Converted WP file 060430-1

Appeal by defendant from judgments entered 21 September 2005 by Judge Jerry Braswell in Onslow County Superior Court. Heard in the Court of Appeals 2 November 2006.

Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State.

Geoffrey W. Hosford for defendant.

    LEVINSON, Judge.

    Defendant appeals judgments entered upon his convictions for (1) trafficking in cocaine by possession, transportation and manufacturing; (2) trafficking in methylenedioxymethamphetamine (MDMA) by possession, transportation and manufacturing; (3) manufacturing cocaine; (4) manufacturing MDMA; (5) possession with intent to sell and deliver cocaine; (6) possession with the intent to sell and deliver MDMA; and (7) intentionally maintaining a vehicle to keep and sell MDMA. We reverse the convictions for trafficking in cocaine and MDMA by manufacturing, but leave the remaining convictions undisturbed.
    The pertinent facts may be summarized as follows: On or about 6 March 2004 Detective Jason Holland of the Jacksonville PoliceDepartment arrested Thomas Paradis for possession of MDMA. Upon being interviewed, Paradis informed Holland that he had obtained the MDMA from defendant Jason Nelson. Paradis further explained that he would typically purchase approximately fifty tablets of MDMA per week from defendant, which he would then resell. Paradis also noted that he observed defendant in possession of a bag, which Holland estimated contained approximately three to four thousand MDMA pills. Holland arranged for Paradis to meet with defendant and to request that defendant bring him 100 tablets of MDMA and one ounce of cocaine. The meeting would be monitored by law enforcement in hopes of arresting defendant for drug trafficking.
    On 10 March 2004 Paradis arranged to meet defendant at a Wilco gas station where they would exchange the money provided by Holland for the narcotics. Paradis was wearing a recording device and was instructed to verbally notify law enforcement when defendant entered the parking lot. At 9:54 p.m., a silver Chevrolet Malibu pulled into the Wilco parking lot. Paradis, who had been waiting in his car, exited and began to pump gas. At that time, Paradis gave a verbal signal to the police, informing them that the driver of the silver car was defendant. Law enforcement then rushed toward defendant's car, and an officer tackled defendant as he exited the vehicle. As they were tackling him, defendant reached into his coat and threw an object underneath the car. The officers located a bag of cocaine under the car, which they logged and photographed.    Defendant's car was then transported to the police department and searched. As a result, police discovered two DVD cases on the rear dashboard of the vehicle. Each case had been taped shut and each contained MDMA tablets behind the picture sleeves. Law enforcement counted 100 individual pills, 50 in each DVD case; numbered each pill individually; and photographed them. The bag of cocaine weighed 29.1 grams. Officer Holland interviewed defendant after his arrest. Defendant stated that he had gone to Florida to pick up two kilos of cocaine and that he was given two ounces of cocaine in payment for transporting the two kilos. Defendant also informed Holland that he and another individual had driven to New Jersey, where they could pick up 3000 to 5000 MDMA pills.
    Shane Moore, a forensic chemist with the SBI, testified. Moore testified that the bag contained 27.8 grams of cocaine. Moore explained that when he weighed the cocaine, he took it out of the bag. Normally, there would be a residual amount of cocaine that could not be removed from the bag's lining. Moore also testified that when a substance like cocaine lies in storage for a year it could “dry out”, thereby further reducing its weight.
    With respect to the MDMA, Moore testified that he received two
bags of MDMA _ one containing 43 tablets (and fragments and powder) and another with 44 tablets (and fragments and powder). Moore testified that he had seen numerous occasions when pills or tablets were crushed during their shipment to the lab. Moore tested the pills, fragments, and powder, and determined that the total weight of the MDMA was 25.6 grams.    Defendant was convicted of trafficking in cocaine and MDMA by possession, transportation and manufacturing; manufacturing cocaine and MDMA; possession with intent to sell and deliver cocaine and MDMA; and intentionally maintaining a vehicle for the possession of controlled substances. Defendant appeals.
    Defendant argues first that the trial court erred by failing to grant his motion to dismiss the charges of trafficking in cocaine and MDMA by possession and transportation because no substantial evidence of the required weight of the narcotics was presented.   (See footnote 1) We disagree.
    When ruling on a motion to dismiss, “the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996).
        Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh theevidence, consider evidence unfavorable to the State, or determine any witness' credibility.

State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (2002) (internal citations and quotation marks omitted). “[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both.” State v. Crouse, 169 N.C. App. 382, 389, 610 S.E.2d 454, 459 (2005)
(quoting State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981)).
    N.C. Gen. Stat. § 90-95(h)(3)(a) (2005) provides, in pertinent part, that “[a]ny person who . . . transports, or possesses 28 grams or more of cocaine . . . shall be guilty of a felony, . . . and . . . shall be sentenced to a minimum term of 35 months and a maximum term of 42 months . . . .” Consequently, “[t]he elements the State must prove beyond a reasonable doubt to support a conviction of trafficking in cocaine or methamphetamine by possession is that defendant: '(1) knowingly possess[ed] cocaine [or methamphetamine;] and (2) that the amount possessed was 28 grams or more.'” State v. Cardenas, 169 N.C. App. 404, 409, 610 S.E.2d 240, 243-244 (2005)(quoting State v. White, 104 N.C. App. 165, 168, 408 S.E.2d 871, 873 (1991)). Additionally, in order for the State to meet its burden of the weight element for the offenses of trafficking in cocaine by possession and transportation “the State 'must either offer evidence of its actual, measured weight or demonstrate that the quantity of [the controlled substance] itself is so large as to permit a reasonable inference that its weightsatisfied this element.'” State v. Shook, 155 N.C. App. 183, 186, 573 S.E.2d 249, 251 (2002) (quoting State v. Mitchell, 336 N.C. 22, 28, 442 S.E.2d 24, 27 (1994)).
    In the instant case, the State presented evidence showing that the bag of cocaine seized from under defendant's vehicle weighed 29.1 grams at the police station. Approximately one year thereafter, after having had an opportunity to “dry out,” and after being removed from a bag that, according to the chemist, still had cocaine residue inside the bag that could not be removed, the cocaine weighed 27.8 grams. On this record, the jury could reasonably infer that the statutory threshold for trafficking was satisfied. This assignment of error is therefore overruled.
    N.C. Gen. Stat. § 90-95(4b)(a) (2005) also contains a weight threshold for “trafficking in MDMA.” The statute provides, in pertinent part, that:
        [a]ny person who . . . transports, or possesses 100 or more tablets, capsules, or other dosage units, or 28 grams or more of . . . methylenedioxyamphetamine (MDMA) . . . shall be guilty of a felony, . . . [and][i]f the quantity of the substance or mixture involved . . . [i]s 100 or more tablets, capsules, or other dosage units, or 28 grams or more . . . shall be sentenced to a minimum term of 35 months and a maximum term of 42 months. . . .

Therefore, in order to meet the trafficking threshold as to MDMA, the State must present substantial evidence that defendant possessed or transported 100 or more dosage units of MDMA or 28 grams or more of MDMA.     In the instant case, Paradis requested 100 tablets of MDMA from defendant. Additionally, as a result of law enforcement's search of defendants vehicle, two DVD cases on the rear dashboard of the vehicle were discovered. Each case had been taped shut, and each contained tablets of MDMA hidden behind the picture sleeves. Law enforcement confiscated 100 individual pills, 50 in each DVD case; numbered each pill individually; and photographed them. Hence, the jury could find that defendant possessed and transported 100 tablets of MDMA. Accordingly, this assignment of error is overruled.
    In defendant's next argument, he contends the trial court erred by failing to grant his motions to dismiss the charges of trafficking in cocaine and MDMA by manufacture because no substantial evidence was presented showing that defendant packaged or repackaged the narcotics. This argument has merit.
    N.C. Gen. Stat. § 90-87(15) (2005) defines manufacturing as:
        the production, preparation, propagation, compounding, conversion, or processing of a controlled substance by any means, whether directly or indirectly, artificially or naturally, or by extraction from substances of a natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis; and “manufacture” further includes any packaging or repackaging of the substance or labeling or relabeling of its container except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance. . . .

“This Court has held that there was sufficient evidence of manufacturing where the instruments of manufacture are foundtogether with [the particular narcotic] which was apparently manufactured.” State v. Outlaw, 96 N.C. App. 192, 198, 385 S.E.2d 165, 169 (1989)(internal citations omitted); see also State v. Perry, 316 N.C. 87, 99, 340 S.E.2d 450, 458 (1986) ( sufficient evidence presented showing defendant manufactured heroin by packaging where police discovered rubber gloves, boxes with empty bindles or envelopes, a strainer, aluminum foil, measuring spoons and other items in defendant's apartment ).
    In the instant case, the record is devoid of evidence tending to indicate that defendant packaged or repackaged either the cocaine or MDMA that law enforcement seized from his vehicle. No evidence linked the one ounce bag of cocaine and the MDMA taped to the inside of two DVD cases to the large quantities of narcotics procured by defendant from his sources in Florida and New Jersey. Furthermore, no evidence was offered that law enforcement seized any implements of manufacturing, that defendant broke the drugs into smaller units, or that he placed them into the packaging. Consequently, the relevant judgments of trafficking in cocaine by manufacture and trafficking in MDMA by manufacture must be reversed.
    In defendant's final argument on appeal, he contends that he is entitled to a new trial because the State, while utilizing its peremptory challenges during jury selection, discriminated against two African-American jurors on the basis of race.
    Racial discrimination in the exercise of peremptory challenges is barred by the Equal Protection Clause of the FourteenthAmendment to the U.S. Constitution. Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 83 (1986). In Batson, the United States Supreme Court:
        outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. . . . First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865- 66, 114 L. Ed. 2d 395, 405 (1991) (citing Batson, 476 U.S. at 96-98, 90 L. Ed. 2d at 87-89). In reviewing a court's determination that defendant failed to make out a prima facie case, this Court must evaluate an array of relevant factors including:
        (1) the characteristic in question of the defendant, the victim and any key witnesses;

        (2) questions and comments made by the prosecutor during jury selection which tend to support or contradict an inference of discrimination based upon the characteristic in question;

        (3) the frequent exercise of peremptory challenges to prospective jurors with the characteristic in question that tends to establish a pattern, or the use of a disproportionate number of peremptory challenges against venire members with the characteristic in question;

        (4) whether the State exercised all of its peremptory challenges; and
            (5) the ultimate makeup of the jury in light of the characteristic in question.

State v. Wiggins, 159 N.C. App. 252, 263, 584 S.E.2d 303, 312 (2003)(citing State v. Call, 349 N.C. 382, 404, 508 S.E.2d 496, 510 (1998)).
    In the instant case, the record reveals the following relevant, yet limited, information: Defendant renewed a Batson motion regarding the State's dismissal of two African-American jurors, who defendant asserts were the only two African-Americans in the jury pool at the time. The trial court, having determined that defendant made a prima facie showing that the State exercised its peremptory challenges on the basis of race, asked the State to provide a legitimate non-discriminatory reason. The State articulated that juror number 4 was dismissed because he was “single, had no children, no real ties to the community . . . and it's been [the State's] experience that they do not make jurors that are favorable to the State . . . .” In addition, the State dismissed juror number 5 “due to an inciden[t] that he had in Goldsboro where he was charged with some drug offenses.” Defendant
responded by contending that such reasons proffered by the State were pretextual, and that the dismissals constituted impermissible exclusion of potential jurors on the basis of race. The trial court denied defendant's motion, concluding that prior to the excusal of juror numbers 4 and 5, the State had impaneled three African-American jurors.
    After careful evaluation, we conclude that the record is insufficient to permit proper appellate review of this issue. Therecord does not include a transcript or other documents which reconstruct the relevant details of voir dire. Without such materials setting forth the pertinent aspects of jury selection, this Court does not have enough information to assess defendant's claim. For example, the record does not indicate the total number of potential jurors questioned by the prosecutor; their races; the number or percentage accepted; whether similarly situated prospective jurors received disparate treatment on the basis of race; the State's pattern and practice of using peremptory challenges, particularly against members of minority groups; or whether the remarks to the pool of prospective jurors indicated any discriminatory purpose. See State v. Shelman, 159 N.C. App. 300, 310, 584 S.E.2d 88, 96 (2003).
    In addition, the transcript of the trial court's discussion with defense counsel regarding defendant's Batson challenge is not an adequate substitute for these factual details:
        [Counsel's statement] cannot serve as a substitute for record proof. . . . We hold that as a rule of practice, counsel who seek to rely upon an alleged impropriety in the jury selection process must provide the reviewing court with the relevant portions of the transcript of the jury voir dire.

Shelman, 159 N.C. App. at 311, 584 S.E.2d at 96.

    Consequently, because the record fails to supply information in sufficient detail to enable this Court to conduct appellate review of whether the potential jurors were peremptorily excluded for a racially discriminatory purpose, this assignment of error must be overruled.    Finally, we observe that judgments were entered not only on the convictions for (1) trafficking by manufacturing cocaine and (2) trafficking by manufacturing MDMA, but also on the separate offenses of (1) manufacturing cocaine and (2) manufacturing MDMA charged in a two-count indictment in 04 CRS 52280. Defendant filed a motion for appropriate relief (MAR) in the trial division on 26 September 2005, seeking to arrest judgment as to the manufacturing offenses set forth in 04 CRS 52280 on the grounds that “these are lesser included offenses in trafficking cocaine by manufacture . . . and trafficking in MDA/MDMA by manufacture. . . .” In an order entered 7 April 2006, the trial court denied this MAR. On appeal, no arguments were set forth in defendant's brief concerning the two manufacturing offenses charged in 04 CRS 52280, and no MAR has been filed in this Court concerning them. We must therefore leave undisturbed the convictions resulting from the indictment in 04 CRS 52280.
    No error in part; reversed in part and remanded for re- sentencing consistent with this opinion.
    Judges GEER and JACKSON concur.
    Report per Rule 30(e).