Opinion
No. COA12–1063.
2013-06-18
STATE of North Carolina v. Maurice ROYAL.
Attorney General Roy Cooper, by Special Deputy Attorney General Angel E. Gray, for the State. Heather L. Rattelade, for defendant-appellant.
Appeal by defendant from judgments entered 5 April 2012 by Judge Jay D. Hockenbury in New Hanover County Superior Court. Heard in the Court of Appeals 24 April 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Angel E. Gray, for the State. Heather L. Rattelade, for defendant-appellant.
CALABRIA, Judge.
Neal Maurice Royal (“defendant”) appeals from judgments entered upon jury verdicts finding him guilty of possession with intent to sell and deliver cocaine (“PWISD”) and sale of cocaine. We find no error.
I. Background
On 22 June 2010, detectives with the New Hanover County Sheriff's Office (“NHCSO”) in Wilmington, North Carolina utilized a female informant, Jamie Lee Carpenter Ferrell (“Ferrell”) to conduct a controlled purchase of narcotics from defendant. Ferrell contacted defendant and agreed to meet him at the Cape Cottage Apartments. Ferrell carried a purse that contained a digital recording device to capture the transaction on film. The detectives drove Ferrell to the apartment complex, where she exited the vehicle and met defendant. In exchange for the $60.00 given to her by the detectives, defendant gave Ferrell a plastic baggie containing a white powdery substance.
NHCSO sent the plastic baggie containing the white powdery substance to NarTest Technologies (“NarTest”) for further testing. H.T. Raney, Jr. (“Raney”), a forensic chemist, tested the substance and determined that it was cocaine. On 4 April 2011, defendant was indicted for PWISD and the sale and/or delivery of cocaine.
On 2 April 2012, defendant's trial commenced in New Hanover Superior Court. Over defendant's objection, the trial court admitted Raney as an expert witness and also admitted Raney's testimony into evidence. Raney testified, inter alia, that the results of the chemical analysis of the white powdery substance that defendant gave to Ferrell and that he tested was cocaine, a controlled substance. The jury returned a verdict finding defendant guilty of all charges. The trial court arrested judgment for the delivery of cocaine offense and sentenced defendant for the sale of cocaine to a minimum of 17 months and a maximum of 21 months. For PWISD, defendant was sentenced to a minimum of 10 months and a maximum of 12 months. Both sentences were suspended and defendant was placed on supervised probation. As a special condition of probation, defendant was required to serve an active sentence of five months and seven days in the New Hanover County Jail. Defendant appeals.
II. Expert Testimony
Defendant argues that the trial court erred by allowing Raney to testify and by admitting into evidence his expert testimony regarding the identification of an item as a controlled substance. Specifically, defendant contends that the trial court erred by utilizing the incorrect standard in evaluating Raney's expert testimony. We disagree.
A. Standard of Review
Trial courts determine the admissibility of expert testimony, and in so deciding, they are “not bound by the rules of evidence ... [but] are afforded ‘wide latitude of discretion....’ “ Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citation omitted). Therefore, “a trial court's ruling on the qualifications of an expert or the admissibility of an expert's opinion will not be reversed on appeal absent a showing of abuse of discretion.” Id.
B. Howerton or 2011 Amendment to Rule 702(a)
Pursuant to the Rules of Evidence, “[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify....” N.C. Gen.Stat. § 8C–1, Rule 702(a) (2011). Prior to the 2011 amendment to Rule 702(a), the test in North Carolina for the admissibility of expert testimony was the test recognized by the Howerton Court: “(1) Is the expert's proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert's testimony relevant?” Howerton, 358 N.C. at 458, 597 S.E.2d at 686.
In 2011, the General Assembly amended Rule 702(a) (“the amended rule”), indicating that expert testimony is admissible if “all of the following apply: (1) The testimony is based upon sufficient facts or data. (2) The testimony is the product of reliable principles and methods. (3) The witness has applied the principles and methods reliably to the facts of the case.” N.C. Gen.Stat. § 8C–1, Rule 702(a) (2011). The change became effective 1 October 2011 and applies to all “actions commenced on or after that date.” 2011 N.C. Sess. Law ch. 283 § 4.2.
As an initial matter, whether the trial court determined the correct standard depends on whether defendant's action commenced when he was indicted or when his trial began. Defendant claims that his action commenced on 2 April 2012 because that was the date his trial began. Since 2 April 2012 is after 1 October 2011, defendant claims the trial court should have applied the amended rule. The State contends that according to State v. Willis, “[t] he court acquires jurisdiction of the offense by valid information, warrant, or indictment.” 285 N.C. 195, 201, 204 S.E.2d 33, 37 (1974). Since the trial court acquired subject matter jurisdiction over defendant's offenses by means of a true bill of indictment and since defendant was indicted on 4 April 2011, the action against the defendant commenced prior to 1 October 2011. See State v. Adams, 345 N.C. 745, 748, 483 S.E.2d 156, 157 (1997) (recognizing that “when criminal proceedings have been instituted against a defendant ... it is only then that the government has committed itself to prosecute, and ... that the adverse positions of the government and the defendant have solidified.”); see also State v.. Underwood, 244 N.C. 68, 70, 92 S.E.2d 461, 463 (1956) (“[T]he date on which the indictment or presentment has been brought or found by the grand jury marks the beginning of the criminal proceeding and arrests the statute of limitations.”). Therefore, the trial court utilized the correct standard by applying Howerton in determining the admissibility of Raney's testimony.
C. Admissibility of Expert Testimony
In the instant case, defendant does not argue on appeal that any of the Howerton elements were missing. Defendant assumes “arguendo” that “the principles and methods are generally deemed sufficiently reliable as an area for expert testimony,” and makes no arguments that Raney was not qualified as an expert or that Raney's testimony was irrelevant. Raney testified that NarTest was properly licensed by both the Federal Drug Enforcement Agency and the North Carolina Department of Health and Human Services, and its methodologies conformed to SBI standards.
Instead of arguing the Howerton elements, defendant argues that an element of amended Rule 702(a) was missing: that there was no evidence to suggest that Raney “applied acceptable scientific principles and methods reliably to the analysis he conducted....” Since we have determined that the trial court properly applied Howerton, not the amended Rule 702(a), the trial court was not required to determine the admissibility of Raney's testimony under the amended rule. Therefore, since defendant failed to argue that the trial court erred by finding that, under Howerton, Raney's testimony was admissible, we hold that the trial court did not err in admitting Raney's testimony under Howerton.
Furthermore, defendant's arguments regarding the admissibility of Raney's testimony were previously addressed in State v. McDonald, –––N.C.App. ––––, ––––, 716 S.E.2d 250, 252 (2011). The defendant in McDonald challenged the policies and procedures of the same laboratory and same forensic analyst as in the instant case. Id. Defendant's arguments were analyzed in McDonald and this Court found them meritless. Id. at ––––, 716 S.E.2d at 253–54.
Defendant also discusses N.C. Gen.Stat. § 8–58.20, the statute governing admission of evidence of forensic analysis. However, as defendant concedes, the statute is not relevant to the instant case because the statute governs admission of laboratory reports where the analyst did not testify at trial. Here, Raney testified as an expert and was subject to cross-examination. Therefore, N.C. Gen.Stat. § 8–58.20 does not control. See id. at ––––, 716 S.E.2d at 254.
III. Motion to Dismiss
Defendant next contends that the trial court erred by denying his motions to dismiss because the State's evidence regarding the identity of the controlled substance was insufficient to prove that the substance he possessed and sold was cocaine. We disagree.
“ ‘Upon defendant's motion for dismissal, the question for the Court is whether 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. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citation omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “[T]he trial court must consider all evidence admitted ... 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).
“[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) (2011). PWISD “has three elements: (1) there must be possession of a substance, (2) the substance must be a controlled substance, and (3) there must be an intent to distribute or sell the controlled substance.” State v. Neal, 196 N.C.App. 100, 103, 674 S.E.2d 713, 716 (2009). “[S]ale of cocaine [is] the ‘transfer of [cocaine] for a specified price payable in money.’ “ State v. Squires, 357 N.C. 529, 535, 591 S .E.2d 837, 841 (2003) (citations omitted).
In the instant case, there is no dispute that defendant was in possession of a substance, that defendant had the intent to distribute or sell the substance, or that defendant gave Ferrell a substance in exchange for money. Therefore, defendant's only argument is that the State failed to prove that the substance he possessed was cocaine, a controlled substance.
In order to prove the substance defendant possessed was a controlled substance, the State presented expert testimony from Raney. Raney testified that the white powdery substance that defendant sold to Ferrell and that he tested was cocaine. Since cocaine is a controlled substance and we determined above that the trial court properly admitted Raney's expert testimony by identifying the controlled substance that he had tested as cocaine, in the light most favorable to the State, defendant's argument is overruled.
IV. Conclusion
Since the amendment to N.C. Gen.Stat. § 8C–1, Rule 702(a) applies to all actions commenced on or after 1 October 2011 and defendant was indicted on 4 April 2011, the trial court did not err by applying the Howerton Court's test rather than the amended rule to determine the admissibility of Raney's testimony. In addition, defendant has not argued that the trial court improperly applied the Howerton test. Therefore, we find that the trial court did not abuse its discretion by allowing Raney to testify as an expert witness and by admitting Raney's expert testimony. Raney's testimony regarding the powdery substances' identity as cocaine was admissible evidence to prove the substance that defendant possessed was a controlled substance. Therefore, the State's evidence was sufficient to prove the identity of the controlled substance and the trial court properly denied defendant's motions to dismiss.
No error. Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).