Opinion
NO. COA12-446
12-18-2012
STATE OF NORTH CAROLINA v. CODY RYAN SASSER, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Tenisha S. Jacobs, for the State. Anne Bleyman for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Columbus County
No. 10 CRS 51332
Appeal by defendant from judgment entered 29 September 2011 by Judge Claire V. Hill in Columbus County Superior Court. Heard in the Court of Appeals 26 September 2012.
Attorney General Roy Cooper, by Assistant Attorney General Tenisha S. Jacobs, for the State.
Anne Bleyman for defendant-appellant.
HUNTER, Robert C., Judge.
Defendant appeals from judgment entered after a jury found him guilty of one count of manufacturing marijuana. On appeal, defendant argues that the trial court erred by: (1) allowing law enforcement officers to identify defendant's plants as marijuana; (2) denying his motion to dismiss for insufficient evidence; (3) denying his motion for mistrial; and (4) denying his motion to dismiss for variance between the indictment and proof. After careful review, we find no error.
Background
The State's evidence tended to establish the following: Lieutenant Steve Worthington ("Lt. Worthington") was an officer in the Vice Narcotics Unit ("Unit") at the Columbus County Sheriff's Department. Since joining the Unit in 2001, Lt. Worthington has worked on many drug cases, about half of which have involved marijuana.
On 19 April 2010, Lt. Worthington received a phone call concerning an alleged marijuana-growing operation at a residence. Intending to investigate, Lt. Worthington assembled members of the Unit, including Detective Justin Worley ("Detective Worley") who had been a member of the Unit since 2009 and had undergone training in the identification of narcotics.
Upon arrival at the residence with the other agents, Lt. Worthington knocked at the back door, which was glass, and saw defendant "lying on the couch." While waiting for the door to be answered, Lt. Worthington noticed "plants . . . growing in a chair" about "a few feet from the door to the left" as well as a bag of potting soil mix. Defendant later described these plants as "seedlings." At trial, Lt. Worthington identified the plants as marijuana.
When defendant answered the door, Lt. Worthington explained that the Unit had received information that someone was growing marijuana at the residence. When Lt. Worthington inquired as to the plants by the door, defendant said that he "avidly wanted to pull them up." Defendant showed the agents other plants in the backyard that, according to Lt. Worthington, "were similar to the ones that were located on the patio" near the back door. Detective Worley, who also viewed the plants in the backyard, noted at trial that the plants "had the same texture as other marijuana plants" as well as the "same odor of marijuana." He also believed the plants to be marijuana.
Defendant gave the officers permission to enter the house where he said he had "personal smoke and . . . a pipe," both of which Lt. Worthington later confiscated. At trial, Lt. Worthington testified that the residue on the pipe "appear[ed] to be burned marijuana."
On 29 September 2011, the jury found defendant guilty of manufacturing marijuana. Although defendant received a sentence of six to eight months, the trial court suspended the term of imprisonment and placed defendant on twenty-four months of supervised probation. Defendant appeals.
Arguments
I. Officers' Lay Opinion Testimony
Defendant argues that the trial court abused its discretion by permitting law enforcement officers to give lay opinion testimony visually identifying the plants discovered on defendant's property as marijuana. We disagree.
On appeal, the Court reviews a trial court's decision to allow lay testimony for abuse of discretion. State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000). "Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988); see also White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) ("A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason . . . [or] upon a showing that [the trial court's decision] was so arbitrary that it could not have been the result of a reasoned decision." (citation omitted)).
At trial, defendant objected to the admission of Lt. Worthington's lay witness testimony identifying the plants as marijuana. Defendant also objected to similar testimony by Detective Worley. Thus, defendant sufficiently preserved his objection for appeal, and we review for abuse of discretion.
Lt. Worthington was originally admitted as an expert witness, but the trial court later reversed the ruling as the State had failed to provide proper notice of intent to introduce Lt. Worthington as an expert.
This Court has held that it is permissible for police officers, who are experienced in marijuana identifications, to testify as to such visual identifications. See State v. Jones, _ N.C. App. _, _, 718 S.E.2d 415, 421 (2011) (holding that "our case law provides that an officer may testify that the contraband seized was marijuana based on visual inspection alone"). Both Lt. Worthington and Detective Worley had served on the Vice Narcotics Unit for over a year, and Lt. Worthington, who had been employed by the Department since 1999, had investigated several drug cases involving marijuana. Therefore, both officers had sufficient experience to identify the plants as marijuana. Furthermore, it was not necessary for the officers to be testifying as expert witnesses since "appellate courts have never held that an officer must be tendered as an expert before identifying a particular substance as marijuana." State v. Ferguson, 204 N.C. App. 451, 456, 694 S.E.2d 470, 475 (2010).
On appeal, defendant notes a "typographical citation error" in Jones. In Jones, this Court stated that State v. Ferguson, 204 N.C. App. 451, 694 S.E.2d 470 (2010), interpreted State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010). However, Ferguson could not have interpreted the Supreme Court's decision in Ward because the Ward decision was filed two days after Ferguson. In contrast, Ferguson was interpreting this Court's decision in Ward. It seems likely that Jones made this mistake because Ferguson cites Ward as "State v. Ward, — N.C. —, —, 681 S.E.2d 354, 370 (2009)." Ferguson, 204 N.C. App. at 457, 694 S.E.2d at 475. The Southeastern Reporter citation properly cites to the Court of Appeals' Ward opinion, but the "App." has been omitted from parallel citation.
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Defendant relies on State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010), contending that Ward "did not exempt marijuana from the controlled substances. . . requiring some form of scientifically valid chemical analysis other than visual identification to be conclusively identified." However, Ward is distinguishable because it concerned prescription drugs rather than marijuana. Ward, 364 N.C. at 134, 694 S.E.2d at 739. Moreover, this Court has held, post-Ward, that testimony of an experienced officer visually identifying marijuana is admissible, see State v. Garnett, _ N.C. App. __, __, 706 S.E.2d 280, 286, disc. review denied, 365 N.C. 200, 710 S.E.2d 31 (2011), and we are bound by that decision. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (holding that "[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court"). Thus, the trial court did not abuse its discretion in allowing Lt. Worthington and Detective Worley to visually identify the plants as marijuana.
II. Motion to Dismiss for Insufficient Evidence
Defendant next argues the trial court erred by denying his motion to dismiss all charges due to insufficient evidence. We disagree.
When a trial court is determining whether to grant a defendant's motion to dismiss, it must consider: (1) "whether there is substantial evidence of each element of the offense charged"; and (2) whether there is substantial evidence "that the defendant is the perpetrator." State v. Bonney, 329 N.C. 61, 76-77, 405 S.E.2d 145, 154 (1991). Substantial evidence is the "amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). The evidence must be viewed in the light most favorable to the State, meaning that any inconsistencies are resolved in the State's favor and the State is entitled to "the benefit of every reasonable inference to be drawn in its favor from the evidence." State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987).
Under N.C. Gen. Stat. § 90-95(a)(1) (2011), it is unlawful "to manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance." "In order to survive a defendant's motion to dismiss in a prosecution for manufacturing marijuana, the burden is on the State to offer substantial evidence that defendant was engaged in one or more of the manufacturing activities delineated in N.C.G.S. § 90-87(15)." State v. Tate, 105 N.C. App. 175, 178, 412 S.E.2d 368, 370 (1992). Pursuant to N.C. Gen. Stat. § 90-87(15) (2011), manufacturing activities include "the production, preparation, propagation, compounding, conversion, or processing of a controlled substance by any means." Marijuana is a Schedule VI controlled substance. N.C. Gen. Stat. § 90-94 (2011).
On appeal, defendant only argues that there was insufficient evidence that the plants were marijuana. However, Lt. Worthington and Detective Worley identified the plants as marijuana in their testimony, which we have already concluded was proper lay witness testimony. Therefore, there was substantial evidence that defendant was unlawfully manufacturing marijuana, a controlled substance, and the trial court properly denied defendant's motion to dismiss.
III. Motion for Mistrial
Defendant next argues that the trial court abused its discretion in denying his motion for mistrial. We disagree.
"The decision whether to grant a motion for mistrial rests within the sound discretion of the trial judge and will not ordinarily be disturbed on appeal absent a showing of abuse of that discretion." State v. Boyd, 321 N.C. 574, 579, 364 S.E.2d 118, 120 (1988). The abuse of discretion standard is satisfied "only where the trial court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Gray, 337 N.C. 772, 776, 448 S.E.2d 794, 797 (1994) (internal quotation marks omitted).
Defendant argues the trial court should have granted his motion for mistrial based on his contention that the lay testimony of the officers identifying the plants as marijuana was "prejudicial error." However, as discussed infra, this was proper lay witness testimony. See, e.g., Cox, _ N.C. App. at _, 721 S.E.2d at 350. As the officers' testimony visually identifying the plants as marijuana was proper, the trial court properly denied defendant's motion as there were no grounds for mistrial.
IV. Motion to Dismiss for Variance
Finally, defendant argues that his conviction should be vacated as the trial court erred by not granting his motion to dismiss for variance between the indictment and proof. We are not persuaded.
"A fatal variance between the indictment and proof is properly raised by a motion for judgment as of nonsuit or a motion to dismiss." State v. Faircloth, 297 N.C. 100, 107, 253 S.E.2d 890, 894 (1979). A variance "may not be asserted upon appellate review unless the error has been brought to the attention of the trial court by appropriate and timely objection or motion." N.C. Gen. Stat. § 15A-1446(a) (2011). In other words, "where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts." State v. Tellez, 200 N.C. App. 517, 521, 684 S.E.2d 733, 736 (2009) (internal citations and quotation marks omitted).
The party alleging variance must state the specific grounds for the motion "if the specific grounds were not apparent from the context." N.C.R. App. P. 10(a)(1) (2012). In the present case, defendant made two motions to dismiss at the trial level. However, neither motion was based specifically on an alleged variance between the indictment and the proof. Thus, defendant waived this argument on appeal by not raising it before the trial court. See N.C. Gen. Stat. § 15A-1446(a).
Assuming arguendo that defendant had properly preserved his argument, it is without merit. Defendant argues that there was a variance in the alleged date of the offense between the indictment and the evidence. Specifically, the indictment properly listed the date of offense as 19 April 2010 but the testimony indicated that the date of offense was 19 April 2009. However, a conviction will be vacated due to variance only when the variance is "material." State v. Skinner, 162 N.C. App. 434, 445, 590 S.E.2d 876, 885 (2004). Except in a case where the defendant relies on an alibi as a defense, which is not the case here, "the date alleged in the indictment is neither an essential nor a substantial fact." State v. Cameron, 83 N.C. App. 69, 72, 349 S.E.2d 327, 329-30 (1986). "The failure to state accurately the date or time an offense is alleged to have occurred does not invalidate a bill of indictment nor does it justify reversal of a conviction obtained thereon." Id. at 72, 349 S.E.2d at 329. Thus, defendant's argument is overruled.
Conclusion
For the foregoing reasons, we find no error.
No error.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).