State v. Blakney , 233 N.C. App. 516 ( 2014 )

NO. COA13-1088
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 11 CRS 51776, 6612, 13553
CHRISTOPHER LEON BLAKNEY,
Defendant.
Appeal by defendant from judgment entered 13 February 2013
by Judge William Z. Wood, Jr., in Forsyth County Superior Court.
Heard in the Court of Appeals 19 February 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General James M. Stanley, Jr., for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Kathleen M. Joyce, for defendant-appellant.
BRYANT, Judge.
Where the State presents sufficient evidence of each
element of an offense, a motion to dismiss is properly denied.
Where defendant can show no prejudice from irrelevant evidence
admitted during an habitual felon proceeding, any error
therefrom is harmless.
On 23 February 2011, Officer Neff of the Winston-Salem
Police Department observed a car speeding and crossing the
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double-yellow center line while driving on Silas Creek Parkway
around 10:00 p.m. Officer Neff initiated a traffic stop of the
car and noticed that the driver, defendant Christopher Leon
Blakney, smelled of alcohol and had glassy, bloodshot eyes.
Officer Neff arrested defendant under suspicion of driving while
impaired and called for assistance; Officer Allen responded.
While searching defendant’s car, Officer Allen found
marijuana under the center armrest. A large amount of cash was
found on the car’s front floorboard along with a glass Mason jar
containing marijuana residue. A digital scale and batteries
were also found underneath the front seats. A white shopping
bag containing a box of sandwich baggies and a glass Mason jar
of marijuana was found in the trunk, along with a second bag
containing additional marijuana packaging supplies. Four “dime
bags” of marijuana were also found in the trunk.1 A total of
84.8 grams (2.99 ounces) of marijuana was recovered from
defendant’s car.
1
When asked to clarify what he meant when he said “dime bag,”
Officer Allen testified that a “dime bag” is “a small plastic
bag often used in the packaging for sale of illegal narcotics.
So those who sell these -- sell narcotics break their product
down to get it -- they get it in large shipments and break it
down into the smaller sellable items, packages for easy
transactions, very small scale and discrete transactions.”
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On 16 May 2011, a Forsyth County Grand Jury indicted
defendant for possession with intent to sell or deliver
marijuana, possession of drug paraphernalia, driving while
impaired, and driving while license revoked. Defendant was also
indicted as an habitual felon.
On 13 February 2013, a jury found defendant guilty of
possession with intent to sell or deliver marijuana, possession
of drug paraphernalia, and driving while license revoked.
Defendant was found not guilty of driving while impaired. The
jury also found defendant guilty of having attained the status
of an habitual felon. The trial court sentenced defendant to 88
to 115 months in prison. Defendant appeals.
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On appeal, defendant argues that the trial court erred in:
(I) denying defendant’s motion to dismiss; and (II) admitting
evidence of an additional felony conviction during defendant’s
habitual felon proceeding.
I.
Defendant first argues that the trial court erred in
denying his motion to dismiss at the close of all the evidence.
We disagree.
We review the trial court's denial of a
motion to dismiss de novo. A motion to
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dismiss for insufficient evidence is
properly denied if there is substantial
evidence (1) of each essential element of
the offense charged, or of a lesser offense
included therein, and (2) of defendant's
being the perpetrator of such offense.
Substantial evidence is such relevant
evidence as a reasonable mind might accept
as adequate to support a conclusion. All
evidence, both competent and incompetent,
and any reasonable inferences drawn
therefrom, must be considered in the light
most favorable to the State. Additionally,
circumstantial evidence may be sufficient to
withstand a motion to dismiss when a
reasonable inference of defendant's guilt
may be drawn from the circumstances. If so,
it is the jury's duty to determine if the
defendant is actually guilty.
State v. Burton, ___ N.C. App. ___, ___, 735 S.E.2d 400, 404
(2012) (citations and quotations omitted). “The State is
entitled to every reasonable inference to be drawn from the
evidence. Contradictions and discrepancies do not warrant
dismissal of the case; rather, they are for the jury to resolve.
Defendant's evidence, unless favorable to the State, is not to
be taken into consideration.” State v. Franklin, 327 N.C. 162,
172, 393 S.E.2d 781, 787 (1990) (citations omitted).
Defendant argues that the trial court erred in denying his
motion to dismiss because the State failed to prove that
defendant intended to sell or deliver marijuana. Specifically,
defendant contends the State failed to prove defendant’s intent
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to sell or deliver marijuana because the amount of marijuana
found in defendant’s car was too small to be the “substantial
amount” required for a possession with intent to sell or deliver
marijuana conviction.
Pursuant to North Carolina General Statutes, section 90-95,
the offense of possession with intent to sell or deliver has
three elements: (1) possession; (2) of a controlled substance;
with (3) the intent to sell or deliver that controlled
substance. N.C. Gen. Stat. § 90-95(a)(1) (2013). The State may
demonstrate intent through direct or circumstantial evidence.
State v. Jackson, 145 N.C. App. 86, 89—90, 550 S.E.2d 225, 229
(2001). Although the "quantity of the controlled substance
alone may suffice to support the inference of an intent to
transfer, sell or deliver," it must be a substantial amount.
State v. Morgan, 329 N.C. 654, 659—60, 406 S.E.2d 833, 835—36
(1991). "[T]he intent to sell or distribute may be inferred
from (1) the packaging, labeling, and storage of the controlled
substance, (2) the defendant's activities, (3) the quantity
found, and (4) the presence of cash or drug paraphernalia."
State v. Nettles, 170 N.C. App. 100, 106, 612 S.E.2d 172, 176
(2005).
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The State concedes that lab testing was not completed on
the marijuana collected from defendant’s car. Defendant argues
that because no testing was done, the total amount of marijuana
collected (84.8 grams) is not accurate because this weight
included marijuana seeds, stems, and other material that should
have been excluded before weighing. Defendant further argues
that even if the weight of the marijuana (84.8 grams) is
accurate, such a small amount is consistent with personal use,
rather than for sale or delivery. Defendant cites State v.
Wiggins, 33 N.C. App. 291, 235 S.E.2d 265 (1977), and State v.
Wilkins, 208 N.C. App. 729, 703 S.E.2d 807 (2010), in support of
his argument.
In Wiggins, the defendant was convicted of possession with
intent to sell or deliver marijuana after a total of 215.5 grams
of marijuana was found growing in and around his home. This
Court found that “this quantity alone, without some additional
evidence, is not sufficient to raise an inference that the
marijuana was for the purpose of distribution.” Wiggins, 33
N.C. App. at 294—95, 235 S.E.2d at 268 (citations omitted).
In Wilkins, the defendant was stopped and arrested on
several outstanding warrants. During a pat-down of the
defendant, officers found three small bags of marijuana weighing
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a total of 1.89 grams and $1264.00 cash in small denominations.
The defendant was convicted of possession with intent to sell or
deliver marijuana and manufacturing marijuana. On appeal, this
Court reversed the defendant’s conviction for possession with
intent to sell or deliver marijuana, noting that “[t]he evidence
in this case, viewed in the light most favorable to the State,
indicates that defendant was a drug user, not a drug seller.”
Wilkins, 208 N.C. App. at 733, 703 S.E.2d at 811.
We find Wiggins and Wilkins to be inapposite to the instant
case. The State presented evidence that defendant’s car
contained a total of 84.8 grams of marijuana found in the body
and trunk of the car, and the marijuana was found in multiple
containers including two “previously vacuum sealed bags,” two
sandwich bags, four “dime bags,” and five other types of bags.
Marijuana was also found in two glass Mason jars. A box of
sandwich bags was found in the trunk, and digital scales were
found underneath the front seats of the car. This evidence
showed not only a significant quantity of marijuana, but the
manner in which the marijuana was packaged (such as four “dime
bags”) raised more than an inference that defendant intended to
sell or deliver the marijuana. Further, the presence of items
commonly used in packaging and weighing drugs for sale — a box
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of sandwich bags and digital scales — along with a large
quantity of cash in small denominations provided additional
evidence that defendant intended to sell or deliver marijuana,
as opposed to merely possessing it for his own personal use as
was determined to be the case in Wiggins and Wilkins.
Therefore, taking the evidence in the light most favorable to
the State, sufficient evidence of possession with intent to sell
or deliver marijuana was presented to survive defendant’s motion
to dismiss. See State v. Baxter, 285 N.C. 735, 738, 208 S.E.2d
696, 698 (1974) (“The jury could reasonably infer an intent to
distribute from the amount of the substance found, the manner in
which it was packaged and the presence of other packaging
materials.”), overruled in part on other grounds by State v.
Childers, 41 N.C. App. 729, 255 S.E.2d 654 (1979). Defendant’s
argument is overruled.
II.
Defendant next argues that the trial court erred in
admitting evidence of an additional felony conviction at
defendant’s habitual felon proceeding. Specifically, defendant
contends that by not redacting a second consolidated felony
offense contained within a judgment offered into evidence by the
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State, the trial court committed error pursuant to Rules 401,
403, 404(b), and 609. We disagree.
On appeal, in reviewing a trial court’s rulings under Rule
401 and 403, this Court has held that:
Although the trial court's rulings on
relevancy technically are not discretionary
and therefore are not reviewed under the
abuse of discretion standard applicable to
Rule 403, such rulings are given great
deference on appeal. Because the trial court
is better situated to evaluate whether a
particular piece of evidence tends to make
the existence of a fact of consequence more
or less probable, the appropriate standard
of review for a trial court's ruling on
relevancy pursuant to Rule 401 is not as
deferential as the 'abuse of discretion'
standard which applies to rulings made
pursuant to Rule 403.
State v. Tadeja, 191 N.C. App. 439, 444, 664 S.E.2d 402, 407
(2008) (citation omitted). 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 (2013). "[E]vidence is relevant if it
has any logical tendency, however slight, to prove a fact in
issue in the case." State v. Hannah, 312 N.C. 286, 294, 322
S.E.2d 148, 154 (1984) (citation omitted). "Although relevant,
evidence may be excluded if its probative value is substantially
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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 (2013).
North Carolina General Statutes, section 14-7.1, states
that a person may be charged as an habitual felon if he “has
been convicted of or pled guilty to three felony offenses.”
N.C. Gen. Stat. § 14-7.1 (2013). For an habitual felon charge,
the prior felony convictions of a defendant may be proven by
“stipulation of the parties or by the original or a certified
copy of the court record of the prior [felony] conviction
[pursuant to] N.C. Gen. Stat. § 14-7.4.” State v. Gant, 153
N.C. App. 136, 143, 568 S.E.2d 909, 913 (2002). "[T]he
preferred method for proving a prior conviction includes the
introduction of the judgment itself into evidence." State v.
Maynard, 311 N.C. 1, 26, 316 S.E.2d 197, 211 (1984) (citation
omitted).
The State, in prosecuting the habitual felon charge against
defendant, introduced into evidence certified copies of three
prior judgments: judgment for possession with intent to
sell/deliver cocaine entered on 8 May 1997; judgment for
possession with intent to manufacture, sell and deliver cocaine
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entered on 8 October 1998; and judgment for possession with
intent to sell or deliver marijuana entered on 8 May 2003. Each
judgment included a copy of the corresponding plea transcript.
The judgment which defendant challenges, entered 8 May 1997,
involved two felony convictions, each for possession with intent
to sell or deliver cocaine, which had been consolidated into one
judgment. Defendant argues that the trial court’s refusal to
redact one of the two felony convictions attached to the
judgment was highly prejudicial to him. We disagree. While the
additional felony conviction was irrelevant in determining
whether defendant was an habitual felon, defendant has not
demonstrated how this evidence prejudiced him.
Defendant bears the burden of proving the
testimony was erroneously admitted and he
was prejudiced by the erroneous admission.
The admission of evidence which is
technically inadmissible will be treated as
harmless unless prejudice is shown such that
a different result likely would have ensued
had the evidence been excluded.
State v. Moses, 350 N.C. 741, 762, 517 S.E.2d 853, 867 (1999)
(citations and quotation omitted).
In admitting the judgments into evidence, the trial court
denied defendant’s redaction request as to the consolidated
judgment, noting that “[defendant] pled to whatever he pled to.
It was just consolidated.” The trial court then gave jury
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instructions as to the habitual felon charge which directed and
limited the jury’s consideration of the evidence to three
specific felony convictions only. As such, the record reflects
nothing to indicate that defendant was prejudiced by the
inclusion of the additional conviction. Moreover, defendant has
not challenged the validity of the prior convictions, the plea
transcripts, or the resulting judgments. “Given the
overwhelming and uncontradicted evidence of the three felony
convictions, there is essentially no likelihood that a different
result . . . would have ensued if the trial court had redacted
[the additional conviction].” State v. Ross, 207 N.C. App. 379,
400, 700 S.E.2d 412, 426 (2010) (citation, quotation and bracket
omitted). Accordingly, defendant’s argument is overruled.
No error.
Judges STEPHENS and DILLON concur.