Opinion
No. COA10-247
Filed 2 November 2010 This case not for publication
Appeal by Defendant from judgments entered 7 October 2009 by Judge Alan Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 15 September 2010.
Buncombe County Nos. 09 CRS 406, 09 CRS 51461-62.
Attorney General Roy Cooper, by Assistant Attorney General Shawn C. Troxler, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for Defendant.
Rhonda Jean Hicks (Defendant) appeals from judgments entered on her convictions of trafficking in opium or heroin by transportation and possession. For the following reasons, we conclude there was no error.
On 28 January 2009, Officers Ben Jaramillo and Dean Hannah with the Buncombe County Sheriff's Department stopped Defendant and her male passenger because the vehicle Defendant was driving matched the description of a suspect's car. Upon information that there was a gun in the vehicle, Jaramillo approached Defendant and asked her where it was. First responding that there were no guns in the car, Defendant then admitted that the gun was in her purse. Jaramillo found therein a loaded firearm, an amber pill bottle containing 100 tablets, and a syringe. While searching the vehicle for other weapons, the officers discovered three blue pill bottles, one of which was empty and two of which were filled with clear liquid, in the center console of the vehicle. Defendant was arrested, and on 6 July 2009, a Buncombe County Grand Jury indicted her on charges of trafficking in opium or heroin by transporting and possessing in excess of 28 grams of a Schedule III controlled substance, carrying a concealed weapon, resisting a public officer, and aiding and abetting the possession of a firearm by a felon. The aiding and abetting count, however, was dismissed by the State prior to trial.
Also prior to trial, Defendant filed a motion in limine to exclude evidence of the three blue pill bottles and their contents, a green pill bottle with twenty-five orange hexagonal seized from the male suspect's pocket, and the syringe. The trial court denied Defendant's motion as to the three blue pill bottles and syringe but granted it as to the orange pills found on the male passenger's person. Immediately thereafter, Defendant pled guilty to the concealed weapon charge, and the trial commenced at the 5 October 2009 Criminal Session of Superior Court.
At trial, Officer Jaramillo testified to the above-recited events surrounding Defendant's arrest, and the State then called North Carolina State Bureau of Investigation (SBI) Special Agent Bradford Casanova as an expert witness in the field of forensic chemistry specializing in the forensic analysis of controlled substances. Mr. Casanova first testified that no controlled substances were indicated upon examination of the three blue pill bottles, one empty and two containing clear liquid. He then identified the tablets found in Defendant's purse as dihydrocodeinone, commonly known as hydrocodone, and described it as a Schedule III opiate that is pharmaceutically prepared for prescription to individuals. Mr. Casanova testified that the total weight of the tablets was 51.4 grams. The three blue vials, the amber pill bottle containing the tablets found in Defendant's purse, and Mr. Casanova's lab report analyzing the State's evidence were submitted as exhibits and published to the jury. On cross-examination, the SBI chemist indicated that he preliminarily examined each tablet by visual inspection but chemically tested only one by instrumental analysis.
John Spencer Crawford, a pharmacist at a local CVS store, testified for the defense. He identified Defendant's Exhibit 2 as a prescription from a physician for thirty Vicodin pills, which he had filled with a generic form of hydrocodone with acetaminophen on 12 June 2008. Mr. Crawford indicated that Defendant subsequently received four further refills pursuant to the prescription — from July through November 2008 — for a total of 150 pills. He testified on cross-examination, however, that the 100 pills found in Defendant's purse were not ones that he dispensed, where the tablets he filled for the prescription were oblong and those discovered by the officers were round. Mr. Crawford also believed that the pills found in Defendant's purse did not contain acetaminophen, whereas that ingredient was in the pills he dispensed pursuant to the prescription. He concluded that there was no way the tablets discovered in Defendant's purse were used by him to fill the prescription and that, to his knowledge, she has no prescription for the pills in the amber bottle.
Defendant testified that she was prescribed Vicodin by her treating physician to alleviate pain she was experiencing from three slipped discs and a broken disc in her back. She stated that she got her prescriptions filled at her local CVS pharmacy, among other places. Defendant admitted that, at first, she would take approximately three to four Vicodin pills a day but said that she still had the 100 pills found on 28 January 2009 because she was later prescribed morphine, a stronger pain reliever. Thereafter, she took Vicodin only for "breakthrough pain" or when her pain persisted despite the morphine, but explained that she nevertheless continued to get her Vicodin prescriptions filled so she would have them when needed. Defendant also testified that she consolidated all of her Vicodin pills into one bottle and that the tablets found in her purse were those leftover from her prescriptions.
The jury found Defendant guilty of trafficking opium or herion by transportation and possession but not guilty for the charge of resisting a public officer. The trial court sentenced her to two concurrent terms of 225 to 279 months for the trafficking convictions and a concurrent term of 60 days for carrying a concealed weapon. Defendant gave oral notice of appeal.
I.
Defendant argues that the trial court committed plain error by allowing the State's expert witness to testify that all 100 pills found in Defendant's purse contained a Schedule III controlled substance, namely an opium derivative. Specifically, she contends that Mr. Casanova's opinion should have been excluded because it was based on unreliable visual identification and sampling techniques, and the expert's failure to testify that the tablets were identical rendered inadmissible his extrapolation that all 100 pills contained the same Schedule III preparation. We disagree.
Because Defendant did not object to Mr. Casanova's testimony that the 100 pills contained the identified opiate, we review the trial court's admission of such evidence for plain error. "Under the plain error standard of review, defendant has the burden of showing: (i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial." State v. Jones, 358 N.C. 330, 346, 595 S.E.2d 124, 135 (2004) (internal quotation marks and citation omitted).
Expert opinion testimony is admissible under Evidence Rule 702 when it consists of "scientific, technical or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue." N.C. Gen. Stat. § 8C-1, Rule 702(a) (2009). Such admissibility is evaluated pursuant to a three-part inquiry which requires us to determine whether: (1) "the method of proof is sufficiently reliable as an area for expert testimony"; (2) the testifying witness "is qualified as an expert to apply this method to the specific facts of the case"; and (3) the specific testimony is relevant. State v. Goode, 341 N.C. 513, 529, 461 S.E.2d 631, 640-41 (1995). Defendant challenges only the first prong, namely the reliability of the method of proof.
Defendant first contends that "[e]xpert testimony identifying alleged prescription medications as controlled substances based solely upon a visual examination is unreliable and inadmissible under Rule 702," pursuant to State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010). Our Supreme Court's holding in Ward, however, is inapplicable to the instant facts, whereas here, Mr. Casanova's identification of the controlled substance was not based only upon his visual inspection of the tablets but also upon his chemical analysis of a portion thereof. Defendant also erroneously relies upon State v. Meadows, ___ N.C. App. ___, 687 S.E.2d 305 (2010), where this Court analyzed the reliability of a NarTest machine, as the device was new technology that had not been designated as an approved method of identifying controlled substances in this state. Mr. Casanova explained on cross-examination how he determined the pills to be hydrocodone:
First, I performed a pill identification which consists of looking at the markings, shape, color of the tablet and referencing it against a data base of pharmaceutical preparations. After that, I determined it was probably hydrocodone. I performed an appropriate extraction on the tablet, removing the drug and ran it on a GCMS, gas chromatograph, and that is an instrumental analysis which basically breaks down the components of the tablet and allows each one to be identified.
Accordingly, where the pills were indeed subjected to chemical testing and there is no indication, nor does Defendant argue, that the gas chromatograph machine was unreliable, Ward and Meadows are clearly inapposite to this case.
Defendant further argues that Mr. Casanova's results were unreliable because he tested only one pill. Our courts have held that "[w]hen a random sample from a quantity of tablets or capsules identical in appearance is analyzed and is found to contain contraband, the entire quantity may be introduced as the contraband." State v. Wilhelm, 59 N.C. App. 298, 303, 296 S.E.2d 664, 667 (1982). While Defendant acknowledges this precedent, she claims that the expert chemist's testimony fails to comply therewith, not only because one tablet does not constitute a random sample but also because he never testified that all 100 pills were identical. We address each contention in turn.
Our courts have never delineated a specific sample size that must be chemically analyzed before the composite whole may be reliably identified and introduced as contraband. In State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970), our Supreme Court held that test results of an expert chemist, who "selected at random some of the capsules delivered to him for testing," sufficiently established that the more than 100 tablets possessed by Defendant also contained barbiturates. Id. at 366, 172 S.E.2d at 539 (emphasis added). This Court has addressed similar testimony on several occasions. See, e.g., State v. Anderson, 76 N.C. App. 434, 438, 333 S.E.2d 762, 765 (1985) (results of random sample, namely three out of fourteen packets of powder, sufficient to allow jury to determine that all packets contained heroin); State v. Myers and State v. Garris, 61 N.C. App. 554-55, 556, 301 S.E.2d 401, 402 (1983) (chemical analysis of twenty randomly selected tablets from two bags containing a total of 30,241 tablets permitted introduction of entire quantity as methaqualone); State v. Absher, 34 N.C. App. 197, 200-01, 237 S.E.2d 749, 752 (1977) (expert's opinion evidence as to identity of 400 tablets "clearly admissible" where he had selected five at random for chemical analysis).
While we acknowledge that more than one unit of the substance at issue was tested in each of these cases, we have never required that the sample size consist of any magic number or percentage before expert chemists may give their opinion as to the whole when only a part thereof has been chemically analyzed. In fact, in State v. Wilhelm, 59 N.C. App. 288, 303, 296 S.E.2d 664, 667 (1982), the State was allowed to introduce three exhibits, respectively containing 4855, 33, and 1106 units, as methaqualone where the forensic chemistry expert tested only three randomly selected tablets. Where "each bag [itself] contained uniform, identical tablets," but the physical characteristics differed between bags, it appears that one tablet was selected at random from each bag for testing. Id. Thus, whether we compare the size of the random sample to a specific number or a percentage, our case law supports the adequacy of one-unit samples and those consisting of far less that 1% of the composite whole.
Here, one tablet out of 100 (1%) randomly selected for testing was sufficient. We do not lay down a black and white rule indicating that this number or percentage will always be sufficient or that a smaller sample will not be. Rather, it is the factual makeup of this case, in light of precedent, that guides our conclusion. Primarily, Defendant makes no argument to determine that the numerical quantity of the tablets or capsules selected for testing should be the dispositive factor as opposed to the percentage of the sample compared to the total amount. Moreover, Defendant's own citation to Ward's recognition of the prevalence of counterfeit drugs seems to lend more support to using a percentage-based analysis, where the risk of misidentification would likely rise in relation to increased total amounts of pills. See State v. Ward, ___ N.C. App. at ___, 681 S.E.2d 354, 373 (2009) (quoting Robert C. Bird, Symposium: Counterfeit Drugs: A Global Consumer Perspective, 8 Wake Forest Intell. Prop. L.J. 387, 389 (2008) for the proposition that 20% of drugs sold in developed countries and 60% in undeveloped countries are counterfeit). Thus, Mr. Casanova's chemical analysis of one tablet out of 100 did not render unreliable his application of the results thereof to the total amount.
Defendant's argument that Mr. Casanova's opinion evidence was additionally inadmissible because he omitted to testify that all 100 pills were identical also fails.
As indicated above, Mr. Casanova explained on cross-examination that his preliminary analysis of the tablets consisted of visual inspection of the markings, shape, and color, and his referencing these features against a database of pharmaceutical preparations. When asked by defense counsel if he identified each pill individually, the expert responded in the affirmative and clarified that "[b]y instrumental analysis [he] analyzed one," but "preliminarily analyzed each one of them." Indeed, Mr. Casanova's testimony could have been more clear as to the homogenous nature of the tablets in the amber pill bottle, but we do not believe that his lack of specificity is fatal to the determination that the pills were identical. The obvious inference from his testimony that he conducted this preliminary analysis as to each tablet and then proceeded to test just one is that the composite whole was homogenous in appearance. Moreover, the lab report prepared by Mr. Casanova details his finding that the tablets contained in the amber pill bottle were "round" and "white." While we acknowledge that such description is by no means conclusive as to the question of identicalness, the bottle was also accepted by the trial court as an exhibit and published to the jury, enabling inspection of the pills' likeness by the trier of fact. Finally, upon Defendant's election to testify, defense counsel elicited her testimony as to the chemical makeup of the pills found in her purse, and she responded with the following admission:
[Defense counsel]: Now, Rhonda, you've heard the testimony today about you possessing a quantity of pills containing hydrocodone?
[Defendant]: Right.
[Defense counsel]: I believe those are Vicodin?
[Defendant]: Yes.
Thus, Defendant cannot claim to have suffered prejudice from the expert's opinion identifying the 100 tablets where she likewise testified that the "quantity of pills contain[ed] hydrocodone" on cross-examination. See State v. Weldon, 314 N.C. 401, 411, 333 S.E.2d 701, 707 (1985) (holding admission of evidence harmless when the defendant "elicit[ed] similar testimony on cross-examination"). Accordingly, we hold that the trial court did not commit error, let alone plain error, in allowing Mr. Casanova to testify that all 100 tablets were a Schedule III opiate derivative such that the jury could determine that the entire quantity contained hydrocodone.
II.
Defendant argues that it was erroneous for the trial court to admit the three vials, two of which contained a clear unidentified liquid, and the syringe into evidence because this evidence had no tendency to prove any fact in issue related to the trafficking charges, was prejudicial, undermined the fairness of the trial, and had a probable impact on the jury's verdicts. We disagree.
Although Defendant filed a motion in limine to exclude evidence that three blue vials and a syringe were found in her car and purse, and initially renewed her pre-trial objection when the State introduced the vials as an exhibit, defense counsel did not object thereafter when the State offered Officer Jaramillo's report for corroborative purposes. The report stated that Jaramillo found the three blue vials in the center console of Defendant's car and the syringe in her purse, as the officer had testified to the same without objection before the State moved to introduce the report into evidence. Defense counsel also failed to object when Officer Hannah testified that he saw the three vials in the center console and when the prosecutor asked Defendant why she had a syringe along with the pills. Accordingly, we review this issue for plain error. See State v. Nobles, 350 N.C. 483, 501, 515 S.E.2d 885, 896 (1999) ("It is well established that the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character." (internal quotation marks omitted)).
Evidence must be relevant to be admissible, N.C. Gen. Stat. § 8C-1, Rule 402 (2009), and even relevant evidence may be excluded if its probative value is substantially outweighed by considerations of unfair prejudice, confusion of the issues, or misleading the jury, N.C. Gen. Stat. § 8C-1, Rule 403 (2009). While "a trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal." State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991). "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2009); see also State v. Bullard, 312 N.C. 129, 154, 322 S.E.2d 370, 384 (1984) ("Relevant evidence is admissible if it `has any logical tendency however slight to prove the fact at issue in the case.'").
"It is not required that evidence bear directly on the question in issue, and evidence is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known, to properly understand their conduct or motives, or if it reasonably allows the jury to draw an inference as to a disputed fact."
State v. Stevenson, 136 N.C. App. 235, 240, 523 S.E.2d 734, 737 (1999) (quoting State v. Arnold, 284 N.C. 41, 47-48, 199 S.E.2d 423, 427 (1973)). While not an element the State is required to prove, "[a] defendant's motive is a fact of consequence to be considered[.]" Id. at 241, 523 S.E.2d at 737.
Defendant contends that because she was not charged with possession of drug paraphernalia, the three blue vials and syringe were irrelevant. However, our Supreme Court has held that
"[e]vidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and set-up of the crime, is properly admitted if linked in time and circumstances with the charged crime, or [if it] forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury."State v. Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990). (quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)). While Defendant correctly contends that "[i]tems that are not `connected to the crime charged and which have no logical tendency to prove any fact in issue are irrelevant and inadmissible,'" State v. Bodden, 190 N.C. App. 505, 509, 661 S.E.2d 23, 26 (2008) (internal quotation marks omitted), circumstances indicating how Defendant purported to use the pills made it more or less probable that she was trafficking them. In this case, a significant disputed fact was whether Defendant had a lawful prescription for the pills found in her purse. Mr. Crawford, however, testified that the prescription he filled for Defendant did not pertain to the 100 tablets for which she was charged. While Defendant testified that she had a prescription for the pills she possessed on 28 January 2009, she could not account for their pharmacy of origin nor the actual prescription therefor. Her testimony that the pills began to pile up when she started taking morphine further placed her motive regarding her intended use of the drugs into issue. Evidence that Defendant possessed the three vials, two of which contained a clear liquid, and a syringe was indeed relevant as proof that Defendant did not intend to use the drugs for pharmaceutically designated purposes. Especially where Defendant herself argued that she had a valid prescription, the evidence of the vials and syringe was probative as to whether the pills were lawfully used. As explained in Agee, the State need not charge Defendant with paraphernalia in this case to admit the challenged items where such evidence reasonably allowed the jury to draw an inference as to a disputed fact in issue.
Moreover, the trial court did not abuse its discretion in weighing the probative value of the evidence against the danger of unfair prejudice under Rule 403. Defendant contends that the admission of the vials and syringe improperly suggested to the jury that she used them to illicitly inject the pills, and, where she was not charged for paraphernalia, tended to confuse the issues and mislead the trier of fact. Defendant claims that the fairness of her trial was thereby undermined because the evidence had an "undue tendency to suggest decision on an improper basis[.]" N.C. Gen. Stat. § 8C-1, Rule 403 (Commentary) (2009). The trial court, however, limited Hannah's testimony to the fact that the syringe was found in Defendant's purse, in close proximity to the pills, and that the vials filled with clear liquid were found in her vehicle's console. Upon defense counsel's objection to the State's question as to why somebody would have a syringe and clear liquid along with the pills, the prosecutor explained, outside the presence of the jury, that the witness would be
testifying to a simple fact that people with a syringe and prescription medication, obviously they use a syringe to inject it into their body. They can't just inject a chalky substance. I believe this officer would testify it's very common to find a clear liquid that's used to dilute the matter so that it could be injected.
The trial court sustained the objection as to Hannah's opinion and did not allow any further evidence or testimony as to the possible uses or reasons for possession of the three vials and syringe. Thus, passing references to these items without further exploration did not suggest that Defendant's possession thereof was an issue to be determined at trial nor could they have confused or misled the jury. Without Hannah's opinion testimony, the State did not "paint[] [Defendant] as a junkie," as Defendant suggests, but rather, the jury was free to determine the amount of weight to give the syringe and vials in light of Defendant's own testimony that she had a lawful prescription due to her existing painful back condition. As such, the trial court's admission of these items was not erroneous.
No Error.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).