Opinion
No. COA15-802
07-19-2016
IN THE MATTER OF: A.O.A.
Attorney General Roy Cooper, by Assistant Attorney General Janelle E. Varley, for the State. Michelle FormyDuval Lynch, for appellant-juvenile.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Wayne County, No. 14 JB 126 Appeal by juvenile from orders entered 8 January 2015 and 22 January 2015 by Judge Ericka Y. James in Wayne County Superior Court. Heard in the Court of Appeals 10 February 2016. Attorney General Roy Cooper, by Assistant Attorney General Janelle E. Varley, for the State. Michelle FormyDuval Lynch, for appellant-juvenile. CALABRIA, Judge.
A.O.A. ("Anthony") appeals from an order adjudicating him a delinquent juvenile for possession of drug paraphernalia in violation of N.C. Gen. Stat. § 90-113.22 (2013). Because the trial court erred by denying his motion to dismiss the petition for insufficient evidence, we vacate the delinquency adjudication order and accompanying disposition order.
A pseudonym is used to protect the juvenile's identity.
I. Background
On the morning of 10 October 2014, Diane Watts ("Ms. Watts"), Assistant Principal of Norwayne Middle School, received a report that Anthony, an eighth grade student, had given pills to another student. Ms. Watts and the school's principal ("Mr. Re") searched Anthony and the other student, but did not find any pills. Ms. Watts and Mr. Re then searched Anthony's locker and found his book bag. Inside Anthony's book bag, they found a cigarette lighter and a device that was partially covered in burnt aluminum foil. The device was later characterized as a "marijuana bong."
Ms. Watts brought Anthony; Anthony's mother, Debra Higgins ("Ms. Higgins"); and the school resource supervisor for Wayne County Sheriff's Department, Deputy William Lee Kates, Jr. ("Deputy Kates") to her office. Ms. Watts handed the "marijuana bong" over to Deputy Kates, who inspected it and kept it as evidence. Ms. Watts ultimately suspended Anthony for five days.
A pseudonym is used to protect the juvenile's identity.
On 24 November 2014, Deputy Kates filed a juvenile petition charging Anthony with possession of drug paraphernalia, specifically a "marijuana bong," in violation of N.C. Gen. Stat. § 90-113.22 (2013). On 8 January 2015, an adjudication hearing was held before the Honorable Ericka Y. James of the Wayne County Superior Court.
At trial, Ms. Watts recounted the incident with Anthony and testified that the device recovered from Anthony's book bag was, in her opinion, a "homemade bong." Defendant objected to her label of the device as a "bong," which the court sustained. Deputy Kates testified that he currently supervises twelve school resource deputies, and that he has been a law enforcement officer since 2002. Deputy Kates stated that he had received training on drugs and drug paraphernalia as part of his basic law enforcement training and that he had previously worked for nine years as a correctional officer.
Deputy Kates opined that, based on his training and experience, the device found in Anthony's book bag was a "homemade bong that you'd smoke marijuana out of." Deputy Kates based this opinion on the design of the device as well as the burn marks on the top of the device. At the State's request, Deputy Kates showed the trial judge the "marijuana bong" and explained: "This is where you would inhale through. This is the part right here where you would put your items to smoke, and then you'd use a lighter or matches or whatever you can get, and this is where it's been burnt at." The "marijuana bong" and the cigarette lighter were admitted into evidence. The State did not present any evidence of whether the "bong" contained residue of marijuana or that Anthony was found in possession of marijuana or any other controlled substance.
At the close of the State's evidence, Anthony moved to dismiss the possession of drug paraphernalia charge on the basis that the State presented insufficient evidence that he possessed the requisite intent to use the device in connection with a controlled substance. The trial court denied the motion.
Ms. Higgins, Anthony's mother, testified on Anthony's behalf. Ms. Higgins stated that she had previously been employed as an adult probation officer in Wayne County and that she had encountered drug paraphernalia over the course of her work, but that she had never encountered a homemade device similar to the "marijuana bong" found in Anthony's book bag. Ms. Higgins also opined that, as a probation officer, she could not classify a device as "drug paraphernalia" without finding it in proximity to a controlled substance. After Ms. Higgins' testimony, Anthony reasserted his motion to dismiss for insufficient evidence.
On 8 January 2015, the court adjudicated Anthony delinquent for possession of drug paraphernalia. In a disposition hearing on 22 January 2015, the trial court placed Anthony on twelve months of supervised probation and ordered that he complete thirty hours of community service. Anthony appeals.
II. Analysis
Anthony contends that the trial court erred by denying his motion to dismiss the juvenile petition for insufficient evidence that he possessed drug paraphernalia in violation of N.C. Gen. Stat. § 90-113.22 (2013). Specifically, Anthony asserts that the State presented insufficient evidence (1) the device found in his book bag was "drug paraphernalia," and (2) he intended to use the device in connection with a controlled substance.
Effective 1 December 2014, N.C. Gen Stat. § 90-113.22 was amended to exclude marijuana paraphernalia, and N.C. Gen Stat. § 90-113.22A was created to deal exclusively with marijuana paraphernalia. NC LEGIS 2014-119 (2014), 2014 North Carolina Laws S.L. 2014-119 (H.B. 369). However, because these amendments were not in effect on 10 October 2014, the date of the alleged offense, N.C. Gen. Stat. § 90-113.22 (2013) applies to the instant case.
A. Standard of Review
"We review a trial court's denial of a [juvenile's] motion to dismiss de novo." In re S.M.S., 196 N.C. App. 170, 171, 675 S.E.2d 44, 45 (2009) (citation omitted). Under de novo review, this Court "considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citations and quotation marks omitted).
As a general matter, juveniles enjoy "all rights afforded adult offenders[,]" N.C. Gen. Stat. § 7B-2405 (2015), including "the right to have the evidence evaluated by the same standards as apply in criminal proceedings against adults." In re Bass, 77 N.C. App. 110, 115, 334 S.E.2d 779, 782 (1985). "[I]n order to withstand a motion to dismiss the charges contained in a juvenile petition, there must be substantial evidence of each of the material elements of the offense charged." In re B.E., 186 N.C. App. 656, 658, 652 S.E.2d 344, 345-46 (2007) (citation and quotation marks omitted). "Substantial evidence is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion." State v. Davis, 186 N.C. App. 242, 247, 650 S.E.2d 612, 616 (2007) (citation and internal quotation marks omitted). The court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences that can be drawn from the evidence. State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455 (2000) (citation omitted). However, "[i]f 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' even if 'the suspicion aroused by the evidence is strong.' " State v. Slaughter, 212 N.C. App. 59, 68, 710 S.E.2d 377, 383 (Hunter, J., dissenting) (quoting State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983)) (other citation omitted), rev'd per curiam for reasons stated in dissent, 365 N.C. 321, 718 S.E.2d 362 (2011).
B. Intent to Use Drug Paraphernalia with a Controlled Substance
N.C. Gen Stat. § 90-113.22 (2013) provided in pertinent part that: "[I]t is unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia . . . to . . . ingest, inhale, or otherwise introduce into the body a controlled substance which it would be unlawful to possess." N.C. Gen. Stat. § 90-113.21 (2013) defined "drug paraphernalia" as "all equipment, products and materials of any kind that are used to facilitate, or intended or designed to facilitate, violations of the Controlled Substances Act," and explicitly listed "[o]bjects for ingesting, inhaling, or otherwise introducing marijuana . . . into the body" such as "bongs." Id. § 90-113.21(a)(12). To sustain a conviction of possession of drug paraphernalia, the State must demonstrate that the defendant: (1) knowingly, (2) possessed drug paraphernalia, and (3) used or intended to use that paraphernalia in connection with a controlled substance. See N.C.P.I.-Crim. 260.95 (2014); see also State v. Hedgecoe, 106 N.C. App. 157, 163-64, 415 S.E.2d 777, 781 (1992) (interpreting N.C. Gen. Stat. § 90-113.22 to require that the State present evidence the defendant (1) possessed drug paraphernalia, and (2) used or intended to use it in connection with a controlled substance).
In Hedgecoe, the defendant was found in possession of a hypodermic needle and syringe and was charged with possession of drug paraphernalia. 106 N.C. App. at 164, 415 S.E.2d at 781. At trial, the State introduced the needle and syringe and called the arresting officer to testify, who stated that the needle and syringe "were used to introduce drugs of 'some kind' into the body." Id. The State presented no evidence linking the needle and syringe to any particular controlled substance, or any evidence of what drug the defendant allegedly introduced into his body, yet the defendant was convicted of possession of drug paraphernalia. Id. at 158, 415 S.E.2d at 779.
On appeal, this Court held that the trial court erred by failing to grant the motion to dismiss the charge for insufficient evidence. Id. at 163, 415 S.E.2d at 781. In reaching its decision, this Court concluded that, although N.C. Gen. Stat. § 90-113.22 specifically listed "hypodermic syringes, needles, and other objects for . . . injecting controlled substances into the body" as "drug paraphernalia," the State's evidence showing "the mere possession of a needle and syringe fail[ed] to establish the crucial element of . . . intent necessary to establish a violation of our Controlled Substances Act." Id. (emphasis added).
In the instant case, the evidence presented at the adjudication hearing, even when considered in the light most favorable to the State, tends to show only that Anthony possessed a device partially covered with burnt aluminum foil, which may be included as a statutorily listed example of "drug paraphernalia." However, the State's evidence fails to establish the "crucial element" that Anthony used or intended to use the "bong" to inhale marijuana. The State presented no evidence tending to show that Anthony admitted to using the device to inhale marijuana; or that Anthony, or anyone else in proximity, possessed marijuana. See, e.g., State v. Garrett, ___ N.C. App. ___, ___, 783 S.E.2d 780, 785 (2016) (upholding conviction of possession of drug paraphernalia when glass pipe was found in car where the defendant was a passenger, when the defendant admitted to using methamphetamine, and when another passenger was found in possession of methamphetamine). No evidence was presented that marijuana or another controlled substance was found anywhere near Anthony or the device. See State v. Burnette, 158 N.C. App. 716, 721, 582 S.E.2d 339, 343 (2003) (upholding conviction when razor blades were found in the defendant's jacket, a scale was found in the defendant's car, and crack cocaine was found on the ground where the defendant was apprehended). Although the aluminum foil contained burn marks, no evidence was presented that the device, or the aluminum foil on the device, contained residue of marijuana or other controlled substance. See State v. Davis, 186 N.C. App. 242, 244-45, 650 S.E.2d 612, 614 (2007) (upholding conviction when the defendant, also charged with possession of methamphetamine, was found in possession of a pen barrel covered in methamphetamine, a scale, and a piece of aluminum foil covered in a legal precursor to methamphetamine, and when the defendant admitted that the methamphetamine was his and that he used it to relieve his back pain). No evidence was presented that the device was found in proximity to any other item that could be classified as drug paraphernalia. See State v. Weakley, 176 N.C. App. 642, 653-54, 627 S.E.2d 315, 322-23 (2006) (upholding conviction when a marijuana pipe, half of a marijuana cigarette, a glass vial covered in white residue, a blue Valium pill, a roach clip, six pieces of aluminum foil covered in black residue, and two plastic bags covered in methamphetamine residue were found in the defendant's home). No evidence was presented tending to show that Anthony appeared to be under the influence of marijuana, or was in a room where marijuana was recently inhaled, when the device was found. See State v. Kraus, 147 N.C. App. 766, 767, 557 S.E.2d 144, 146 (2001) (upholding conviction when the defendant, who appeared to be "stoned," was found in a marijuana-smoke-filled room in close proximity to marijuana, marijuana seeds and stems, a box cutter, cigar wrappers, small plastic bags, and pill bottles).
In the instant case, as in Hedgecoe, a device that allegedly falls under an item explicitly listed as "drug paraphernalia" by statute was found in Anthony's possession and used to support a charge of possession of drug paraphernalia. As in Hedgecoe, the device was admitted into evidence and an officer testified that it was used in connection with a controlled substance. However, as in Hedgecoe, the State presented no other incriminating evidence linking the device to the introduction, or intended introduction, of a controlled substance into the body, other than speculative opinion testimony that the device was used, or was intended to be used, in connection with a controlled substance. We discern no meaningful distinction between Hedgecoe and the instant case. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (holding that where a panel of this Court has decided the same issue in a different case, a subsequent panel is bound by the decision of the prior panel).
Even when the evidence presented is viewed in the light most favorable to the State, giving the State the benefit of all reasonable inferences, it raises no more than "suspicion or conjecture" that Anthony used or intended to use the device to inhale marijuana. Because the State failed to present substantial evidence of the "crucial element of . . . intent necessary to establish a violation of our Controlled Substances Act[,]" we vacate the possession of drug paraphernalia adjudication. See, e.g., In re J.F., ___ N.C. App. ___, 766 S.E.2d 341, 347 (2014) (vacating juvenile adjudication for insufficient evidence). In light of our disposition, we need not address Anthony's remaining argument on appeal.
III. Conclusion
The evidence presented by the State failed to establish that Anthony intended to use the device found in his book bag in connection with marijuana. Although the smoking device containing aluminum foil with burn marks was admitted into evidence, in conjunction with Ms. Watts' and Deputy Kates' speculative opinion testimony that the device was used or intended to be used to smoke marijuana, this evidence raises no more than "suspicion or conjecture" regarding how Anthony used or intended to use the device. The evidence presented, even when viewed in the light most favorable to the State, establishes that Anthony may have possessed a device statutorily listed as an example of "drug paraphernalia," but fails to establish the "crucial element" of Anthony's intent to use the device in connection with a controlled substance.
Therefore, the trial court erred by denying Anthony's motion to dismiss the juvenile petition for insufficient evidence. Accordingly, we vacate the trial court's delinquency adjudication order and corresponding dispositional order.
VACATED.
Judges DAVIS and TYSON concur.
Report per Rule 30(e).