State v. Campbell ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-865
Filed: 2 June 2020
Cleveland County, No. 16 CRS 210
STATE OF NORTH CAROLINA
v.
MICHAEL ERIC CAMPBELL, Defendant.
Appeal by Defendant from judgment entered 28 February 2019 by Judge David
A. Phillips in Cleveland County Superior Court. Heard in the Court of Appeals 31
March 2020.
Attorney General Joshua H. Stein, by Assistant Attorney General William D.
Walton, for the State.
Vitrano Law Offices, PLLC, by Sean Paul Vitrano, for Defendant.
INMAN, Judge.
Michael Eric Campbell (“Defendant”) appeals the trial court’s judgment
entering a jury verdict convicting him of trafficking in methamphetamine. Because
the evidence introduced at trial showed only that Defendant believed the white
substance handed to him was fake, rather than an impure mixture of
methamphetamine, and because the issue of Defendant’s knowing possession of the
drug is controlled by this Court’s prior decisions, we reverse the trial court’s
judgment.
STATE V. CAMPBELL
Opinion of the Court
I. Factual and Procedural Background
Evidence presented by the State at trial showed the following:
On 12 June 2014, the Cleveland County Sheriff’s Office, in coordination with
the Drug Enforcement Administration, and with the assistance of an informant,
arranged a controlled sale of methamphetamine at a local motel. Defendant had
purchased methamphetamine from the informant, Greg Blackburn (“Blackburn”), on
prior occasions, and he owed Blackburn approximately $2,000.00.
Defendant arrived at the motel with Donnie Brown (“Brown”). They entered a
motel room and Defendant sat on a bed next to Blackburn. Blackburn handed
Defendant a plastic container wrapped in black electrical tape, which contained
approximately twenty-eight grams, or one ounce, of a white crystalline substance that
Blackburn said was methamphetamine. Defendant opened the container, examined
its contents, and said, “This is re-rock.” The substance was, in fact, a mixture of one
gram of methamphetamine and twenty-eight or twenty-nine grams of a cutting agent.
Blackburn insisted to Defendant that the methamphetamine was real. Brown asked
to examine it, and Defendant then handed the container to Brown. Law enforcement
officers entered the room and arrested Defendant and Brown.
An officer read Defendant his Miranda rights and Defendant then agreed to
speak with law enforcement. According to Defendant, he began helping Blackburn
distribute methamphetamine three months earlier, in March 2014. Defendant said
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STATE V. CAMPBELL
Opinion of the Court
that he had purchased quarter-ounce quantities of methamphetamine from
Blackburn on four separate occasions, that he had previously sold to another
individual, and that he would set up a controlled transaction to sell additional
methamphetamine to that individual.
At the close of the State’s evidence, Defendant moved to dismiss the case,
arguing that the evidence showed he “did not know [the substance in the container]
was methamphetamine” and, therefore, “did not knowingly possess
methamphetamine.” Defendant’s motion was denied by the trial court.
Defendant presented no evidence. The jury found Defendant guilty of
trafficking in methamphetamine. The trial court sentenced him to 70 to 93 months
in prison and ordered him to pay a $50,000.00 fine. Defendant timely appeals.
II. Analysis
Defendant argues that the trial court erred when it denied his motion to
dismiss for insufficiency of the evidence.1 After careful review, we agree.
A. Standard of Review
We review the trial court’s denial of a motion to dismiss de novo. State v.
McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982). “To survive a motion to
dismiss for insufficient evidence, the State must present substantial evidence of all
1 Defendant also argues that the trial court committed plain error in admitting hearsay
evidence. Because we agree with Defendant that the trial court erred in denying his motion to dismiss,
we do not reach the second argument.
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STATE V. CAMPBELL
Opinion of the Court
the material elements of the offense charged and that the defendant was the
perpetrator of the offense.” State v. Campbell, 368 N.C. 83, 87, 772 S.E.2d 440, 444
(2015) (citation and quotation marks omitted). “Substantial evidence is such evidence
as a reasonable mind might accept as adequate to support a conclusion.” State v.
Herring, 322 N.C. 733, 738, 370 S.E.2d 363, 367 (1988). “In making its determination,
the trial court must consider all evidence admitted, whether competent or
incompetent, in the light most favorable to the State, giving the State the benefit of
every reasonable inference and resolving any contradictions in its favor.” State v.
Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
B. Knowing Possession of a Controlled Substance
Defendant was convicted of trafficking in methamphetamine in violation of
N.C. Gen. Stat. § 90-95(h)(3b), which provides: “Any person who sells, manufactures,
delivers, transports, or possesses 28 grams or more of methamphetamine or any
mixture containing such substance shall be guilty of a felony[.]” N.C. Gen. Stat. § 90-
95(h)(3b) (2013). To obtain a conviction under section 90-95(h)(3b), “the State must
prove the defendant (1) knowingly possessed or transported methamphetamine, and
(2) that the amount possessed was greater than 28 grams.” State v. Shelman, 159
N.C. App. 300, 305, 584 S.E.2d 88, 93 (2003) (citations omitted). In this case, the
State’s evidence did not show that Defendant knowingly possessed
methamphetamine.
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STATE V. CAMPBELL
Opinion of the Court
The evidence discloses that Defendant and Brown met with Blackburn, a police
informant, at a motel to purchase methamphetamine. Brown testified at trial that
Blackburn handed the closed container to Defendant, who opened it and said, “This
is re-rock. . . . [T]hat’s fake meth.” Blackburn’s girlfriend, Lindsey Cochran
(“Cochran”), who was also in the motel room, testified that Defendant “looked at [the
contents of the container] and he was, like, This is re-rock. It’s fake. . . . He said it
was fake.”
Deputy Matthew Sadler (“Deputy Sadler”), one of the sheriff’s deputies
listening in on the transaction, testified that “when the canister was passed from
Blackburn to [Defendant], he said – he opened it and said, ‘This is fake.’ He said,
[‘]This is fake or it’s flex.’ And then he handed it to Donnie Brown. . . . [I]t was
identified as flex and then handed off to Mr. Brown.” Brown asked to inspect the
contraband because he had never seen “re-rock” before and wanted to know what it
looked like. Brown opened the container and looked at its contents; the moment he
did so, Deputy Sadler entered the room and arrested Defendant and Brown.
Every witness for the State testified that Defendant used the term “re-rock”
to describe “fake” drugs.2 When asked directly what “re-rock” is, Brown testified:
At the time I had no idea what it was. They said that’s fake
meth. I said, “Let me see it.” [Defendant] handed it to me.
I opened it and looked at it. As soon as I looked at it, Mr.
Sadler come [sic] walking through the door.
2 Although Deputy Sadler testified that Defendant said, “This is fake. . . . This is fake or it’s
flex[,]” (emphasis added), no definition of the term “flex” was ever provided to the jury.
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STATE V. CAMPBELL
Opinion of the Court
....
It just looked a little milky. Regular meth is a little clearer,
like glass, and this had a milky color to it.
The prosecutor also asked Cochran if she knew what “re-rock” was, and she testified
“[n]ot really” before confirming that Defendant said “it was fake[.]” No other
witnesses testified what “re-rock” meant, leaving the jury with a singular definition:
fake methamphetamine.
Our dissenting colleague asserts that “re-rock” in the particular vernacular of
the illicit drug trade means some form of diluted, impure, or watered-down controlled
substance. But no evidence introduced at trial informed the jury of that possible
meaning, or any meaning other than a fake substance.
The dissent asserts we are intruding upon the jury’s duty to weigh the evidence
because we “do[ ] not understand what the terms ‘re-rock’ or ‘flex’ mean.” The
question is not whether this Court understands these terms, but whether a juror
could draw a reasonable inference from the evidence presented by the State consistent
with the meaning proposed by the dissent. The State could have offered such
evidence. See, e.g., State v. McClaude, 237 N.C. App. 350, 356, 765 S.E.2d 104, 109
(2014) (upholding the trial court’s denial of a motion to dismiss a charge of cocaine
possession when a sheriff’s deputy testified, based on his training and experience,
about the meaning of slang terms used by the defendant in describing drug
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STATE V. CAMPBELL
Opinion of the Court
transactions). It did not, and instead demonstrated only that Defendant considered
the substance to be fake.3
Because the evidence showed Defendant believed he was handed fake
methamphetamine, his inspection and handling of the substance, in accord with prior
decisions by this Court, does not amount to knowing possession. See State v. Wheeler,
138 N.C. App. 163, 530 S.E.2d 311 (2000); State v. Moose, 101 N.C. App. 59, 398
S.E.2d 898 (1990).
In State v. Wheeler, during a controlled sale, an undercover officer handed the
defendant cocaine, which the defendant in turn handed to his accomplice. Wheeler,
138 N.C. App. at 164, 530 S.E.2d at 312. The accomplice tasted the substance and
handed it back to the undercover officer, expressed concerns with the quality of the
drug, and told the officer he and the defendant did not want to complete the purchase.
Id. This Court concluded the State did not present substantial evidence of possession,
much less knowing possession, because the defendant and his accomplice “handled
the cocaine for the sole purpose of inspecting it and after inspection they made a
3 The dissent posits that our analysis also requires casting a skeptical eye to the word “fake,”
suggesting it is an equally obscure term with a meaning specific in the drug trade. Unlike the term
“re-rock,” “fake” has been commonly used in the English language since the 1800s. See Black’s Law
Dictionary (11th ed. 2019) (defining “fake,” dating to the 19th century, as “[s]omething that is not what
it purports to be.”) The word “fake” has been used in hundreds of this State’s appellate court decisions
for more than a century for the same common meaning in a wide array of cases involving, by way of
example, fake drugs, fake identification, fake name, and fake alibi. By contrast, the word “re-rock,”
appears in no prior decision by this Court or our Supreme Court The word “flex,” as used in the
context of the cocaine trade, has been used by this Court in just one decision, in which a police officer
testified that it meant “fake crack cocaine.” State v. Massey, 153 N.C. App. 324, 569 S.E.2d 736, 2002
WL 31163605, at *1 (2002) (unpublished). The Court in Massey did not define the word “fake.”
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STATE V. CAMPBELL
Opinion of the Court
determination not to purchase the cocaine.” Id. at 165, 530 S.E.2d at 313. This Court
ultimately held that the defendant’s “handling of the cocaine for inspection purposes
does not constitute possession within the meaning of section 90-95(h)(3), as he did
not have the power and intent to control its disposition or use.” Id. (citing Moose, 101
N.C. App. at 65, 398 S.E.2d at 901, and United States v. Kitchen, 57 F.3d 516, 524–
25 (7th Cir. 1995)).
We conclude that Wheeler is controlling in this case. As in Wheeler, the State’s
evidence showed only that Defendant identified the substance as “re-rock” and “fake,”
and no evidence supports a reasonable inference that Defendant intended to continue
the transaction after telling Blackburn he believed it was fake. To be sure, the
evidence shows that Defendant came to the motel intending to purchase real—not
fake—methamphetamine. And the State’s evidence tended to show that Blackburn
actually handed Defendant a mixture containing methamphetamine. Nonetheless,
Defendant’s identification of the substance as fake does not evince the requisite intent
to control the disposition or use of a controlled substance. Wheeler, 138 N.C. App. at
165, 530 S.E.2d at 313 (citations omitted). Though Defendant handed the contraband
to Brown after identifying it as fake, Brown’s testimony shows that Defendant did so
simply because Brown wanted to know what fake methamphetamine looked like
rather than to continue the purchase. This Court has held that handling a drug solely
for inspection purposes, standing alone, does not constitute possession. See Moose,
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STATE V. CAMPBELL
Opinion of the Court
101 N.C. App. at 65, 398 S.E.2d at 901 (holding an informant did not possess cocaine
for trafficking purposes when the informant inspected it by placing a finger into the
white powder and touching it to the informant’s lip); see also Kitchen, 57 F.3d at 524(holding a defendant did not possess cocaine during a planned purchase when he
picked it up to inspect it, expressed doubt as to its purity, and was arrested before he
could expressly call off the transaction).
III. Conclusion
We hold that the trial court erred in denying Defendant’s motion to dismiss
because the State failed to present substantial evidence that Defendant possessed,
much less knowingly possessed, the methamphetamine within the container. The
trial court’s judgment is reversed.
REVERSED.
Chief Judge McGEE concurs.
Judge BERGER dissents by separate opinion.
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No. COA19-865 – State v. Campbell
BERGER, Judge, dissenting in separate opinion.
The majority opinion is at odds with the fundamental principle that “[t]he
jury’s role is to weigh evidence, assess witness credibility, assign probative value to
the evidence and testimony, and determine what the evidence proves or fails to
prove.” State v. Moore, 366 N.C. 100, 108, 726 S.E.2d 168, 174 (2012) (citations
omitted). It is further at odds with the idea that “[i]n borderline or close cases, our
courts have consistently expressed a preference for submitting issues to the jury.”
State v. Yisrael, 255 N.C. App. 184, 193, 804 S.E.2d 742, 747 (2017) (purgandum).
Here, twelve men and women from Cleveland County weighed and deliberated
over the evidence presented, and they unanimously found Defendant guilty of
trafficking in methamphetamine. Because the majority reweighs the evidence and
renders a different verdict, I respectfully dissent.
Review of a trial court’s denial of a Defendant’s motion to dismiss is de novo.
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citing State v.
McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982)). “If there is more than a
scintilla of competent evidence to support the allegations in the warrant or
indictment, it is the court’s duty to submit the case to the jury.” State v. Horner, 248
N.C. 342, 344-45, 103 S.E.2d 694, 696 (1958) (citations omitted).4 “In making its
4 “The terms ‘more than a scintilla of evidence’ and ‘substantial evidence’ are in reality the
same and simply mean that the evidence must be existing and real, not just seeming or imaginary.”
State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) (citation omitted).
STATE V. CAMPBELL
BERGER, J., dissenting
determination, the trial court must consider all evidence admitted, whether
competent or incompetent, in the light most favorable to the State, giving the State
the benefit of every reasonable inference and resolving any contradictions in its
favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted).
The trial court’s function is to determine whether the
evidence will permit a reasonable inference that the
defendant is guilty of the crimes charged. In so doing the
trial court should only be concerned that the evidence is
sufficient to get the case to the jury; it should not be
concerned with the weight of the evidence. It is not the rule
in this jurisdiction that the trial court is required to
determine that the evidence excludes every reasonable
hypothesis of innocence before denying a defendant’s
motion to dismiss.
State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991) (purgandum).
Pursuant to N.C. Gen. Stat. Section 90-95,
Any person who sells, manufactures, delivers, transports,
or possesses 28 grams or more of methamphetamine or any
mixture containing such substance shall be guilty of a
felony which felony shall be known as “trafficking in
methamphetamine” and if the quantity of such substance
or mixture involved:
a. Is 28 grams or more, but less than 200 grams,
such person shall be punished as a Class F felon
and shall be sentenced to a minimum term of 70
months and a maximum term of 93 months in the
State’s prison and shall be fined not less than
fifty thousand dollars ($50,000)[.]
N.C. Gen. Stat. § 90-95(h)(3b)(a) (2019).
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STATE V. CAMPBELL
BERGER, J., dissenting
A defendant may be found guilty of trafficking in methamphetamine by
possession if the State satisfies a two-prong test beyond a reasonable doubt. State v.
Cardenas, 169 N.C. App. 404, 409, 610 S.E.2d 240, 243-44 (2005). First, the State
must show that the defendant knowingly possessed methamphetamine. Id. at 409,
610 S.E.2d at 243. To satisfy the knowledge requirement, a “defendant must be
aware of the presence of [the] illegal drug.” State v. Weldon, 314 N.C. 401, 403, 333
S.E.2d 701, 702-03 (1985). Second, the State must show “that the amount possessed
[by the defendant] was 28 grams or more.” Cardenas, 169 N.C. App. at 409, 610
S.E.2d at 243-44 (citation omitted).
Here, the State presented more than a scintilla of evidence that Defendant
knowingly possessed more than 28 grams of a mixture of methamphetamine. The
evidence tended to show that Defendant was a methamphetamine dealer who
obtained his supply twice a week from Blackburn. Blackburn occasionally fronted
quantities of methamphetamine to Defendant upon Defendant’s promise to repay.
On this occasion, Defendant was meeting Blackburn to acquire an ounce of
methamphetamine. Brown testified that Defendant “was going to give me a bag of
free meth for giving him a ride.”
Once Defendant arrived at the pre-determined location for the transaction,
Defendant asked where the illegal contraband was located. Blackburn “handed
[Defendant] the container” wrapped in black electrical tape. At this point, the
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STATE V. CAMPBELL
BERGER, J., dissenting
evidence tended to show that Defendant had a mixture of more than 28 grams of
methamphetamine in his possession.
Additionally, evidence was presented that upon opening the container,
Defendant stated that the mixture of methamphetamine was “re-rock.” Testimony
was also presented that Defendant said the mixture of methamphetamine was “flex”
or “fake.” After Defendant made these comments, Blackburn reassured Defendant
that the methamphetamine was good. Defendant handed the mixture of
methamphetamine to Brown.
“Re-rock” is a term used in the illicit drug trade, typically associated with
repackaging cocaine, to describe a watered-down product packaged in such a way to
make it appear pure. This statement by Defendant is some evidence of Defendant’s
knowledge, and this evidence, in the light most favorable to the State, was properly
submitted to the jury on the issue of knowing possession. The majority states that
because it does not understand what the terms “re-rock” or “flex” mean, those terms
have no evidentiary value. To be consistent, the majority should also include the term
“fake,” as that term was never defined in the context in which Defendant used it.
However, the question of whether Defendant knowingly possessed
methamphetamine when he uttered “fake,” “re-rock,” or “flex” should turn on what
Defendant meant when he uttered those terms, not the majority’s knowledge. All
three terms may have meant impure methamphetamine, or they could have all meant
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STATE V. CAMPBELL
BERGER, J., dissenting
counterfeit drugs. Or, it may have been an attempt by Defendant to renegotiate the
deal because of the quality of the methamphetamine. Whatever Defendant meant
when he uttered those terms, it is the “province of the jury to weigh the testimony
and to decide upon its adequacy to prove any issuable fact.” State v. Owenby, 226
N.C. 521, 523, 39 S.E.2d 378, 379 (1946). It is not the duty of this Court to assign
evidentiary value and reweigh the evidence.
As in most cases, jury selection here was not recorded. We have no idea of who
sat on the jury that heard Defendant’s case. We do not know anything about the
jurors’ backgrounds. Perhaps this jury had members with prior experience in law
enforcement or the drug trade. This jury could have consisted of twelve former law
enforcement officers, twelve former drug dealers, or twelve former prosecutors. One
juror may have understood exactly what “re-rock” or “flex” meant in this context and
explained those terms to fellow jurors. Whatever the make-up of the jury, it was their
duty to listen to the evidence and determine if they were fully satisfied or entirely
convinced of Defendant’s guilt using their reason and common sense.
Further, the majority contends Defendant did not possess methamphetamine
because inspection of illegal contraband does not constitute possession under State v.
Wheeler, 138 N.C. App. 163, 165, 530 S.E.2d 311, 313 (2000). However, Wheeler is
readily distinguishable. In Wheeler, the defendant received cocaine from an
undercover officer and then the defendant handed the contraband to his accomplice.
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STATE V. CAMPBELL
BERGER, J., dissenting
Id. at 164, 530 S.E.2d at 312. The accomplice tested the product and handed it back
to the undercover officer. Id. at 164, 530 S.E.2d at 312. The defendant’s accomplice
said they did not want to continue with the purchase because of the poor quality of
the cocaine. Id. at 164, 530 S.E.2d at 312. This Court concluded that under those
circumstances, the State did not prove possession because the defendant and his
accomplice “handled the cocaine for the sole purpose of inspecting it and after
inspection they made a determination not to purchase the cocaine.” Id. at 165, 530
S.E.2d at 312-13 (emphasis added).
Unlike Wheeler, Defendant did not affirmatively reject the methamphetamine
mixture. At no time did Defendant return the container to Blackburn, attempt to
become dispossessed of the methamphetamine once it was in his control, or otherwise
indicate his intent to discontinue the transaction after Blackburn assured Defendant
it was not “re-rock” (or “flex” or “fake”). Rather, Defendant handed the
methamphetamine over to Brown. Brown never stated that they would not continue
with the transaction, and Brown did not return the methamphetamine mixture to
Blackburn. For these reasons, the trial court did not err, and Defendant’s motion to
dismiss was properly denied.
In addition, although the majority does not reach Defendant’s plain error and
Confrontation Clause arguments because of the disposition on his first argument, I
would conclude that the trial court did not commit plain error when it admitted the
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STATE V. CAMPBELL
BERGER, J., dissenting
challenged evidence, and did not violate Defendant’s rights under the Sixth
Amendment.
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