State v. Gibbs

2021-NCCOA-607

STATE OF NORTH CAROLINA, v. MONTEZ GIBBS, Defendant.

No. COA20-591

Court of Appeals of North Carolina

November 2, 2021

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 8 June 2021.

Appeal by Defendant from judgment entered 24 September 2019 by Judge Joshua W. Willey, Jr. in New Hanover County, No. 18 CRS 56870 Superior Court.

Attorney General Joshua H. Stein, by Assistant Attorney General Zachary K. Dunn, for the State.

Appellant Defender Glenn Gerding, by Assistant Appellate Defender Wyatt Orsbon, for Defendant-Appellant.

WOOD JUDGE

¶ 1 Defendant Montez Gibbs ("Defendant") appeals from convictions of possession with intent to sell or deliver fentanyl; trafficking by possession of an opiate; possession of drug paraphernalia; and resisting, obstructing, and delaying a public officer. On appeal, Defendant contends the trial court erred in allowing an expert to testify that fentanyl was an opiate and in denying his motion to dismiss the charge of resisting, delaying, or obstructing a public officer. After careful review, we find no error in part and reverse the judgment of the trial court in part.

I. Factual and Procedural History

¶ 2 On April 7, 2018, Officer Carlton Wells ("Officer Wells") of the Wilmington Police Department and Deputy Brandon Gueiss ("Deputy Gueiss") (collectively, the "Officers") of the New Hanover County Sherriff's Department were patrolling a known high crime neighborhood when they observed Defendant carrying a backpack and walking quickly through the neighborhood at approximately 11:26 p.m. Defendant walked up to a house and knocked on the door, but no one answered. The Officers "had a hunch that illegal activity may be occurring."

¶ 3 Deputy Gueiss approached Defendant and asked for his identification. Defendant did not offer his identification, but stated his name was "Kevin Mosely." Deputy Gueiss radioed the name given by Defendant and Defendant's description to Officer Wells. Officer Wells "attempted to search the in-car computer for a subject of that name and date of birth," but not find anyone with the name "Kevin Mosely" matching the description given by Deputy Gueiss.^[1] As a result, Officer Wells believed Defendant had given a false name.

¶ 4 Officer Wells approached Deputy Gueiss and Defendant. Defendant told the Officers that he was "[t]rying to go to his girl's house." Defendant placed his backpack on the ground, pulled out a cellphone, and began talking to someone. Defendant purportedly told someone over the phone, "I'm at your front door, back door, one of the two," and asked the person to open the door.

¶ 5 Officer Wells testified he "had reasonable suspicion to believe that something - a crime was either being committed or about to be committed." Officer Wells explained his suspicion arose because Defendant "was in a high crime area late at night knocking on a door and not gaining access to the door." Deputy Gueiss asked Defendant for his identification a second time. Without responding, Defendant began walking away from the officers, threw his hands in the air and said, "I got my hands up." Defendant then ran when Deputy Gueiss attempted to detain him.

¶ 6 The Officers gave chase but quickly lost sight of Defendant. The Officers returned to Defendant's backpack, and Deputy Gueiss "noticed what appeared to be a controlled substance." At trial, Officer Wells testified, "it was a white powdery substance .... [Officers] were speculating it might have been cocaine." The Officers took the backpack to the police station, where they found identification cards and pieces of mail with Defendant's name inside. The Officers requested the substance in Defendant's backpack be tested for the presence of a controlled substance.

¶ 7 Jennifer West ("West"), a forensic chemist at the State Crime Lab, tested the substance recovered from Defendant's backpack. The analysis identified the substance as fentanyl, a Schedule II controlled substance, with a measured weight of 11.96 grams. On January 14, 2019, Defendant was indicted for two counts of resisting, obstructing, or delaying a public officer; one count of trafficking opiates by possession; one count of possession with intent to sell or distribute a Schedule II controlled substance; and one count of possession of drug paraphernalia.

¶ 8 During discovery, the State tendered West's lab report detailing the testing performed on the white powdery substance found in Defendant's backpack. The lab report concluded that the substance found was fentanyl, without classifying fentanyl as either an opioid or opiate. The State also provided notice that West may be called to testify at trial and a copy of West's statement of qualifications to opposing counsel. West held a master's degree in chemistry, had passed the American Board of Criminalistics Certification exam, and had worked for the State Crime Lab for fifteen years.

¶ 9 On September 18, 2019, Defendant's trial began. Before conducting jury selection, the State sought an "advisory ruling" on an issue "that could affect . . . whether the case goes to trial." The prosecutor specifically sought clarification as to whether fentanyl was an opioid or whether fentanyl would qualify as an opiate. At the time, N.C. Gen. Stat. § 90-95(h)(4) (2018) criminalized trafficking in "opium or opiates," as well as their derivatives. The statute did not mention "opioids." Thus, the State sought clarification on whether trafficking in fentanyl was criminalized under Section 90-95(h)(4). The trial court declined to give an advisory ruling at the time. Agreeing with defense counsel's argument, the trial court decided that whether trafficking in fentanyl was prohibited at the time would be determined by the expert's testimony.

¶ 10 During trial, the State offered the testimony of the Officers and West. During West's testimony, the prosecutor inquired about West's credentials, job title, and job responsibilities. The prosecutor then asked, "Is fentanyl an opiate?" Defense counsel objected, arguing a lack of notice that West would testify that fentanyl was an opiate. The jury was excused, and the trial court heard arguments of counsel. Defense counsel conceded he received West's curriculum vitae and lab report. However, defense counsel asserted he lacked the underlying basis for West's opinion that fentanyl was an opiate and that he was unaware West's testimony would be "getting into neuropharmacology mechanisms of the brain, things like that." Defense counsel further argued that the disclosure of West's curriculum vitae is "not a disclosure of the scope of her testimony." Thereafter, the parties conducted voir dire.

¶ 11 During voir dire, West discussed the differences between opium, opioids, and opiates. Specifically, West testified, "directly out of the opium poppy, you can get five substances .... [T]here's morphine, codeine, thebaine, papaverine, and noscapine." West further testified, "[O]pium derivatives were things that could be produced from the substances that came from the opium poppy; example, heroin is made from morphine."

¶ 12 With respect to opiates, West stated, "Opiate originally was supposed to be defined as substances that mimic the effects; i.e. Addiction, hit the same receptors, things such as that .... [T]hat was your fentanyl, and that was your meperidine." According to West, "[these] substances hit the same receptors but did not have the same structure as the opium or opium derivatives." However, when asked whether "fentanyl is . . . an opiate derivative," West stated, "It's not a derivative.... [Fentanyl is] not an opiate derivative," and "[i]ts not an opium derivative." West further testified that she would classify fentanyl as an opiate. Specifically, West testified, "I don't think it's incorrect to classify it as an opiate."

¶ 13 The prosecutor then read the definition of "opiate" under N.C. Gen. Stat. § 90 87(18) as "[a]ny substance having addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addictionforming or addiction-sustaining liability." Although West testified, "[She] didn't have specifics about" the addictive properties or the receptor sites that opiates or certain compounds are shown to attack, and she had "a general overview of that type of thing," the trial court ultimately ruled that Defendant received adequate notice of West's testimony and that West was qualified to offer such testimony. The trial court specifically stated, "[T]he court's ruling [is] that this notice was adequate to give notice the proposed witness would testify. As to the results of her testing, it was fentanyl, Schedule II controlled substance, and her opinion as to whether or not the substance was an opiate." West subsequently testified that fentanyl was both an opioid and opiate, but "[i]n this particular instance, fentanyl is considered an opiate."

¶ 14 At the close of the State's evidence, Defendant made "a general motion" to dismiss the action, before arguing the State failed to present sufficient evidence of possession; failed to "present[] evidence that [fentanyl is] an opiate"; and failed to demonstrate Defendant resisted, obstructed, or delayed a public officer because "this was not a lawful arrest." The trial court granted Defendant's motion with respect to one charge of resisting, obstructing, or delaying a public officer for Defendant's act of "flee[ing] from the officer by foot after being ordered to stop"; and denied Defendant's motion to...