Preview:

State v. Nabors
No. 479PA10
(FILED 9 DECEMBER 2011)
1.                                                                                      Drugs - possession with intent to sell and deliver cocaine - sale of
cocaine  -  testimony  of  defendant’s  witness  -  sufficient  evidence  -
substance cocaine
The trial court did not err by denying defendant’s motion to dismiss
charges  of  possession  with  intent  to  sell  and  deliver  cocaine  and  sale  of
cocaine  for  insufficient  evidence.     When  a  defense  witness’s  testimony
characterizes a putative controlled substance as a controlled substance, the
defendant  cannot  on  appeal  escape  the  consequences  of  the  testimony  in
arguing that his motion to dismiss should have been allowed.   The testimony
of  defendant’s  witness,  which  identified  as  cocaine  the  items  sold  to  an
undercover operative, provided evidence of a controlled substance sufficient
to  withstand  defendant’s  motion  to  dismiss.     Furthermore,  assuming
arguendo that the trial court erroneously admitted lay testimony offered by
the State that the substance sold was cocaine, defendant could not show plain
error  inasmuch  as  his  own  evidence  established  that  the  substance  was
cocaine.
2.                                                                                      Evidence                                                               -  trial  court’s  question   -  witness’s  drug  activities   -
response not prejudicial
Defendant’s  contention  that  the  trial  court  erred  by  questioning  a
witness concerning his drug activities was overruled.    Assuming, without
deciding, that the question was improper, defendant could not show prejudice
as  the  witness  had  already  testified  without  objection  that  he  had  used
cocaine,  had  been  arrested  for  possession  of  cocaine,  and  had  telephoned
defendant to set up the drug buy.




IN THE SUPREME COURT OF NORTH CAROLINA
No. 479PA10
(FILED 9 DECEMBER 2011)
STATE OF NORTH CAROLINA
v.
ELIJAH OMAR NABORS
On  discretionary  review  pursuant  to  N.C.G.S.                                           § 7A-31  of  a  unanimous
decision of the Court of Appeals, ___ N.C. App. ___, 700 S.E.2d 153 (2010), finding
error in a judgment entered on 25 August 2009 by Judge W. Russell Duke, Jr. in
Superior Court, Harnett County, and vacating defendant‟s convictions.   Heard in
the Supreme Court on 7 September 2011.
Roy Cooper, Attorney General, by Charles E. Reece and Kathleen N. Bolton,
Assistant Attorneys General, for the State-appellant.
Jesse W. Jones for defendant-appellee.
PARKER, Chief Justice.
The issue in this case is whether the Court of Appeals erred in reversing the
trial court‟s denial of defendant‟s motion to dismiss at the close of all evidence.   For
the reasons stated herein, we reverse the decision of the Court of Appeals.
Defendant  was  arrested  following  an  undercover  drug  transaction  at  a
convenience store parking lot in Dunn, North Carolina.   Subsequently, defendant
was indicted for one count each of possession with intent to sell and deliver cocaine




STATE V. NABORS
Opinion of the Court
and sale of cocaine and for being an habitual felon.   Defendant was convicted of both
cocaine charges and pled guilty to habitual felon status.   The trial court entered
judgment sentencing defendant in the presumptive range to imprisonment for a
minimum term of 96 months and a maximum term of 125 months.   Defendant gave
timely notice of appeal to the Court of Appeals.
At  trial  the  State‟s  evidence  tended  to  show  the  following.  Christopher
Gendreau                                                                                   (Gendreau),  who  had  been  charged  with  possession  of  cocaine,
volunteered  to  assist  police  by  acting  as  the  buyer  in  an  undercover  cocaine
purchase from defendant, with whom Gendreau was familiar.   From inside a police
vehicle, Gendreau telephoned defendant and said he needed to buy something from
defendant.   The two agreed to meet at a Liberty gas station in Dunn to complete the
transaction.   Police officers positioned themselves near the gas station to observe
Gendreau make the purchase or to be prepared to intercept defendant thereafter.
When defendant pulled into the Liberty parking lot, he was driving an Oldsmobile;
and another person, later identified as Quinton Smith (Smith), was sitting in the
passenger  seat.    Gendreau  approached  the  passenger  side  of  the  vehicle,  and
defendant  told  him  to  retrieve  the  drugs  from  the  armrest  panel  inside  the
passenger  door.    Gendreau  then  handed  eighty  dollars  in  pre-marked  bills  to
defendant.   After completing the transaction, Gendreau gave the officers the “take-
down” signal.    The officers stopped defendant‟s vehicle and, after arresting him,
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STATE V. NABORS
Opinion of the Court
found the marked bills and a large amount of other cash on defendant‟s person.
Officers also arrested Smith, who was later charged with possession of marijuana.
Gendreau testified that the substance he purchased from defendant was “[a]
white, rock-like substance that  [he] knew to be crack cocaine,” a substance with
which he had personal experience as a drug user during the two and one-half years
preceding  these  events.    Agent  Joseph  Byrd                                             (Byrd),  a  three-year  officer  with
specialized training in narcotics investigation who was part of the take-down team,
testified  that  the  substance  collected  from  Gendreau  immediately  following  the
purchase  was  crack  cocaine.    Byrd  also  testified  that  this  substance  had  been
analyzed by the North Carolina State Bureau of Investigation to determine its
identification and weight.   Defendant did not object to this or any other testimony.
During defendant‟s case in chief, defense counsel called Smith to testify on
defendant‟s  behalf.    The  trial  court  conducted  a  voir  dire  in  which  the  court
questioned Smith regarding a statement he had previously signed incriminating
defendant and inquired whether Smith understood the implications of changing his
story on the witness stand.   Smith confirmed that he intended to recant his previous
statement and explained, “I just don‟t want to see nobody go to jail for something I
did.”    On  direct  examination the thrust  of Smith‟s  testimony  was that  he, not
defendant, arranged and executed the cocaine sale, as evidenced by the following
testimony:
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STATE V. NABORS
Opinion of the Court
Q.                     And do you recall being at the Liberty gas station
                       or convenience store?
A.                     Yes, sir.
Q.                     And your reason for being there was what?
A.                     To see Chris [Gendreau].
Q.                     And what was your purpose for seeing Chris?
A.                     He had wanted some cocaine.
Q.                     Did you have cocaine?
A.                     Yes, sir.
Q.                     Who had possession of the drugs when Chris took
                       delivery of the cocaine?
A.                     I had it.
Q.                     Who had it?
A.                     I did.   Oh, he—I had put it on the door panel.
Q.                     The what?
A.                     The door panel.    Like on the door panel, he had
                       reached in and got it from there.
Q.                     Did you get the drugs from [defendant]?
A.                     Oh, no, sir.
Q.                     So you had those with you?
A.                     Yes, sir.
Q.                     And which side of the car did Chris some [sic] to?
A.                     Passenger side.
Q.                     And what—was [defendant] in the vehicle at that
                       time?
A.                     No, sir.   He was in the store paying for the gas and
                       getting me a pack of cigarettes.
Q.                     And who took possession of the money?
A.                     I did.
Q.                     And what did you do with the money?
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STATE V. NABORS
Opinion of the Court
A.                                                                                           I had—I had—really, I had owed [defendant] $100,
and I had $20 of it on me, which I gave him that as
soon as I got in the car.   So I told him I was going to
pay him the rest of the money when I get it, and
which, when I got it, I finished paying him.
Q.                                                                                           Did, at any time, [defendant] have any cocaine in
his possession?
A.                                                                                           No, sir.   I didn‟t see any.   I had it.
Smith also testified that he had been the driver of the car during the drug sale and
that  because  he  did  not  want  to  get  caught  driving  without  a  license,  he  and
defendant had changed seats shortly after leaving the gas station.
On cross examination the prosecutor confronted Smith with the handwritten
statement he had signed shortly after being arrested, and Smith admitted having
made it. His statement contained the following narrative:
[Defendant] said he needed to go to Liberty for a minute
because he needed to stop by there for some money and
gas.   As we pulled in the gas station, we went on the side
of the store to meet somebody.   So [defendant] said, “Get
the dope, Chris.   It‟s on the door panel.”   So he did, and
Chris gave him [defendant] the $80.
(Quotation marks omitted.)   During the State‟s rebuttal the trial court admitted the
statement  into  evidence,  and  it  was  published  to  the  jury.     The  State  also
reexamined Sergeant Dallas Autry, who testified that Smith, following his arrest,
“admitted that . . . [defendant] was the one that passed the dope to the door panel
and that [defendant] received the money from . . . Gendreau.”
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STATE V. NABORS
Opinion of the Court
On appeal to the Court of Appeals, defendant argued that the trial court
committed plain error by admitting into evidence Agent Byrd‟s testimony that the
substance sold to Gendreau was “crack cocaine.”   Defendant also argued that the
trial court erred in denying his motion to dismiss for insufficiency of the evidence,
contending  that                                                                             “there  was  no  properly  admitted  evidence  which  proved  the
existence of a controlled substance or that  [defendant] was ever in possession or
control of any item which purported to be a controlled substance.”
A unanimous panel of the Court of Appeals agreed.   State v. Nabors, ___ N.C.
App. ___, ___, 700 S.E.2d 153, 159 (2010).   Relying on this Court‟s opinion in State v.
Ward,  364 N.C.  133,  142,  147,  694 S.E.2d  738,  744,  747  (2010), the court below
concluded that in the absence of expert testimony as to the chemical analysis of the
substance, the evidence was insufficient to prove an essential element of the crime,
namely, that the substance was a controlled substance.   Nabors, ___ N.C. App. at
___, 700 S.E.2d at 159.   In Ward this Court noted that the legislature had provided
both procedures for the admissibility of laboratory reports and a technical definition
of cocaine, and we stated, “„[I]f it was intended by the General Assembly that an
officer  could  make  a  visual  identification  of  a  controlled  substance,  then  such
provisions in the statutes would be unnecessary.‟”                                           364 N.C. at 142, 694 S.E.2d at
744 (quoting State v. Llamas-Hernandez, 189 N.C. App. 640, 653, 659 S.E.2d 79, 87
(2008) (Steelman, J., dissenting), rev’d per curiam for reasons stated in dissent, 363
N.C.  8,  673 S.E.2d  658  (2009)).   The Court of Appeals reasoned that Byrd‟s and
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STATE V. NABORS
Opinion of the Court
Gendreau‟s previous exposure to cocaine and their observation of the substance
involved in  this  transaction  did  not  equate  to  the  “scientifically  valid  chemical
analysis” necessary “to establish the identity of the controlled substance beyond a
reasonable doubt.”    Nabors,  ___ N.C.  App.  at  ___,  700  S.E.2d at  159  (brackets
omitted)  (quoting Ward,  364 N.C. at  147,  694 S.E.2d at  747)  (internal quotation
marks omitted).    Given the State‟s lack of scientific proof, the Court of Appeals
concluded “there was insufficient evidence that the substance that formed the basis
of the controlled substance charges in this case was cocaine.”   Id. at ___, 700 S.E.2d
at  158-59.    The Court of Appeals reversed the trial court‟s denial of defendant‟s
motion to dismiss and vacated defendant‟s convictions.   Id. at ___, 700 S.E.2d at
159.   This Court allowed the State‟s petition for discretionary review of the Court of
Appeals‟ decision.
Before  this  Court  the  State  argues  that  the  Court  of  Appeals  erred  in
vacating defendant‟s convictions and dismissing the charges by (i) failing to address
whether  the  trial  court  committed  plain  error  in  admitting  the  lay  opinion
testimony that the substance was crack cocaine and (ii) misapplying the standard
for determining the sufficiency of the evidence to withstand a motion to dismiss.
The State asserts that the Court of Appeals conflated defendant‟s sufficiency claim
with his claim concerning admissibility of lay opinion testimony.   The State further
argues that even if admission of the lay testimony identifying the substance as a
controlled substance was error, defendant could not meet his burden of showing
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STATE V. NABORS
Opinion of the Court
plain error in that defendant‟s own evidence demonstrated that the substance was
cocaine.
In  deciding  a  defendant‟s  motion  to  dismiss  a  charge  on  the  basis  of
insufficiency of the evidence, the trial court must determine whether “substantial
evidence” has been presented “in support of each element of the charged offense.”
State v. Chapman, 359 N.C. 328, 374, 611 S.E.2d 794, 827 (2005); see also State v.
McNeil, 359 N.C. 800, 803-04, 617 S.E.2d 271, 273-74 (2005); State v. Garcia, 358
N.C. 382, 412, 597 S.E.2d 724, 746 (2004), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d
122  (2005).   The evidence is to be considered  “in the light most favorable to the
State, giving the State the benefit of „every reasonable inference to be drawn‟” from
that evidence.    State  v.  Denny,  361 N.C.  662,  665,  652  S.E.2d  212,  213  (2007)
(quoting and citing State v. Lowery, 309 N.C. 763, 766, 309 S.E.2d 232, 236 (1983)).
“The defendant‟s evidence, unless favorable to the State, is not to be taken into
consideration.”    State  v.  Jones,                                                        280  N.C.  60,  66,  184  S.E.2d  862,  866  (1971).
However, if the defendant‟s evidence is consistent with the State‟s evidence, then
the defendant‟s evidence  “may be used to explain or clarify that offered by the
State.”   Id. (citing State v. Sears, 235 N.C. 623,  624, 70 S.E.2d 907, 908 (1952)).
Moreover, both competent and incompetent evidence that is favorable to the State
must be considered by the trial court in ruling on a defendant‟s motion to dismiss.
State v. Israel, 353 N.C. 211, 216, 539 S.E.2d 633, 637 (2000).
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STATE V. NABORS
Opinion of the Court
In his briefs to the Court of Appeals and to this Court, defendant challenged
the sufficiency  of  the  evidence as to  whether the  substance  sold was  in fact a
controlled substance, an essential element of the drug offenses for which he was
convicted.   See N.C.G.S. §§ 90-87(5), -90(1)(d), -95(a)(1) (2009).   However, defendant
did not raise this issue at trial.   Rather his defense was that Smith, not defendant,
orchestrated the drug transaction.
Defendant‟s  witness  Smith  testified  that  Gendreau  had  told  him  on  the
telephone that he wanted to buy “cocaine,” that Smith had brought “cocaine” with
him to the Liberty gas station, and that what he sold to Gendreau was “cocaine.”
The obvious import of this testimony was not to contest the illicit nature of the
merchandise but to persuade the jury that Smith, rather than defendant, was guilty
of the drug crimes.   Smith‟s testimony thus provided substantial evidence that the
substance defendant sold to Gendreau was cocaine.   See Garcia, 358 N.C. at 412,
597  S.E.2d  at  746  (defining  substantial  evidence  as  “relevant  evidence  that  a
reasonable person might accept as adequate, or would consider necessary to support
a particular conclusion” (citations omitted)).   Moreover, Smith‟s identification of the
substance as cocaine was favorable to and did not conflict with evidence offered by
the State; hence, the trial court could properly consider that testimony in ruling on
defendant‟s motion to dismiss.   See Jones, 280 N.C. at 66, 184 S.E.2d at 866.   The
trial court was not, however, required to consider Smith‟s claim that the drugs and
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STATE V. NABORS
Opinion of the Court
the  transaction  were  his,  as  that  evidence  was  not  consistent  with  the  State‟s
evidence.   See id.
In sum, while the State has the burden of proving  every element of the
charge   beyond   a   reasonable   doubt,   when   a   defense   witness‟s   testimony
characterizes  a  putative  controlled  substance  as  a  controlled  substance,  the
defendant cannot on appeal escape the consequences of the testimony in arguing
that  his  motion  to  dismiss  should  have  been  allowed.     See,  e.g.,  State  v.
Morganherring, 350 N.C. 701, 733-34, 517 S.E.2d 622, 641 (1999) (noting that the
defendant‟s own  evidence was sufficient to support an instruction on voluntary
intoxication), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d 322 (2000); State v. House,
340 N.C. 187, 198, 456 S.E.2d 292, 298 (1995) (concluding that the defendant‟s own
evidence was sufficient to support an inference that he left the scene of his crime
and took steps to avoid apprehension, thereby supporting an instruction on flight);
State v. Allen, 279 N.C. 406, 412-13, 183 S.E.2d 680, 685 (1971) (holding that the
defendant‟s  own  evidence  was  sufficient  to  establish  that  he  was  an  adult  for
purposes  of  deciding  defendant‟s  motion  to  dismiss  the  charge  of  unlawfully
dispensing a narcotic to a minor by an adult).
We  hold,  therefore,  that  the  testimony  of  defendant‟s  witness,  which
identified as cocaine the items sold to the undercover operative, provided evidence
of a controlled substance sufficient to withstand defendant‟s motion to dismiss.   In
that this evidence is an independent basis for upholding the trial court‟s denial of
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STATE V. NABORS
Opinion of the Court
the motion, we need not address whether the trial court erred in admitting Agent
Byrd‟s  and  Gendreau‟s  lay  testimony  that  the  substance  was  crack  cocaine  or
whether the Court of Appeals correctly applied Ward and Llamas-Hernandez in its
discussion  of  the  State‟s  lay  opinion  testimony  regarding  the  nature  of  the
controlled substance.   Assuming arguendo that admission of the lay testimony was
error, defendant cannot satisfy his burden of showing plain error inasmuch as his
own evidence established that the substance sold was cocaine.
Finally, we note that defendant argued in his brief to the Court of Appeals
another issue that the Court of Appeals did not address.   Rather than remanding to
that court for consideration of the issue, we have reviewed defendant‟s argument
that the trial court erred by questioning witness Gendreau concerning his drug
activities and find no merit to defendant‟s contention.   Specifically, the trial court
asked Gendreau if he had ever bought drugs from defendant before, and Gendreau
answered,  “Yes.”    Assuming, without deciding, that the question was improper,
defendant cannot show prejudice.   Gendreau had already testified without objection
that he had used cocaine, that he had been arrested for possession of cocaine, and
that he had telephoned defendant to set up the drug buy.   Without the trial judge‟s
question,  the  jury  could  certainly  infer  from  Gendreau‟s  call  to  defendant  that
defendant was a supplier with whom Gendreau was familiar.
For  the  reasons  stated  herein,  we  reverse  the  decision  of  the  Court  of
Appeals.
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STATE V. NABORS
Opinion of the Court
REVERSED.
Justice JACKSON did not participate in the consideration or decision of this
case.
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