State v. Booth

879 S.E.2d 370

STATE of North Carolina

v.Michael Terrell BOOTH

No. COA21-620

Court of Appeals of North Carolina.

Filed October 18, 2022

Attorney General Joshua H. Stein, by Assistant Attorney General Zach Padget, for the State-Appellee.

Jarvis John Edgerton, IV, for Defendant-Appellant.

COLLINS, Judge.

¶ 1 Defendant appeals from judgment entered upon jury verdicts of guilty of possession with intent to sell or deliver marijuana within 1,000 feet of a school and possession of marijuana paraphernalia. Defendant argues that the trial court erred by admitting hearsay testimony into evidence and by denying his motion to dismiss for insufficient evidence. Because the admission of the challenged testimony was not plainly erroneous and there was sufficient evidence that the substance at issue was marijuana, Defendant received a fair trial, free from prejudicial error.

I. Procedural History and Factual Background

¶ 2 Defendant Michael Terrell Booth was indicted for possession of marijuana within 1,000 feet of a school with intent to sell or deliver and possession of drug paraphernalia. At trial, Lieutenant Russell Davenport testified that he and other members of the Beaufort County Sheriff's Office used a confidential informant to conduct controlled drug purchases at Booth's car wash, owned by Defendant's father, between February and March 2019. Booth's car wash is located 909 feet from John Cotton Tayloe Elementary School.

¶ 3 Davenport testified to the details of the controlled purchases. The first two purchases occurred on 15 and 28 February and involved a confidential informant purchasing marijuana at Booth's car wash, but not from Defendant. Officers conducted a third controlled buy on 1 March, during which the confidential informant wore an audio transmitter. During the buy, the confidential informant met with Defendant and Jermaine Moore, Defendant's friend, and Davenport heard Defendant and Moore discussing the price of marijuana and cocaine. The officers conducted a fourth controlled buy on 7 March, during which the confidential informant wore an audio transmitter and video camera. Davenport saw and heard Defendant discussing the prices of drugs with Moore before handing Moore the drugs to give to the confidential informant.

¶ 4 Davenport applied for and received a search warrant for Booth's car wash. After the warrant was signed, Davenport conducted a fifth controlled buy on 8 March, during which Davenport, through the confidential informant's audio transmitter and video camera, saw and heard Defendant speaking with the confidential informant.

¶ 5 The search warrant was executed shortly thereafter, and items were seized. From the back room of the car wash, Davenport seized a large plastic bag containing approximately 120 grams of a green leafy substance, nine small plastic bags containing a green leafy substance, a digital scale, and an ammunition box containing vacuum sealed bags with "marijuana odor and residue." From the white van, Davenport seized a glass jar, plastic bag with the corner removed, and a clear round container "containing marijuana residue[.]" From Defendant's person, Davenport seized $563 in U.S. currency, $200 of which was documented money provided to the confidential informant for the controlled buys. In an interview, Defendant confessed that the items seized belonged to him.

¶ 6 A chemical analysis of the green leafy substance indicated the presence of tetrahydrocannabinol (THC) but did not indicate the amount of THC present in the sample. Davenport testified at trial that due to his extensive training and experience on current drug trends and drug enforcement, he can smell the THC levels of cannabis plants and see the difference between hemp and marijuana.

¶ 7 Defendant was found guilty on both counts and given a consolidated sentence within the presumptive range of 42 to 63 months in prison. Defendant entered an oral notice of appeal in open court.

II. Discussion

A. Admission of Evidence

¶ 8 Defendant first contends that the trial court committed plain error by admitting Davenport's testimony concerning the controlled buys and Defendant's age, and by admitting the search warrant and affidavit into evidence. Defendant mischaracterizes the nature of much of Davenport's testimony.

¶ 9 Defendant concedes he has failed to preserve for appeal his objection to the testimony and documentary evidence he now challenges, but specifically and distinctly argues plain error. See N.C. R. App. P. 10(a)(4) ; see also State v. Maddux , 371 N.C. 558, 564, 819 S.E.2d 367, 371 (2018) ("An appellate court will apply the plain error standard of review to unpreserved instructional and evidentiary errors in criminal cases.").

¶ 10 Under plain error review, a defendant must show that a "fundamental error occurred at trial." State v. Lawrence , 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). An error is deemed fundamental upon a showing of prejudice; in other words, a defendant must show that, "after examination of the entire record, the error ‘had a probable impact on the jury's finding that the defendant was guilty.’ " Id. (quoting State v. Odom , 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) ). Plain error should be used sparingly and only in exceptional cases where the error affects a substantial right that seriously affects the fairness, integrity, and reputation of judicial proceedings. State v. Thompson, 254 N.C. App. 220, 224, 801 S.E.2d 689, 693 (2017).

1. Testimony regarding the controlled buys

¶ 11 Defendant contends that the trial court committed plain error by admitting Davenport's testimony concerning the controlled buys because the testimony was read directly from the search warrant and affidavit and was thus hearsay.

¶ 12 Hearsay is an out-of-court statement offered for the truth of the matter asserted. N.C. Gen. Stat. § 8C-1, Rule 801(c) (2020). Hearsay is not admissible absent an exemption or exception. N.C. Gen. Stat. § 8C-1, Rule 802 (2020). Pursuant to Rule 602 of our rules of evidence,

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.

N.C. Gen. Stat. § 8C-1, Rule 602 (2020). "[P]ersonal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception." N.C. Gen. Stat. § 8C-1, Rule 602 official commentary; see also State v. Harshaw , 138 N.C. App. 657, 661, 532 S.E.2d 224, 227 (2000).

¶ 13 Without reading the search warrant, Davenport testified that he used to work with Defendant's father and that he remembered Defendant when he was a little boy. He acknowledged that he was familiar with the sound of Defendant's voice and could recognize it on an audio recording. Davenport also testified that he was familiar with Moore's voice, having arrested Moore "numerous times and met with him in person and talked to him in the streets, face-to-face encounters[,]" and that he could distinguish Defendant's voice from Moore's voice.

¶ 14 Davenport further testified without the aid of the search warrant that when he was listening to the audio transmitter worn by the confidential informant during the 1 March controlled buy, he heard Defendant, Moore, and the confidential informant discussing the price of marijuana. Defendant "said the price of an ounce of marijuana would be $250." Davenport watched Defendant, Moore, and the confidential informant get into Defendant's car. Davenport met with the confidential informant after the buy and retrieved an ounce of green leafy substance.

¶ 15 After this controlled buy, Davenport "kept monitoring the car wash." Davenport testified that during the 7 March controlled buy, the confidential informant was equipped with an audio transmitter and video camera. Davenport reviewed the video and observed Defendant discussing the prices of marijuana and cocaine and supplying Moore with the drugs to give to the confidential informant. Davenport testified that during the 8 March controlled buy, the confidential informant was equipped with a video camera, and Davenport reviewed the video. Davenport testified that he could "hear the exchange of marijuana and talking about the smell of the marijuana."

¶ 16 Davenport did read portions of the search warrant to himself and out loud. However, in light of Davenport's extensive testimony from personal knowledge, and Defendant's ability to cross-examine Davenport regarding the contents of the search warrant, any error in the admission of Davenport's testimony regarding the controlled buys was not prejudicial and thus, not plain error. See State v. Ridgeway , 137 N.C. App. 144, 147-48, 526 S.E.2d 682, 685 (2000) (holding that even if the officer's testimony was hearsay, its admission did not rise to plain error).

2. Testimony regarding Defendant's age

¶ 17 Defendant contends that the trial court committed plain error by admitting Davenport's testimony concerning Defendant's birth date because the testimony was read directly from the search warrant and affidavit and was thus hearsay.

¶ 18 An essential element of possession with intent to sell or deliver within 1,000 feet of a school is that the defendant is over 21 years of age. N.C. Gen. Stat. § 90-95(a)(1) (2019). The State is not required to offer the birth certificate of a defendant to establish the defendant's age; testimony is sufficient. State v. Cortes-Serrano , 195 N.C. App. 644, 652-53, 673 S.E.2d 756, 761 (2009). However, a witness may not testify to a matter unless there is evidence sufficient to support a finding that he has personal knowledge of the matter. N.C. Gen. Stat. § 8C-1, Rule 602. A lay witness with adequate opportunity to observe a defendant may state their opinion regarding his age when "the fact that he was at the time in question over a certain age is one of the essential elements to be proved by the state." State v. Gray , 292 N.C. 270, 287, 233...