Appeal by Defendant from judgment dated 11 May 2006 by Judge
James U. Downs in Superior Court, Haywood County. Heard in the
Court of Appeals 23 May 2007.
Attorney General Roy Cooper, by Assistant Attorney General
James M. Stanley, Jr., for the State.
James N. Freeman, Jr. for Defendant-Appellant.
Defendant was indicted on 28 March 2005 for
possession/distribution of a precursor chemical in violation of
N.C. Gen. Stat. § 90-95(d1)(2). The indictment alleged that on or
about 19 January 2005, Defendant "did possess or distribute an
immediate precursor chemical, Pseudoephedrine, with the intent to
manufacture a controlled substance or having reasonable cause to
believe that the immediate precursor chemical will be used to
manufacture a controlled substance, Methamphetamine." The jury
found Defendant guilty of "possession of immediate precursor
chemical/chemicals" on 11 May 2006. The trial court sentenced
Defendant to a term of twenty-one months to twenty-six months in
prison. Defendant appeals.
At trial, Trooper Travis Crisp of the North Carolina Highway
Patrol testified that on 19 January 2005, he stopped a Nissan
Sentra (the Nissan) in Haywood County because the driver was not
wearing a seatbelt. Trooper Crisp testified that he approached the
Nissan and saw two women sitting in the front seat, and a man
sitting in the back. Trooper Crisp identified Defendant as the
man sitting in the back of the Nissan. Trooper Crisp testified
that he "ran the tag, [and] the DMV system returned a response
. . . that that tag belonged on a 1987 Plymouth and not a Nissan
[S]entra." Trooper Crisp then entered the Nissan's identification
number into his computer and a "screen popped up" indicating the
Nissan was stolen. Trooper Crisp called for backup.
Trooper Crisp testified that Defendant said his name was
Harold Baker, and that he was from Jackson County. Trooper Crisp
then testified as follows:
Q When were you able to determine
[Defendant's] real identity?
A I was able to determine [Defendant's] real
identity at the Haywood County Sheriff's
Office, which was sometime later, when Officer
Mark Mease came into the Sheriff's Office.
[DEFENSE COUNSEL]: Objection, Your Honor;
THE COURT: Overruled.
TROOPER CRISP: When Deputy Mark Mease came in
the Sheriff's Office and knew [Defendant] from
many previous encounters with him.
BY [THE STATE]:
Q Can you describe [Defendant's] demeanor
during this time?
A [Defendant] was --
[DEFENSE COUNSEL]: We object, Your Honor.
I think this is going to run afoul of
. . .
THE COURT: Overruled. Go ahead. What
was his demeanor.
TROOPER CRISP: [Defendant] was extremely
uncooperative. He cussed me, cussed
Lieutenant Henline, cussed everyone there,
would not give us his correct name. I think
just an overall very uncooperative person,
very loud, very insulting that day. Just as
many cuss words as you can think he probably
said it that day.
[DEFENSE COUNSEL]: We move to strike
that, Your Honor, as irrelevant, in
addition to being 404.
THE COURT: Denied.
Lieutenant Dean Henline with the Haywood County Sheriff's
Department testified that he responded to Trooper Crisp's call for
backup on 19 January 2005. Lieutenant Henline testified that when
he arrived on the scene, the two women and the man were no longer
in the Nissan. He saw cold tablets in the passenger area of the
Nissan, batteries under the passenger seat, and coffee filters in
the trunk of the Nissan.
Investigator Bruce Warren with the Haywood County Sheriff's
Department testified that he searched the Nissan on 19 January
2005. Investigator Warren found a lithium battery under the front
passenger seat. He also found a red Actifed box in the front
passenger area of the Nissan and testified that the active
ingredient of the pills inside the box was pseudoephedrine.
Investigator Warren also found nineteen boxes in the trunk of theNissan, and the active ingredient listed on those boxes was also
pseudoephedrine. Investigator Warren testified pseudoephedrine was
recognized as a precursor chemical to methamphetamine. He further
testified that he found coffee filters, two digital scales, and a
syringe in the trunk of the Nissan.
Deputy Mark Mease of the Haywood County Sheriff's Department
testified that he had been in law enforcement almost five years and
that in 2003, he attended methamphetamine clandestine laboratory
investigation school in Nashville, Tennessee, through the Drug
Enforcement Administration (DEA). Deputy Mease further testified
that in February 2006, he was certified in Quantico, Virginia, to
enter and investigate clandestine methamphetamine laboratories. In
March 2006, he took a basic two-week DEA class for the
investigation of drug activity, in Atlanta, Georgia. Deputy Mease
testified that in his capacity as a law enforcement officer, he had
worked in twelve or more methamphetamine laboratories, and that as
part of his training, he had learned how to manufacture
methamphetamine. Deputy Mease testified that the coffee filters,
the lithium battery, and the pseudoephedrine found in the Nissan
were items that were customarily used in the manufacture of
Deputy Mease also testified as follows:
Q Were you at the Sheriff's Office?
A I actually came in after [Defendant] . . .
[was] brought in and [I] identified
Q So you were the deputy that Trooper Crisp
had said identified [Defendant] for the firsttime?
A Yes, ma'am.
. . .
Q Can you describe [Defendant's] demeanor at
the time you saw him?
[DEFENSE COUNSEL]: Objection, and the
same objection I had previously, 404,
THE COURT: Overruled. Go ahead.
A [Deputy] Mease: [Defendant] was very
aggressive, belligerent, hostile toward all
the officers that were there.
BY [THE STATE]:
Q In what ways was he being belligerent and
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Overruled.
[Deputy] Mease: He was cursing us, every
officer that came near him, cursed us,
threatened us, wanted to fight with us. Just
very aggressive toward us and any officer that
was in there wearing a uniform.
Defendant argues the trial court erred by failing to qualify
Deputy Mease as an expert in the presence of the jury prior to
Deputy Mease's opinion testimony. However, Defendant concedes that
the trial court indicated out of the presence of the jury that it
was going to qualify Deputy Mease as an expert.
In State v. White
, 340 N.C. 264, 457 S.E.2d 841, cert. denied
White v. North Carolina
, 516 U.S. 994, 133 L. Ed. 2d 436 (1995),
our Supreme Court recognized: While the better practice may be to make a
formal tender of a witness as an expert, such
a tender is not required. Further, absent a
request by a party, the trial court is not
required to make a formal finding as to a
witness' qualification to testify as an expert
witness. Such a finding has been held to be
implicit in the court's admission of the
testimony in question.
at 293-94, 457 S.E.2d at 858 (internal citations omitted). In
, the Court held that by overruling the defendant's objections
to the testimony of the three witnesses, the trial court implicitly
accepted them as expert witnesses. Id.
at 294, 457 S.E.2d at 858.
Likewise, in the present case, although the trial court did
not make a formal finding that Deputy Mease was qualified to
testify as an expert witness, the trial court implicitly accepted
him as an expert. After Deputy Mease was examined as to his
qualifications, the State sought to tender him as an expert in the
manufacture of methamphetamine, and the trial court conducted a
hearing outside the presence of the jury. Defendant
concedes that at the close of the voir dire
hearing, the trial
court indicated it was going to qualify Deputy Mease as an expert.
Defendant argues, however, that the trial court did not qualify
Deputy Mease as an expert in the presence of the jury.
Nevertheless, by overruling Defendant's objections to Deputy
Mease's subsequent opinion testimony in the presence of the jury,
the trial court implicitly accepted Deputy Mease as an expert
witness. See White
, 340 N.C. at 294, 457 S.E.2d at 858.
Defendant also argues that Deputy Mease was not qualified to
give expert opinion testimony. We disagree. "[A] trial court'srulings under Rule 702 will not be reversed on appeal absent an
abuse of discretion." State v. Morgan
, 359 N.C. 131, 160, 604
S.E.2d 886, 904 (2004), cert. denied
, Morgan v. North Carolina
U.S. ___, 163 L. Ed. 2d 79 (2005). In the present case, Deputy
Mease testified that he had been in law enforcement almost five
years. Deputy Mease testified that through the DEA, he attended
methamphetamine clandestine laboratory investigation school in
Nashville, Tennessee in 2003. In February 2006, he was certified
in Quantico, Virginia, to enter and investigate clandestine
methamphetamine laboratories. He also stated that in March 2006,
he attended a DEA school for the investigation of drug activity in
Atlanta, Georgia. Deputy Mease testified that in his capacity as
a law enforcement officer, he had worked in twelve or more
methamphetamine laboratories, and that as part of his training, he
had learned how to manufacture methamphetamine. We hold that,
based upon Deputy Mease's training and experience, the trial court
did not abuse its discretion by allowing him to testify as an
expert regarding whether certain items found in the Nissan in which
Defendant was a passenger could be used in the manufacture of
methamphetamine. We overrule these assignments of error.
Defendant next argues the trial court erred by allowing
Trooper Crisp and Deputy Mease to testify as to Defendant's
demeanor at the Sheriff's Office. Defendant argues this testimony
was irrelevant, was improper character evidence under N.C. Gen.
Stat. § 8C-1, Rule 404(b), and was inadmissible pursuant to N.C.Gen. Stat. § 8C-1, Rule 403. However, because Defendant did not
challenge or assign error to this testimony under Rule 403, we do
not address this portion of Defendant's argument. See
P. 10(b)(1); N.C.R. App. P. 10(c)(1).
Evidence is relevant if it has "any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2005).
"'[I]n a criminal case every circumstance calculated to throw any
light upon the supposed crime is admissible and permissible.'"
State v. Bruton
, 344 N.C. 381, 386, 474 S.E.2d 336, 340 (1996)
(quoting State v. Collins
, 335 N.C. 729, 735, 440 S.E.2d 559, 562
(1994)). The determination of the weight of such evidence is a
matter properly left to the jury. State v. Smith
, 357 N.C. 604,
614, 588 S.E.2d 453, 460 (2003), cert. denied
, Smith v. North
, 542 U.S. 941, 159 L. Ed. 2d 819 (2004). Although a trial
court's rulings on relevancy are not discretionary and we do not
review them for an abuse of discretion, we give them great
deference on appeal. State v. Streckfuss
, 171 N.C. App. 81, 88,
614 S.E.2d 323, 328 (2005).
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
Rule 404(b) is "'a clear, general rule of inclusion
of relevantevidence of other crimes, wrongs, or acts.'" State v. Rannels
N.C. 644, 657, 430 S.E.2d 254, 261 (1993) (quoting State v. Coffey
326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)). "Under the rule,
'evidence of other offenses is admissible so long as it is relevant
to any fact or issue other than the character of the accused.'"
(quoting State v. Weaver
, 318 N.C. 400, 403, 348 S.E.2d 791,
793 (1986)). We review the admission of evidence under Rule 404(b)
for an abuse of discretion. State v. Summers
, 177 N.C. App. 691,
697, 629 S.E.2d 902, 907, disc. review denied
, 360 N.C. 653, 637
S.E.2d 192 (2006).
In the present case, we hold the challenged testimony was
admissible to show Defendant's consciousness of his own guilt. In
State v. Parker
, 45 N.C. App. 276, 262 S.E.2d 686 (1980), the
defendant argued that the trial court erred by allowing evidence
regarding the defendant's behavior and the defendant's resisting
arrest more than one hour after the alleged rape occurred. Id.
279, 262 S.E.2d at 688-89. The State's evidence showed that after
the alleged rape occurred, the "defendant returned to his dormitory
room and refused to cooperate with police officers who subsequently
at 279, 262 S.E.2d at 689. Our Court held:
It is our opinion that this evidence was
properly admitted as bearing upon the issue of
guilt to the rape charge, as well as the
assault offense. . . . It having been
established that [the] defendant left the
scene of the incident and later attempted to
evade arresting officers, it was for the jury
to determine whether those facts, together
with the surrounding circumstances, evidenced
[the] defendant's guilt of the offenses
at 279-80, 262 S.E.2d at 689.
Our Court followed Parker
in State v. McNeil
, 99 N.C. App.
235, 393 S.E.2d 123 (1990), where the trial court allowed evidence
that the defendant fought with law enforcement officers when they
arrested him. Id.
at 244, 393 S.E.2d at 127. We held that the
"defendant's resisting arrest [was] properly viewed as bearing upon
the issue of guilt, similar to evidence of flight." Id.
, 45 N.C. App. 276, 262 S.E.2d 686).
In the present case, Trooper Crisp testified that Defendant
provided him with a false name. However, both Trooper Crisp and
Deputy Mease testified that when Deputy Mease arrived at the
Sheriff's Office, Deputy Mease recognized Defendant from previous
encounters. Directly following this testimony, both officers
testified that Defendant was belligerent and hostile. It is a
reasonable inference that Defendant was belligerent and hostile, at
least in part, because Deputy Mease recognized him at the Sheriff's
Office. We hold that under McNeil
, this evidence was
relevant to Defendant's guilt of the possession charge, given that
Defendant had first provided a false name and was then identified.
Moreover, we also hold that under Rule 404(b), the challenged
testimony in the present case was relevant to a "'fact or issue
other than the character of the accused.'" See Rannels
, 333 N.C.
at 657, 430 S.E.2d at 261 (quoting State v. Weaver
, 318 N.C. at
403, 348 S.E.2d at 793). Specifically, the challenged testimony in
the present case tended to show Defendant's consciousness of his
own guilt. See State v. Bagley
, ___ N.C. App. ___, ___, ___ S.E.2d___, ___ (2007) (holding that pursuant to Rule 404 and Rule 403,
the trial court did not abuse its discretion by allowing evidence
that the defendant hid when police entered the building he was in
because it "tended to show [the] defendant's guilty conscience.").
Accordingly, we hold the trial court did not err or abuse its
discretion by admitting the challenged evidence.
Defendant also argues there was a fatal variance between the
indictment and the verdict sheet. Specifically, Defendant argues
that while the indictment only charged Defendant with the
possession of the precursor material, pseudoephedrine, the verdict
sheet allowed the jury to find Defendant guilty of "possession of
immediate precursor chemical/chemicals[.]" Because there was
evidence that a lithium battery, also a precursor material under
the statute, was in the Nissan, Defendant argues the variance
allowed the jury to convict Defendant of possession of a precursor
material that was not listed in the indictment.
However, our Court has recognized that "a verdict sheet is
sufficient 'if the verdict can be properly understood by reference
to the indictment, evidence and jury instructions.'" State v.
, 148 N.C. App. 290, 296, 558 S.E.2d 237, 241 (2002) (quoting
State v. Connard
, 81 N.C. App. 327, 336, 344 S.E.2d 568, 574
(1986), aff'd per curiam
, 319 N.C. 392, 354 S.E.2d 238 (1987)). In
the present case, the trial court instructed the jury that to find
the State must prove two things and both these
things from the evidence to the extent ofbeyond a reasonable doubt.
First, the State must prove that
. . . [D]efendant knowingly . . . possessed
pseudoephedrine. Pseudoephedrine is an
immediate precursor chemical.
. . .
Now that being said, the State must also
prove in addition to the first element that
. . . [D]efendant . . . knew or had reasonable
cause to believe that the immediate precursor
chemical alleged to be pseudoephedrine would
be used to manufacture methamphetamine, which
is defined as a controlled substance under the
laws of this State.
Moreover, in the final mandate, the trial court charged, inter
, as follows:
[I]f you find from the evidence and beyond a
reasonable doubt that on or about the
[alleged] date in January 2005, that
[Defendant] knowingly possessed
pseudoephedrine and knew or had reasonable
cause to believe that it would be used to
manufacture a controlled substance, to wit
methamphetamine, it would be your duty to
return a verdict of guilty of possession of
immediate precursor chemical as to
While there was evidence that a lithium battery was also found in
the Nissan, it is clear from the indictment and the jury
instructions that the jury could only find Defendant guilty if it
found that he possessed pseudoephedrine with the requisite
knowledge it would be used to manufacture the controlled substance
methamphetamine. Therefore, the verdict was proper and there was
no fatal variance between the verdict sheet and the indictment.
Defendant agues that State v. Outlaw
, 159 N.C. App. 423, 583
S.E.2d 625, disc. review denied
, 357 N.C. 510, 588 S.E.2d 380(2003), is analogous to the present case. We disagree. In Outlaw
our Court held that because the indictment "did not include the
weight of the cocaine possessed and that fact was an essential
element of the offense charge, judgment as relates to the
conspiracy charge must be arrested." Id.
at 428, 583 S.E.2d at
629. However, as demonstrated by its holding, Outlaw
with the insufficiency of the indictment to charge the offense of
conspiracy to traffic in cocaine. See id.
at 427-28, 583 S.E.2d at
did not address a variance between the indictment
and the verdict sheet, and is therefore inapposite. We hold the
trial court did not err.
Defendant failed to set forth argument pertaining to his
remaining assignments of error, and we therefore deem them
N.C.R. App. P. 28(b)(6).
Judges LEVINSON and JACKSON concur.
Report per Rule 30(e).
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