State v. Carr

549 S.E.2d 897

145 NC App. 335

STATE of North Carolina, v. Quentin Lamont CARR.

No. COA00-760.

Court of Appeals of North Carolina.

August 7, 2001.

Attorney General Michael F. Easley, by Assistant Attorney General Donald W. Laton, for the State.

Scott C. Robertson, Concord, for defendant-appellant.

CAMPBELL, Judge.

On 14 December 1998 defendant was indicted on one count of felony possession with intent to sell and deliver cocaine and one count of felony sale and delivery of cocaine in violation of N.C. Gen.Stat. § 90-95(a)(1). The trial court's instructions to the jury indicate that it treated the sale and delivery count as two separate offenses. Defendant was tried at the 4 October 1999 Criminal Session of Cabarrus County Superior Court. Defendant was found guilty of possession of cocaine with the intent to sell and deliver, sale of cocaine, and delivery of cocaine. Defendant was sentenced to a minimum of 16 months and a maximum of 20 months imprisonment for the selling cocaine conviction, and a minimum of 10 months and a maximum of 12 months imprisonment for the possession with the intent to sell and deliver conviction. The trial court ordered that these terms be served consecutively. The trial court arrested judgment on the delivery of cocaine conviction. The State's evidence at trial tended to show that on 21 October 1998 Detective Rodriquez of the Concord Police Department was working as an undercover officer on Operation UC-98, an ongoing investigation to combat street level drug sales in the City of Concord. On this particular day the officers altered their strategy, deciding to acquire drugs in exchange for shirts and video games, instead of purchasing the drugs through a money transaction. Detective Rodriquez and his partner, a confidential informant, drove down Winecoff Avenue ("Winecoff"), stopping at the house located at 244 Winecoff, a known site of drug activity. Detective Rodriquez approached the window of the house, displayed the video games he was carrying and asked the occupants of the house if they were interested in trading drugs for the video games. Defendant and Robert Ford came out of the house, approached Detective Rodriquez' car, and indicated that they were interested in making a trade. Detective Rodriquez testified that defendant traded three rocks of crack cocaine in exchange for three shirts and a video game. Detective Rodriquez made a separate trade with Robert Ford involving two rocks of crack cocaine. As Detective Rodriquez was leaving 244 Winecoff, he placed the cocaine he had acquired from the two men in separate evidence bags, which were marked and sent to the State Bureau of Investigation ("SBI") for laboratory analysis.

Detective Lentz testified that on 21 October 1998 he gave Detective Rodriquez the money used to purchase the merchandise for that day's drug operation. Detective Lentz also provided Detective Rodriquez with plastic evidence bags and a felt pen to be used to mark the evidence bags. Detective Lentz received the evidence from Detective Rodriquez following the exchange with defendant, filled out an evidence sheet, and submitted the evidence to the Concord Police Department's evidence technician, Gloria Hopkins. On direct examination, Detective Lentz was shown the SBI Lab Report and testified that the report indicated that the substances were cocaine base, Schedule II. Defendant moved to dismiss the charges at the close of the State's evidence. The trial court denied defendant's motion.

Robert Ford testified for the defense that he exchanged cocaine for video games with Detective Rodriquez on 21 October 1998, but that defendant was not involved in any way in exchanging cocaine with Detective Rodriquez. Defendant renewed his motion to dismiss at the close of all the evidence, which was again denied by the trial court.

On appeal, defendant assigns error to (1) the trial court's denial of defendant's motion in limine, (2) the trial court's denial of defendant's motions to dismiss for insufficiency of the evidence, and (3) the trial court's jury instructions on the issue of sale of a controlled substance.

I.

We begin by addressing defendant's argument related to the issue that arose at the outset of the trial. During jury selection and the State's opening statement, counsel for the State indicated that the witnesses for the State would be Officers Rodriquez and Lentz, and Sergeant Stikeleather of the Concord Police Department. In response, defendant filed a motion in limine, seeking to prevent the State's witnesses from making any reference, directly or indirectly, that the items allegedly received from defendant on 21 October 1998 were or looked like cocaine or any derivation thereof, without scientific proof of the chemical contents of the alleged substance. Specifically, defendant argued that the State had not given defendant sufficient notice under N.C. Gen.Stat. § 90-95(g) of its intention to introduce into evidence the SBI Lab Report, which identified the substances allegedly transferred by defendant as cocaine. Defendant further argued that the State had failed to give sufficient notice under N.C. Gen.Stat. § 90-95(g1) of its intention to introduce into evidence the statement establishing the chain of custody of the actual alleged controlled substances. The State argued that appropriate notices had been given to defendant's former attorney. After conducting an evidentiary hearing, the trial court made findings of fact, which included the factual finding that defendant's former attorney had received a copy of the notice of the State's intent to use the SBI Lab Report, as well as a copy of the report itself. Based on its findings of fact, the trial court concluded that the State had complied with N.C.G.S. § 90-95(g). The trial court likewise concluded that the State had complied with N.C.G.S. § 90-95(g1).

We begin by noting that the North Carolina appellate courts have consistently held that rulings on motions in limine are not appealable. State v. Hayes, 350 N.C. 79, 511 S.E.2d 302 (1999); Southern Furn. Hdwe., Inc. v. Branch Banking & Tr. Co., 136 N.C.App. 695, 526 S.E.2d 197 (2000); Nunnery v. Baucom, 135 N.C.App. 556, 521 S.E.2d 479 (1999). In reaffirming this rule in Hayes, the Supreme Court stated:

This Court has consistently held that "`[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.'" (citations omitted). Rulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered, and "thus an objection to an order granting or denying the motion `is insufficient to preserve for appeal the question of the admissibility of the evidence.'" (citations omitted).

Hayes, 350 N.C. at 80, 511 S.E.2d at 303. Therefore, we must examine the record to determine whether defendant objected when the evidence that was the subject of defendant's motion in limine was offered at trial.

The record indicates that the only objection made by defense counsel was made while Detective Lentz was being questioned about the SBI Lab Report. Defendant's objection was overruled by the trial court, and Detective Lentz proceeded to testify that the SBI Lab Report identified the substances allegedly received from defendant as cocaine base, Schedule II. The SBI Lab Report was then admitted into evidence. Therefore, we examine defendant's argument that the trial court erred in denying his motion in limine only as it relates to the admissibility of the SBI Lab Report.

N.C. Gen.Stat. § 90-95(g) establishes a procedure through which the State may introduce into evidence the lab report of the chemical analysis conducted on alleged controlled substances without further authentication. N.C.G.S. § 90-95(g) reads in pertinent part:

(g) Whenever matter is submitted to the North Carolina State Bureau of Investigation Laboratory, the Charlotte, North Carolina, Police Department Laboratory or to the Toxicology Laboratory, Reynolds Health Center, Winston Salem for chemical analysis to determine if the matter is or contains a controlled substance, the report of that analysis certified to upon a form approved by the Attorney General by the person performing the analysis shall be admissible without further authentication in all proceedings in the district court and superior court divisions of the General Court of Justice as evidence of the identity, nature, and quantity of the matter analyzed. Provided, however, that a report is admissible in a criminal proceeding in the superior court division or in an adjudicatory hearing in juvenile court in the district court division only if:

(1) The State notifies the defendant at least 15 days before trial of its intention to introduce the report into evidence under this subsection and provides a copy of the report to the defendant, and

(2) The defendant fails to notify the State at least five days before trial that the defendant objects to the introduction of the report into evidence.

Nothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the report.

N.C. Gen.Stat. § 90-95(g) (1999).

In the instant case, after holding an evidentiary hearing, the trial court made the following findings of fact:

the Court would find as a fact that the Defendant was originally represented by Attorney Steve Grossman; that when he entered the case in January of 1999, he was given a copy of the file, a copy of the lab report, and a copy of the notice of intent to use the lab report without calling the SBI laboratory personnel; and that since that time Mr. Grossman has been permitted to withdraw from the case and Mr. White now represents the Defendant; that there is no copy of the notice of intent in the file; that Mr. Grossman does not remember whether or not he got

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