No. COA07-187 NINETEEN-A JUDICIAL DISTRICT

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No. COA07-187 NINETEEN-A JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

)

v.)From CabarrusCounty

)06 CRS 5895, 7891

EDWIN DEWAYNE MOORE)

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DEFENDANT-APPELLANT’S BRIEF

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SUBJECT INDEX

Questions Presented

Statement of the Case

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Statement of the Facts

ARGUMENT

I.The trial court erred by denying Mr. Moore’s motion to dismiss the charges because the State wholly failed to show that the substance Mr. Moore allegedly possessed and sold to Ms. Melton was cocaine.

II.THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ADMITTED TESTIMONY THAT MR. MOORE HAD BEEN ARRESTED IN 2004 DURING AN UNRELATED DRUG OPERATION, which was irrelevant, constituted improper character evidence, and was unfairly prejudicial.

CERTIFICATE OF FILING AND SERVICE

TABLE OF AUTHORITIES

Cases

Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560 (1979)...... 8

State v. Al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120 (2002)...... 15

State v. Barber, 335 N.C. 120, 436 S.E.2d 106 (1993), cert. denied, 512 U.S. 1239, 129 L. Ed. 2d 865 (1994) 6

State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003) 6

State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566 (1988).....21, 23

State v. Childers, 66 N.C. App. 464, 311 S.E.2d 384 (1984)...... 9

State v. Daniels, 300 N.C. 105, 265 S.E.2d 217 (1980)...... 9

State v. Davis, 74 N.C. App. 208, 328 S.E. 2d 11, disc. rev. denied, 313 N.C. 510, 329 S.E. 2d 406 (1985) 8

State v. Fielder, 88 N.C. App. 463, 363 S.E.2d 662 (1988)...... 17

State v. Foster, 63 N.C. App. 531, 306 S.E.2d 126 (1983)...... 16

State v. Frazier, 142 N.C. App. 207, 541 S.E.2d 800 (2001)...... 8

State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978)...... 15-16

State v. Little, 27 N.C. App. 211, 218 S.E.2d 486 (1975)...... 22

State v. Locklear, 322 N.C. 349, 368 S.E.2d 377 (1988)...... 9

State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983)...... 8-9

State v. McMillian, 169 N.C. App. 160, 609 S.E.2d 265, disc. review denied, 359 N.C. 640, 617 S.E.2d 284 (2005) 16

State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)...... 11

Statutes

North Carolina General Statutes (2006)

§ 8C-1, Rule 401...... 15

§ 8C-1, Rule 402...... 15

§ 8C-1, Rule 403...... 22-23

§ 8C-1, Rule 404...... 15

§ 90-95(a)(1)...... 6

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No. COA07-187 NINETEEN-A JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

****************************************************

STATE OF NORTH CAROLINA)

)

v.)From CabarrusCounty

)06 CRS 5895, 7891

EDWIN DEWAYNE MOORE)

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DEFENDANT-APPELLANT’S BRIEF

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Questions Presented

1. Whether the trial court erred by denying Mr. Moore’s motion to dismiss the charges because the State wholly failed to show that the substance Mr. Moore allegedly possessed and sold to Ms. Melton was cocaine?
2. Whether the trial court committed plain error when it admitted testimony that Mr. Moore had been arrested in 2004 during an unrelated drug operation, which was irrelevant, constituted improper character evidence, and was unfairly prejudicial?

Statement of the Case

A CabarrusCounty grand jury indicted Mr. Moore on April 24, 2006 for possession with intent to sell or deliver cocaine, sale of cocaine, and delivery of cocaine and on June 5, 2006 as being an habitual felon. (R.pp. 4-5)[1] The case was tried before a jury at the October 16, 2006 Criminal Session of Superior Court, CabarrusCounty, the Honorable W. Erwin Spainhour presiding. On October 18, 2006, the jury returned a verdict of guilty on all charges and determined that Mr. Moore was an habitual felon. (R.pp. 29-32) The court arrested judgment of delivery of cocaine, consolidated the remaining convictions, and sentenced Mr. Moore to ninety-six (96) to one-hundred-twenty-five (125) months of confinement. (2T.p. 183) Mr. Moore gave written notice of appeal on October 25, 2006. (R.pp. 38-39)

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Mr. Moore appeals pursuant to N.C. Gen. Stat §§ 7A-27(b) and 15A-1444(a) from a final judgment in the SuperiorCourtofCabarrusCounty.

Statement of the Facts

In August 2005, Johnny Melton became an informant for the Kannapolis Police Department. (2T.p. 79) Ms. Melton had a history of drug abuse (2T.p. 70), and continued to buy and use drugs after she became an informant. (2T.p. 63, 73) During her work for the police department, Melton told Detective Laura Carden that she could get a person named “Wayne” or “Wheezy” to sell her drugs. (2T.p. 81) Melton met Wayne eight years earlier through her boyfriend, who knew Wayne’s brother, Kingy. (2T.pp. 52-53) She stated that Mr. Moore was “real young at the time” and estimated that he was thirteen or fourteen years old then. (2T.p. 54) Although Melton saw Wayne on a regular basis after meeting him, she did not see him for six or seven years after she broke up with her boyfriend. Melton eventually saw Wayne again in November 2005 when she bought marijuana from him. (2T.p. 59)

On December 20, 2005, Detective Carden instructed Melton to buy two twenty-dollar rocks of cocaine from Wayne. (2T.p. 63) Before Melton left to buy the cocaine, Detective Carden searched Melton for drugs, but did not find any. (2T.p. 82) In addition, Detective Jack Blalock installed a video camera and microphone in the car that Melton used to record the transaction. He also searched the car for drugs, but did not find any. (2T.p. 39)

Melton did not drive the car because she did not have a driver’s license. Instead, a woman named Debbie Charles drove the car. The State did not present any evidence to show who Charles was or whether any officer searched Ms. Charles for drugs before or after the sale. (2T.p. 61) Once Melton and Ms. Charles were near Wayne’s house, which was on Murphy Street, Melton called and told him that she was outside. (2T.p. 65) Wayne met Melton at the car and gave her what appeared to Melton to be two rocks of crack cocaine in exchange for forty dollars. (2T.p. 65) Wayne did not cover the substance or put it “in anything;” he put the two items directly into Melton’s hand. (2T.p. 75) Melton testified that she put the substance in a plastic bag. (2T.p. 67)

When Melton arrived at the police department, she gave Detective Carden a plastic bag containing three rocks placed in foil. (2T.p. 84) Detective Carden field-tested the rocks, which tested positive for cocaine, and sent them to the State Bureau of Investigation (“S.B.I.”). (2T.pp. 85-86) Lisa Edwards, an S.B.I. agent, testified that the substance mailed to her by Detective Carden was cocaine. (2T.p. 121)

After Detective Carden reviewed the videotape of the transaction, she could not identify the seller. (2T.p. 96) She called Officer Joe O’Donnell of the Concord Police Department for help in determining the suspect’s identity and provided the names “Wayne,” “Wheezy,” and “Kingy.” (2T.pp. 108-09) Officer O’Donnell suggested that the seller might have been Mr. Moore, who was arrested during a drug operation in 2004 along with Kingy. (2T.p. 109) He advised Detective Carden to check the North Carolina Department of Correction and Cabarrus County Jail web sites for photos of Mr. Moore. (2T.p. 101, 112)

Detective Carden looked at the web sites and downloaded four photographs of Mr. Moore. Each photograph was imprinted “Edwin DeWayne Moore.” (2T.pp. 101-02) Detective Carden showed Melton the four photographs of Mr. Moore with his name imprinted on them. After looking at the array, Melton identified “Edwin DeWayne Moore” as “Wayne.” (2T.p. 86, 103) Melton also identified Mr. Moore in court as the seller. (2T.p. 52)

Detective Carden also stated that Melton called (704) 777-0542 during the alleged drug buy with Mr. Moore. (2T.p. 96) Later in the trial, Wendy Pearce, an employee for a cell phone company, testified that a billing file containing the phone number (704) 777-0542 belonged to Mr. Moore. (2T.pp. 128-29)

ARGUMENT

1. The trial court erred by denying Mr. Moore’s motion to dismiss the charges because the State wholly failed to show that the substance Mr. Moore allegedly possessed and sold to Ms. Melton was cocaine.

ASSIGNMENT OF ERROR NO. 1, R.p. 42

A.Standard of Review.

In reviewing a defendant's motion to dismiss at the close of the evidence, a court must determine whether the State presented substantial evidence of each element of the offense and substantial evidence that the defendant was the perpetrator. State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003). Whether the evidence was substantial is a question of law. Id. Questions of law are reviewed de novo. State v. Barber, 335 N.C. 120, 436 S.E.2d 106 (1993), cert. denied, 512 U.S. 1239, 129 L. Ed. 2d 865 (1994).

B.The State did not establish that the substance Mr. Moore gave to Ms. Melton was cocaine.

As part of each of the three narcotics charges against Mr. Moore, the State was required to prove that the substance involved in the alleged drug buy was cocaine. N.C. Gen. Stat. § 90-95(a)(1). The State’s evidence, however, was insufficient to meet this burden. As Mr. Moore argued on his motion to dismiss, the testimony that Ms. Melton and Detective Carden gave about the substance differed in two key respects: (1) the quantity of the rocks and (2) the material in which the rocks were placed. (2T.p. 137) Although Melton testified that Mr. Moore placed two unwrapped rocks of crack cocaine into her open palm, Detective Carden testified that Melton gave her three rocks wrapped in foil.

When Melton testified about the drug buy, the following exchange took place:

Q:And when [Wayne] walked to the car, what, if anything, did he give you?

A:He gave me two rocks. (2T.p. 65)

During cross-examination, Melton provided further details:

Q:Okay. Concerning the night in question, December 20th, when you –- your testimony that you got something in return for the $40; is that correct?

A:Yes, ma’am.

Q:Did you open it up, look at it?

A:Well, he handed it to me in my hand. It wasn’t in anything. (2T.p. 75) (emphasis added)

Later in the trial, however, Detective Carden provided a different description during cross-examination:

Q:Okay. And did [Melton] meet you and hand over a plastic baggy?

A:Yes. And it had a piece of foil in it, actually, that the crack cocaine was placed in.

Q:Do you recall how many rocks of crack cocaine were in the foil?

A:It was actually three pieces. One of them looked like it was broke. (2T.p. 84)

As cross-examination continued, Detective Carden gave additional testimony about the substance:

Q:Okay. When you got the plastic bag that you spoke of, tell me what was in that plastic bag, other containers and all included.

A:A piece of aluminum foil.

Q:Uh-huh.

A:And three pieces of crack cocaine.

Q:The crack cocaine being contained or –- and at this time you didn’t know if it was crack cocaine; is that correct?

A:That’s correct.

Q:It was an alleged substance at that point. The alleged substance –- was it encased inside the foil?

A:Yes.

Q:So you had to physically open the foil up and then find those three pieces of –-

A:I think it was just folded over, like, one time.

Q:But it was completely encased; it wasn’t visible. In other words, it wasn’t visible to the naked eye; you had to somehow open the foil up to see what was inside.

A:As far as I recall. (2T.p. 99)

Even though Agent Edwards later testified that the substance Detective Carden sent her was cocaine, the State failed to establish that this was the same substance that was given to Melton. Thus, the trial court erred by denying Mr. Moore’s motion to dismiss. Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560 (1979); State v. Frazier, 142 N.C. App. 207, 541 S.E.2d 800 (2001).

In ruling on a motion to dismiss, the trial court must determine whether the State has offered substantial evidence of each essential element of the offense and substantial evidence that defendant is the perpetrator. State v. Davis, 74 N.C. App. 208, 328 S.E. 2d 11, disc. rev. denied, 313 N.C. 510, 329 S.E. 2d 406 (1985). The trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn therefrom. State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983). If there is substantial evidence, either direct or circumstantial, that the defendant committed the offense charged, then a motion to dismiss is properly denied. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). On the other hand, when the facts and circumstances warranted by the evidence do no more than raise a suspicion of guilt, they are insufficient to make out a case and a motion to dismiss must be granted. State v. Daniels, 300 N.C. 105, 265 S.E.2d 217 (1980).

Although the trial court in this case stated that there was “substantial evidence of each element of the crime” (2T.p. 138), it did not properly apply this standard. When Mr. Moore’s attorney pointed out the flaws in Melton’s testimony, the court said, “The questions of credibility are for the jury, are they not?” (2T.p. 138) Melton’s testimony, however, was not just a matter of credibility for the jury to decide. Rather, her testimony demonstrated that the State failed to establish that the material analyzed by the S.B.I. was the same material sold and delivered to Melton.

In State v. Childers, 66 N.C. App. 464, 311 S.E.2d 384 (1984), this Court vacated the defendant's convictions on drug charges even though an S.B.I. expert concluded that the items he analyzed were controlled substances. Specifically, this Court stated, “The record is totally devoid of any evidence that the material analyzed by [the S.B.I. expert] was the same material seized from the defendant and his residence.” Id. at 466, 311 S.E.2d 385-86. The only evidence the State presented about the material after the State took it from the defendant’s house was that the officers sealed it in plastic envelopes and placed it in “locker No. 2 in the Vice Control Office.” Id. at 465, 311 S.E.2d 385. As a result, the trial court erred by denying the defendant’s motion to dismiss.

As in Childers, the State failed to show that the material the seller gave Melton was the same material that Detective Carden sent to the S.B.I. The seller gave Melton two unwrapped rocks in her open palm. Melton, however, gave Detective Carden three rocks wrapped in foil. Apart from Detective Carden’s speculation that one of the two rocks might have broken into a third piece, there was no evidence that the substance the S.B.I. analyzed was the same substance that the seller gave to Melton. Melton never testified that she placed the rocks into aluminum foil. Rather, she testified that “it wasn’t in anything” and that she placed the material that she bought from Wayne into a plastic baggy. Indeed, if the substance that Mr. Moore had given to Melton had been wrapped in foil at that time, Melton would not have been able to see that Mr. Moore had given her items that appeared to be two rocks of cocaine at that time. As a result, the evidence did not give the jury a reasonable basis to decide whether the three rocks wrapped in foil that Melton gave to Detective Carden and that the S.B.I. determined to be cocaine were the same or a different substance from the two uncovered rocks that the seller gave Melton.

In addition, although the State established that the detectives searched the car and Melton's person for drugs before the operation, it never demonstrated that anyone searched Debbie Charles for drugs. Thus, Ms. Charles could have supplied the substance that the S.B.I. determined to be cocaine.

Based on the deficiency in the evidence, there was a complete failure of proof against Mr. Moore. Without the original substance that Wayne gave Melton, the S.B.I. analysis had no bearing on whether Mr. Moore was guilty. Furthermore, Melton’s conclusion that the substance that the seller gave her was cocaine did nothing more than raise a suspicion of Mr. Moore’s guilt because she was not qualified to identify the substance. Therefore, the trial court erred by denying the motion to dismiss, and Mr. Moore’s convictions for possession with intent to sell or deliver cocaine and sale of cocaine should be vacated.

II.THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ADMITTED TESTIMONY THAT MR. MOORE HAD BEEN ARRESTED IN 2004 DURING AN UNRELATED DRUG OPERATION, which was irrelevant, constituted improper character evidence, and was unfairly prejudicial.

Assignment of Error NoS. 4 & 5, R.p. 42

A.Standard of Review.

Based on the absence of objection at trial, the standard of review for this issue is plain error. State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). Plain error is error that has resulted in a miscarriage of justice, or which probably resulted in the jury reaching a different verdict than it would have reached without the error. Id.

B.Procedural Background.

The trial court committed plain error by admitting testimony by Sergeant O’Donnell that Mr. Moore had been arrested on a narcotics charge in 2004. The following summary provides a procedural context for this issue.

During the State’s case-in-chief, Detective Carden testified on direct examination that Ms. Melton provided her with names of the seller’s family members and told her that Kingy (the seller’s brother) had been arrested by the Concord Police Department. Detective Carden then called Sergeant O’Donnell with that information for help in determining the identity of the seller. Detective Carden testified that Sergeant O’Donnell called her back and told her that Edwin DeWayne Moore was with Kingy when Kingy was arrested. He also told Detective Carden that Mr. Moore used an address on Murphy Street. When the prosecutor asked Detective Carden if Melton was able to identify Mr. Moore as the seller, Detective Carden said “yes.” (2T.p. 86)

On cross-examination, Detective Carden stated that she obtained photos of Mr. Moore from the Department of Correction and Cabarrus County Jail web sites and showed them to Melton. (2T.p. 101) Detective Carden confirmed that Melton identified the photos of Mr. Moore as photos of the seller. (2T.p. 103)

Later in the trial, Sergeant O’Donnell testified on direct examination that Mr. Moore was arrested during an undercover drug operation in 2004. Specifically, Sergeant O’Donnell gave the following testimony:

Q:Did Detective Carden provide you with information about Wheezy or Wayne’s family members?

A:Yes. She named a possible family member by the name of Kingy.

Q:And was there any female name mentioned?

A:There was, but I –- there was, but I don’t recall what that was.

Q:Okay. And when you received this information, what did you do to help identify the person known as Wayne or Wheezy?

A:I researched it by looking through our records, for one, our conflict police department records, and also contacted several officers that I worked with over the years in drugs areas to see if they knew the nickname.

Q:And were you able to determine who Kingy was?

A:Yes. Kingy Moore was an individual that we had arrested in Vice-Narcotics Division with –- during an undercover drug investigation in June of 2004.

Q:And what, if anything, was important about him being arrested during that time?

A:Actually, both Kingy and the defendant were both arrested during that undercover drug operation in 2004.

Q:And was that by the Concord Police Department?

A:Yes, it was.

Q:And the other person that you’re speaking of that was arrested with Kingy Moore, who was that person?

A:Edwin DeWayne Moore.

Q:Do you see that person in the courtroom?