State v. Blagg ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1117
Filed: 5 May 2020
Buncombe County, Nos. 17 CRS 80163-64, 17 CRS 80166, 17 CRS 338
STATE OF NORTH CAROLINA
v.
CHARLES BLAGG, Defendant.
Appeal by defendant from judgments entered 29 January 2018 by Judge Gary
M. Gavenus in Bumcombe County Superior Court. Heard in the Court of Appeals 9
April 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph
E. Herrin, for the State.
Vitrano Law Offices, PLLC, by Sean P. Vitrano, for defendant-appellant.
BERGER, Judge.
Charles Blagg (“Defendant”) was convicted of possession with intent to sell and
deliver methamphetamine, possession of methamphetamine, possession of
marijuana, and attaining habitual felon status on January 11, 2018. Defendant was
sentenced on January 29, 2018, and he received concurrent sentences of 128 to 166
months and 50 to 72 months in prison. Defendant appeals, arguing the trial court
erred in denying his motion to dismiss the possession with intent to sell or deliver
methamphetamine charge. We disagree.
STATE V. BLAGG
Opinion of the Court
Factual and Procedural Background
Defendant failed to appear when his cases were called for trial, and he was
tried in absentia. The evidence at trial tended to show that Buncombe County
Sheriff’s Office Deputies Darrell Maxwell (“Deputy Maxwell”) and Jake Lambert
(“Deputy Lambert”), along with a third deputy, were conducting surveillance of a
home on Flint Hill Road in Weaverville on January 4, 2017.
Deputy Maxwell had been with the Sheriff’s Office since 1999. At all relevant
times herein, Deputy Maxwell was a member of the Sheriff’s Community
Enforcement Team, which specifically addressed drug crimes and service of high-risk
warrants. He testified that he was familiar with the appearance, packaging, and
distribution of methamphetamine and marijuana.
Deputy Maxwell was positioned across the street from the residence. Deputy
Maxwell observed a vehicle pull into the driveway of the residence, and a man went
inside “for approximately 10 minutes.” Deputy Maxwell did not see the man re-enter
the vehicle, but he saw the lights on the vehicle illuminate and the vehicle pull out of
the driveway.
Deputy Maxwell followed the vehicle for approximately one mile. Deputy
Maxwell observed the vehicle cross the double yellow line as it approached a blind
curve, and he initiated a traffic stop. Defendant was driving the vehicle, and Deputy
Maxwell asked Defendant for his driver’s license to conduct a records check. Then,
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STATE V. BLAGG
Opinion of the Court
Deputy Maxwell conducted a pat-down search, which Defendant did not object to.
Deputy Maxwell recovered a pocketknife from Defendant’s person but noted there
was nothing unusual or uncommon about the discovery. Defendant denied having
any drugs or contraband.
Deputy Maxwell asked Defendant for consent to search the vehicle. Defendant
responded: “[N]ot without a warrant[.]” Deputy Maxwell returned to his patrol unit
“to write [Defendant] a warning ticket for crossing over the double yellow line.” While
Deputy Maxwell was writing the warning citation, Deputy Lambert arrived with K-
9 Officer Jedi.
Deputy Lambert had worked as a law enforcement officer for 13 years at the
time of this incident. He had worked with the K-9 Jedi for five years. Jedi was a
trained narcotics dog, certified in detecting the odor of marijuana,
methamphetamine, cocaine, and heroin. Deputy Lambert, Jedi’s trained handler,
instructed Jedi to conduct an open-air sniff around Defendant’s vehicle. Jedi alerted
three times in a manner consistent with detection of an odor of narcotics. Deputy
Lambert conducted a partial search of the inside of the vehicle, and he located what
appeared to him to be methamphetamine.1
1 We use the terms methamphetamine and “crystalline substance” throughout the opinion.
Methamphetamine refers to the substance found in a bag that was analyzed and determined to be 6.51
grams of methamphetamine. “Crystalline substance” refers to the separately packaged, untested
quantities of what Deputy Lambert believed to be methamphetamine that was packaged similarly to
the 6.51 grams of methamphetamine.
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STATE V. BLAGG
Opinion of the Court
Defendant was arrested and a more thorough search of the vehicle was
conducted. Deputies discovered an off-white crystalline substance in a large bag and
several small bags individually wrapped; several unused syringes; one loaded
syringe; a baggie of cotton balls; and a camouflage “safe” that contained plastic
baggies and other drug paraphernalia. Deputies did not recover cash from Defendant
or from inside the vehicle. No cutting agents, scales, or business ledgers were found.
Deputies acknowledged that there was no evidence discovered on this occasion that
would indicate that Defendant was a high-level actor in the drug trade. However,
Defendant attempted to provide information on an individual wanted for drug
trafficking, and he acknowledged that he was going to meet with this individual.
Lab analysis showed that the large bag contained 6.51 grams of
methamphetamine. While the total weight of the methamphetamine and the
crystalline substance recovered from the vehicle was 8.6 grams, the contents of the
remaining baggies containing the crystalline substance were not tested pursuant to
crime lab procedures.
Defendant was indicted for possession with intent to sell or deliver
methamphetamine, possession of methamphetamine, possession of marijuana,
possession of marijuana paraphernalia, and attaining habitual felon status.
Defendant’s case came on for trial on January 9, 2018. The possession of marijuana
paraphernalia charge was dismissed at the close of the State’s evidence. Defendant
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STATE V. BLAGG
Opinion of the Court
also moved to dismiss the possession with intent to sell or deliver methamphetamine
charge. He argued that the State did not prove Defendant had the intent to sell or
deliver methamphetamine. Defendant specifically argued:
[T]here was no cash, no guns, no evidence of a hand to hand
transaction[,] . . . [n]o books, notes, ledgers, money orders,
financial records, documents, . . . [and] nothing indicating
that [Defendant] is a dealer as opposed to a possessor or
user[.]
Defendant appeals the denial of his motion to dismiss.
Standard of Review
“We review the trial court’s denial of a motion to dismiss de novo.” State v.
Blakney, 233 N.C. App. 516, 518, 756 S.E.2d 844, 846 (2014) (citation omitted).
A motion to 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.
Id. 518, 756 S.E.2d at 846 (citation omitted).
“In making its determination, the trial court must consider all evidence
admitted, whether competent or incompetent, in the light most favorable to the State,
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STATE V. BLAGG
Opinion of the Court
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). In addition, “we have held that in borderline or close cases,
our courts have consistently expressed a preference for submitting issues to the jury.”
State v. Coley, ___ N.C. App. ___, ___, 810 S.E.2d 359, 365 (2018) (purgandum).
Analysis
“[I]t is unlawful for any person . . . [to] possess with intent to manufacture,
sell or deliver, a controlled substance.” N.C. Gen. Stat. § 90-95(a)(1) (2019). “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.” Blakney, 233 N.C. App. at 519, 756 S.E.2d at 846.
When direct evidence of a defendant’s intent to sell or deliver contraband is
lacking, intent “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) (citation omitted). Other relevant factors may be considered.
See e.g., State v. Thompson, 188 N.C. App. 102, 106, 654 S.E.2d 814, 817 (2008).
Because this inquiry is “fact-specific,” courts must consider the “totality of the
circumstances in each case . . . unless the quantity of drugs found is so substantial
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STATE V. BLAGG
Opinion of the Court
that this factor—by itself—supports an inference of possession with intent to sell or
deliver.” Coley, ___ N.C. App. at ___, 810 S.E.2d at 365.
When viewed in the light most favorable to the State, the evidence as a whole
supported an inference that Defendant committed the offense of possession with
intent to sell or deliver methamphetamine sufficient to overcome Defendant’s motion
to dismiss.
The quantity of a controlled substance alone will only “support the inference of
an intent to transfer, sell, or deliver” if it is “substantial”—i.e., more than would
reasonably be carried for personal use. Nettles, 170 N.C. App. at 105, 612 S.E.2d at
176 (citations and quotation marks omitted). Here, the trial court determined that
the State could not argue the 6.51 grams of methamphetamine in Defendant’s
possession was not for personal use. However, this does not negate the quantity
seized by officers, or the inferences that the jury could reasonably draw therefrom.
Defendant possessed at least 6.51 grams of methamphetamine, which is
approximately 23% of the quantity necessary to sustain a conviction for trafficking in
methamphetamine. This is not a small amount. See State v. McNeil, 165 N.C. App.
777, 783, 600 S.E.2d 31, 35 (2004) (finding that 5.5 grams of cocaine, which represents
19.64% of the trafficking amount, along with other relevant circumstances, was
sufficient for a charge of possession with intent to sell or deliver cocaine); State v.
Brennan, 247 N.C. App. 399, 786 S.E.2d 433 (2016) (unpublished) (concluding that
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STATE V. BLAGG
Opinion of the Court
defendant’s possession of 8.75 grams of methamphetamine, which represents 31.25%
of the trafficking amount, along with various drug paraphernalia was sufficient
evidence of the defendant’s intent to sell or deliver methamphetamine).
In addition, the State presented evidence concerning the typical
methamphetamine exchange between seller and consumer. Deputy Maxwell testified
that, based on his training and experience, the typical transaction for
methamphetamine was “anywhere from half a gram to one gram.”
There was no evidence that the amount of methamphetamine in Defendant’s
possession was consistent with personal use. Defendant had more than six times,
and up to 13 times, the amount of methamphetamine typically purchased. While it
is possible that Defendant had 13 hits of methamphetamine solely for personal use,
it is also possible that Defendant possessed that quantity of methamphetamine with
the intent to sell or deliver the same. See Brennan, 247 N.C. App. 399, 786 S.E.2d
433 (2016) (unpublished) (“[I]f a half gram is considered an average user amount, the
8.75 grams of methamphetamine found in defendant’s possession potentially
represented 17.5 user amounts.”). This issue is properly resolved by the jury.
Moreover, the evidence also tended to show that Defendant had just left a
residence that had been under surveillance multiple times for drug-related
complaints. Defendant also admitted that he had plans to visit an individual charged
with trafficking drugs. While Defendant’s actions may be wholly consistent with an
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STATE V. BLAGG
Opinion of the Court
individual obtaining drugs for personal use, the jury could also reasonably infer that
he had the intent to sell or deliver methamphetamine because of the quantity of
drugs, the other circumstantial evidence, and his admission.
In addition, the evidence tended to show that Defendant possessed
“paraphernalia or equipment used in drug sales.” Nettles, 170 N.C. App. at 107, 612
S.E.2d at 177 (purgandum). Officers seized plastic baggies commonly used for
packaging and delivery of controlled substances, cotton balls used to filter liquid
methamphetamine, and syringes used to deliver methamphetamine into the body.
See N.C. Gen. Stat. § 90-113.21(a)(9), (a)(11) (2019). The baggies in Defendant’s
possession are paraphernalia or equipment used in methamphetamine transactions.
The following exchange occurred between the State and Deputy Maxwell concerning
packaging:
Q. Deputy Maxwell, based on your approximately five
years of drug investigations while you were on the
enforcement team, these plastic bags, based on your
training and experience, is this consistent with your
experience as to the dealing and transportation of
methamphetamine?
A. It is.
Q. What are the ways that you typically see
methamphetamine packaged?
A. Usually a seller will individually package the
substance. Usually in anywhere from half a gram to one
gram, depending on what the buyer is wanting. On
occasion, they will weigh out and re-package it, and sell
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STATE V. BLAGG
Opinion of the Court
whatever the buyer is seeking.
Thus, the evidence presented to the jury tended to show the plastic bags in
Defendant’s possession were typically used in the transportation and distribution of
methamphetamine. Standing alone, possession of the baggies may be innocent
behavior. However, when viewed as a whole and in the light most favorable to the
State, the jury could reasonably infer that baggies in Defendant’s possession were
used for the packaging and distribution of methamphetamine.
The question here is not whether evidence that does not exist entitles
Defendant to a favorable ruling on his motion to dismiss. That there may be evidence
in a typical drug transaction that is non-existent in another case is not dispositive on
the issue of intent. Instead, the question is whether the totality of the circumstances,
based on the competent and incompetent evidence presented, when viewed in the
light most favorable to the State, permits a reasonable inference that Defendant
possessed methamphetamine with the intent to sell or deliver.
In this type of case, where reasonable minds can differ, the weight of the
evidence is more appropriately decided by a jury. Coley, ___ N.C. App. at ___, 810
S.E.2d at 365. Accordingly, the trial court did not err in denying the Defendant’s
motion to dismiss and submitting the case to the jury.
NO ERROR.
Chief Judge MCGEE dissents by separate opinion.
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STATE V. BLAGG
Opinion of the Court
Judge TYSON concurs.
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No. COA18-1117 – State v. Blagg
McGEE, Chief Judge, dissenting.
The State had the burden of proving possession of methamphetamine with the
intent to sell or deliver it (“PWISD”). I believe the record evidence in this case shows
nothing more than “the normal or general conduct of people” who use
methamphetamine; thus, the evidence, at most, “raises only a suspicion . . . that
[D]efendant had the necessary intent to sell and deliver” methamphetamine. State
v. Turner, 168 N.C. App. 152, 158–59, 607 S.E.2d 19, 24 (2005) (citation omitted). I
therefore respectfully dissent.
In order to survive a motion to dismiss, the evidence must be substantial—
such that “a reasonable inference of defendant’s guilt may be drawn from the
circumstances[.]” State v. Barnes, 334 N.C. 67, 75–76, 430 S.E.2d 914, 919 (1993).
“[V]iew[ing] the evidence in the light most favorable to the State, [and] making all
reasonable inferences from the evidence in favor of the State[,]” State v. Kemmerlin,
356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002) (citation omitted), the record evidence
in this case, as I discuss in detail later in my dissent, was only sufficient to allow a
reasonable inference of two relevant facts. First, a single bag containing 6.51 grams
of methamphetamine was found in the vehicle (the “vehicle”) Defendant was driving,
but the 6.51 grams of methamphetamine was “not sufficient to raise an inference that
[possession of] the [drug] was for the purpose of [sale or delivery].”2 State v. Wiggins,
2 We cannot consider “evidence” that was not admitted at trial and, as the trial court firmly
warned the State, the State had not introduced any evidence that 6.51 grams was indicative of an
intent to sell, or more than a simple drug user might reasonably possess for solely personal use. The
trial court expressly forbade the State from making any inferences to the contrary at trial.
STATE V. BLAGG
McGee, C.J., dissenting
33 N.C. App. 291, 294–95, 235 S.E.2d 265, 268 (1977) (citation omitted). Second, an
undetermined number of clear plastic bags were found in the lockbox recovered from
the rear right floorboard of the vehicle. Due to the lack of record evidence concerning
the number of empty plastic bags recovered from the vehicle, or introduced at trial,
this Court cannot presume the existence of more than the smallest reasonable
number of empty bags—the testimony only indicated plural, or more than one bag.
Although the record evidence only indicates that more than one empty bag was
recovered—therefore a minimum of two—I will assume, arguendo, the record
evidence supported a reasonable inference that deputies recovered “a couple” or “a
few” empty plastic bags from the vehicle. State v. Mitchell, 336 N.C. 22, 28-29, 442
S.E.2d 24, 27-28 (1994), abrogated on other grounds as noted in State v. Rogers, 371
N.C. 397, 817 S.E.2d 150 (2018) (emphasis added) (“The trial court found that the
quantity of marijuana was sufficient to permit the jury reasonably to infer that it
weighed more than one and one-half ounces; but there is nothing in the record before
us to support that finding. The marijuana was not brought forward on appeal, and
we have not been able to see it for ourselves.”); see also Kemmerlin, 356 N.C. at 473,
573 S.E.2d at 889 (citation omitted) (“‘We have defined substantial evidence as that
amount of relevant evidence necessary to persuade a rational juror to accept a
conclusion.’”). Based on the facts before us, any inference that more than a “few”
empty plastic bags were found in the lockbox “would be based on mere speculation.”
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STATE V. BLAGG
McGee, C.J., dissenting
State v. Robbins, 319 N.C. 465, 487, 356 S.E.2d 279, 292 (1987). I believe the trial
court erred in denying Defendant’s motion to dismiss when the record evidence
demonstrated nothing more than possession of an amount of methamphetamine
consistent with personal use, packaged in a single bag, and a few empty plastic bags
recovered from the lockbox, which also contained personal items and paraphernalia
only indicating drug use—including a “loaded” syringe.
I. Analysis
A. Appellate Review
The majority opinion argues that “[t]he question here is not whether evidence
that does not exist entitles Defendant to a favorable ruling on his motion to dismiss.
That there may be evidence in a typical drug transaction that is non-existent in
another case is not dispositive on the issue of intent.” While the absence of evidence
typically found in the possession of drug dealers is not necessarily “dispositive,”
decades of precedent establish that, in many cases, the lack of such evidence is
dispositive, and I believe that is the case in the matter before us. It is the State’s
burden to present substantial evidence supporting Defendant’s intent to sell, and
when the State fails to present sufficient evidence of an intent to sell, this Court must
remand for entry of an order dismissing that charge:
There was no testimony that the drugs were packaged,
stored, or labeled in a manner consistent with the sale of
drugs. Defendant’s actions were not similar to the actions
of a drug dealer. . . . . A large amount of cash was not
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STATE V. BLAGG
McGee, C.J., dissenting
found. The police officers found four hundred and eleven
dollars on defendant’s person, which defendant stated was
part of the money he received from his five hundred and
forty-seven dollar social security check. . . . . Also, the
officers did not discover any other money on the premises.
The officers found four to five crack rocks in the parked car.
Although the officers testified that a safety pin typically is
utilized by crack users to clean a crack pipe, there were no
other drugs or drug paraphernalia typically used in the
sale of drugs found on the premises. See State v. Rich, 87
N.C. App. 380, 361 S.E.2d 321 (1987) (indicating an intent
to sell or deliver drugs was established where twenty
grams of cocaine was found along with a chemical used for
diluting cocaine and one hundred small plastic bags in
close proximity to the cocaine). Viewed in the light most
favorable to the State, the evidence tends to indicate
defendant was a drug user, not a drug seller.
State v. Nettles, 170 N.C. App. 100, 107, 612 S.E.2d 172, 176–77 (2005). The Nettles
Court relied in part on State v. Turner, in which this Court reasoned:
The State points to no other evidence or circumstances
[than an officer’s opinion that the defendant was carrying
more crack cocaine than a normal drug user would possess]
that in any way suggest that defendant had an intent to
sell or deliver the crack cocaine contained in the tube lying
on the loveseat between defendant and Ishmar Smith.
The State, for example, presented no evidence of
statements by defendant relating to his intent, of any sums
of money found on defendant, of any drug transactions at
that location or elsewhere, of any paraphernalia or
equipment used in drug sales, of any drug packaging
indicative of an intent to sell the cocaine, or of any other
behavior or circumstances associated with drug
transactions. The State’s entire case rests only on a
deputy’s opinion testimony about what people “normally”
and “generally” do. The State has cited no authority and
we have found none in which such testimony—without any
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STATE V. BLAGG
McGee, C.J., dissenting
other circumstantial evidence of a defendant’s intent—was
found sufficient to submit the issue of intent to sell and
deliver to the jury.
State v. Turner, 168 N.C. App. 152, 158, 607 S.E.2d 19, 24 (2005) (citation omitted).
Further:
In State v. Wiggins, 33 N.C. App. 291, 235 S.E.2d 265
(1977), defendant was found with less than one-half pound
of marijuana in his possession. No weighing scales, rolling
papers or other paraphernalia were found. The Court held
that this small quantity of marijuana alone, without
additional evidence, was insufficient to raise the inference
that defendant intended to sell the substance.
State v. King, 42 N.C. App. 210, 213, 256 S.E.2d 247, 249 (1979); see also State v.
Battle, 167 N.C. App. 730, 733, 606 S.E.2d 418, 421 (2005) (citation omitted) (“A
relatively small drug quantity alone, ‘without some additional evidence, is not
sufficient to raise an inference’” that the drug was possessed for any reason other
than “only for personal use[.]”). As in Battle, in this case the State did not introduce
evidence that the amount of the drug found in the vehicle was more than an amount
“only for personal use[.]” Id. In Battle:
[T]he State presented little evidence supporting
Defendant’s alleged intent to sell cocaine. Only 1.9 grams
of compressed powder cocaine—little enough, according to
the State’s own chemist, to have been only for personal
use—was found. The investigators found no implement
with which to cut the cocaine, no scales to weigh cocaine
doses, no containers for selling cocaine doses. The
investigators further searched Defendant’s car and found
neither drugs nor paraphernalia. The State’s meager
evidence of intent to sell cannot be considered “substantial
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STATE V. BLAGG
McGee, C.J., dissenting
evidence” supporting the charge of possession of cocaine
with intent to sell.
Id. (citation omitted). Because the amount of methamphetamine in this case must be
considered relatively minimal—as an amount regularly possessed by simple drug
users, the State was required to introduce substantial additional evidence sufficient
to allow a reasonable inference that Defendant intended to sell the drug—i.e., items
generally associated with drug dealing, testimony about Defendant’s activities
suggesting drug selling, and expert testimony making the connection between the
evidence presented and drug dealing, when such a connection was outside the
common knowledge of a typical juror.3 The other “items” usually associated with drug
dealing rather than drug use are those discussed in Nettles and its progeny, such as
large amounts of cash, mostly in smaller denominations; scales to weigh and divide
the drug into usual sales amounts; tools for “safely” dividing and packaging the drug
with minimal loss of product; a cutting agent to mix in with the drug in order to dilute
it and allow the dealer to sell more units; numerous bags or other containers to contain
the weighed and divided drug, and promote efficient and discreet delivery; numerous
individual units of the drug already packaged in amounts typical for dealing, and
ready to sell. The State would also have to present expert testimony explaining this
3 An obvious example of behavior suggestive of drug dealing would be if Defendant was
observed in an area known for drug sales activity, remained in the same location for a long period of
time, during which Defendant had multiple brief interactions with different people in which Defendant
was observed exchanging small packages for cash
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STATE V. BLAGG
McGee, C.J., dissenting
evidence and why it was indicative of drug sales and not just drug use. Nettles, 170
N.C. App. at 107, 612 S.E.2d at 176; see also Turner, 168 N.C. App. at 158, 607 S.E.2d
at 24; Battle, 167 N.C. App. at 733, 606 S.E.2d at 421; King, 42 N.C. App. at 213, 256
S.E.2d at 249. I would hold the State failed to meet its burden in this case.
B. The Lack of Evidence
In this case, the State’s additional evidence consisted of a few empty plastic
bags. The State presented no expert, or even lay, testimony linking these empty bags
to an intent to sell, rather than use, the methamphetamine. “Viewed in the light
most favorable to the State, the evidence tends to indicate defendant was a drug user,
not a drug seller.” Nettles, 170 N.C. App. at 107, 612 S.E.2d at 176–77. There was
also no testimony that any of Defendant’s actions after the stop, during the search,
or during and after Defendant’s arrest, were indicative of an intent to sell the
methamphetamine recovered from the vehicle. The State contends in the fact section
of its brief that Defendant “voluntarily told [the deputies] during the stop that ‘he
would give [them] Haywood’s most wanted’ in reference to ‘a female who was wanted
for trafficking heroin or something of that nature.’” While this is factually correct,
Defendant’s statements carry very little relevance, as is indicated by the State’s
decision not to reference them in the argument section of its brief. Deputy Maxwell
testified: Defendant “advised me that he was supposed to meet her. He didn’t
elaborate on the reason to meet her[.] I can’t remember the exact conversation at
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STATE V. BLAGG
McGee, C.J., dissenting
that point.” Deputy Maxwell testified concerning Defendant’s claim that he could
provide information about an alleged drug dealer that it “was not unusual. I mean
it’s pretty common once you arrest somebody for possession of some sort of drugs,
they want to try to help themselves.” Deputy Maxwell had never heard of the woman
Defendant was calling “Haywood’s most wanted.” He did not remember the specifics
of Defendant’s “offer” to help, and nothing in the record suggests Deputy Maxwell or
anyone else thought Defendant’s statements warranted any follow-up. Deputy
Lambert testified that Defendant “was reaching out trying to figure out how he could
assist himself with his bond or his charges that he may incur.” There was no
testimony that Defendant’s attempt to get help “with his bond” “or [the] charges he
may incur” in this manner was at all suggestive that Defendant was a drug dealer
instead of someone “arrest[ed] [] for possession of … drugs[.]”
Assuming, arguendo, that any empty plastic bags were properly introduced
into evidence, based upon the record evidence, it was impermissible for either the
trial court or the jury to infer that more than “a few” empty plastic bags were
recovered, or that possession of any number of empty bags constituted evidence from
which it could be inferred that Defendant was a drug dealer instead of a simple drug
user. There is absolutely no record evidence from which we can infer that the jury,
or the trial court, had any idea how many empty bags were found in the vehicle. We
cannot assume the existence of facts not supported by the record, nor assume the
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STATE V. BLAGG
McGee, C.J., dissenting
State met its burden on an issue if the record does not support such a determination.
Mitchell, 336 N.C. at 28-29, 442 S.E.2d at 27-28.
When, as in this case, direct evidence of a defendant’s intent to sell or deliver
a controlled substance is lacking, intent “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.” Nettles, 170 N.C.
App. at 106, 612 S.E.2d at 176 (citation omitted). Other relevant factors may be
considered as well, see, e.g. State v. Thompson, 188 N.C. App. 102, 106, 654 S.E.2d
814, 817 (2008), but “in ruling upon the sufficiency of evidence in cases involving the
charge of possession with intent to sell or deliver, our courts have placed particular
emphasis on the amount of drugs discovered, their method of packaging, and the
presence of paraphernalia typically used to package drugs for sale.” State v. Coley,
257 N.C. App. 780, 788, 810 S.E.2d 359, 365 (2018) (emphasis added); see also Nettles,
170 N.C. App. at 107, 612 S.E.2d at 176; Turner, 168 N.C. App. at 158, 607 S.E.2d at
24; Battle, 167 N.C. App. at 733, 606 S.E.2d at 421; King, 42 N.C. App. at 213, 256
S.E.2d at 249.
The only testimony concerning packaging of the drug was the following
testimony by Deputy Maxwell given immediately after he had testified about the
photographs entered into evidence showing the plastic bags with unknown
substance(s) on the scale:
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STATE V. BLAGG
McGee, C.J., dissenting
Q. Deputy Maxwell, based on your approximately five
years of drug investigations while you were on the
enforcement team, these plastic bags, based on your
training and experience, is this consistent with your
experience as to the dealing … of methamphetamine?
A. It is.
Q. What are the ways that you typically see
methamphetamine packaged?
A. Usually a seller will individually package the substance.
Usually in anywhere from half a gram to one gram,
depending on what the buyer is wanting. On occasion, they
will weigh out and re-package it, and sell whatever the
buyer is seeking.
First, Deputy Maxwell’s opinion testimony that the “plastic bags” he had just seen in
photographs—the three plastic bags containing crystalline substance(s) being
weighed—were “consistent with … the dealing … of methamphetamine[,]” was based
on the improper assumption that all three bags contained methamphetamine. This
constituted “only on a deputy’s opinion testimony about what people ‘normally’ and
‘generally’ do”—the kind of testimony found insufficient, standing alone, “to submit
the issue of intent to sell and deliver to the jury.” Turner, 168 N.C. App. at 158, 607
S.E.2d at 24 (citation omitted). Second, the methamphetamine in this case was
packaged in a single bag, in a quantity at least six times more than the one-half-ounce
to one-ounce amounts Deputy Maxwell testified were standard amounts of
methamphetamine when packaged for sale; the deputies recovered no one-half to one
gram amounts of methamphetamine—packaged in a manner facilitating concealment
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and quick sale—whether in small plastic bags or any other type of container.
According to the record evidence, the methamphetamine in this case was not
packaged in a manner normally associated with an intent to sell the drug. Nettles,
170 N.C. App. at 107, 612 S.E.2d at 176 (“There was no testimony that the drugs were
packaged, stored, or labeled in a manner consistent with the sale of drugs.”).
“Defendant’s actions were not similar to the actions of a drug dealer.” Id. at
107, 612 S.E.2d at 176. Deputy Maxwell testified that he did not observe Defendant
doing anything out of the ordinary prior to stopping him—no hand-to-hand
transactions with another person, for example. “I did not witness any transaction.”
In fact, Defendant was not observed interacting with anyone. The only reason Deputy
Maxwell’s suspicions were raised is because the residence was under surveillance,
Defendant drove there and spent approximately ten minutes inside, then drove
away.4 Deputy Maxwell testified he had never seen Defendant or his vehicle visit
this residence before, and no evidence was produced that anyone who lived in the
residence, or anyone other than Defendant who had visited the residence, was ever
involved in drug sales; but, most relevantly, prior to Defendant’s arrest. As noted
above, the amount of the drug in this case must be treated as an amount consistent
with personal use, because, as the trial court clearly ruled, the State offered no
4 There is no record evidence that the residence was under surveillance due to suspected illegal
drug activity. The trial court sustained Defendant’s objection to Deputy Maxwell’s testimony that he
was watching the residence due to “complaints” concerning “suspected drug activity[,]” and there was
no other testimony in evidence to that effect.
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evidence that would allow the jury to infer otherwise. Id. at 106, 612 S.E.2d at 176
(“it cannot be inferred that defendant had an intent to sell or distribute from such
a[n] . . . amount alone”).
No cash was found on Defendant or in the vehicle. See Id. at 107, 612 S.E.2d
at 176-77 (Evidence was insufficient where: “A large amount of cash was not found.
The police officers found four hundred and eleven dollars on defendant’s person,
which defendant stated was part of the money he received from his five hundred and
forty-seven dollar social security check.” “Also, the officers did not discover any other
money on the premises.”); see also Wilkins, 208 N.C. App. at 732, 703 S.E.2d at 810
(citation omitted) (the Court considered “the fact that defendant was carrying
$1,264.00 in cash” in denominations of between $1.00 and $20.00 bills, but
determined this evidence, considered with the State’s other evidence, was not
sufficient to support an intent to sell or deliver). Deputy Maxwell agreed, “based on
[his] training and experience,” that “drug dealers maintain on hand large amounts of
U.S. currency” “so that they can maintain and finance their operation[.]” When asked
to confirm that he “found zero money on” Defendant, Deputy Maxwell testified “I did
not confiscate any currency from [Defendant].” Deputy Maxwell testified it was
“common” for drug dealers to keep “ledgers” that “[u]sually [contain] names—and
maybe not full names, but names, maybe money owed or—that’s been my experience.”
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He also testified “that drug dealers often maintain books . . . about their drug
dealing[.]” However, no such books or ledgers were found in the vehicle.
Deputy Maxwell testified that methamphetamine is often packaged in plastic
bags for sale—therefore plastic bags can be considered paraphernalia depending on
the facts introduced at trial. In this case, although the State appears to believe it
introduced testimony that possession of empty plastic bags was an indication of an
intent to sell, there is no testimony to that effect in the record. Nor was there any
testimony that it was unusual to find a few empty plastic bags—or a large number of
empty plastic bags—in the vehicle of a simple drug user. Further, there was
absolutely no evidence at trial that any of the other paraphernalia found in the
vehicle—an unknown number of commonly available syringes in the original small,
unopened store packaging; one “loaded” syringe; cotton balls; and one rubber band—
was indicative of an intent to sell methamphetamine. This is likely because these
items suggest methamphetamine use, not an intent to sell the drug. Without
appropriate testimony concerning these paraphernalia items, there was no evidence
from which an intent to sell, rather than use, could be properly inferred from their
presence in the vehicle. Id. at 107, 612 S.E.2d at 177 (citation omitted) (there was no
“drug paraphernalia typically used in the sale of drugs found [on the defendant or]
on the premises”).
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There was no evidence of other behaviors or items normally associated with
drug sales. There was no diluting or “cutting” agent found, id.; Deputy Maxwell
testified: “Drug dealers use [cutting agents] so when they get product, they can
minimize it with rock salt and sell more”; and no scales to weigh and divide the drug
into usual sales amounts were found, King, 42 N.C. App. at 213, 256 S.E.2d at 249.
Deputy Maxwell testified that “in [his] training and experience, most drug dealers,
they have scales so they know what they’re selling;” and scales are “very important
for a drug dealer so they don’t get ripped off” but “[t]here were no scales in th[e]
vehicle.” There was no testimony that Defendant had tools for “safely” dividing and
packaging the drug with minimal loss, Battle, 167 N.C. App. at 733, 606 S.E.2d at
421; that he had numerous bags or other containers to contain the weighed and
divided drug and promote efficient and discreet delivery, Nettles, 170 N.C. App. at
106, 612 S.E.2d at 176; nor that he possessed numerous individual units of the drug
already packaged in amounts typical for dealing, and ready to sell.
There was testimony that drug dealers often have multiple cell phones on
which they conduct their business. A single cell phone was recovered from Defendant,
taken into evidence, and forensically examined. No evidence supporting Defendant’s
involvement in the sale of drugs was recovered from Defendant’s single cell phone.
The State would also have to present expert testimony explaining this evidence and
why it was indicative of drug sales and not just drug use. Mitchell, 336 N.C. at 29,
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STATE V. BLAGG
McGee, C.J., dissenting
442 S.E.2d at 28 (“The jury may not find the existence of a fact based solely on its in-
court observations where the jury does not possess the requisite knowledge or
expertise necessary to infer the fact from the evidence as reflected in the record.”);
Nettles, 170 N.C. App. at 108, 612 S.E.2d at 177 (“the police officer did not testify that
defendant possessed an amount that was more than a drug user normally would
possess for personal use”); Turner, 168 N.C. App. at 158, 607 S.E.2d at 24 (“The
State’s entire case rests only on a deputy’s opinion testimony about what people
“normally” and “generally” do. The State has cited no authority and we have found
none in which such testimony—without any other circumstantial evidence of a
defendant’s intent—was found sufficient to submit the issue of intent to sell and
deliver to the jury.”).
C. The State’s Arguments
1. Arguments on Appeal
“‘When the evidence is . . . sufficient only to raise a suspicion or conjecture as
to . . . the commission of the offense . . ., the motion to dismiss must be allowed.’” Id.
I assume, arguendo, the State is correct that Defendant possessed a few empty plastic
bags “which can be used in order to divide drugs into smaller quantities for sale.”
However, the State is incorrect in its assertion that the record evidence shows that
the empty bags were “numerous.” The State introduced the plastic bags into evidence
only generally—as part of the contents of the lockbox. There was no testimony
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STATE V. BLAGG
McGee, C.J., dissenting
concerning the number of empty bags, the size of the empty bags, a description of the
empty bags, any potential relevance of the empty bags or, more specifically, how the
presence of empty bags constituted evidence of methamphetamine dealing rather
than use.
The remainder of the State’s arguments are also either based on evidence not
introduced at trial, or are not supported by any law, and should be summarily
dismissed. No evidence supports the State’s characterization of “[t]he amount of the
drugs” recovered as “substantial[.]” There was no testimony that 6.51 grams of
methamphetamine was a “substantial” amount, and the jury was not permitted to
make that determination without expert testimony to that effect. There was no
testimony comparing the 6.51 ounces of methamphetamine recovered to the amount
required for a trafficking charge, 28 grams, nor any testimony explaining the
relevance of any such comparison. The trial court properly prohibited the State from
characterizing 6.51 grams of the drug as more than was consistent with personal use.
When determining whether an element exists, the jury
may rely on its common sense and the knowledge it has
acquired through everyday experiences. Thus, the jury
may, based on its observations of the defendant, assess
whether the defendant is older than twelve. The jury’s
ability to determine the existence of a fact in issue based
on its in-court observations, however, is not without
limitation. The jury may not find the existence of a fact
based solely on its in-court observations where the jury
does not possess the requisite knowledge or expertise
necessary to infer the fact from the evidence as reflected in
the record.
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STATE V. BLAGG
McGee, C.J., dissenting
Mitchell, 336 N.C. at 29, 442 S.E.2d at 28. The average juror does not have any
personal familiarity with methamphetamine, its packaging, the usual tools used to
portion and package methamphetamine, or what amount of the drug would constitute
a “substantial” amount. Id. at 30, 442 S.E.2d at 28 (“Unlike age, the weight of a given
quantity of marijuana is not a matter of general knowledge and experience. ….
Human characteristics associated with various ages are matters of common
knowledge. The same cannot be said regarding the weight of various quantities of
marijuana. This is a matter familiar only to those who regularly use or deal in the
substance, who are engaged in enforcing the laws against it, or who have developed
an acute ability to assess the weight of objects down to the ounce. The average juror
does not fall into any of these categories.”).
The State also makes an incorrect statement of fact and law where it asserts:
“Defendant was in possession of a controlled substance, that was visually identified
by law enforcement as methamphetamine. This was confirmed as methamphetamine
by the testimony of [] Cha[]ncey[,] who performed scientific testing on the substances
presented and confirmed that the substances were methamphetamine, as testified to
by Detective Maxwell.” As the trial court properly understood, a law enforcement
officer’s visual inspection of a crystalline substance is not sufficient to identify that
substance as methamphetamine. “The North Carolina Supreme Court held in Ward
that ‘[u]nless the State establishes before the trial court that another method of
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STATE V. BLAGG
McGee, C.J., dissenting
identification is sufficient to establish the identity of the controlled substance beyond
a reasonable doubt, some form of scientifically valid chemical analysis is required.’”
State v. Carter, 255 N.C. App. 104, 106–07, 803 S.E.2d 464, 466 (2017) (citations
omitted). For this reason, whenever the State’s case included either deputy’s opinion
that the crystalline substance(s) were methamphetamine, the trial court instructed
the jury to discount that testimony, and not consider it in any manner during their
deliberations.
Further, Chancey did not perform “scientific testing on the substances” and
“confirm[] that the substances were methamphetamine, as testified to by Deputy
Maxwell.” Only one bag, and thus only one “substance,” was tested. Chancey did not
confirm the deputies’ opinions, which were not evidence, she conducted testing on a
single bag containing a crystalline substance and determined, scientifically, that the
single bag contained 6.51 grams of methamphetamine—with a trace amount of an
unidentified substance. The additional crystalline substance(s) contained in the
plastic bags recovered from the vehicle were never tested, and the trial court clearly
instructed the State and the jury that no inferences concerning the contents of the
additional substance-containing bags could be made: “Three of those bags there is no
evidence that they are methamphetamine. You understand that?” Further, the State
incorrectly argues that Chancey “did not test the other items presented as the weight
of [the bag containing 6.51 grams of methamphetamine] in and of itself met the
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STATE V. BLAGG
McGee, C.J., dissenting
statutory weight requirements for the charges presented.” This statement is
erroneous because there is no “statutory weight requirement” for the charge of
PWISD. Therefore, there could not have been a decision by the trial court or the jury
that 6.51 grams met any “statutory requirement.”
The State further argues, “[m]ore importantly the other items found within []
Defendant’s vehicle infer the intent to sell[.]” The State only mentions two “other
items”: “[N]umerous syringes which can be used to deliver drugs in the system of a
purchaser. More importantly, there were numerous baggies, which can be used in
order to divide drugs into smaller quantities for sale.” As noted, the syringes could
not serve as evidence of Defendant’s intent to sell because there was no testimony or
other evidence introduced at trial allowing such an inference. There is no evidence
concerning the number of syringes found in the vehicle, so there is nothing from which
one could determine the presence of “numerous” syringes. The State’s argument on
appeal does not demonstrate more than that Defendant was in possession of an
amount of methamphetamine small enough “to have been only for personal use[,]”
Battle, 167 N.C. App. at 733, 606 S.E.2d at 421, and a few empty plastic bags, the
significance of which was not established at trial. Mitchell, 336 N.C. at 29, 442 S.E.2d
at 28.
2. Arguments at Trial
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STATE V. BLAGG
McGee, C.J., dissenting
The State’s arguments at trial, made after the close of all the evidence, also
mainly focused on the empty bags. As noted above, the only testimony concerning
packaging of the drug was the opinion testimony of Deputy Maxwell, which only
undercut the State’s case by introducing evidence that the usual packaging of
methamphetamine for sale was in separate one-half-ounce to one-ounce amounts—
not a single bag containing 6.51 ounces. Further, no empty plastic bags had been
introduced into evidence at this time, so Deputy Maxwell’s testimony was limited to
the several plastic bags containing crystalline substance(s) that were depicted in the
photographs he had just been shown.
Deputy Maxwell’s answer was sufficient to permit an inference that
methamphetamine packaged for sale is “usually” “individually package[d]” “in
anywhere from half a gram to one gram, depending on what the buyer is wanting.”
In this case, the deputies recovered a single bag containing 6.51 grams of
methamphetamine—i.e., an amount and method of packaging methamphetamine
that was not, according to the testimony, “usual” if the intent was to sell. Deputy
Maxwell also testified there was a second, not “usual” packaging method, stating: “On
occasion, they will weigh out and re-package it, and sell whatever the buyer is
seeking.” Taken together, this testimony is some evidence that occasionally
methamphetamine dealers carry larger quantities of the drug in a single container
and re-package it for sale only after the buyer specifies an amount, but the “usual”
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STATE V. BLAGG
McGee, C.J., dissenting
method is to prepackage one-half gram to one gram amounts and carry those for sale.
Therefore, the single bag containing 6.51 grams of methamphetamine was not
packaged the way a dealer would “usually” package the drug for sale, and the lack of
common tools for dividing, weighing, and repackaging for sale suggests use, not
dealing. The bags containing untested substance(s) could not be considered by the
trial court or the jury as evidence of the Nettles factor of “packaging.”5
There was no testimony that the “few” empty plastic bags found in the lockbox
with the “loaded” syringe, used “blunts,” Chapstick, a personal letter, a single rubber
band, and cotton balls, were at all suggestive of an intent to sell any of the
methamphetamine—which was recovered from the console. There was no testimony
that it was uncommon for a drug user to have a “few” empty bags in his vehicle for
personal use, whether related to methamphetamine or anything else.
The syringes cannot constitute evidence in this case supporting an intent to
sell because there was no testimony, expert or otherwise, that could have possibly
linked the syringes to any intent to sell. Neither the trial court nor the jury could
infer such a connection without expert testimony because whether or not drug dealers
also typically possess “loaded” or new syringes is not a fact of common knowledge.
5 The State asserts in its brief that “Chauncey [sic] … performed scientific testing on the
substances … and confirmed that the substances were methamphetamine, as testified to by Detective
[sic] Maxwell.” This is simply incorrect. A single substance was tested from a single bag. As the trial
court told the State: “Three of those bags there is no evidence that they are methamphetamine. You
understand that?”
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STATE V. BLAGG
McGee, C.J., dissenting
Mitchell, 336 N.C. at 29, 442 S.E.2d at 28 (“The jury may not find the existence of a
fact based solely on its in-court observations where the jury does not possess the
requisite knowledge or expertise necessary to infer the fact from the evidence as
reflected in the record.”). To a lay person, an unknown but small number of syringes
would be at least as likely, if not more likely, to indicate drug use than an intent to
sell. “Viewed in the light most favorable to the State, the evidence tends to indicate
defendant was a drug user, not a drug seller.” Nettles, 170 N.C. App. at 107, 612
S.E.2d at 176–77. As noted above, the forensic examination of Defendant’s single cell
phone turned up no evidence that Defendant was involved in the sale of
methamphetamine or any other drug. Other than the “few” plastic bags, there was
no paraphernalia found that was even arguably indicative of an intent to sell the
methamphetamine.
In response to this lack of evidence, Defendant argued the PWISD charge
should be dismissed because “there was no cash, no guns, no evidence of a hand to
hand transaction. No evidence of people. No books, notes, ledgers, money orders,
financial records, documents, guns. Nothing indicating that [Defendant] is a dealer
as opposed to a possessor or user[.]” “They have to do something other than just say,
hey, you had this. There has to be some testimony about something else, and we don’t
have any of that. No evidence of confederates, no evidence of conspiracy, no evidence
of—again, a sale, hand to hand transaction. Nothing else in the car. Nothing.”
- 22 -
STATE V. BLAGG
McGee, C.J., dissenting
Contrary to the State’s argument to the trial court, there was no record
evidence of the number of empty bags because the State did not have Detective
Maxwell count any empty plastic bags during his testimony; instead, the State
counted the bags itself while the jury was in the jury room awaiting closing
arguments. If the trial court considered any of this non-evidence, it would constitute
error.
The majority opinion generally appears to consider the empty plastic bags as
the most important factor in support of the trial court’s denial of Defendant’s motion
to dismiss, but it also discusses additional issues or alleged facts that it seems to find
relevant. The majority notes that Deputy Maxwell “estimated that this was the fifth
time he had participated in a stake out of [the] residence[,]” and surmises “the
evidence … tend[s] to show that Defendant had just left a residence that had been
under surveillance multiple times for drug-related complaints.” As noted, the trial
court sustained Defendant’s objection to Deputy Maxwell’s testimony that he was
watching the residence due to “complaints” concerning “suspected drug activity”; here
was no evidence presented at trial that the “residence” was “under surveillance
multiple times for drug-related complaints.” Deputy Maxwell also testified that he
had never seen Defendant or the car Defendant was driving at the residence prior to
the evening of 4 January 2017.
- 23 -
STATE V. BLAGG
McGee, C.J., dissenting
The majority opinion also states that “Deputy Lambert conducted a partial
search of the inside of the vehicle, and he located what appeared to him to be
methamphetamine.” It further states that the untested “[c]rystalline substance”
recovered from the vehicle and packaged separately from the tested bag containing
6.51 grams of methamphetamine was “what Deputy Lambert believed to be
methamphetamine.” P.3 n.1 Deputy Lambert did not testify at trial that the
crystalline substance “appeared to be methamphetamine” but testified that he
located “the black container that had the white crystal substance in it.” While on the
scene, Deputy Lambert did tell Deputy Maxwell that he had found what he believed
to be methamphetamine in the vehicle, and this statement was captured by both
deputies’ body cams. When this comment came up on the body cam footage, the trial
court requested the video be paused and instructed the jury: “Now Ladies and
Gentlemen, you will disregard that statement that it appears to be
methamphetamine. You will not consider that for any purpose in this trial. Each
of you understand that?” There was no evidence admitted at trial that either deputy
believed any of the crystalline substance(s) were methamphetamine, and the fact that
Deputy Lambert made such a statement to Deputy Maxwell during the course of the
search of the vehicle is irrelevant to our review. The only evidence establishing the
presence of methamphetamine in the vehicle was the testimony of Chancey, who
- 24 -
STATE V. BLAGG
McGee, C.J., dissenting
testified that a single plastic bag recovered from the vehicle contained 6.51 grams of
methamphetamine.
There is no record evidence of the “total weight” of the methamphetamine
combined with the other crystalline substance(s) recovered from the vehicle.
Although Chancey testified that she determined the “gross” weight of the non-tested
substance(s), she did not provide those numbers at trial. The trial court cautioned
the State that it could not use the untested bags as evidence of “the quantity of the
substance [i.e. the methamphetamine].”
Any inference that the untested crystalline substance(s) were also
methamphetamine, or any guess as to the weight of those substance(s), would not be
based upon any evidence admitted at trial and, therefore, would be improper. On
direct examination Deputy Maxwell testified concerning one of the State’s exhibits:
“That is a large bag of white crystal substance, what I believed to be
methamphetamine.” Defendant objected, and the trial court responded: “Sustained
as to what he believes it to be. Ladies and Gentlemen, you’ll disregard that. You will
not consider it for any purpose in this trial.” The trial court cautioned the State at
trial: “What you’re asking [the jury] to do is find [the untested substances in the other
plastic bags are also] methamphetamine. The State cannot do it under the evidence
in this case. Now if you want me to give an instruction to this jury that this Court
instructs this jury that based upon the evidence they cannot find the items in [the
- 25 -
STATE V. BLAGG
McGee, C.J., dissenting
additional bags] are methamphetamine, then I’ll do that[.] But they can’t make that
finding. There’s no evidence.” (Emphasis added). The trial court later stated: “I’m
going to instruct the State that they are not to tell this jury that the jury can look at
those four packages and make a determination by the jury that the other three that
were not tested are—is methamphetamine.”6 The untested substance(s) are not
relevant.
No evidence was introduced that 6.51 grams of methamphetamine “is not a
small amount[,]” and without testimony to that effect, it would have been an improper
inference for the trial court or the jury to draw in this case. We are limited to the
evidence of record, which is that Defendant possessed exactly 6.51 grams of
methamphetamine. As the trial court noted, the State only presented evidence of
6.51 grams of methamphetamine recovered from the vehicle. We cannot infer the
possibility that there was more than 6.51 grams of methamphetamine recovered
when there is no record evidence that would allow such an assumption. The trial
court cautioned the State it could not argue 6.51 grams of methamphetamine was an
amount greater than one would normally carry for personal use. “Neither will you[,
the State,] be able to argue to this jury that [the 6.51 grams] was more than [an
amount normally carried for] personal use, because there’s no evidence of that.”
6 It is not clear what the “fourth” package is in reference to. Only three bags containing
crystalline substance(s) were introduced by Deputy Maxwell through the photographs contained in
the record. However, a fourth bag of untested substance would add nothing to the State’s case.
- 26 -
STATE V. BLAGG
McGee, C.J., dissenting
(Emphasis added). See Nettles, 170 N.C. App. at 108, 612 S.E.2d at 177 (“[T]he police
officer did not testify that defendant possessed an amount that was more than a drug
user normally would possess for personal use.”). In other words, the State could not
argue the weight of the methamphetamine as a factor indicating Defendant had the
intent to sell or deliver the drugs instead of the intent to consume all 6.51 grams
himself. This meant the 6.51 grams of methamphetamine was sufficient to support
the possession charge, but the State would have to rely almost entirely on additional
evidence to meet its burden of proving the element of Defendant’s intent to sell or
deliver for the PWISD charge.
“Unless the State establishes before the trial court that another method of
identification is sufficient to establish the identity of the controlled substance beyond
a reasonable doubt, some form of scientifically valid chemical analysis is required.”
Ward, 364 N.C. at 147, 694 S.E.2d at 747. “[T]he expert witness testimony required
to establish that the substances introduced here are in fact controlled substances
must be based on a scientifically valid chemical analysis and not mere visual
inspection.” Id. at 142, 694 S.E.2d at 744.
There was no testimony concerning the amount of methamphetamine drug
users typically “purchase.” There was no evidence from which it could be inferred
that a drug user was unlikely to possess 6.51 grams of methamphetamine for personal
use. There was no testimony concerning the amounts of methamphetamine generally
- 27 -
STATE V. BLAGG
McGee, C.J., dissenting
purchased for personal use, so any attempt to make that determination is
speculation. I do agree with the general concept that “[w]hile it is possible that
[someone could possess 6.51 grams of] methamphetamine solely for personal use, it
is also possible that [person] possessed that quantity of methamphetamine with the
intent to sell or deliver the same.” Both of these things are possible and deciding
which one is correct requires speculation. Robbins, 319 N.C. at 487, 356 S.E.2d at
292. It is possible that a defendant in possession of any amount of
methamphetamine, no matter how small, intends to sell it—that is why the law in
this case required the State to prove sufficient evidence beyond mere possession to
prove PWISD. Further, because there was no testimony attempting to estimate the
number of “hits” 6.51 grams would constitute or how many “hits” would be considered
excessive for personal use, and that is the type of determination a jury cannot make
absent expert testimony. The estimated number of “hits” would have been improper
for the trial court to consider, and it constitutes an improper consideration of “facts”
not in evidence. Unlike in Nettles, there was no testimony as to the amount of
methamphetamine normally consumed in a single dose, nor the monetary value of
6.51 grams of methamphetamine. Deputy Maxwell simply testified that generally “a
seller will individually package the substance. Usually in anywhere from half a gram
to one gram, depending on what the buyer is wanting.”
- 28 -
STATE V. BLAGG
McGee, C.J., dissenting
State v. Brennan, cited by the majority opinion, is unpublished and I do not
believe this Court should adopt its reasoning that evidence not presented at trial may
be considered by this Court and used to affirm the trial court’s denial of a motion to
dismiss. See State v. Brennan, 247 N.C. App. 399, 786 S.E.2d 433, 2016 WL 1745101,
*4 (2016) (“Detective Phillips testified that in Haywood County, methamphetamine
is usually priced and sold in half grams at $50 and whole grams at $100. Thus, if a
half gram is considered an average user amount, the 8.75 grams of
methamphetamine found in defendant’s possession potentially represented 17.5 user
amounts.”). In addition, there was substantially more incriminating evidence
introduced at trial in Brennan than in this case. Id. at *3
The majority opinion contends that Defendant possessed “paraphernalia”
indicative of an intent to sell the methamphetamine in addition to the empty plastic
bags, namely cotton balls and syringes. The majority opinion does not indicate how
the cotton balls or syringes are indicative of an intent to sell and not simply the
necessary tools of a user whose method of ingesting methamphetamine is injection,
and there was no record evidence to support any alternate inference. At trial, the
State argued State v. Carter, 254 N.C. App. 611, 802 S.E.2d 917, 2017 WL 3027550
(2017) (unpublished). Carter hurts the State’s case, as in Carter this Court held that
“paraphernalia” is relevant to prove PWISD methamphetamine when it is “consistent
with an intent to sell methamphetamine such as weighing scales, chemicals, or empty
- 29 -
STATE V. BLAGG
McGee, C.J., dissenting
plastic baggies.” Id. at *3 ⚂ (citation omitted). This Court determined: “[T]he syringe
found on [the d]efendant, like the safety pin in Nettles, indicates [the d]efendant
possessed the methamphetamine for personal use” and not with an intent to sell. Id.
(citation omitted). In this case, the cotton balls are certainly no more indicative of an
intent to sell than the syringes. There was no expert or other testimony that cotton
balls and syringes are commonly associated with drug dealers, so we cannot consider
them as such in our de novo review. However, Deputy Maxwell testified that these
items are used to prepare and inject methamphetamine by drug users, therefore, this
Court, the trial court, and the jury could rely on their common sense to conclude these
items are necessary for drug users to inject methamphetamine, and would naturally
be found in the possession of drug users.
Further, Chancey testified that she only obtained the “gross” weights of the
bags that were not tested,7 but that she would have obtained exact weights, and
tested each of the bags, if there had been enough of the crystalline substance(s) for
the State to bring a trafficking charge against Defendant; explaining that because
the total weight of the crystalline substance(s) wasn’t close to the amount required
for trafficking, “the charge would be the same regardless of how many items I tested[.]”
(Emphasis added). The majority opinion mentions that the State did not test the
7“I weighed with the packaging, so I gave a gross weight, but I did not get a net weight of the
substance itself.” Further, not even the gross weight of the additional bags is included in Chancey’s
report.
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STATE V. BLAGG
McGee, C.J., dissenting
additional crystalline substance(s) because it was the State “crime lab procedure[]”
not to do so in cases like this one. This “procedure” is not justified because, although
the amount of crystalline substance recovered from Defendant’s vehicle was
substantially less than the 28 grams required for a trafficking charge, Defendant was
not only charged with the Class I felony of possession, he was also charged with the
Class H felony of PWISD, and one of the factors considered for proof of the essential
element of intent to sell is the amount of the controlled substance involved. If the
State wanted to use the total amount of the crystalline substance recovered against
Defendant it could, and should, have tested it.8
PWISD might not carry sentences as severe as trafficking, but a conviction for
PWISD carries a substantially greater punishment than a conviction for possession—
even felony possession. In this case, based upon Defendant’s prior record level and
his habitual felon status, Defendant was sentenced to fifty to seventy-two months for
his possession of methamphetamine conviction. For the PWISD conviction,
Defendant was sentenced to 128 to 166 months imprisonment. The difference
between the maximum ranges of Defendant’s possession and PWISD convictions is
ninety-four months, or 7.82 years. Defendant’s conviction is based on speculation as
to whether someone possessing an amount of methamphetamine consistent with
8 Because Defendant did not move to suppress the untested crystalline substance(s), or object
to its introduction at trial, it was in evidence. However, even if the bags in which the untested
substance(s) were contained had some minimal relevance, the untested substance(s) itself had none.
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STATE V. BLAGG
McGee, C.J., dissenting
personal use, who was also in possession of a few empty plastic bags, had the intent
to sell any of that methamphetamine. There was no way to make that determination
without simply guessing or relying on impermissible inferences from the trial and
from the State’s arguments, which are not evidence. It simply was not possible for
the State to meet its burden of proof based upon the record evidence, and I would hold
“that [D]efendant’s conviction be reversed for [PWISD] and remanded for
resentencing, on the lesser included … offense of possession[.]” Nettles, 170 N.C. App.
at 108, 612 S.E.2d at 177 (citation omitted). Otherwise, Defendant could be
imprisoned an additional 7.82 years because a few empty plastic bags were found in
the vehicle along with an amount of methamphetamine consistent with personal use.
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