State v. Coleman ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-844
Filed: 21 April 2020
Cleveland County, No. 16 CRS 52591-93; 16 CRS 52598
STATE OF NORTH CAROLINA
v.
MICHAEL JIMMY COLEMAN
Appeal by defendant from judgment entered 22 April 2019 by Judge Carla
Archie in Cleveland County Superior Court. Heard in the Court of Appeals 1 April
2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Nicholas R.
Sanders, for the State.
Edward Eldred for defendant-appellant.
TYSON, Judge.
Michael Jimmy Coleman (“Defendant”) appeals from a judgment entered upon
a jury’s verdict finding him guilty of trafficking opium; possession with intent to
manufacture, sell, and distribute a schedule-III-controlled substance; and to
sell/deliver a schedule-III-controlled substance. We find no error.
I. Background
A confidential informant (“CI”) worked with the Cleveland County Sherriff’s
Department Narcotics Division Sergeant Travis Hamrick (“Sgt. Hamrick”) to identify
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Opinion of the Court
and provide names of illicit drug dealers located in Cleveland County from whom she
could buy illegal narcotics. The CI informed Sgt. Hamrick that Defendant “was
selling pills, hydrocodone and Xanax in particular.”
The CI agreed to participate in a controlled buy of narcotics from Defendant on
1 February 2016. Sgt. Hamrick, along with Narcotics Division, Lieutenant Judy
Seagle (“Lt. Seagle”) met the CI in a supermarket’s parking lot in Kings Mountain
near Defendant’s home.
Sgt. Hamrick and Lt. Seagle confirmed the CI did not have any narcotics on
her person or in her vehicle. The CI was wired with a button camera underneath her
shirt and given a cell phone to record audio. Sgt. Hamrick gave the CI $82.00 in U.S.
currency to purchase the narcotics.
Sgt. Hamrick and Lt. Seagle followed the CI from the supermarket’s parking
lot to Defendant’s home. The detectives parked at a neighboring home, while the CI
went to Defendant’s home. Once the CI was inside of Defendant’s home, she told
Defendant she needed to buy pills for her brother, who she claimed was waiting back
at the nearby parking lot. Defendant sold the CI six Xanax tablets and five oxycodone
tablets for $80.00.
After the CI left Defendant’s home, the detectives followed her back to the same
parking lot. The CI gave the six Xanax tablets, five oxycodone tablets, and $2.00 in
change to the detectives. Sgt. Hamrick and Lt. Seagle again searched the CI’s person
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Opinion of the Court
and vehicle to “make sure that she didn’t keep anything.” Laboratory testing later
confirmed the tablets contained alprazolam (Xanax), a schedule-IV-controlled
substance, and dihydrocodeinone, which is hydrocodone, a schedule-III-controlled
substance.
The CI conducted two further buys from Defendant at his home. On 4
February 2016, the CI bought twenty hydrocodone tablets for $200.00. Laboratory
tests confirmed the tablets contained hydrocodone and had a total weight of 8.47
grams. On 5 February 2016, the CI purchased an additional twenty hydrocodone
tablets for $160.00. Laboratory testing confirmed the tablets contained hydrocodone
and weighed 8.46 grams.
The State presented the testimony of Deborah Chancey, an analyst at the
North Carolina State Crime Laboratory. Analyst Chancey selected and analyzed one
tablet that contained dihydrocodeinone or hydrocodone. This tablet weighed “.42
grams, and the net weight of the remaining tablets was 8.05 grams plus or minus
0.03 grams.”
Sgt. Hamrick and Lt. Seagle visited Defendant at his home on 24 February
2016 to discuss his potential cooperation with the Narcotics Division in their
investigation of his narcotics supplier. During this visit, Defendant allowed the
officers to search his home. Lt. Seagle located a pill bottle with Defendant’s sister’s
name thereon, which contained a “mixture of pills.” Sgt. Hamrick visually inspected
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Opinion of the Court
the pills and found “[s]ome of the pills that were in the bottle were consistent with
what [Defendant] had sold” to the CI in the controlled purchases.
Defendant was indicted for possession with intent to manufacture, sell, deliver
hydrocodone; selling and delivering hydrocodone, possession with intent to
manufacture, sell, deliver alprazolam; and selling and delivering alprazolam for the
1 February 2016 transactions. Defendant was indicted for two counts of trafficking
opium for the transactions on 4 February and 5 February 2016.
On 16 April 2019, the jury returned verdicts and convicted Defendant of all
charges, except the trafficking in opium indictment for the 5 February 2016
transaction. Defendant was acquitted of that charge.
The trial court consolidated the convictions and sentenced Defendant to an
active term of 70 to 93 months of imprisonment on 22 April 2019. The trial court
prepared appellate entries on that same date.
II. Jurisdiction
The record on appeal does not include any reference to Defendant entering an
oral or written notice of appeal. The trial court’s appellate entries are included. On
30 December 2019, Defendant petitioned this Court to issue a writ of certiorari to
hear his belated appeal. Defendant also filed a motion to amend the record on appeal
to offer proof of his written notice of appeal.
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A writ of certiorari may be issued “when the right to prosecute an appeal has
been lost by failure to take timely action.” N.C. R. App. P. 21(a)(1). “Certiorari is a
discretionary writ, to be issued only for good and sufficient cause shown.” State v.
Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (citation omitted) (alteration
original), cert denied, 362 U.S. 917, 4 L. Ed. 2d 738 (1960).
In an exercise of discretion, this Court grants Defendant’s petition for writ of
certiorari to hear his belated appeal. This Court possesses jurisdiction pursuant to
N.C. Gen. Stat. § 15A-1444(g) (2019); N.C. R. App. P. 21(a)(1) (“The writ of certiorari
may be issued in appropriate circumstances by either appellate court to permit review
of the judgments and orders of trial tribunals when the right to prosecute an appeal
has been lost by failure to take timely action[.]”).
Our Supreme Court has held whether to grant or deny a motion to amend the
record is “a decision within the discretion of the Court of Appeals” which constitutes
a legitimate application of our appellate rules absent an “abuse of discretion.” State
v. Petersilie, 334 N.C. 169, 177, 432 S.E.2d 832, 837 (1993). The State argues the
purported document is not an appropriate entry or statement showing an appeal
taken orally. In support of this assertion, the State cites State v. Hughes, wherein
this Court dismissed an appeal because the appealing party failed to comply with
Rule 4 of our Rules of Appellate Procedure. This failure deprived this Court of
jurisdiction to consider the appeal. State v. Hughes, 210 N.C. App. 482, 485, 707
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S.E.2d 777, 778-79 (2011). However, the reasoning in Hughes is distinguishable from
the facts of this case. In Hughes, the defendant did not petition this court for a writ
of certiorari or to amend the record. Id. Contemporaneously filed with this motion to
amend was Defendant’s now-allowed petition for writ of certiorari. Having acquired
jurisdiction, and in the exercise of our discretion, this Court allows Defendant’s
motion to amend the record to reflect his notice of appeal.
III. Issue
Defendant argues the trial court committed plain error by not instructing the
jury ex mero motu on the lesser-included offense of selling hydrocodone. Defendant
acknowledges he did not request the lesser-included offense and review of this
argument is limited to plain error.
IV. Lesser-Included Instruction
A. Standard of Review
Under our Rules of Appellate Procedure: “In criminal cases, an issue that was
not preserved by objection noted at trial and that is not deemed preserved by rule or
law without any such action nevertheless may be made the basis of an issue presented
on appeal when the judicial action questioned is specifically and distinctly contended
to amount to plain error.” N.C. R. App. P. 10(a)(4).
This Court’s review under plain error is “applied cautiously and only in the
exceptional case” where the error “seriously affect[s] the fairness, integrity, or public
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reputation of judicial proceedings” to overcome dismissal for a defendant’s failure to
preserve. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation
omitted). To constitute plain error, Defendant carries and maintains the burden to
show “not only that there was error, but that absent the error, the jury probably
would have reached a different result” to demonstrate prejudice. State v. Jordan, 333
N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
B. Analysis
Defendant argues the trial court plainly erred by not instructing the jury on
the lesser-included offense of selling a controlled substance. Defendant asserts the
State’s evidence conflicted on the weight of the hydrocodone the CI had purchased
from him during the 4 February 2016 transaction.
Our Supreme Court has held: “Where there is conflicting evidence as to an
essential element of the crime charged, the court should instruct the jury with regard
to any lesser included offense supported by any version of the evidence.” State v. Jones,
304 N.C. 323, 331, 283 S.E.2d 483, 488 (1981) (emphasis original).
“[O]nly where there is evidence from which the jury reasonably could find that
the defendant committed the lesser offense” is the trial court required to instruct the
jury on a lesser included offense. State v. Bagley, 321 N.C. 201, 210, 362 S.E.2d 244,
249-50 (1987). “If the State’s evidence is sufficient to fully satisfy its burden of
proving each element of the greater offense and there is no evidence to negate those
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elements other than the defendant’s denial that he committed the offense, [the]
defendant is not entitled to an instruction on the lesser offense.” State v. Smith, 351
N.C. 251, 267-68, 524 S.E.2d 28, 40 (2000) (citation omitted).
To determine if the lesser-included offense instruction is necessary, the test is
“whether the State’s evidence is positive as to each element of the crime charged and
whether there is any conflicting evidence relating to any of these elements.” State v.
Chaves, 246 N.C. App. 100, 103, 782 S.E.2d 540, 543 (2016) (internal citation and
quotation marks omitted).
Our General Statutes provide a defendant is guilty of trafficking in opium or
heroin when he “sells, manufactures, delivers, transports, or possesses four grams or
more of opium or opiate, or any salt, compound, derivative, or preparation of opium
or opiate . . . including heroin, or any mixture containing such substance.” N.C. Gen.
Stat. § 90-95(h)(4) (2019). “[T]he legislature’s use of the word ‘mixture’ establishes
that the total weight of the dosage units . . . is sufficient basis to charge a suspect
with trafficking.” State v. Jones, 85 N.C. App. 56, 68, 354 S.E.2d 251, 258 (1987). The
two essential elements of trafficking in opium are a defendant must (1) knowingly
sell (2) a specified amount of opium (or any preparation thereof). State v. Hunt, 249
N.C. App. 428, 432, 790 S.E.2d 874, 878 (2016).
Our Supreme Court has held “tablets and pills of prescription pharmaceutical
drugs” are mixtures under N.C. Gen. Stat. § 90-95(h)(4). State v. Ellison, 366 N.C.
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439, 444, 738 S.E.2d 161, 163-64 (2013). A defendant’s criminal liability under N.C.
Gen. Stat. § 90-95(h)(4) is “based on the total weight of the mixture involved.” Id. at
440, 738 S.E.2d at 162. The total weight of the pills or tablets determines whether
the amount possessed constitutes trafficking. See id.
Analyst Chancey testified the total weight of the twenty tablets from the 4
February purchase weighed 8.47 grams, plus or minus 0.03 grams. Defendant argues
the CI’s testimony that she had purchased “$200 worth of pain pills, 20 of them, 10-
milligram hydrocodone” provides sufficient conflicting evidence to require the trial
court to issue the lesser-included instruction ex mero motu.
This testimony does not create a conflict to warrant the lesser-included
instruction. The “10-milligram hydrocodone” merely relates to the dosage or strength
of the hydrocodone, the active ingredient in the tablets. Under Ellison, the total
weight of the pills is considered to determine whether the statutory threshold is met,
not just the weight of the active ingredient. Ellison, 366 N.C. at 442, 738 S.E.2d at
163-64. The CI was not referencing the total weight. Analyst Chancey’s testimony
provided the total weight of the tablets from her laboratory analysis to meet the
State’s burden.
The evidence presented at trial tended to show Defendant sold to the CI twenty
tablets containing hydrocodone weighing a total of 8.47 grams, satisfying all essential
elements of the trafficking in opium charge from the 4 February 2016 incident. We
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find no error, and certainly no plain error, in the trial court not instructing the jury
ex mero motu on the lesser-included offense of selling a controlled substance.
Defendant’s argument for plain error review is overruled.
V. Conclusion
Defendant’s argument that the trial court committed any error, including plain
error, by not instructing the jury ex mero motu on the lesser-included offense of selling
a controlled substance is without merit. Defendant received a fair trial, free from
prejudicial errors he preserved or argued. We find no error in the jury’s verdicts or in
the judgment entered upon. It is so ordered.
NO ERROR.
Judges ZACHARY and BROOK concur.
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