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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-250
                
                                            
NORTH CAROLINA COURT OF APPEALS
        

Filed: 4 December 2007


STATE OF NORTH CAROLINA

v .                         Forsyth County
                            Nos. 06 CRS 08759, 53839
KENNETH JEROME REED,
        Defendant.

    Appeal by defendant from judgment dated 1 November 2006 by Judge L. Todd Burke in Forsyth County Superior Court. Heard in the Court of Appeals 11 October 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General W. Richard Moore, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant.

    BRYANT, Judge.

    Kenneth Jerome Reed (defendant) appeals from a judgment dated 1 November 2006 and entered consistent with a jury verdict finding defendant guilty of possession with the intent to sell or deliver a counterfeit controlled substance and possession of drug paraphernalia, and defendant's plea of guilty of attaining the status of an habitual felon. For the reasons stated herein, we vacate the trial court's judgments as to the charges for possession with the intent to sell or deliver a counterfeit controlled substance and attaining the status of an habitual felon, but find no error in defendant's conviction for possession of drug paraphernalia.

Facts

    On 23 March 2006, Officer C. M. Burks of the Winston-Salem Police Department responded to a reported assault on a female. Officer Burks spoke with the complainant, Ms. Beverly Deloris Saunders, and afterward proceeded to search for defendant. Officer Burks located defendant and Ms. Saunders was brought to defendant's location where she identified defendant in a “show up” as the person who assaulted her.
    After Ms. Saunders identified defendant, Officer Burks placed defendant under arrest and searched defendant incident to the arrest. Officer Burks found a plastic bottle with burn marks and a hole in it, one empty small plastic bag, and one small plastic bag containing an amount of a white rock-like substance. Officer Burks believed the plastic bottle was a crack pipe, and thought that the empty plastic bag looked like the type of bag used for “holding drugs.” Based on its appearance and packaging, Officer Burks believed that the white rock-like substance in the other plastic bag was crack cocaine. Officer Burks conducted a field test on the substance which came back negative for cocaine. No testing of any kind was performed on the plastic bottle or the empty plastic bag.
Procedural History

    This case came on for trial on 31 October 2006, in Forsyth County Superior Court, before the Honorable L. Todd Burke, on indictments alleging charges of common law robbery of Ms. Saunders, possession with intent to sell and deliver a counterfeit controlledsubstance, possession of drug paraphernalia, and attaining the status of an habitual felon. At trial, the State elected not to proceed on the charge of common law robbery. At both the close of the State's and defendant's evidence, defendant moved to dismiss the charge of possession with intent to sell or deliver a counterfeit controlled substance. The trial court denied both motions to dismiss.
    On 1 November 2006, the jury returned its verdict, finding defendant guilty of possession with intent to sell and deliver a counterfeit controlled substance and possession of drug paraphernalia. Defendant subsequently entered a guilty plea to attaining the status of an habitual felon. In a judgment dated 1 November 2006 and entered consistent with the jury verdict and defendant's plea, the trial court sentenced defendant to 144 to 182 months imprisonment. Defendant appeals.
_________________________

    Defendant raises the issues of whether the trial court erred by: (I) denying defendant's motion to dismiss the charge of possession with intent to sell or deliver a counterfeit controlled substance; (II) permitting the arresting officer to testify that a plastic bottle found on defendant was a crack pipe; and (III) permitting the arresting officer to testify regarding Ms. Saunders's injuries and explaining that officers conduct show up identifications when a “crime has been committed.”
I
    Defendant first argues the trial court erred by denying defendant's motion to dismiss the charge of possession with intent to sell or deliver a counterfeit controlled substance. Defendant contends the State failed to establish two elements of the offense: that defendant intended to sell or deliver the substance; or that the white rock-like substance was a counterfeit controlled substance. We agree that the State failed to establish the element of defendant's intent to sell or deliver the substance and vacate his felony convictions.
    To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense and that the defendant is the perpetrator. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). 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.State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001) (citation omitted), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
    “[T]o obtain a conviction of possession with intent to sell and deliver a counterfeit controlled substance, the State must prove (1) that defendant possessed a counterfeit controlled substance, and (2) that defendant intended to 'sell or deliver' thecounterfeit controlled substance.” State v. Williams, 164 N.C. App. 638, 644, 596 S.E.2d 313, 317 (2004) (citations omitted), disc. review denied, 358 N.C. 738, 600 S.E.2d 857 (2004); see also N.C. Gen. Stat. § 90-95(a)(2) (2005) (providing that it is unlawful for any person to “possess with intent to sell or deliver, a counterfeit controlled substance.”). Intent to sell or deliver is rarely shown by direct evidence, but most often must be shown by circumstantial evidence from which the intent may be inferred. State v. Jackson, 145 N.C. App. 86, 90, 550 S.E.2d 225, 229 (2001). Circumstantial evidence implicating an intent to sell or deliver includes the amount of the substance; the manner of the packaging, labeling, and storage of the substance; the presence of drug paraphernalia, especially that associated with sale of the substance; the presence of large amounts of cash; and the activities of a defendant. Compare State v. McNeil, 165 N.C. App. 777, 783, 600 S.E.2d 31, 35 (2004) (substantial evidence of intent to sell was established where defendant possessed five and one-half grams of crack cocaine, individually wrapped in twenty-two pieces, placed in the corner of a paper bag), and State v. Carr, 122 N.C. App. 369, 373, 470 S.E.2d 70, 73 (1996) (substantial evidence of intent to sell or deliver existed when officers found two pill bottles with one containing a single large rock and the other containing eight smaller rocks of the size sold on the street for between $ 20.00 and $ 40.00; defendant was seen having discussions through a car window with known drug users, one of whom had a crack cocaine pipe in his possession; and defendant attempted to disguisehis identity when questioned by the police), with State v. Nettles, 170 N.C. App. 100, 107, 612 S.E.2d 172, 176-77 (2005) (insufficient evidence of intent to sell or deliver existed where, although four to five crack rocks were found in defendant's car parked outside of his home, there was no evidence the drugs were “packaged, stored, or labeled in a manner consistent with the sale of drugs”; “[d]efendant's actions were not similar to the actions of a drug dealer”; “[a] large amount of cash was not found”; and a safety pin with cocaine residue was found in defendant's home), and State v. Turner, 168 N.C. App. 152, 158, 607 S.E.2d 19, 24 (2005) (insufficient evidence of intent to sell or deliver existed where there was no evidence of statements by defendant relating to his intent; no money was found on defendant; no evidence of any drug transactions at defendant's location; and no evidence of drug paraphernalia, equipment used in drug sales, or drug packaging indicative of drug sales).
    Here, defendant possessed a single small plastic bag containing an unknown substance that appeared to be, but was not, crack cocaine. The State presented no evidence as to the amount by weight or volume of this substance. Defendant also possessed a second small plastic bag, which was empty, and a plastic bottle with the characteristics of a crack pipe. The empty plastic bag and the plastic bottle were never tested for the presence of any illegal substances. Defendant was never seen attempting to sell or deliver the substance or engaging in any conduct suggesting a sale or delivery of the substance. The State presented no evidenceregarding any statements made by defendant as to any intent to sell or deliver the substance. The substance in the small plastic bag was not packaged, stored, or labeled in a manner consistent with the sale or delivery of drugs. No cash was found on defendant and defendant did not possess any paraphernalia associated with drug sales. The State's evidence is insufficient to establish the element of intent to sell or deliver, and at best suggests defendant was a drug user.
    Because the State failed to present substantial evidence of an “intent to sell or deliver,” the trial court erred in denying defendant's motion to dismiss the charge of possession with intent to sell or deliver a counterfeit controlled substance. Accordingly, the trial court's judgment as to the charge of possession with intent to sell or deliver a counterfeit controlled substance is vacated. As defendant's conviction for possession with intent to sell or deliver a counterfeit controlled substance is his only felony conviction in the case at hand, we must also vacate the trial court's judgment as to his guilty plea to attaining the status of a convicted felon. State v. Barnes, 121 N.C. App. 503, 506, 466 S.E.2d 294, 296 (1996) (“There being no felony conviction to which the habitual felon indictment attaches, that indictment is dismissed and the conviction vacated.”).
II

    Defendant next contends the trial court erred when it allowed Officer Burks to testify that a plastic bottle found on defendant was a crack pipe. Defendant argues the State failed to show thebasis of personal knowledge for Officer Burks' opinion, and thus the trial court abused its discretion by overruling defendant's objections and admitting Officer Burks' testimony that the bottle was a crack pipe. We disagree.
    Lay witness opinion testimony is “limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701 (2005). “[W]hether a lay witness may testify as to an opinion is reviewed for abuse of discretion.” State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000) (citation omitted), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001). 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.” Id. (citation and quotations omitted).
    Officer Burks repeatedly testified that the plastic bottle found on defendant at the time of his arrest was a crack pipe. Officer Burks testified that he had seen other types of pipes like the one found on defendant used in the “drug business.” Officer Burks further testified generally as to how a crack pipe is used, and testified specifically as to the characteristics of the bottle found on defendant which implied it was a crack pipe. Officer Burks' testimony sufficiently established the rational basis of his opinion and the trial court did not err in admitting this testimony. This assignment of error is overruled.
III

    Defendant lastly argues the trial court erred when it allowed Officer Burks to testify regarding Ms. Saunders' injuries and 'show up' identifications. The trial court permitted Officer Burks to testify over defendant's objections that Ms. Saunders “had a cut on her hand and her leg[;]” that officers conduct a 'show up' identification “when a crime has been committed[;]” and that a 'show up' identification occurs where officer's take a victim of a crime to the location of a possible suspect for identification. Defendant argues this testimony was wholly irrelevant to the case at hand, did not tend to make the existence of any fact of consequence in this action more or less probable, and prejudiced defendant in the eyes of the jury. We disagree.
    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). Generally, “[a]ll relevant evidence is admissible[.]” N.C. Gen. Stat. § 8C-1, Rule 402 (2005). Relevant evidence is generally admissible except where “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403 (2005). “Whether to exclude relevant but prejudicial evidence under Rule 403 is a matter left to the sound discretion of the trial court.” State v.Braxton, 352 N.C. 158, 186, 531 S.E.2d 428, 444 (2000) (citation and quotations omitted), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001).
    Officer Burks' testimony regarding Ms. Saunders' injuries and 'show up' identifications supplies the basis for the lawfulness of the search incident to his arrest for assault on a female and for the admissibility of the evidence obtained as a result of that search. The admission of this evidence did not directly implicate any of the elements of the offenses for which defendant was tried. However, this evidence was probative of the lawfulness of defendant's arrest, necessary for the construction of the State's case, and not unduly prejudicial. See State v. Hoffman, 349 N.C. 167, 184, 505 S.E.2d 80, 91 (1998) (“Evidence which is probative of the State's case necessarily will have a prejudicial effect upon the defendant; the question is one of degree.”), cert. denied, 526 U.S. 1053, 143 L. Ed. 2d 522 (1999).
This assignment of error is overruled.
    No error in part; vacated in part and remanded for resentencing.
    Judges STEELMAN and GEER concur.
    Report per Rule 30(e).

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