1
NO. COA09-175 SECOND JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
*************************************************
STATE OF NORTH CAROLINA)
)
Vs.)From BeaufortCounty
)07 CRS 52736-7
ALLEN DOUGLAS MAY)07 CRS 53215-6
)
Defendant-Appellant.)
QUESTIONS PRESENTED
I.DID THE TRIAL COURT ERR IN FAILING TO DISMISS THE CHARGES AGAINST MR. MAY AT THE CLOSE OF THE STATE’S EVIDENCE AND AT THE CLOSE OF ALL EVIDENCE DUE TO THE INSUFFICIENCY OF THE EVIDENCE TO SUPPORT A CONVICTION ON THE CHARGES?
II.DID THE TRIAL COURT ERR IN IMPOSING ON MR. MAY A FINE IN THE AMOUNT OF $50,000.00 ON EACH OF THE TWO JUDGMENTS AGAINST HIM FOR TRAFFICKING IN OPIATES, WHERE THE EVIDENCE DID NOT SHOW THAT HE POSSESSED THE REQUISITE AMOUNT OF OPIATES TO SUPPORT A FINE IN THAT AMOUNT UNDER N.C. GEN. STAT. § 90-95(h)(4)(a)?
STATEMENT OF THE CASE
Defendant-Appellant, Allen Douglas May, was charged with sell and delivery of cocaine, two counts of possession with intent to sell and deliver cocaine, two counts in trafficking in opium or heroin and sell or delivery of a counterfeit substance. He was tried before a jury at the regular criminal session of the Superior Court division for BeaufortCounty on August 25, 2008. The Honorable Clifton W. Everett, Jr. presided. The jury returned a verdict of guilty as charged on all counts on August 27, 2008. The Court entered Judgment and Commitment (active punishment) on four of the charges and a Judgment Suspending Sentence on the remaining charge on August 27, 2008. Appellant gave written notice of appeal. The Record on Appeal was filed in the Court of Appeals on February 9, 2009 and docketed on February 16, 2009.
STATEMENT OF THE BASIS OF APPELLATE REVIEW
Pursuant to N.C. Gen. Stat. § 7A-27(b), Mr. May appeals by right a final judgment of conviction entered by the Beaufort County Superior Court following a jury verdict.
STATEMENT OF FACTS
In August of 2007, Jim Dugan was charged with multiple felony breaking and entering charges. (T pp 24,96,App 1,30) At about the same time, he approached the Washington, North Carolina, Police Department about “doing some work.” (T p 24, App 1) Mr. Dugan was new to BeaufortCounty, as he had just moved from Boston. (T p 93, App 29) Jonathan Kuhn, a narcotics detective with the Washington Police Department, testified that Mr. Dugan “did a couple of things for us in exchange for reducing the break in that he was originally charged with.” (T p 25, App 2)
A business relationship thereby commenced. As Detective Kuhn explained, “After all of those things were taken care of, he continued to do work for us and get paid for it.” (T p 25, App 2) This work consisted of purchasing drugs from sellers and identifying the seller for the Washington Police Department to arrest. (T pp 53-54,App 12-13)Typically,the Washington Police Departmentpaid Mr. Dugan from $60.00 to $100.00 per transaction.(Tp53,App 12)
Mr. Dugan knew Mr. May, whom he called “Slim,” because he had gone “partying” with him, which involved “drinking and smoking weed.” (T pp 25,90, App 2, 27) In August of 2007, Mr. Dugan told Detective Kuhn that he could “buy pain pills and crack cocaine” from Mr. May. (T p 27, App 3)He testified that he had “partied” with Mr. May about ten times in the apartment of Mr. May’s neighbor before offering to help law enforcement arrest him. (T p 91, App 28)Mr. Dugan testified that he had seen Mr. May and drugs at the neighbor’s apartment. (T p 91, App 28)Detective Kuhn testified that he was not sure he knew Mr. May before Mr. Dugan told him about him. (T pp 27, 30, App 3,5)
According to Detective Kuhn, On August 13, 2007, he asked Mr. Dugan to attempt to buy “the pills and cocaine” from Mr. May. (T p 27, App 3) He gave Mr. Dugan $100.00 to make the purchase. (T p 29, App 4) Mr. Dugan wore a camera and a recording device and Detective Kuhn could hear him telling someone “he wanted $60’s worth of pills.” (T p 30, App 5) The camera did not work, so Detective Kuhn was not able to observe the person to whom Mr. Dugan spoke.[1] (T p 32, App 6) He and the officers with whom he worked were not in a position to watch Mr. Dugan as, “We didn’t want to risk us being seen in such close proximity to the deal that was taking place.” (T p 32, App 6) Detective Kuhndoes not recall hearing a conversation about the “Percocet
pills:”“I don’t believe there was any real conversation.” (T p33, App 7)
After Mr. Dugan returned with some pills, Detective Kuhn sent him back to attempt to purchase cocaine. (T pp 33-34, App 7-8) Detective Kuhn paid him $80.00 for his services that day. (T p 36, App 10)
Mr. Dugan testified that, on August 13, 2007, he had the following interaction with Mr. May:
I met him outside and –- or inside. I forget. It was a long time ago. I gave him $60 and I said I wanted $60’s worth of pills, and he came back with the pills. I went in his house, and then I gave him money for crack, and he went to get the crack, and he came back. (T p 93, App 29)
Mr. Dugan needed more money, as he did not have a job. (T p 96, App 30) He testified that he did not know what he did with the $80.00 that the Washington Police Department had paid him on August 13, 2007. (T p 113, App 42). The next day, August 14, 2007, he went backto the Washington Police Department to ask for more work. (T p 96, App 30) This time, he spoke to Officer James Linton, but he did not tell him that he had worked with Detective Kuhn the previous day. (T p 97. App 31)
As with Detective Kuhn, Mr. Dugan told Officer Linton that he knew a man named “Slim” from whom he could buy crack cocaine. (T p 98, App 32) Mr. Dugan repeated with Officer Linton the same procedure of the day before. Officer Linton up fitted him with a video and recording device and gave him money to purchase drugs from Mr. May. (T pp 98-101,App 32-35). Mr. Dugan testified that on August 14, 2007 he purchased “seven little bags” of “crack” from Mr. May.(T pp 101-102, App 35-36)
On August 17, 2007, Mr. Duganagain made arrangements with Officer Linton to attempt to purchase more cocaine from Mr. May. (T pp 101-103, App 35-37) Mr. Dugan and the officers employed procedures that were, by then, customary. [2] (T pp 103-105, App 37-39) He purchased something from Mr. May, but testified that, “It didn’t look like crack to me.” (T p 105, App 39)
Mr. Dugan acknowledged that he had used marijuana regularly in August of 2007. (T pp 111-112, 114, App 40-41, 43) He also used Percocet in the past. (T p 111, App 40) He said he did not tell the officers that he used drugs because they did not ask about his drug use. (T p 114, App 43)Mr. Dugan has a previous criminal record of “assault and battery” (more than one conviction), “sexual battery,” “intimidating a witness,” “assault on a female,” “breaking and entering and larceny.” (T pp 115-116, App 44-45)
Officer Linton testified that the Washington Police Department gave Mr. Dugan $230.00 to purchase cocaine on August 14, 2007 and that he was paid $100.00 for his services that day. (T pp 138, 140, App 46, 47) With respect to the events of August 17, 2007, he testified that, “Mr. Dugan called me earlier in the day and told me that he could buy off of Mr. May again.” (T p 142, App 48) He sent Mr. Dugan back to Mr. May’s house with the video and audio device and $140.00 (T p 144, App 49) This time the video camera worked, and Officer Linton saw Mr. May on the tape talking to Mr. Dugan. (T p 145, App 50) Mr. Dugan came back with something that looked like “fake” crack cocaine. (T p 149, App 51)
Melanie Thornton, a forensic chemist employed by the State Bureau of Investigation testified that she received nine white tablets. (T pp 58, 62-63, App 14, 15-16) When she analyzed them, she determined that they consisted of oxycodone hydrochloride, which is an opiate, and acetaminophen, a substance “similar to aspirin.” (T pp 64-65, 67, App 17-18, 19) The tablets weighed 4.09 grams before her analysis and 3.18 grams after the analysis. (T p 65, App 18)
Ms. Thornton determined the substance obtained on August 13th and 14th was cocaine base, or “crack cocaine.”
(T p 71, 79, App 20, 21)The cocaine obtained on August 14, 2007 weighed 1.39 grams. (T p 79, App 21) She did not testify about the weight of the cocaine obtained on August 13, 2007, but Detective Kuhn testified that it weighed .1 grams. (T p 51, App 11) The substance obtained on August 17, 2007 was 2.72 grams of some unidentified substance (not a controlled substance). (T pp 81-85, App 22-26)
ARGUMENT
I.THE TRIAL COURT ERRED IN FAILING TO DISMISS THE CHARGES AGAINST MR. MAY AT THE CLOSE OF THE STATE’S EVIDENCE AND AT THE CLOSE OF ALL EVIDENCE DUE TO THE INSUFFICIENCY OF THE EVIDENCE TO SUPPORT A CONVICTION ON THE CHARGES.
Assignment of Error no. 1; T p 164, App 53; R p 85
A.Standard of Review for Dismissal for Insufficiency of Evidence
In deciding whether to dismiss a charge due to the insufficiency of the evidence to support a conviction, the trial court determines if the State has presented “substantial evidence of each element of the crime and that the defendant is the perpetrator.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1996), appeal after remand 353 N.C. 400, 545 S.E.2d 190, cert. denied, 534 U.S. 1046, 122 S.Ct. 628, 151 L.Ed.2d 548 (2001). Substantial evidence “is such relevant evidence as a reasonable mind might except as adequate to support a conclusion.” State v. McLaurin, 320 N.C. 143, 146, 356 S.E.2d 636, 638 (1987), citing, State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587, aff’d, 310 N.C. 563, 313 S.E.2d 585 (1984). Whether the evidence presented is “substantial” is a question of law for the court. State v. Sexton, 444 S.E.2d 879, 902, 336 N.C. 321, 361 (1994), citing State v. Everhardt, 307 N.C. 62, 65, 296 S.E.2d 649, 651 (1982). The trial court must consider all evidence in the light most favorable to the State. State v. Hinton, 155 N.C.App. 561, 573 S.E.2d 609 (2002).
B.The Evidence is Insufficient to Survive a Motion to Dismiss for Two Counts of Trafficking in Opium or Heroin
Mr. May was indicted for two counts of trafficking in opium under N.C. Gen. Stat. § 90-95(h)(4). (R p 17) One count of the Indictment reads on or about August 13, 2007, Mr. May “did possess 4 grams or more of cocaine;” the other count reads that on or about August 13, 2007, Mr. May “did transport 4 or more grams of cocaine.” (R p 17)
N.C. Gen. Stat. § 90-95(h)(4)reads as follows:
Any person who sells, manufactures, delivers, transports, or possesses four grams or more of opium or opiate...shall be guilty of a felony, which felony shall be known as “trafficking in opium or heroin” and if the quantity of such controlled substance or mixture involved:
a. Is four grams or more, but less than 14 grams, such person shall be punished as a class E felon and shall be sentenced to a minimum term of 70 months and a maximum term of 84 months in the State’s prison and shall be fined not less than fifty thousand dollars. ($50,000.00)
The Record contains no evidence that Mr. May possessed four or more grams of an opiate.Ms. Thornton testified that the tablets that she analyzed originally weighed 4.09 grams before her analysis and 3.18 grams after the analysis. (T p 65, App 18) However, the material she weighed consisted of both oxycodone hydrochloride, an opiate, and acetaminophen, a substance “similar to aspirin.” (T pp 64-65, 67, App 17,18, 19) She never testified as to the weight of the opiate alone; nor did she testify as to the relative proportions of acetaminophen and oxycodone hydrochloride, which would enable calculation of the weight of either substance alone. The Record contains no evidence of the weight of oxycodone hydrochloride allegedly obtained from Mr. May.
The State did not prove an essential element of the two offenses charged (by two-count indictment in 07 CrS 53215, R p 17), as it did not prove the requisite weight of opiates to constitute an offense under N.C. Gen. Stat. § 90-95(h)(4).
Not only is the State unable to prove trafficking due to less than the statutory minimum amount of drugs, it cannot prove that Mr. May transported the opium. The second count of the State’s indictment alleges transportation of 4 or more grams of opiates. (R p 17) The following colloquy, in addition to the language in the indictment, reveals that the State intended to charge two offenses arising from one transaction:
THE COURT: First of all, in 07 CrS 53215 in which Mr. May is charged with two counts of Trafficking in Opium, what two counts are there? I didn’t hear but one transaction with the pills.
MR. ANGLIM: It’s actually –- the transaction would be one by possession and the other one is transportation, Your Honor. (T p 160, App 52)
A conviction for trafficking in a controlled substance by transportation requires that the State show a “substantial movement.” State v. Greenidge, 102 N.C.App. 447, 451, 402 S.E.2d 639 (1991); and State v. Outlaw, 96 N.C.App. 192, 385 S.E.2d 165 (1989), disc. rev. denied, 326 N.C. 266, 389 S.E.2d 118 (1990). With the observation that the North Carolina General Statutes do not define the word “transport,” courts have looked to the United States Supreme Court’s interpretation of that term. Id.In Cunard Steamship Company v. Mellon, 262 U.S. 100, 122, 43 S.Ct. 504, 506, 67 L.Ed. 894, 901 (1922), the Court defined transportation as “any real carrying about or movement from one place to another.” This Court has held that “[t]he requirement for a ‘substantial movement’ as articulated in Outlaw and this case requires a consideration of all the circumstances surrounding the movement and not simply the fact of a physical movement of the contraband from one spot to another.” State v. Greenidge, 102 N.C.App. at 451, 402 S.E.2d at 641.
In consideration of all circumstances, the act of tossing drugs off of a back porch can constitute transportation. Id.Likewise, moving drugs from one’s house to the trunk of a car and driving no further than the end of the driveway can constitute transportation. State v. Outlaw, 96 N.C. App. at 199, 385 S.E.2d at 169. Driving with drugs in one’s car is transportation. State v. McRae, 110 N.C.App. 643, 646, 430 S.E.2d 434, 436, disc. review denied, 334 N.C. 625, 435 S.E.2d 347 (1993). Fleeing law enforcement with drugs in hand can also constitute transportation. State v. Manning, 139 N.C.App. 454, 468, 534 S.E.2d 219, 228 (2000).
However, some movement of the drugs by the defendant- possessor is, under the case law cited above, necessary to establish transportation. That element is absent from the Record in this case.
This Court has refused to broaden the definition of transportation to include possible inferences from the act of possession or sale.State v. Harrington, 171 N.C.App. 17, 614 S.E.2d 337 (2005). In Statev.Harrington, the defendants maintained a house and, five miles away, an apartment. The evidence showed that they stored marijuana at the house and used the apartment to distribute it. The State argued that the defendants’ practice of storing drugs in one location and selling them at another “impl[ies] that the defendants had to move the marijuana from the house to the apartment.” Id., 171 N.C.App. at 26, 614 S.E.2d at 345. The Court held that “absent other evidence of transportation, this implication is insufficient to overcome a motion to dismiss.” Id., 171 N.C.App. at 26, 614 S.E.2d at 346.
As in Harrington, the jurors would have to infer from the evidence of Mr. May’s possession of opiates that he must have transported them from one place to another at some point in time. Such speculation cannot create the element of transportation. Id.
C.The Evidence is Insufficient to Survive a Motion to Dismiss on Two Charges of Possession with Intent to Sell and Deliver Cocaine and Simple Possession of Cocaine.
Mr. May was charged and convicted with two counts of Possession with Intent to Sell and Deliver Cocaine (“PWISD”) under N.C. Gen. Stat. §90-95(a)(1) and one count of Sell or Delivery of a Controlled Substance (“SDCS”) under N.C. Gen. Stat. §90-95(a)(1).
The offense of PWISD contains the following elements: (1) possession; (2) of a controlled substance; (3) intent to sell or deliver that substance. State v. Casey, 59 N.C. App. 99, 296 S.E.2d 473 (1982).
The offense of SDCS contains the element of a sale, transfer or attempted transfer of a controlled substance for consideration. State v. Carr, 145 N.C.App. 335, 549 S.E.2d 897 (2001).
In the present case, the evidence shows that the only connection between Mr. May and the offenses charged is Mr. Dugan, a man with a lengthy criminal record, no job and a need for income. He was not truthful with the officers in connection with transactions which resulted in Mr. May’s arrest. When Mr. Dugan approached Officer Linton on August 14, 2007 with the proposal to buy drugs from Mr. May, he did not tell him he had worked with Detective Kuhn on that project just the day before. (T p 97, App 31) Mr. Dugan did not tell the officers that he used illegal drugs at any time before, during, or after his work with them to investigate Mr. May. (T pp 111-112, 114, App 40-41, 43)
The video camera did not work for Detective Kuhn, and the audio device failed to record any conversation, so Detective Kuhn had nothing other than Mr. Dugan’s word that Mr. May sold him Percocet pills and cocaine on August 13, 2007. (T pp32-33, App 6-7)
This evidence does not constitute the requisite substantial evidence of each element of a crime to support a conviction. See, State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1996), appeal after remand,353 N.C. 400, 545 S.E.2d 190, cert. denied, 534 U.S. 1046, 122 S.Ct. 628, 151 L.Ed.2d 548 (2001) (“substantial” evidence of each element is necessary to survive motion to dismiss).
II.THE TRIAL COURT ERRED IN IMPOSING ON MR. MAY A FINE IN THE AMOUNT OF $50,000.00 ON EACH OF THE TWO JUDGMENTS AGAINST HIM FOR TRAFFICKING IN OPIATES, WHERE THE EVIDENCE DID NOT SHOW THAT HE POSSESSED THE REQUISITE AMOUNT OF OPIATES TO SUPPORT A FINE IN THAT AMOUNT UNDER N.C. GEN. STAT. § 90-95(h)(4)(a).
Assignment of Error no. 4; R pp 60-63, 66-68
A. Standard of Review
This section address the State’s failure to comply with the requirements of N.C. Gen. Stat. §90-95(h)(4)a. Failure to comply with a statutory mandate is reversible error, where the appellant shows prejudice. In re. Z.T.B., 170 N.C. 564, 613 S.E.2d 298 (2005). Thus, this Court considers, de novo,whether the requirements of the statute are met and, then, whether the appellant has been prejudiced by the deviation from the statute. In re L.E.B., K.T.B., 169 N.C. App. 375, 610 S.E.2d 424,disc. rev. denied, 359 N.C. 632, 616 S.E.2d 538 (2005)
An appellant need not raise an objection at the trial level to argue this type of error on appeal. In re McKinney, 158 N.C. App. 441, 443, 581 S.E.2d 793, 795 (2003).
B. Argument
N.C. Gen. Stat. § 90-95(h)(4)a imposes a $50,000.00 penalty for the possession, sell, manufacture or delivery of more than 4 but less than 14 grams of opiates.
As discussed in Section IB above, the evidence fails to show that Mr. May possessed or transported at least 4 grams of opiates. For that reason, alone, the Court’s imposition of fines of $50,000.00 on each count, for a total of $100,000.00 in fines, has no legal basis.
Additionally, as also discussed in Section IB above, the Record does not contain evidence that Mr. May transported opiates within the meaning of N.C. Gen. Stat.
§ 90-95(h)(4). For that reason, the Judgment for transportation of opiates, including the $50,000.00 fine it carries, must be reversed.
CONCLUSION
For the reasons and authority discussed above, Mr. May respectfully requests that this Court reverse the Judgments of the Trial Court.
Respectfully submitted, this the 23th day of March, 2009.
Mercedes O. Chut
N.C. Bar no. 17916
201 W. Market St. Ste 409
Greensboro, NC27401
(336) 274- 0352
CERTIFICATE OF SERVICE
I hereby certify that I have this day mailed the Brief, Appendix and Appeal Information Statement of the Defendant-Appellant upon counsel for the State of North Carolina, and have filed the same with the North Carolina Court of Appeals, by placing a copy thereof in an envelope, first class postage pre-paid, and placing said envelopes in the United States Mail addressed as follows: