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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 18 December 2007
STATE OF NORTH CAROLINA
Nos. 06 CRS 55119
PHILLIP VARZI CANNADY 06 CRS 8038
Appeal by Defendant from judgment entered 25 October 2006 by
Judge Henry V. Barnette, Jr. in Johnston County Superior Court.
Heard in the Court of Appeals 17 October 2007.
Attorney General Roy A. Cooper, by Special Deputy Attorney
General Thomas R. Miller, for the State.
Greene & Wilson, P.A., by Thomas Reston Wilson, for Defendant.
Defendant Phillip Varzi Cannady was tried before a jury at the
23 October 2006 Criminal Session of Superior Court of Johnston
County on the charge of possession with intent to sell and deliver
marijuana. The jury returned a verdict of guilty on 24 October
2006. Defendant was then tried to determine his status as an
habitual felon. On 25 October 2006, the same jury found Defendant
guilty of having attained habitual felon status. Upon these
convictions, Judge Barnette entered judgment, sentencing Defendant
to a term of 93 to 121 months imprisonment. From this judgment,
On 31 May 2006, Officer Brandon Holland of the Kenly Police
Department observed a black Ford Crown Victoria traveling south on
Church Street through Kenly, North Carolina. Officer Holland
observed the driver, Defendant, was driving without a seatbelt so
he stopped the vehicle. Approaching the driver's side window of
the Crown Victoria, Officer Holland asked Defendant to produce his
driver's license and registration. When Defendant informed Officer
Holland that he did not have a driver's license, the officer asked
Defendant to step out of the vehicle. After a brief pat down for
weapons, Officer Holland handcuffed Defendant and placed him in the
front seat of his patrol car. While Officer Holland checked the
status of Defendant's driver's license, the passengers in the Ford
Crown Victoria, Jessica Edwards and a minor child, remained in the
Officer Holland subsequently issued citations to Defendant for
driving without a seatbelt, driving with a revoked license, failure
to maintain insurance on the vehicle, having an expired vehicle
registration, and operating a vehicle with fictitious tags. In the
interim, Officer Chris Parrish arrived to provide back-up.
Officer Holland then conducted a pat down of Ms. Edwards and
a brief search of the minor child and the child's safety seat.
Officer Holland also searched the Crown Victoria incident to his
arrest of Defendant and seized two plastic bags of what was later
confirmed to be marijuana. The officer found one plastic bag
containing 15.7 grams of marijuana between the driver's seat andthe center console of the vehicle, and a second plastic bag
containing 45.5 grams of marijuana and a digital scale in the glove
Officer Parrish then handcuffed Ms. Edwards and placed her in
his patrol car, while Officer Holland waited for a tow truck to
arrive. The infant was released to another individual per Ms.
Officer Holland conducted a more thorough search of
Defendant's person at the Kenly Police Department, finding a total
of $521 in Defendant's pockets. Officer Holland advised Defendant
of his Miranda rights. Defendant acknowledged the reading of those
rights and signed a waiver of his rights. Defendant informed
Officer Holland that while he would not write a statement, he would
sign a statement written by the officer. Officer Holland proceeded
to transcribe Defendant's statement which reads, [t]he two ounces
and a half was mine and she did not have - and she did not know
nothing about it. Ms. Edwards was released shortly thereafter.
III. MOTION TO DISMISS
Defendant first argues that the trial court erred in denying
his motion to dismiss the charge of possession with intent to sell
or deliver marijuana for insufficiency of the evidence. We
Our standard of review of a trial court's ruling on a motion
to dismiss for insufficient evidence is whether there is
substantial evidence (1) of each essential element of the offense
charged . . . and (2) of defendant's being the perpetrator of suchoffense. State v. Prush, __ N.C. App. __, __, 648 S.E.2d 556, 558
(2007) (quotation marks and citations omitted). Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. State v. Blake, 319
N.C. 599, 356 S.E.2d 352 (1987). The trial court must review the
evidence in the light most favorable to the State, and the State is
entitled to every reasonable inference to be drawn therefrom.
State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978). The trial
court is concerned only with the sufficiency of the evidence to
carry the case to the jury, and not with its weight. State v.
McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971).
Defendant was convicted of possession with intent to sell and
deliver marijuana. Thus, in order to survive Defendant's motion to
dismiss, the State must have presented substantial evidence of
three elements: (1) possession of a substance; (2) the substance
was controlled; and (3) Defendant had an intent to sell or deliver
the substance. N.C. Gen. Stat. § 90-95(a)(1) (2005). Defendant
challenges the sufficiency of the State's evidence with regard to
the first and third elements.
1. Possession of a Substance
Possession of a substance within the meaning of N.C. Gen.
Stat. § 90-95 exists if the individual has the power and intent to
control the substance; it is not required that the possession be
actual. State v. Rich, 87 N.C. App. 380, 361 S.E.2d 321 (1987).
The State is not required, however, to prove that the defendant was
the only individual with access to the controlled substance inorder to prove constructive possession. State v. Roseboro, 55 N.C.
App. 205, 284 S.E.2d 725, disc. review denied, 305 N.C. 155, 289
S.E.2d 566 (1982). An inference of constructive possession arises
where the defendant is the custodian of a vehicle in which drugs
are found. State v. Nettles, 170 N.C. App. 100, 612 S.E.2d 172,
disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Close
proximity to a controlled substance may, when taken together with
control over the vehicle, further support an inference of
constructive possession. State v. Alston, 91 N.C. App. 707, 373
S.E.2d 306 (1988).
Here, Defendant was the driver of the Ford Crown Victoria in
which the marijuana was found during a search incident to
Defendant's arrest. Additionally, the drugs were found next to the
driver's seat and in the glove compartment. Accordingly, Defendant
was both the custodian of the vehicle in which the drugs were found
and was in close proximity to the drugs. Furthermore, following
his arrest, and after being advised of his Miranda rights,
Defendant claimed ownership of the drugs stating, [t]he two ounces
and a half was mine and she did not have - and she did not know
nothing about it. We find this evidence, considered in the light
most favorable to the State, sufficient to support an inference
that Defendant was in possession of a substance.
Defendant raises additional arguments regarding the
admissibility and reliability of the confession he gave to Officer
Holland. However, as Defendant never objected to the admission of
his confession at trial, he did not properly preserve the issue forappeal. State v. Fisher, 171 N.C. App. 201, 614 S.E.2d 428 (2005),
cert. denied, 361 N.C. 223, 642 S.E.2d 711 (2007). Furthermore,
although Defendant could have assigned plain error to the admission
of his confession, which would have allowed the Court to review the
issue, N.C. R. App. P. 10(c)(4) (2006), Defendant failed to do so.
Finally, once properly admitted, the issue of the evidentiary
weight of Defendant's confession was for the jury to determine.
Fisher, 171 N.C. App. 201, 614 S.E.2d 428. Accordingly, we find no
merit to Defendant's arguments that the State's evidence was
insufficient because Defendant's confession was not reliable.
2. Intent to Sell or Deliver
Intent to sell or deliver, within the meaning of N.C. Gen.
Stat. § 90-95, can be inferred from ordinary, circumstantial
evidence. State v. Casey, 59 N.C. App. 99, 296 S.E.2d 473 (1982).
While the quantity of a drug is an indicator of intent to sell, it
is not the only factor relevant to that intent. Roseboro, 55 N.C.
App. at 210, 284 S.E.2d at 728 (internal citation omitted). Courts
have suggested that the presence of a scale with the controlled
substance may be sufficient evidence to infer intent to sell. See
State v. Wiggins, 33 N.C. App. 291, 235 S.E.2d 265, cert. denied,
293 N.C. 592, 241 S.E.2d 513 (1977) (holding evidence of possession
insufficient where no scales or weight devices, rolling paper, or
other paraphernalia related to the weighing or the rolling of
marijuana was found with the drugs seized); State v. King, 42 N.C.
App. 210, 213, 256 S.E.2d 247, 249 (1979) (citing Wiggins, the
Court found insufficient evidence of possession where [n]o itemsusually associated with drug trafficking were found which would
supply an inference of an intent to sell.). Additionally, money
seized concurrently with drugs has been held to be a factor
contributing to the sufficiency of evidence regarding intent to
sell and deliver. State v. Davis, 160 N.C. App. 693, 586 S.E.2d
Here, Defendant's intent to sell was inferred from the
quantity of marijuana seized, the scale found in the glove
compartment along with one of the bags of marijuana, and the fact
that Defendant had $521 in cash on his person. We find this
evidence, considered in the light most favorable to the State,
sufficient to support an inference that Defendant had an intent to
sell or deliver. In light of this determination, we hold the
State offered sufficient evidence of each element of the crime
charged and, thus, the trial court properly denied Defendant's
motion to dismiss.
IV. CONFRONTATION CLAUSE
In Defendant's second assignment of error, he argues that the
trial court erred in admitting in evidence a State Bureau of
Investigation laboratory report to corroborate the testimony of the
State's expert witness. Defendant asserts that the report was
admitted in violation of his Sixth Amendment right of confrontation
and the United States Supreme Court's holding in Crawford v.
, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). We disagree.
, the United States Supreme Court held that the
confrontation clause of the Sixth Amendment to the United StatesConstitution requires that criminal defendants be afforded the
opportunity to cross-examine witnesses giving testimonial evidence
prior to, or contemporaneously with, the admission of the evidence.
The confrontation requirement applies only to testimonial
hearsay, and where evidence is admitted for a purpose other than
the truth of the matter asserted, that is, where the evidence is
not hearsay, the protection afforded by the confrontation clause is
not at issue. Id.
In State v. Delaney
, 171 N.C. App. 141, 613 S.E.2d 699 (2005),
this Court concluded that expert testimony based on analysis
conducted by someone other than the testifying expert does not
violate a defendant's right to confrontation under Crawford
, the police discovered drugs while searching the
defendant's residence. The drugs were subsequently sent to a state
agency for analysis. At trial, an expert testified regarding the
results of the analysis, which had been conducted by another
analyst. The defendant argued on appeal that the chemical analysis
performed by a chemist who did not testify at trial was hearsay,
and thus the trial court violated the defendant's Sixth Amendment
right of confrontation in allowing the evidence. However, in
overruling the defendant's assignment of error, this Court
Under North Carolina case law, testimony as to
information relied upon by an expert when
offered to show the basis for the expert's
opinion is not hearsay, since it is not
offered as substantive evidence. Indeed, our
Supreme Court has stated that it is the expert
opinion itself, not its underlying factual
basis, that constitutes substantive evidence,and that an expert may properly base his or
her opinion on tests performed by another
person, if the tests are of the type
reasonably relied upon by experts in the
Id. at 143, 613 S.E.2d at 700-01 (internal quotation marks and
citations omitted). Furthermore, this Court recognized that the
defendant in Delaney was allowed the opportunity to cross-examine
the testifying agent regarding his opinions. Delaney, 171 N.C.
App. 141, 613 S.E.2d 699.
Likewise, in State v. Walker, 170 N.C. App. 632, 613 S.E.2d
330, disc. review denied, 359 N.C. 856, 620 S.E.2d 196 (2005), this
Court held that the testimony of an expert regarding a forensic
firearms report prepared by another agent, and the admission of
such report in evidence, did not violate the defendant's right of
confrontation because the evidence was properly admissible for
non-testimonial purposes both because it was corroborative and
because it helped form the basis of an expert's opinion. Id. at
635, 613 S.E.2d at 333.
In this case, the State called Chris Stark, a chemist at the
SBI laboratory, to testify as an expert in the analysis of
controlled substances. The prosecutor handed Mr. Stark a
laboratory report that had been prepared by another analyst in the
SBI lab, Agent Gregory. Mr. Stark then testified that he was
familiar with the analysis of marijuana and the procedures followed
by the SBI analyst who prepared the report in question. When the
prosecutor then asked Mr. Stark what the results of the analysis
were, the trial court initially sustained defense counsel'sobjection. However, after reviewing applicable case law, the trial
court allowed the prosecutor to continue with her examination of
Mr. Stark testified that he had reviewed the laboratory report
and notes made by Agent Gregory. The prosecutor then asked Mr.
Stark what his own opinion was, based upon his review of the report
and notes, concerning the leafy substance found in Defendant's
possession. The trial court overruled Defendant's objection and
Mr. Stark testified that, in his opinion, the substance was
marijuana. The trial court then admitted the laboratory report to
corroborate Mr. Stark's testimony.
We are bound by this Court's decisions in Delaney and Walker
and conclude that the SBI report prepared by Agent Gregory was
properly admissible for non-testimonial purposes, both because it
was corroborative and because it helped form the basis of an
expert's opinion. Mr. Stark testified that he reviewed the report
and notes prepared by Agent Gregory and concluded the substance
analyzed was marijuana. He further testified that his conclusions
were in accord with Agent Gregory's report. Therefore, the report
was corroborative of Mr. Stark's testimony and admissible for that
purpose. Additionally, Mr. Stark was qualified as an expert in the
analysis of controlled substances and, thus, was entitled to use
Agent Gregory's report for the purpose of forming his opinion on
what the substance analyzed was. Furthermore, Defendant was
afforded full opportunity to cross-examine Mr. Stark as to the
basis of his expert opinion. Hence, the trial court did not err inadmitting the SBI report into evidence for non-hearsay purposes
and, accordingly, Defendant's Sixth Amendment right of
confrontation was not violated. This assignment of error is
Defendant received a fair trial, free of error.
Judges CALABRIA and ARROWOOD concur.
Report per Rule 30(e).
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