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.
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
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.
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.
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
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.
, 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
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.).
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.
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.
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
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
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
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
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