State v. Blagg

271 N.C.App. 276

843 S.E.2d 684

STATE of North Carolina

v.Charles BLAGG, Defendant.

No. COA18-1117

Court of Appeals of North Carolina.

Filed: May 5, 2020

Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph E. Herrin, for the State.

Vitrano Law Offices, PLLC, Wake Forest, by Sean P. Vitrano, for defendant-appellant.

BERGER, Judge.

Charles Blagg ("Defendant") was convicted of possession with intent to sell and deliver methamphetamine, possession of methamphetamine, possession of marijuana, and attaining habitual felon status on January 11, 2018. Defendant was sentenced on January 29, 2018, and he received concurrent sentences of 128 to 166 months and 50 to 72 months in prison. Defendant appeals, arguing the trial court erred in denying his motion to dismiss the possession with intent to sell or deliver methamphetamine charge. We disagree.

Factual and Procedural Background

Defendant failed to appear when his cases were called for trial, and he was tried in absentia. The evidence at trial tended to show that Buncombe County Sheriff's Office Deputies Darrell Maxwell ("Deputy Maxwell") and Jake Lambert ("Deputy Lambert"), along with a third deputy, were conducting surveillance of a home on Flint Hill Road in Weaverville on January 4, 2017.

Deputy Maxwell had been with the Sheriff's Office since 1999. At all relevant times herein, Deputy Maxwell was a member of the Sheriff's Community Enforcement Team, which specifically addressed drug crimes and service of high-risk warrants. He testified that he was familiar with the appearance, packaging, and distribution of methamphetamine and marijuana.

Deputy Maxwell was positioned across the street from the residence. Deputy Maxwell observed a vehicle pull into the driveway of the residence, and a man went inside "for approximately 10 minutes." Deputy Maxwell did not see the man re-enter the vehicle, but he saw the lights on the vehicle illuminate and the vehicle pull out of the driveway.

Deputy Maxwell followed the vehicle for approximately one mile. Deputy Maxwell observed the vehicle cross the double yellow line as it approached a blind curve, and he initiated a traffic stop. Defendant was driving the vehicle, and Deputy Maxwell asked Defendant for his driver's license to conduct a records check. Then, Deputy Maxwell conducted a pat-down search, which Defendant did not object to. Deputy Maxwell recovered a pocketknife from Defendant's person but noted there was nothing unusual or uncommon about the discovery. Defendant denied having any drugs or contraband.

Deputy Maxwell asked Defendant for consent to search the vehicle. Defendant responded: "[N]ot without a warrant[.]" Deputy Maxwell returned to his patrol unit "to write [Defendant] a warning ticket for crossing over the double yellow line." While Deputy Maxwell was writing the warning citation, Deputy Lambert arrived with K-9 Officer Jedi.

Deputy Lambert had worked as a law enforcement officer for 13 years at the time of this incident. He had worked with the K-9 Jedi for five years. Jedi was a trained narcotics dog, certified in detecting the odor of marijuana, methamphetamine, cocaine, and heroin. Deputy Lambert, Jedi's trained handler, instructed Jedi to conduct an open-air sniff around Defendant's vehicle. Jedi alerted three times in a manner consistent with detection of an odor of narcotics. Deputy Lambert conducted a partial search of the inside of the vehicle, and he located what appeared to him to be methamphetamine.¹

Defendant was arrested and a more thorough search of the vehicle was conducted. Deputies discovered an off-white crystalline substance in a large bag and several small bags individually wrapped; several unused syringes; one loaded syringe; a baggie of cotton balls; and a camouflage "safe" that contained plastic baggies and other drug paraphernalia. Deputies did not recover cash from Defendant or from inside the vehicle. No cutting agents, scales, or business ledgers were found. Deputies acknowledged that there was no evidence discovered on this occasion that would indicate that Defendant was a high-level actor in the drug trade. However, Defendant attempted to provide information on an individual wanted for drug trafficking, and he acknowledged that he was going to meet with this individual.

Lab analysis showed that the large bag contained 6.51 grams of methamphetamine. While the total weight of the methamphetamine and the crystalline substance recovered from the vehicle was 8.6 grams, the contents of the remaining baggies containing the crystalline substance were not tested pursuant to crime lab procedures.

Defendant was indicted for possession with intent to sell or deliver methamphetamine, possession of methamphetamine, possession of marijuana, possession of marijuana paraphernalia, and attaining habitual felon status. Defendant's case came on for trial on January 9, 2018. The possession of marijuana paraphernalia charge was dismissed at the close of the State's evidence. Defendant also moved to dismiss the possession with intent to sell or deliver methamphetamine charge. He argued that the State did not prove Defendant had the intent to sell or deliver methamphetamine. Defendant specifically argued:

[T]here was no cash, no guns, no evidence of a hand to hand transaction[,] ... [n]o books, notes, ledgers, money orders, financial records, documents, ... [and] nothing indicating that [Defendant] is a dealer as opposed to a possessor or user[.]

Defendant appeals the denial of his motion to dismiss.

Standard of Review

"We review the trial court's denial of a motion to dismiss de novo. " State v. Blakney , 233 N.C. App. 516, 518, 756 S.E.2d 844, 846 (2014) (citation omitted).

A motion to dismiss for insufficient evidence is properly denied if there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. All evidence, both competent and incompetent, and any reasonable inferences drawn therefrom, must be considered in the light most favorable to the State. Additionally, circumstantial evidence may be sufficient to withstand a motion to dismiss when a reasonable inference of defendant's guilt may be drawn from the circumstances. If so, it is the jury's duty to determine if the defendant is actually guilty.

Id. 518, 756 S.E.2d at 846 (citation omitted).

"In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose , 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted). In addition, "we have held that in borderline or close cases, our courts have consistently expressed a preference for submitting issues to the jury." State v. Coley , 257 N.C. App. 780, 810 S.E.2d 359, 365 (2018) (purgandum ).

Analysis

"[I]t is unlawful for any person ... [to] possess with intent to manufacture, sell or deliver, a controlled substance." N.C. Gen. Stat. § 90-95(a)(1) (2019). "The offense of possession with intent to sell or deliver has three elements: (1) possession; (2) of a controlled substance; with (3) the intent to sell or deliver that controlled substance." Blakney , 233 N.C. App. at 519, 756 S.E.2d at 846.

When direct evidence of a defendant's intent to sell or deliver contraband is lacking, intent "may be inferred from (1) the packaging, labeling, and storage of the controlled substance, (2) the defendant's activities, (3) the quantity found, and (4) the presence of cash or drug paraphernalia." State v. Nettles , 170 N.C. App. 100, 106, 612 S.E.2d 172, 176 (2005) (citation omitted). Other relevant factors may be considered. See e.g. , State v. Thompson , 188 N.C. App. 102, 106, 654 S.E.2d 814, 817 (2008). Because this inquiry is "fact-specific," courts must consider the "totality of the circumstances in each case ... unless the quantity of drugs found is so substantial that this factor—by itself—supports an inference of possession with intent to sell or deliver." Coley, 257 N.C. App. 780, 810 S.E.2d at 365.

When viewed in the light most favorable to the State, the evidence as a whole supported an inference that Defendant committed the offense of possession with intent to sell or deliver methamphetamine sufficient to overcome Defendant's motion to dismiss.

The quantity of a controlled substance alone will only "support the inference of an intent to transfer, sell, or deliver" if it is "substantial"—i.e. , more than would reasonably be carried for personal use. Nettles , 170 N.C. App. at 105, 612 S.E.2d at 176 (citations and quotation marks omitted). Here, the trial court determined that the State could not argue the 6.51 grams of methamphetamine in Defendant's possession was not for personal use. However, this does not negate the quantity seized by officers, or the inferences that the jury could reasonably draw therefrom. Defendant possessed at least 6.51 grams of methamphetamine, which is approximately 23% of the quantity necessary to sustain a conviction for trafficking in methamphetamine. This is not a small amount. See State v. McNeil , 165 N.C. App. 777, 783, 600 S.E.2d 31, 35 (2004) (finding that 5.5 grams of cocaine, which represents 19.64% of the trafficking amount, along with other relevant circumstances, was sufficient for a charge of possession with intent to sell or deliver cocaine); State v. Brennan , 247 N.C. App. 399, 786 S.E.2d 433 (2016) (unpublished) (concluding that defendant's possession of 8.75 grams of methamphetamine, which represents 31.25% of the trafficking amount, along with various drug paraphernalia was sufficient evidence of the defendant's intent to sell or deliver methamphetamine).

In addition, the State presented...