent of the plant material
had reached sufficient maturity to produce a flower or bud at the
time law enforcement officers harvested the plants; (4) the stalksof a plant can be considered mature even if a plant is not ready to
be harvested; (5) it did not appear that the mature stalks were
separated from any of the other parts of the plants; and (6) the
green weight of the marijuana plants, excluding the mature stalks,
at the time of the seizure was 5.1 to 10.2 pounds. Defendant did
Defendant was tried before a jury on 27 February 2006. At the
close of the State's evidence, the trial court granted defendant's
motion to dismiss the charges of trafficking and conspiracy to
traffic more than ten pounds by manufacturing.
The jury found the defendant to be guilty of: (1) trafficking
in marijuana pursuant to N.C. Gen. Stat. § 90-95(H)(1); (2)
possession with intent to sell and distribute marijuana pursuant to
N.C. Gen. Stat. § 90-95(A); (3) two counts of possession of drug
paraphernalia pursuant to N.C. Gen. Stat. § 90-113.22; and (4)
maintaining a dwelling for the purpose of keeping a controlled
substance pursuant to N.C. Gen. Stat. § 90-108(A)(7). Defendant
was sentenced to a minimum of twenty-five and a maximum of thirty
months imprisonment. Defendant appeals.
Defendant argues the trial court erred in: (1) admitting
evidence of the weight of the marijuana without adequate foundation
that the instrument used to weigh the marijuana was properly
assembled, calibrated, and tested and (2) failing to dismiss the
charge of trafficking in marijuana because the State tendered
insufficient evidence of the weight of the marijuana.
III. Weight of the Marijuana
A. Standard of Review
The standard of review for this Court
assessing evidentiary rulings is abuse of
discretion. State v. Boston, 165 N.C. App.
214, 218, 598 S.E.2d 163, 166 (2004). A trial
court may be reversed for an abuse of
discretion only upon a showing that its ruling
was so arbitrary that it could not have been
the result of a reasoned decision. State v.
Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747
(1985) (citing State V. Wilson, 313 N.C. 516,
538, 330 S.E.2d 450, 465 (1985)).
State v. Hagans, 177 N.C. App. 17, 23, 628 S.E.2d 776, 781 (2006).
 Defendant argues that the trial court erred in admitting
evidence of the weight of the marijuana without an adequate
foundation that the scale used to weigh the marijuana was properly
functioning, maintained, and calibrated. We disagree.
Defendant contends the testimony showed: (1) the scales used
to weigh the marijuana were assembled recently; (2) the person who
weighed the plants had no knowledge of whether the scales were
assembled or calibrated properly; and (3) no tests were performed
on the scale to determine whether it was accurate.
In State v. Diaz, this Court considered a proper foundation
for evidence of weight of marijuana. 88 N.C. App. 699, 365 S.E.2d
7, cert. denied, 322 N.C. 327, 368 S.E.2d 870 (1988). In Diaz, the
defendant claimed the trial court erred in admitting evidence of
the weight of the marijuana because the State failed to establish
a proper foundation for that testimony. 88 N.C. App. at 701-02,
365 S.E.2d at 9. The defendant asserted the State failed to showthat the person who weighed the marijuana was qualified and failed
to demonstrate the scales were in working order on the day of the
weighing. Id. at 701, 365 S.E.2d at 9. We stated, Unlike tests
that are prescribed by statute such as the breathalyzer test, the
criminal statutes do not provide specific procedures for obtaining
weights of contraband. Thus ordinary scales, common procedures,
and reasonable steps to ensure accuracy must suffice. Id. at 702,
365 S.E.2d at 9.
In Diaz, Agent McLeod, the law enforcement agent present when
the marijuana was weighed, described the procedure by which the
weight was taken. 88 N.C. App. at 702, 365 S.E.2d at 9 Law
enforcement officers transported three trucks to a fertilizer store
where they were weighed full. Id. The marijuana was unloaded and
the trucks were weighed empty. Id. The cargo weighed 43,450
pounds. Id. Agent McLeod stated that the scales were certified
within seven months of the weighing. Id. Based upon Agent
McLeod's testimony, this Court concluded that the foundation was
adequate for admission of the evidence of weight. Id.
Here, the State's evidence tended to show that ordinary
scales, common procedures, and reasonable steps to ensure accuracy
were utilized when the marijuana was weighed. Id. Martin and
Lieutenant Lacock's testimony established an adequate foundation
that the scale used to weigh the marijuana was properly
functioning. Martin testified: (1) if the scale was not properly
assembled, it would not balance at zero; (2) if the scale balances
at zero, it is correctly balanced; (3)the scale balanced at zero onthe day he weighed the marijuana; (4) he had seen 100 or more of
the particular scale model in question; (5) he assembled
approximately twenty-five scales of the same model; (6) once the
scale is assembled, it was normal procedure to put weight on the
scale to check calibration; (7) over a period of twenty years he
had checked approximately 100 scales, and of those scales, only one
was incorrectly calibrated, and it was manufactured by a different
company than the scale in question; (8) the particular scale in
question was sold sometime after the day it was used to weigh the
marijuana; and (9) he had not received any services calls on that
particular scale. Lieutenant Lacock testified that he took the
marijuana to Toledo Scales to be weighed and observed Martin zero
Moreover, this Court noted in Diaz that 'the weight element
upon a charge of trafficking in marijuana becomes more critical if
the State's evidence of the weight approaches the minimum weight
charged.' Id. (quoting State v. Anderson, 57 N.C. App. 602, 608,
292 S.E.2d 163, 167, cert. denied, 306 N.C. 559, 294 S.E.2d 372
(1982)). Here, the weight recorded at Toledo Scales was 25.5
pounds, which exceeds the minimum weight charged by 15.5 pounds.
In support of his contentions, defendant cites State v. Mason,
144 N.C. App. 20, 26-27, 550 S.E.2d 10, 15-16 (2001) (error to
admit evidence of a videotape recording when [n]one of the State's
witnesses gave testimony to indicate that there was any routine
maintenance or testing of the security system in question) and
State v. Sibley, 140 N.C. App. 584, 586, 537 S.E.2d 835, 837-38(2000) (videotape inadmissible because not properly authenticated
since State failed to call any witnesses to testify that the camera
was functioning properly or that the tape accurately represented
the events that were filmed).
Both Mason and Sibley involve authentication of videotape
recordings, which have specific requirements in laying a proper
foundation for their admission. Mason sets out four elements
needed to lay a proper foundation before a videotape can be
admitted. 144 N.C. App. at 25, 550 S.E.2d at 14. These elements
are unique to videotapes and are different from those set out in
Diaz for a proper foundation for the admission of evidence of
Diaz only requires that the State present evidence of
ordinary scales, common procedures, and reasonable steps to ensure
accuracy. 88 N.C. App. at 702, 365 S.E.2d at 9. The State
presented sufficient evidence to establish a proper foundation
through the testimony of Martin and Lieutenant Lacock to support
the admission of the weight of the marijuana. The trial court did
not err in admitting evidence of the marijuana's weight. This
assignment of error is overruled.
IV. Motion to Dismiss
A. Standard of Review
The standard for ruling on a motion to dismiss
is whether there is substantial evidence (1)
of each essential element of the offense
charged and (2) that defendant is the
perpetrator of the offense. Substantial
evidence is relevant evidence which a
reasonable mind might accept as adequate to
support a conclusion. In ruling on a motionto dismiss, the trial court must consider all
of the evidence in the light most favorable to
the State, and the State is entitled to all
reasonable inferences which may be drawn from
the evidence. Any contradictions or
discrepancies arising from the evidence are
properly left for the jury to resolve and do
not warrant dismissal.
State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005)
(internal quotations omitted). This Court stated in State v.
Hamilton, [i]n 'borderline' or close cases, our courts have
consistently expressed a preference for submitting issues to the
jury, both in reliance on the common sense and fairness of the
twelve and to avoid unnecessary appeals. 77 N.C. App. 506, 512,
335 S.E.2d 506, 510 (internal citations omitted), disc. rev.
denied, 315 N.C. 593, 341 S.E.2d 33 (1986).
 Defendant argues the State presented insufficient evidence
of the marijuana's weight and that the trial court erred in denying
his motion to dismiss the trafficking charge. We disagree.
Defendant claims the State included mature stalks in the
weight of the marijuana, which are excluded from the statutory
definition of marijuana. N.C. Gen. Stat. § 90-87(16) (2005).
Defendant was indicted under N.C. Gen. Stat. § 90-95(h)(1), which
Any person who sells, manufactures, delivers,
transports, or possesses in excess of 10
pounds (avoirdupois) of marijuana shall be
guilty of a felony which felony shall be known
as trafficking in marijuana and if the
quantity of such substance involved is in
excess of 10 pounds, but less than 50 pounds,
such person shall be punished as a Class H
felon and shall be sentenced to a minimum termof 25 months and a maximum term of thirty
months in the State's prison and shall be
fined not less than five thousand dollars
N.C. Gen. Stat. § 90-95(h)(1) (2005).
Proving the weight of the marijuana is an essential element
of the trafficking offense. State v. Gonzales, 164 N.C. App. 512,
515, 596 S.E.2d 297, 299 (2004), aff'd, 359 N.C. 420, 611 S.E.2d
832 (2005). To prove the element of weight, the State must either
offer evidence of its actual, measured weight or demonstrate that
the quantity of marijuana itself is so large as to permit a
reasonable inference that its weight satisfied this element.
State v. Mitchell, 336 N.C. 22, 28, 442 S.E.2d 24, 27 (1994). The
statutory definition of marijuana reads:
Marijuana . . . shall not include the mature
stalks of such plant, fiber produced from such
stalks, oil, or cake made from the seeds of
such plant, any other compound, manufacture,
salt, derivative, mixture, or preparation of
such mature stalks, . . . fiber, oil, or cake,
or the sterilized seed of such plant which is
incapable of germination.
N.C. Gen. Stat. § 90-87(16) (2005) (emphasis supplied).
In State v. Gonzales, this Court held, [t]hose parts of the
plant not included in the statutory definition of marijuana, such
as the mature stalks and sterilized seeds, are necessarily not to
be included in the weight of the marijuana when determining a
trafficking charge. 164 N.C. App. 512, 515, 596 S.E.2d 297, 299
(2004) (emphasis supplied). Under the statute, mature stalks and
sterilized seeds are not marijuana. Id. Defendant must make an affirmative showing that the weight of
the marijuana improperly included materials excluded from the
definition of marijuana. Id. In Gonzales, this Court concluded
it is the defendant's burden to show that any part of the seized
matter is not 'marijuana' as defined. 164 N.C. App. at 516, 596
S.E.2d at 300. In State v. Anderson, this Court held the burden
is on the defendant to show that stalks were mature or that any
other part of the matter or material seized did not qualify as
'marijuana.' 57 N.C. App. 602, 608, 292 S.E.2d 163, 167, cert.
denied, 306 N.C. 559, 294 S.E.2d 372 (1982).
Once defendant offers evidence tending to show the total
weight may have included mature stalks, the burden does not shift
to the State for further evidence, as defendant contends. The
issue of the weight of the marijuana becomes one for the jury.
We held in Gonzales, where the defendant does come forth with
evidence that the State's offered weight of the marijuana includes
substances not within the definition (e.g., mature stems or sterile
seeds), it then becomes the jury's duty to accurately 'weigh' the
evidence. 164 N.C. App. at 516, 596 S.E.2d at 300. We concluded,
[i]n North Carolina, establishing the weight element of a
trafficking charge is a question the jury must determine beyond a
reasonable doubt. Id. at 519, 596 S.E.2d at 301.
The State met its burden on the issue of weight by presenting
the testimony of Martin and Lieutenant Lacock that the marijuana's
green weight was 25.5 pounds. Martin testified that he calibrated
the scale, weighed the marijuana, and recorded its weight at 25.5pounds. Lieutenant Lacock testified that he observed Martin zero
the scale and weigh the marijuana. The State also offered evidence
that the 25.5 pounds was the marijuana's green weight. The
marijuana was taken by Lieutenant Lacock and weighed the morning
after it had been harvested. Defendant's own expert agreed that
the only way to determine the true weight of marijuana was to
determine its weight at the time it was harvested. The SBI
Laboratory determined the marijuana's weight to be 6.9 pounds.
This weight was taken a month after the marijuana had been
harvested and only represented the marijuana's dry weight.
Defendant's expert witness, Williams, estimated between thirty
to forty percent of the plant material appeared to be mature stalks
and twenty to forty percent, or 5.1 to 10.2 pounds, of the original
green weight was leaves and flowers. Using defendant's expert's
estimate that forty percent of the plant material was mature stalk,
the total weight of the remaining marijuana would be 15.3 pounds,
more than the ten pound minimum required by the statute. Under
Gonzales, defendant was allowed to present this evidence to rebut
the State's evidence and this evidence only creates an issue of
fact for the jury to determine the weight. 164 N.C. App. at 516,
596 S.E.2d at 300.
The State presented sufficient evidence tending to show the
weight of the marijuana exceeded ten pounds to overcome defendant's
motion to dismiss the trafficking charge. This assignment of error
The State established a proper foundation and presented
sufficient evidence to introduce evidence that the weight of the
marijuana seized from defendant exceeded the ten pound minimum as
required by statute. Defendant received a fair trial, free from
prejudicial errors he preserved, assigned and argued.
Chief Judge MARTIN and Judge MCCULLOUGH concurs.
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